Chiquita Julin Reply MSJ Duress Defense

Case 0:08-md-01916-KAM Document 1414 Entered on FLSD Docket 05/02/2017 Page 1 of 28
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA/JOHNSON
IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
______________________________________________/
This Document Relates To:
ATA Actions
______________________________________________/
Case No. 1:08-CV-20641-KAM
TANIA JULIN, et al.,

Plaintiffs,
v.
CHIQUITA BRANDS INTERNATIONAL, INC.

Defendant.
______________________________________________/
OLIVIA PESCATORE, et al.,

Plaintiffs,
v.
CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Defendants.
______________________________________________/
ESTATE OF JANE PESCATORE SPARROW,

Plaintiff,
v.
CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Defendants.
______________________________________________/
PLAINTIFFS REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR

MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANTS FOURTH
AFFIRMATIVE DEFENSE (DURESS OR NECESSITY)
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I. Duress and Necessity are Justification Defenses with Common Elements ............ 3
II. Defendant at Minimum Negligently or Recklessly Entered, Remained in,
Prolonged, and Expanded its Exposure to the Coercive Situation.......................... 7
III. Defendant Cannot Meet Its Burden of Proving That There Was No
Reasonable Alternative to Paying FARC ............................................................. 10
IV. Duress Defense Can Wear Out Through Repetition: There is No Evidence
of an Immediate or Imminent Threat .................................................................... 13
CONCLUSION ............................................................................................................................. 19
i
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Dixon v. United States,

126 S. Ct. 2437 (2006) ...............................................................................................................5
Guang Ju Lin v. U.S.,

Nos. 09-CR-746, 13-Civ-7498, 2014 WL 2765078 (S.D.N.Y. June 18, 2014).........................7
Peavy v. Harmon,
37 F. Supp. 2d 495 (N.D. Tex. 1999) ......................................................................................13
Rhode Island Rec. Center v. Aetna Casualty and Surety Co.,

177 F.2d 603 (1st Cir. 1949) ....................................................................................................16
U.S. v. Blanco,
754 F.2d 940 (11th Cir. 1985) ...............................................................................................6, 8
United States v. Agard,

605 F.2d 665 (2d Cir. 1979).......................................................................................................8
United States v. Alexander,

287 F.3d 811 (9th Cir. 2002) .....................................................................................................7
United States v. Alvear,

181 Fed. Appx 778 (11th Cir. 2006) ......................................................................................18
United States v. Ashu,

447 Fed. Appx 71 (11th Cir. 2011) (per curiam) .................................................................5, 6
United States v. Bailey,

100 S. Ct. 624 (1980) .......................................................................................................3, 5, 10
United States v. Becerra,

992 F.2d 960 (9th Cir. 1993) ...................................................................................................16
United States v. Bell,

214 F.3d 1299 (11th Cir. 2000) ...........................................................................................6, 14
United States v. Benitez,

No. 2:14-cr-124-FtM-38CM, 2015 WL 5760811 (M.D. Fla. Sept. 16, 2015) ..........................6
United States v. Butler,

485 F. 3d 569 (10th Cir. 2007) ..................................................................................................4
ii
United States v. Castro-Gomez,

360 F.3d 216 (1st Cir. 2004) ......................................................................................................7
United States v. Chi Tong Kuok,

671 F.3d 931 (9th Cir. 2012) ...................................................................................................16
United States v. Colacurcio,

659 F.2d 684 (5th Cir. 1981) ...................................................................................................13
United States v. Contento-Pachon,

723 F.2d 691 (9th Cir. 1984), Opp. Mem. ...................................................................15, 16, 17
United States v. Deleveaux,

205 F.3d 1292 (11th Cir. 2000) ...........................................................................................5, 14
United States v. Flores-Santos,

269 Fed. Appx 196 (3d Cir. 2008)............................................................................................7
United States v. Foster,

153 Fed. Appx 674 (11th Cir. 2005) ......................................................................................17
United States v. Fuentes-Flores,

No. 2:14-cr-66-FtM-38CM, 2015 WL 248620 (M.D. Fla. Jan. 20, 2015) ................................6
United States v. Gant,

691 F.2d 1159 (5th Cir. 1982) .............................................................................................6, 13
United States v. Gaviria,

116 F.3d 1498 (D.C. Cir. 1997) ...............................................................................................17
United States v. Gomez,

92 F.3d 770 (9th Cir. 1996) .................................................................................................4, 13
United States v. Gonzalez,

407 F.3d 118 (2d Cir. 2005).....................................................................................................12
United States v. Gorham Bey,

373 Fed. Appx 394 (4th Cir. 2010) ..........................................................................................7
United States v. Harper,

802 F.2d 115 (5th Cir. 1986) .....................................................................................................7
United States v. Hill,

893 F. Supp. 1044 (N.D. Fla. 1994).........................................................................................13
United States v. Holliday,

457 F.3d 121 (1st Cir. 2006), cert. denied, 127 S. Ct. 1317 (2007) ..........................................4
iii
United States v. Jankowski,

194 F.3d 878 (8th Cir. 1999) ...............................................................................................7, 12
United States v. Jennell,

749 F.2d 1302 (9th Cir. 1984) .................................................................................................17
United States v. Jones,

254 Fed. Appx 711 (10th Cir. 2007) ........................................................................................7
United States v. Keller,

992, F.2d 960, 964 (9th Cir. 1990) ..........................................................................................17
United States v. Louis,

157 Fed. Appx 165 (11th Cir. 2005) ....................................................................................5, 6
United States v. Maestre-Polo,

No. 6:13-cr-256-Orl-37CJK, 2014 WL 688000 (M.D. Fla. Feb. 21, 2014) ............................17
United States v. Meraz-Valeta,

26 F.3d 992 (10th Cir. 1994) ...................................................................................................13
United States v. Milligan,

17 F.3d 177 (6th Cir. 1994) .......................................................................................................7
United States v. Monea,

376 Fed. Appx 531 (6th Cir. 2010) ..........................................................................................7
United States v. Otis,

127 F.3d 829 (9th Cir. 1997) ...................................................................................................18
United States v. Paolello,

951 F.2d 537 (3d Cir. 1991)...................................................................................................3, 4
United States v. Posada-Rios,

158 F.3d 832 (5th Cir. 1998) .........................................................................................7, 13, 16
United States v. Rice,

259 Fed. Appx 300 (11th Cir. 2007) ........................................................................................5
United States v. Salgado-Ocampo,

159 F.3d 322 (7th Cir. 1998) .....................................................................................................4
United States v. Shryock,

342 F.3d 948 (9th Cir. 2003) ...................................................................................................18
United States v. Sixty Acres in Etowah Cnty.,

930 F.2d 857 (11th Cir. 1991) ...........................................................................................10, 14
iv
United States v. Smith,

160 F.3d 117 (2d Cir. 1998).......................................................................................................7
United States v. Vasquez-Landaver,

527 F.3d 798 (9th Cir. 2008) ...................................................................................................17
FEDERAL STATUTES
8 U.S.C. 1323 ................................................................................................................................8
18 U.S.C. 1543 and 1546(a)........................................................................................................5
RULES
Rule 56 ...........................................................................................................................................12
OTHER AUTHORITIES
Handbook on Criminal Law, 28, 635(1972) .................................................................................3
Substantive Criminal Law, 5.3, 219(West 1996) ..........................................................................7
Sand, et al., Modern Federal Jury Instructions 8.06, 8-22 (1991) ...............................................3
v
INTRODUCTION
Defendants Opposition Memorandum (Opp. Mem.) (D.E. 1366) glosses over a critical
fact: Chiquita deliberately and continuously kept acquiring banana farms, even after knowing
that it would be subject to terrorist threats and payment demands from guerrilla groups, including
FARC (as it, in fact, vigorously insists knowing). PSMF 29, 30, 51-53.1 In 1987, Defendant
had virtually no assets in Colombia. PSMF 6. Its presence was minimal. It had no land, no
plant, no production facilities, and no significant assets. Id. Defendant had at most one hundred
employees in Colombia. Id.
Defendant adopted a new business plan in 1987 or 1988 to acquire and operate banana
farms in the principal banana growing regions of Colombia, Uraba and Santa Marta, which it had
not done for years. PSMF 4-6, 20-28. Defendant knew these were areas of terrorist violence
in which it also knew that landowners faced demands for payments in exchange for protection
from such violence. PSMF 29-33. In fact, this knowledge led to Defendant disguising its
ownership of properties it was acquiring, to avoid attracting the attention of the terrorists. PSMF
37-39. There is no evidence that anyone in Chiquitas management harbored or expressed
any doubt of the risk of terrorist violence or payment demands, or ever considered this a reason
to forego the profits from acquiring banana farms.
Predictably, less than a year after Defendant acquired those first three farms, a FARC
representative visited one and demanded $10,000, and a second farm received a similar demand
from a different guerrilla group. PSMF 41-42, 53; DSMF 69.2, 3 In response, several of
Defendants senior executives adopted a corporate policy of paying FARC and the other guerrilla
groups, which enabled it to secure its operations and continue expanding banana production.
PSMF 40, 42-46, 68-69.
1
To avoid duplication of evidence in the record, Plaintiffs cite to the existing record on this motion and Defendants
motion for summary judgment, and only attach hereto evidence not already in the record. Thus, Plaintiffs use
PSMF to refer to Plaintiffs Statement of Material Facts (D.E. 1322/1407), filed with their Motion for Summary
Judgment, and the exhibits cited therein.
2
Plaintiffs use DSMF to refer to Defendants Statement of Material Facts (D.E. 1333/1335), filed with its Motion
for Summary Judgement, and the exhibits cited therein.
3
Plaintiffs disputed 69 as immaterial to Defendants Motion for Summary Judgment against Plaintiffs ATA
claims and Defendants statute of limitations defense. However, this statement is relevant to Plaintiffs Motion for
Summary Judgement against Defendants duress defense because it is being cited only to prove knowledgethat
Defendant experienced at least two payment demands in 1989 and thus knew of the risk of more demands in the
future.
1
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In 1989, Defendant also sought the advice of a security consultant familiar with the
region and the terrorists, Control Risks. PSMF 32. The consultant presented Defendant with a
memorandum, assessing the situation and providing it with alternative courses of action and
advice. PSMF 33, 47. Control Risks advised Defendant that if it made any payments to
guerrillas, it would likely encourage additional demands. PSMF 33. It also identified one
option as selling some or all of Defendants farms, which Defendant rejected. PSMF 47-48.
According to Defendant, Control Risks also identified and endorsed the option of not selling its
farms, but paying terrorists, because otherwise the terrorists would just move on and demand
payment from other farms. Opp. Mem. at 4. But Control Risks never posed the option of buying
more farms, knowing full well that, as Control Risks expressly told Defendant, [f]urther
demands are likely to follow and these demands are likely to follow each year. Ex. N to PSMF
(D.E. 1407-14), Control Risks Mem. 6.3.1(c). Yet, that is precisely what Defendant did.
PSMF 27, 51-53. Thus, Defendant knowingly, deliberately, and by a business cost-benefit
calculation, incurred and accounted for the very risks it now insists excuse its conduct. PSMF
40, 85, 92-95. Over at least a six or seven-year period, it acquired approximately 35 farms,
making more and more payments to terrorists as it increased its farm ownership. PSMF 27-
28, 51-53.
Assuming that justification is a legally cognizable affirmative defense to a claim under
the Anti-Terrorism Act, Defendant has the burden of proving it at trial. Plaintiffs have shown
that Defendant has no evidence supporting essential elements of the justification defense or, in
the alternative, that material facts negating one or more elements of the defense are not genuinely
disputed. There is simply no evidence from which a jury could conclude that Chiquita lacked
any reasonable alternative to continuing to pay FARC and other guerrilla groups when it
deliberately and systematically increased its presence in regions where payment demands backed
by coercive threats were widespread. Its own lawyers damning conclusion is inescapable: [It
was a] [b]uz [business] decision to stay in harms way. Ex. C to PSMF (D.E. 1407-3), Factual
Proffer 56. Nor has it offered evidence that it sought any relief or assistance from the U.S.
government. See PSMF 64.4
4
Defendant concedes as much in response to PSMF 64, which asserts that [f]rom 1988 to 1999, CBI did not seek
any assistance from the U.S. government concerning payment demands it received. In response, Chiquita states
only that it disclosed its guerrilla payments to the SEC in connection with a late-1990s Foreign Corrupt Practices
Act investigation of bribery payments it made to a Colombian official in order to secure a license renewal. Def.s
2
11760569.1
Moreover, Defendant has also not offered evidence to support a conclusion that for a
decade it was faced with the sort of specific, imminent threat that would justify regularly and
continuously supporting terrorists. It purposefully entered a situation with a high probability of
violent threats and payment demands from terrorists, and then for years, in the face of what it
admits was escalating violence, intentionally increased its exposure to the terrorists demands,
(which it routinely met). PSMF 27, 29-33, 37-39. Again, its own lawyers conclusion is
directly on-point: You voluntarily put yourself in this position. Duress defense can wear
through repetition. Ex. C to PSMF (D.E. 1407-3), Factual Proffer 56 (emphasis added).
Under the undisputed facts of this case, no jury could find justification for Defendants
business decision to stay in harms way, and this Court should grant Plaintiffs summary
judgment on this defense.
ARGUMENT
I. Duress and Necessity are Justification Defenses with Common Elements

Defendants argument that duress and necessity are distinct defenses that do not share
any common elements is simply wrong. Contrary to Defendants suggestion, Opp. Mem. at 17,
when the Supreme Court observed in United States v. Bailey, 100 S. Ct. 624, 634 (1980) (citing
W. LaFave & A. Scott, Handbook on Criminal Law, 28, 635(1972)), that [m]odern cases have
tended to blur the distinction between duress and necessity, it was not simply referring to the
expansion of the traditional necessity defense beyond the coerciveness of natural phenomena.
Every court that has considered that language has agreed that the Court was referring to the
emergence of common elements shared by both defenses, now typically analyzed under the
rubric of justification. See, e.g., United States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991)
(necessity and duress are no longer distinct defenses) (citing Sand, et al., Modern Federal Jury
Instructions 8.06, 8-22 (1991));5 United States v. Gomez, 92 F.3d 770, 774 n. 5 (9th Cir. 1996)
(duress and necessity analyzed in terms of justification); id. at 775 (setting forth four elements of
Resp. to PSMF (D.E. 1365) 64. These disclosures, however, were not for the purpose of seeking relief or
assistance from the U.S. government relative to its payments to FARC. Rather, the disclosures were made to
explain why the bribery payment had gone undetected. Plaintiffs Counter Statement of Material Fact (D.E. 1405)
115-116.
5
U.S. v. Paolello sets out a three-element test that embodies the . . . fundamental principle that there must have
been no reasonable alternative to violating the law, and states that the justification defense is dependent upon the
defendant not having recklessly placed himself in a situation in which he would be forced to engage in criminal
conduct. Id. at 540-41.
3
11760569.1
justification defense); United States v. Butler, 485 F.3d 569, 572 n. 1 (10th Cir. 2007) (Courts
have used the terms duress, necessity, and justification interchangeably In modern times,
[t]he traditionally separate defenses of necessity and duress have become increasingly blurred . .
. to the point of merger.) (quoting United States v. Holliday, 457 F.3d 121, 127 (1st Cir. 2006),
cert. denied, 127 S. Ct. 1317 (2007)); United States v. Salgado-Ocampo, 159 F.3d 322, 327 n. 6
(7th Cir. 1998) (necessity, justification, duress and self-defense are interchangeably lumped
together under the rubric of the justification defense).
The Eleventh Circuit Pattern Jury Instruction on duress and necessity likewise embraces
that approach:
S16
Duress and Coercion (Justification or Necessity)
* * *
. . . To excuse a criminal act, the Defendant must prove by a preponderance of the

evidence:
First: That there was an unlawful and present, immediate, and impending threat of death
or serious bodily harm to the Defendant or another;
Second: That the Defendants own negligent or reckless conduct did not create a
situation where the Defendant would be forced to engage in a crime;
Third: That the Defendant had no reasonable legal alternative to violating the law; and
Fourth: That avoiding the threatened harm caused the criminal action. . .
* * *
Eleventh Circuit Pattern Jury Instructions (Criminal) (2016). The instruction is the same
regardless of whether the defense is labeled duress, necessity or justification, consistent with
case law.
In United States v. Louis, 157 Fed. Appx 165 (11th Cir. 2005), the defendant was
charged with using falsified documents to enter the country, in violation of 18 U.S.C. 1543
and 1546(a). The district court refused to give a jury instruction on duress and the defendant
appealed. The Eleventh Circuit first noted that a defendant may not present a duress defense
without proffering evidence sufficient to prove the essential elements of the defense. 157 Fed.
Appx at 170. The Court then laid out those essential elements: To establish a defense of
4
11760569.1
duress, a defendant must show that [it] performed or consented to the unlawful act because: (1)
the defendant was under unlawful and present, imminent and impending threat of death or
serious bodily injury; (2) the defendant did not negligently or recklessly place [itself] in a
situation where [it] would be forced to engage in criminal conduct; (3) the defendant had no
reasonable legal alternative to violating the law; and (4) there was a direct causal relationship
between the criminal action and the avoidance of the threatened harm. Id. (citing United States
v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000) (same test for necessity or justification
defense)).6 Because the defendant could not provide evidence of an imminent threat, nor
evidence that she lacked any reasonable alternative, the Court affirmed the district courts refusal
to give the jury instruction. Accord Dixon v. United States, 126 S. Ct. 2437, 2440 n. 2 (2006)
([W]e presume the accuracy of the District Courts description of these elements [,] [listing
same four elements set forth in the pattern jury instructions above]); id. at 2449-50 (Breyer, J.
and Souter, J., dissenting from ruling but agreeing with majoritys formulation of elements of
duress).
The Eleventh Circuit applies the very same test to the necessity defense. See, e.g., United
States v. Ashu, 447 Fed. Appx 71, 72 (11th Cir. 2011) (per curiam) (Where defendant was
charged with forcibly resisting federal officers, ruling that [t]o prevail on a necessity defense, a
defendant must establish by a preponderance of the evidence . . . the same elements that the
Louis court held must be proved to support a duress defense). Thus, contrary to Defendants
argument, the Bailey Courts blurred line of distinction was the Supreme Courts recognition of a
modern approach in which the same analysis is applied regardless of the defenses label. See,
e.g., United States v. Rice, 259 Fed. Appx 300, 302 (11th Cir. 2007) ([W]e have implicitly
agreed with other Courts of Appeals that the justification, duress, and necessity defenses are
similar . . .); United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000) (Although defendant
uses the term necessity to describe his defense, cases such as this are typically analyzed in
terms of the broader defense of justification.).7 See also, United States v. Gant, 691 F.2d 1159,
6
Deleveaux is one of the two cases cited by defendant in support of its incorrect claim that this four-element test is
only applicable in 922 cases.
7
Defendant cites two cases in arguing that it should be able to present the jury with separate, and different, duress
and necessity defenses, asserting that district courts in this Circuit have repeatedlyand recently considered both
necessity and duress defenses. Opp. Mem. at 19. The first of those cases, United States v. Fuentes-Flores, No.
2:14-cr-66-FtM-38CM, 2015 WL 248620, *1-2 (M.D. Fla. Jan. 20, 2015), did indeed consider necessity and duress
as distinct defenses, but it cites absolutely no authority to support this approach. And the second decision, by the
5
11760569.1
1162 (5th Cir. 1982) (collecting cases on each of the four common elements of the common law
defense of justification, which includes duress and necessity).
Indeed, Defendants own listing of the elements for what it claims are distinct defenses
proves the point. See Opp. Mem. at 7, 19. There is no meaningful difference between the
elements it lists for duress and necessity: both require a specific threat of imminent harm; both
require that a defendant have no reasonable alternatives to the harm of violating the law; and this
Circuit (like most others) requires that a defendant did not negligently or recklessly place itself in
harms way. See, e.g., U.S. v. Blanco, 754 F.2d 940 (11th Cir. 1985). Describing these elements
with different synonyms does not alter their shared meaning.
Likewise, Defendant is wrong in asserting that the two cases cited by Plaintiffs (which it
does not name, let alone discuss) somehow lend credence to the proposition that the unitary
justification defense analysis applied in those cases is limited to felon in possession of a firearm
offenses. Opp. Mem. at 18. To the contrary, courts around the country, including the Eleventh
Circuit, have applied that formulation to a variety of offenses. Louis, 157 Fed. Appx 165 (using
falsified documents to enter U.S.); Ashu, 447 Fed. Appx 71 (forcibly resisting federal agents).
The felon in possession cases simply stand for the proposition that the justification defense is
available in defense of prosecutions under those statutes. See, e.g., Gant, 691 F.2d at 1161-63
(characterizing inquiry as whether common law justification defenses are applicable in a firearms
case and then setting forth four elements of the defense). Simply put, duress, necessity, and
justification are similar defenses subject to the same analysis.8
same judge who decided Fuentes-Flores, only cites her earlier decision in Fuentes-Flores as authority. United
States v. Benitez, No. 2:14-cr-124-FtM-38CM, 2015 WL 5760811, *1 (M.D. Fla. Sept. 16, 2015). This hardly
qualifies as evidence of recent decisions repeatedly analyzing duress and necessity differently. Further,
Defendants reference to the plural courts is misleading given that the decisions were authored by the same
District Judge, and those decisions run entirely contrary to recent Eleventh Circuit jurisprudence on the justification
defense.
8
Indeed, most Courts of Appeal agree with the Eleventh Circuit that the defense of justification (including duress
and necessity) requires the defendant to prove: (1) imminent threat of death or serious bodily injury; (2)
circumstances into which the defendant did not negligently or recklessly enter; (3) no reasonable lawful alternative
to avoid the harm; and (4) the harm was avoided because of the unlawful act. See, e.g., United States v. Castro-
Gomez, 360 F.3d 216 (1st Cir. 2004) (defendant convicted of drug smuggling charges was not entitled to duress
instruction where he was coerced into a first smuggling incident, left, and returned several days later to meet with
the same people, consciously disregarding the high probability he would again be coerced; the duress defense is
unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be
subjected to duress.) (quoting 1 LaFave & Scott, Substantive Criminal Law, 5.3, 219(West 1996)); Guang Ju Lin
v. U.S., Nos. 09-CR-746, 13-Civ-7498, 2014 WL 2765078, *5-6 (S.D.N.Y. June 18, 2014) (defendant convicted of
racketeering and racketeering conspiracy did not receive ineffective assistance of counsel where attorney did not
6
11760569.1
II. Defendant at Minimum Negligently or Recklessly Entered, Remained in, Prolonged,

and Expanded its Exposure to the Coercive Situation
Defendant voluntarily placed itself into a position where there was a probability it would
be exposed to payment demands from terrorists. PSMF 29-31. Once that occurred, it not
only remained but it increased its exposure to the terrorists by increasing its farm holdings.
PSMF 27, 37, 46, 51-53. This negates reliance on a justification defense, which is not
available to a defendant who negligently or recklesslylet alone deliberatelyput itself in
harms way. U.S. v. Blanco, 754 F.2d 940 (11th Cir. 1985), on which Defendant relies, see Opp.
Mem. at 15 (describing case), establishes this principle. In that case, Blanco was charged with
violating 8 U.S.C. 1323 for smuggling undocumented aliens from Cuba into the country. The
Court held that a duress defense was unavailable to Blanco for two reasons. Firstly, as
Defendant notes, there was no evidence of an immediate threat of death or serious bodily
injury. 754 F.2d at 943. But Defendant elides the second reason:
Even if Blanco was faced with duress and coercion, his conduct bars such a defense. A
claim of duress and coercion will not afford a valid excuse when a defendant has
recklessly or negligently placed himself in a situation in which it was probable that he
would be subject to duress. United States v. Agard, 605 F.2d 665, 667 (2d Cir. 1979).
raise defense of justification (i.e., necessity), because the violent scenario in which he found himself was of his
own making[,] and [a] justification defense applies only in rare circumstances . . . and it does not apply if the
defendant was [] reckless or negligent in bringing about the situation that he says required him to commit the
offense.) (quoting United States v. Smith, 160 F.3d 117, 123 n. 3 (2d Cir. 1998)); United States v. Flores-Santos,
269 Fed. Appx 196, 198 (3d Cir. 2008) (defendant convicted of hindering removal from U.S. not entitled to present
justification defense where he failed to present evidence of imminent threat and no reasonable legal alternative);
United States v. Gorham Bey, 373 Fed. Appx 394, 397 (4th Cir. 2010) (defendant convicted of bank fraud not
entitled to duress defense, because she could not meet the high bar of the four-element test for duress or
justification); United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (in drug conspiracy case, ruling
that[d]uress, like the related, and often overlapping, defenses of self-defense and necessity, is a form of the
affirmative defense of justification. . . . To raise an issue of duress for the jury a defendant must present proof of
four elements: [immediate threat; defendant did not recklessly or negligently enter the situation; no reasonable
lawful alternative; direct relationship between unlawful act and harm avoided] . . . ) (citing United States v. Harper,
802 F.2d 115, 117 (5th Cir. 1986) (holding that duress, necessity, and self-defense are all forms of justification
defense, requiring proof of same four elements)); United States v. Monea, 376 Fed. Appx 531, 550-51 (6th Cir.
2010) (duress defense requires proof of standard four elements, plus a fifth element: that defendant did not
maintain the illegal conduct any longer than absolutely necessary.); United States v. Milligan, 17 F.3d 177, 181
(6th Cir. 1994) (in a mail and wire fraud conspiracy case, necessity defense requires proof of traditional four
elements); United States v. Jankowski, 194 F.3d 878, 882-83 (8th Cir. 1999) (in case involving theft of federally
insured deposits, duress defense requires proof of standard four elements); United States v. Alexander, 287 F.3d 811,
818 (9th Cir. 2002) (where defendant was charged with interstate communication of threats to harm, justification
defense requires proof of standard four elements); United States v. Jones, 254 Fed. Appx 711, 721 (10th Cir. 2007)
(in assault case, defenses of necessity, duress and self-defense viewed under a single, unitary rubric:
justification[,] which requires proof of the standard four elements) (citations and internal quotation marks
omitted)).
7
11760569.1
Having been exposed to the demands of the Cuban authorities on his first trip, Blanco
should have known that if he returned to Cuba there was a substantial likelihood of his
being subject to some form of duress. He recklessly chose to return to Cuba despite the
absence of any threats of bodily harm or death if he failed to return. Accordingly, he
cannot now claim duress.
Id. (emphasis added). This second holding does not turn on the fact that the defendant had
escaped the danger only to return to it. Opp. Mem. at 16. The defendant could have been a
first-timer, and yet if he was aware (or even had reason to know) that the Cuban government was
coercing boat owners into smuggling Cubans into the U.S. and made the trip into Mariel harbor
anyway, the result would have been the same. Based on the defendants knowledge, the court
held that he should have known of the likelihood of being subjected to coercion. Thus, as a
matter of law, he recklessly placed himself into the situation, and the defense was unavailable to
him.9
This case is even stronger than Blanco. Defendant knowingly and intentionally placed
[itself] in a situation in which it was probable that [it] would be subject to duress[,] repeatedly.
Blanco, 754 F.2d at 943. Having been exposed to [FARC] . . . and another terrorist group on
its farms in 1989, Defendant knew that if [it acquired more farms] there was a substantial
likelihood of [it] being subject to some form of duress[] on those newly acquired farms. Id.;
PSMF 30, 33, 41-42, 46, 52-53; DSMF 69. Defendants brief glosses over the repetitive
nature of its farm acquisitions in the face of persistent payment demands, instead arguing as if it
owned all its Colombian farms all the time, for more than 100 years. See Opp. Mem. at 16.
However, Defendant owned no farms in Colombia for some number of years prior to 1988, when
it acquired the first three. PSMF 4-6, 27. Before it acquired those first three farms, it
understood that there was guerrilla activity in the banana growing regions, and that there was a
risk that if it acquired farms, it would face payment demands from the terrorists.10 PSMF 29-
9
Moreover, even if Blanco were somehow confined to that fact pattern, Defendants expansion into hostile territory
aware of the likely consequences is equivalent to the Blanco defendant returning a third, fourth, and fifth time to
Cuba.
10
Defendant temporally blurs the picture, stating that by the time the full extent of the extortive threat became clear
in the early 1990s, security experts had recommended that its subsidiary, Banadex, comply with guerrilla extortion
demands and further advised against leaving its farms . . . Opp. Mem. at 16. In fact, that security advice was
memorialized in the Control Risks memo, prepared for Defendant in the 1980s. PSMF 33. By the early 1990s,
Defendant knew Control Risks caution about inviting further payment demands to be true. PSMF 37-39, 41, 46,
51-53.
8
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31. Even after it received those first demands, it did not withdraw, even though that would have
avoided being in a situation where it was likely to continue making payments in response to the
terrorists demands. Nor did it stay pat, which would have controlled its exposure and, perhaps,
the frequency of demands. Instead, it increased its exposure to this known risk. It made the
payments and then doubled down, acquiring more farms not once, not twice, but enough times to
ultimately own approximately 35 farms, and its payments to terrorist became routine. 11 PSMF
27-28, 37, 43, 44, 49, 51, 54, 59, 85-89, 93-95.
This was a cost of doing business; Defendant was executing a business plan to secure or
improve its competitive position in the global banana market. PSMF 22-26, 85. Even if one
assumes for the sake of argument that Defendant was merely negligent when it acquired those
first three farms (which itself renders a justification defense unavailable to Defendant), the same
cannot be said for all that followed. After that, Defendant acted knowingly, intentionally
advancing its business plan regardless of the increasingly high probability (if not certainty) that it
would continue to pay terrorists for so long as it acquired and operated farms in Uraba and Santa
Marta. This factwhich is undisputed, and indeed asserted by Defendant itselfalone justifies
summary judgment for Plaintiffs on Defendants justification defense. Therefore, the Court
11
Little is known of the first few years, because Defendant produced few payment documents for that time period.
Defendant does concede that payments were made from time to time during that period, from 1989 through 1992.
Ex. 1 (attached hereto), Defendants Amended and Supplemental Responses and Objections to the ATA Plaintiffs
First Set of Interrogatories (Def.s Am. and Supp. Resp. to Int.) 3, 15; see also Ex. 52 to DSMF (D.E. 1335-
52), Ordman Dep. 190:18-21 (testifying that Defendant made payments to FARC in 1989, 1990, and 1991). Based
upon Defendants disclosures in interrogatory responses, Defendant made at least one hundred twenty-two (122)
payments to guerrilla groups between 1989 and 1999, of which at least fifty-seven (57) were to FARC. Ex. 1
(attached hereto) Def.s Am. and Supp. Resp. to Int. 3, 15; PSMF 62. From available information, this picture
emerges: in 1987 or early 1988, Defendant adopted a plan to acquire banana farms in Colombia (PSMF 22-26); in
1988, it purchased the first three farms (PSMF 27); and in 1989, it received at least two payment demands and
made at least one payment (PSMF 41-42; DSMF 69). Thereafter, in 1990, Defendant acquired eight to ten (8-
10) additional farms (PSMF 27); no guerrilla payment information is available for that year. Ex. 1 (attached
hereto), Def.s Am. and Supp. Resp. to Int. 3, 15; but see Ex. 52 to DSMF (D.E. 1335-52), Ordman Dep. 190:18-21
(testifying that Defendant made payments to FARC in 1989, 1990, and 1991) Defendant acquired five (5) more
farms between 1991 and 1992, making at least fifteen (15) payments to guerrillas, at least four (4) of which were to
FARC. Ex. 1 (attached hereto), Def.s Am. and Supp. Resp. to Int. 3, 15; PSMF 27. Between 1993 and 1994,
Defendant acquired twenty to twenty-three (20-23) additional farms, and made at least thirty-one (31) guerrilla
payments, of which at least sixteen (16) were to FARC. PSMF 27; Ex. 1 (attached hereto), Def.s Am. and Supp.
Resp. to Int. 3, 15. It appears that was the last year in which Defendant acquired farms, but the payments continued.
PSMF 27, 62. In 1995, Defendant made at least twenty-two (22) payments to guerrillas, of which at least twelve
(12) were to FARC. Ex. 1 (attached hereto), Def.s Am. and Supp. Resp. to Int. 3, 15. In 1996, Defendant made at
least thirty (30) payments to guerrillas, of which at least thirteen (13) were to FARC. Id. In 1997, Defendant made
at least twenty (20) payments to guerrillas, of which at least eight (8) were to FARC. Id.
9
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should enter summary judgment in Plaintiffs favor and preclude Defendant from presenting its
Fourth Affirmative Defense at trial.
III. Defendant Cannot Meet Its Burden of Proving That There Was No Reasonable
Alternative to Paying FARC
Defendants lawyers also ultimately told it that it should leave Colombia. Ex. C to
PSMF (D.E. 1407-3), Factual Proffer 56. That was always an option (it could still buy bananas
without owning farms). See, e.g., PSMF 4-6. But even if its lawyer was wrong, it
indisputably had another reasonable, perfectly legal option: it could have chosen not to buy more
Colombian farms. Under any definition of the[] [duress and necessity] defenses one principle
remains constant: if there was a reasonable, legal alternative to violating the law, a chance both
to refuse to do the criminal act and also to avoid the threatened harm, the defenses will fail.
Bailey, 100 S. Ct. at 635 (1980) (citation omitted). [I]f the accused had a reasonable
opportunity to avoid committing the illegal act without subjecting [itself] to the threatened harm .
. . the defense of duress is no longer available. United States v. Sixty Acres in Etowah Cnty.,
930 F.2d 857, 861 (11th Cir. 1991).
Defendant had a steady supply of bananas prior to 1988, and its subjective fear that this
supply might destabilize or contract if it did not take control of the plantations (PSMF 22-24)
does not justify paying FARC. It could have withdrawn when, less than one year after it
purchased those first three farms, its concerns about terrorists payment demands became
manifest. PSMF 27, 41, 46, 51-53. Instead, it doubled down. It rejected a reasonable
alternative that with absolute certainty would have avoided Defendant being in the position of
paying FARC. PSMF 47-48.
Defendant claims that it had no reasonable alternative but to maintain ownership and
operate its farms because Control Risks advised it in 1989 that selling the farms would lead
FARC to redirect its focus elsewhere to other farms. Opp. Mem. at 13. Leaving aside the bitter
irony that Defendants routine financial support of FARC (PSMF 59, 62) enabled it to
redirect its kidnapping and murder to victims like the Plaintiffs, the argument is insupportable.
First, Defendant offers no explanation of how, absent a legal duty to protect other farms, this
exempts Defendant from the no reasonable alternatives requirement. Second, Defendant
makes no effort to explain how this theory justifies its expanded farm purchases.12 If it were
12
The advice was given in the late 1980s and Defendant purchased its first three farms in 1988. PSMF 27, 47.
10
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viable at all, it could only apply to maintaining the status quoto dealing with the existing risk,
not increasing it by acquiring more farms in the future. There is nothing in the record from
which a jury could conclude that Defendants withdrawal would have increased this threat to
other farms, or that such farms were not already dealing with guerrillas.13 This argument is sheer
speculation, not a showing of genuine dispute of material fact supporting the no reasonable
alternatives test.14
Defendant also argues that it could not withdraw from its farms because doing so would
increase the risk of guerrilla violence being directed at its own workers, who would have been
endangered and in need of relocation. Opp. Mem. at 13. Again, this rationale is based upon
Defendants subjective belief and conjecture, unsupported by any record evidence. Not only has
Defendant failed to proffer any evidence of these phenomena manifesting when other owners
withdrew from other farms, but it has also failed to put forward any evidence of retaliation
against its own former employees in 2004, after it sold its Colombian operations and withdrew
from production in Colombia at a time when the AUC, controlled the banana-growing region and
Defendant routinely paid it.
Finally, Defendant argues that seeking assistance from authorities would have been futile.
It offers two incidents in support, the only two in the entirety of its dealings with FARC. In the
first, in 1989, Defendant allegedly sought police assistance after receiving a payment demand at
one of its farms.15 The police were willing to assist, but something went wrong with the
operation and two officers were nearly kidnapped. Opp. Mem. at 5-6; Ex. N to PSMF (D.E.
1407-14), Control Risks Mem. 3.2.4. Even in America, sometimes, law enforcement
operations go wrong. This is not evidence of futility; it is evidence of a willingness of local law
13
According to Defendants expert, extortion was widespread and compliance rates were high. According to
Defendants witnesses, every banana farm paid FARC. Ex. 6 to DSMF (D.E. 1335-6), Restrepo Report 17-18
(No business or productive enterprise was immune from extortion in the areas where these groups operated.); Ex.
57 to DSMF (D. E. 1335-57), Keiser Dep. 249:6 (I think everyone was receiving extortions.); Ex. 16 to DSMF
(D.E. 1335-16), Rendon Dep. 36:9-18.
14
Defendants argument, if accepted, could lead to a multitude of absurd results. For example, someone coerced
into helping commit a bank robbery, who fails to take an opportunity to get away and call the police, might argue
that escape was not a reasonable alternative because if he did not help with the robbery, the robbers might coerce
someone else into doing it.
15
The only evidence Defendant submits to support its recounting of these events, or even their very occurrence, are
the Control Risks memo and the testimony of Defendants 30(b)(6) witness, neither of which identify the source of
the information or of any other information indicating that these sources are reliable and accurate.
11
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enforcement authorities to assist.16 Defendant never sought police assistance again either at the
local level or through the National Police. See, e.g., United States v. Gonzalez, 407 F.3d 118,
122 (2d Cir. 2005) (defendants subjective belief that going to the police would have been futile
is insufficient to demonstrate that [it] had no reasonable alternative but to violate the law.)
(citing United States v. Jankowski, 194 F.3d 878, 883 (8th Cir. 1999)).17
In the second purported incident, Defendant sought help from the Colombian military,
but was informed that the military lacked the resources to help. Opp. Mem. at 5. Defendant
offers no evidence that its military contact was authorized to speak on behalf of the Colombian
military. Indeed, the only evidence of this event that Defendant submits is the inadmissible
vague hearsay testimony of one a single witness, who does not indicate whether the militarys
purported statement was in response to a request for help dealing with a guerrilla group or a
solicitation by the military for resources.18 Defendant made no effort to establish contact higher
up the military chain of command, where a request from an American multinational with
economic significance in Colombia might have been more well-received.
Defendant also concedes that it made no other effort whatsoever to seek assistance or
guidance from any office or agency of the Government of Colombia or the U.S. government, not
even at the U.S. embassy in Bogot, where, in addition to diplomatic staff who maintained
relationships with the Colombian government, working space was located for the U.S.
intelligence community, defense community, and law enforcement community through the FBIs
Legal Attach. PSMF 64-65. Defendant does not even bother attempting to prove that those
resources would have been all for naught. It simply did not try.19 Therefore, it cannot prove
16
One piece of evidence Defendant submits in support of its argument that it was pointless to seek assistance
from authorities is a letter from a police officer to Defendant seeking assistance in purchasing a vehicle. The lack of
any evidence of a response from Defendant highlights that Defendant chose paying FARC over modestly supporting
a police department willing to lend assistance to Defendant.
17
Defendant asserts that extortion was under-reported, Opp. Mem. at 5, and yet its own expert testified that a
significant number of companies and individuals . . . as a matter of routine, as a matter of duty, report extortion to
the authorities. Ex. 18 to Resp. to DSMF (D.E. 1405-18), Restrepo Dep. 203:13-20; see also id. at 203:21-204:4.
18
The witness does not even identify who told him, or how many people the story passed through before it was
conveyed to him. Defendant has offered no admissible evidence that this incident ever happened, let alone that it
happened as described by Mr. Keiser This hearsay cannot be used to establish a genuine dispute under Rule 56.
19
Nor did it hire its own private security contractors to secure its farms. To be fair, that would have been an
expense, but there exists no case holding that a corporation is justified in providing material support to terrorists
simply because it is the least expensive security option.
12
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there were no reasonable alternatives to avoid the harm. United States v. Posada-Rios, 158 F.3d
832, 874 (5th Cir. 1998) (A [d]efendants subjective belief as to available legal alternatives is
not determinative. As long as defendants crises permitted a selection from among several
solutions, some of which did not involve criminal acts . . . the necessity defense must fail.)
(citing United States v. Meraz-Valeta, 26 F.3d 992, 995 (10th Cir. 1994) (additional internal
quotation marks omitted)), overruled on other grounds sub nom, United States v. Aguirre-Tello,
353 F.3d 1199 (10th Cir. 2004). See also Peavy v. Harmon, 37 F. Supp. 2d 495, 519 (N.D. Tex.
1999) (The defense of necessity is reserved for cases of real emergency. . . It is not available
unless there is no time for a complaint to the authorities or there exists a history of futile
complaints which make any result from such complaints illusory.) (citations and internal
quotation marks omitted), reversed in part, vacated in part, on other grounds, Peavy v. WFAA-
TV, Inc., 221 F.3d 159 (5th Cir. 2000). A single contact, however, does not establish a history
of futile attempts that indicate an illusionary benefit. Gant, 691 F.2d at 1164 (citing United
States v. Colacurcio, 659 F.2d 684 (5th Cir. 1981) (rejecting the duress defense, finding that
alternatives were not foreclosed despite two prior attempts to file complaints with police)).
These alleged contacts do not constitute sufficient evidence to warrant submission of this
issue to a jury, particularly because, unlike in Gomez, 92 F.3d at 777-78, Defendant did not even
begin to attempt to exhaust all options.20 See United States v. Hill, 893 F. Supp. 1044, 1047-48
(N.D. Fla. 1994) (As a general proposition, evidence that a defendant exhausted all available
legal alternatives, and that such alternatives as a class had been futile over a long period, might
be sufficient to allow a defendant to present his necessity defense to the jury.).
IV. Duress Defense Can Wear Out Through Repetition: There is No Evidence of an
Immediate or Imminent Threat
The cases cited by Defendant highlight why it cannot meet its burden of establishing
immediacy. Figurative gun to the head; immediate emergency; absolute and uncontrollable
necessity; and apprehension of immediate danger present at all times are but a few of the
phrases employed by courts to describe the overwhelming urgency of a situation in which a
defendant may be justified because he has no other choice but to break the law to prevent death
20
In Gomez, the defendant had sought assistance from the Customs Service, the Sacramento County Sheriff, his
parole officer, and two churches. He had also requested permission from the state to relocate (probationers cannot
leave the state without permission). He thus exhausted all possible alternatives before resorting to the unlawful
conduct.
13
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or serious bodily harm from immediately occurring. The juxtaposition of this case with the
several examples Defendant discusses brings into sharp contrast the difference between a
difficult situation and a dire one with potentially imminent and deadly consequences. Only the
latter qualify as candidates for a justification defense.
This element of the defense is exceptionally clearthe defendant must show that it was
under unlawful and present, imminent, and impending threat of death or serious bodily injury.
United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000). Fear of future bodily harm .
. . will not suffice. Sixty Acres, 930 F.2d at 861. The duress defense requires nothing less than
an immediate emergency. United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000)
(emphasis added). If there is not a specific, direct threat to cause death or serious bodily harm
right now, the justification defense is unavailable as a matter of law.
Against this legal backdrop, Defendants claim of immediacy fails completely. From the
first payment demand from FARC in 1989, through each of the more than 100 guerrilla
payments, including at least 57 payments Chiquita made to FARC over the course of a decade
(PSMF 62; Ex. 1 (attached hereto), Def.s Am. and Supp. Resp. to Int. 3, 15), Chiquita always
had time to consider what action it would take, to consult with experts (PSMF 32), to
negotiate what amounts it would pay and to delay making those payments (PSMF 47, 55-58
)it always had time to consider its options. Defendant may have generally felt threatened, and
it may have felt that its workers might be in danger if it refused to make payments, but there was
no urgency, no immediate emergency propelling it to action. Defendant never had to make an
instantaneous decisionor a decision that would have avoided any imminent emergency. There
was only a generalized fear of future bodily harm, giving rise to a process in which Defendant,
and then its designated negotiator, would employ negotiation tacticsincluding dragging its
feetto reduce the ultimate price paid for another period of peace in which no threats would be
made and no attacks were imminent. PSMF 40, 55-58; Ex. 55 to DSMF (D.E. 1335-55),
Ordman Dep. 271:21-272:5 (if Defendant made payments, it would be left alone and receive a
period of safety and security). The extended temporality of this process, with the ebbs and flows
as negotiations ensued, and the fact that the payments bought periods of peace belies the concept
of imminence. Defendants business calculationafter hiring a consultant providentially called
Control Risks (PSMF 32-33)is the antithesis of the emergency that ordinarily characterizes
the rare case in which justification may arguably be available. The unfortunate defendant who
14
11760569.1
faces a qualifying emergency is hardly able to control risks, let alone hire a consultant; the
emergency is created by a lack of control and an absence of choice. No reasonable jury could
consider this evidence and find that Defendant was faced with imminent, and impending threat
of death or serious bodily injury.
Defendant asserts that facts similar to those presented here are found in two Ninth
Circuit cases. In United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), Opp. Mem. at
7, the divided court reversed a district court ruling that the defense of duress was unsupported by
the evidence. The case concerned a Colombian man who was told that unless he agreed to
swallow cocaine-filled balloons and take them on a plane to the U.S., he and his family would be
killed. He agreed to carry the cocaine, and upon arrival in Los Angeles, consented to a stomach
x-ray which revealed the drugs. The panel majority was persuaded by the specificity of the
eventthe fact that the drug contact conveyed to the defendant private details about the
defendants family; that the defendants failure to cooperate and transport the drugs would lead
to the murders of his wife and three-year-old child; that the next day, the same threat was
repeated; and that the defendant met twice more with the drug contact, and at the last meeting he
was told they would be watching him at all times, and if he did not comply his family would be
killed. The majority held that these facts satisfied the requirement that failure to cooperate
would have immediate, fatal consequences. The presence of someone observing him at all times
meant that the force of the threat continued to restrain him. Contento-Pachon, 723 F.2d at
694. Thus, the majority held, the defendant presented credible evidence that he acted under an
immediate and well-grounded threat of serious bodily injury, with no opportunity to escape. Id
at 695. The element of immediacy requires that there be some evidence that the threat of injury
was present, immediate, or impending. [A] veiled threat of future unspecified harm will not
satisfy this requirement. Id. at 694 (quoting Rhode Island Rec. Center v. Aetna Casualty and
Surety Co., 177 F.2d 603, 605 (1st Cir. 1949)).
[D]ecisions make it clear that the defense only arises if there is a real emergency leaving
no time to pursue any legal alternative. In stating why the defense requires proof of absolute
and uncontrollable necessity the Supreme Court explained that [a]ny rule less stringent than
this would open the door to all sorts of fraud. United States v. Posada-Rios, 158 F.3d 832, 874
(5th Cir. 1998) (quoting The Diana, 74 U.S. (7 Wall.) 354, 360-61 (1868)) (emphasis added).
The defendant in Contento-Pachon was faced with a very specific and immediate threat, the
15
11760569.1
entire episode took not much longer than a plane flight, he was under surveillance at all times,
and he believed someone was poised near his home to execute his family. Smuggling drugs into
the U.S. was an absolute and uncontrollable necessity if he wanted his family to survive the
episode.
Likewise, in the case of United States v. Chi Tong Kuok, 671 F.3d 931 (9th Cir. 2012),
another case cited by Defendant, the defendant and his family were residents the Peoples
Republic of China, and Chinese authorities coerced the defendant into smuggling American
technology out of the United States. They threatened that if he did not comply, his wife or
another relative would be arrested and deposited into a secret prison. To reinforce their
seriousness, they regularly conducted operations to let the defendant know they were very close
to his familytaking photographs, making telephone calls to his wife, slipping threatening notes
under the door, among other things. They continually and actively made themselves ominous
and omnipresent, letting the defendant know that they were always close by and ready to arrest
her. This totalitarian government never let the threat abate. Under the circumstances, the court
had little problem finding that defendant could satisfy the immediacy prong. In so holding, the
court distinguished United States v. Becerra, 992 F.2d 960 (9th Cir. 1993), in which a threat to
take care of the defendants family if the defendant did not go through with certain drug
transactions did not satisfy the immediacy requirement. As the Kuok court observed, the Becerra
court considered take care of insufficient because the threat did not include a specific time
frame, and lacked detail. Kuok, 671 F.2d at 948 (citing Becerra, 992 F.2d at 964). Such
specificity and detail are what makes a threat real and credible, giving rise to the requisite sense
of urgency.
Immediacy means that the threat is such that the defendants persecutors figuratively
held a gun to his head . . . compelling the defendant to commit the illegal action. United States
v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008) (quoting Contento-Pachon, 723 F.2d at
694). The longer the span of time or the lack of continuity of interactions, the less willing courts
are to allow justification defenses. In United States v. Gaviria, 116 F.3d 1498, 1532 (D.C. Cir.
1997), a duress defense to drug conspiracy charges was rejected because, [t]he conspiracy in
this case lasted for 13 months, in contrast to the single flight at issue in Contento-Pachon. In
United States v. Jennell, 749 F.2d 1302, 1306 (9th Cir. 1984), the Ninth Circuit rejected a duress
defense because, [u]nlike the Contento-Pachon case, the conspiracy in this case dragged on for
16
11760569.1
a period of more than a year [, and] [d]uring that period there were times of inactivity. And in
United States v. Keller, 992, F.2d 960, 964 (9th Cir. 1990), the court rejected a duress defense
because, [a]lthough Keller may have believed his codefendants threats, the seven bank
robberies took place over a twenty-one-month period. These cases have far more in common
with Defendants eight-year course of conduct than do the cases cited by Defendant.
Thus, in United States v. Foster, 153 Fed. Appx 674, 677 (11th Cir. 2005), a defendant
was arrested and charged for smuggling heroin from Jamaica. She testified that she had been
invited to visit Jamaica for vacation, but on the morning of her departure two men accosted her,
forcing her to swallow heroin pellets and to tape more to her body. She believed she would not
be permitted to return home without the drugs and that she feared for her life. The district court
precluded the defense on (among other things) immediacy grounds, and the Eleventh Circuit
affirmed, holding [t]he crimes of importation of heroin and possession of heroin are continuous
crimes . . . and Foster failed to show that the apprehension of immediate danger was present at
all times from the moment she took possession of the drugs to the moment she was arrested.
153 Fed. Appx at 677 (emphasis added; citation and internal quotation marks omitted). 21 See
also United States v. Alvear, 181 Fed. Appx 778, 780 (11th Cir. 2006) (failure of defendant to
testify that (among other things) any specific person was standing by to execute defeated
duress claim because s[]uch generalized apprehension of future harm is insufficient to establish
the first element of the duress defense.); United States v. Shryock, 342 F.3d 948, 987-88 (9th
Cir. 2003) (no duress where defendant attended Mexican Mafia meetings under threat of assault
if he did not straighten out and regularly attend the meetings, because there was no evidence
defendant took certain actions because the Mexican Mafia figuratively held a gun to his head.);
cf. United States v. Otis, 127 F.3d 829, 835 (9th Cir. 1997) (immediacy established where Cali
cartel thought defendant stole $300,000 from them and they kidnapped his father, coerced him
21
Foster highlights the difference between this case and those cited by Defendant. For example, Defendant also
cites in support of its immediacy argument United States v. Maestre-Polo, No. 6:13-cr-256-Orl-37CJK, 2014 WL
688000 (M.D. Fla. Feb. 21, 2014). However, that was another case where the perpetrators demonstrated an intimate
knowledge of defendant and his family, an ability to strike at any time, and in all respects a highly specific, direct
threat to coerce the defendant into performing a discrete unlawful act. There was, thus, an apprehension of
immediate danger [] present at all times . . . These cases are very much unlike this case, where the defendant is a
large corporation rather than an individual, there is no evidence of specific, direct threats, there is no evidence that
every payment demand came with an overt threat of any kind, there were periods of time between payment demands
when the expectation was peace because that was the purpose of the payments, and even when FARC was ready to
demand another payment, there was no urgency, imminent emergency, or gun to the head; rather, there was a
negotiation process.
17
11760569.1
into working for them in U.S., released the father, and then on a subsequent trip back to
Colombia, they blindfolded him, took him to a warehouse where he was surrounded by twenty
armed men, and on their instruction he telephoned home where his sister told him the father had
been kidnapped again.).
Whatever generalized threats FARC may have made against Chiquita (and none have
been documented) fall far short of the imminence, specificity, and directness required to satisfy
the immediacy requirement. Chiquita has not cited one piece of evidence of a specific threat of
violence, let alone provided details of such a threat. Rather, it presents evidence of generalized
fears of future violence. Far from paying on demand with a gun to its head, figurative or not,
Defendant engaged FARC and other guerrilla groups in a process, guided by expert advice,
eventually carried out by a hired negotiator, and designed to extend discussions and minimize
cost by, among other things, employing delaying tactics. PSMF 55-58. Defendant falls
considerably short of the high bar of providing evidence of it paying FARC under imminent,
and impending threat of death or serious bodily injury. As a matter of law, on the evidence in
the record, Defendants provision of financial support to terrorists cannot be legally justified.
For this reason, the Court should enter summary judgment in Plaintiffs favor, precluding
Defendant from arguing this defense or presenting evidence thereof to the jury.
18
11760569.1
CONCLUSION
For all the foregoing reasons, and those set forth in Plaintiffs Motion for Summary
Judgment (D.E. 1323), Plaintiffs respectfully submit that Defendant has failed to meet its burden
of offering sufficient evidence to support each element or prong of the justification defense.
Therefore, Plaintiffs request that the Court enter summary judgment in their favor and preclude
Defendant from arguing its Fourth Affirmative Defense at trial or introducing any evidence in
support thereof.
Dated: May 2, 2017 Respectfully submitted,
/s/ Ramon A. Rasco

Robert C. Josefsberg (Fla. Bar No. 040856)
rjosefsberg@podhurst.com
Ramon A. Rasco (Fla. Bar No. 0617334)
rrasco@podhurst.com
PODHURST ORSECK, P.A.
SunTrust International Center
One SE Third Avenue, Suite 2700
Miami, FL 33131
(305) 358-2800
Counsel for all Plaintiffs
Steven M. Steingard
ssteingard@kohnswift.com
Stephen H. Schwartz
sschwartz@kohnswift.com
Neil L. Glazer
nglazer@kohnswift.com
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
(215) 238-1700
Gregory P. Hansel (Fla. Bar No. 607101)

ghansel@preti.com
Jeffrey D. Talbert
jtalbert@preti.com
PRETI, FLAHERTY, ET AL
One City Center
P.O. Box 9546
Portland, ME 04112-9546
19
11760569.1
(207) 791-3000
Gary M. Osen
gosen@osenlaw.com
Ari Ungar
aungar@osenlaw.com
Aaron Schlanger
aschlanger@osenlaw.com
Peter Raven-Hansen
pravenhansen@gmail.com
OSEN LLC
2 University Plaza, Suite 402
Hackensack, New Jersey 07601
(201) 265-6400
Beth J. Kushner
VON BRIESEN &ROPER, S.C.
411 East Wisconsin Avenue, Suite 700
Milwaukee, WI 53202
(414) 287-1373
Counsel for Plaintiffs Tania Julin, et al.
Steve W. Berman
steve@hbsslaw.com
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Ave, Suite 3300
Seattle, WA 98101
(206) 623-7292
Nathaniel A. Tarnor
nathant@hbsslaw.com
555 Fifth Avenue, Suite 1700
New York, NY 10017
(212) 752-5455
Kiersten Taylor
kierstent@hbsslaw.com
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
(617-475-1956)
Counsel for Plaintiffs Pescatore & Sparrow, et al.
20
11760569.1
CERTIFICATE OF SERVICE
I, Ramon A. Rasco, hereby certify that on May 2, 2017, I caused the attached Plaintiffs
Reply Memorandum of Law in Further Support of Their Motion for Summary Judgment as to
Defendants Fourth Affirmative Defense (Duress or Necessity) to be served by Electronic Mail
in accordance with the Federal Rules of Civil Procedure upon the following counsel for
Defendant:
Aseem Padukone James M. Garland

Covington & Burling, LLP Covington & Burling, LLP
One Front Street One City Center
San Francisco, CA 94111-5356 850 Tenth Street, NW
Email: apadukone@cov.com Washington, DC 20001-4956
Email: jgarland@cov.com
Cyril Djoukeng
Covington & Burling, LLP James Copley Gavigan, Jr.
One City Center Jones, Foster, Johnston & Stubbs, P.A.
850 Tenth Street, NW 505 South Flagler Drive
Washington, DC 20001-4956 Suite 1100
Email: cdjoukeng@cov.com West Palm Beach, FL 33401
E-mail: jgavigan@jonesfoster.com
Emily R. Freeman
Covington & Burling, LLP John E. Hall
The New York Times Building Covington & Burling LLP
620 Eighth Avenue One City Center
New York, NY 10018-1405 850 Tenth Street, NW
Email: efreeman@cov.com Washington, DC 20001-4956
E-mail: jhall@cov.com
Eric Hellerman
Covington & Burling, LLP Jonathan M. Sperling
The New York Times Building Covington & Burling LLP
620 Eighth Avenue 650 Eighth Avenue
New York, NY 10018-1405 New York, NY 10018-1405
Email: ehellerman@cov.com E-mail: jsperling@cov.com
Jaclyn E. Martinez Resly Robert William Wilkins

Covington & Burling, LLP Jones, Foster, Johnston & Stubbs, P.A.
One City Center 505 South Flagler Drive
850 Tenth Street, NW Suite 1100
Washington, DC 20001-4956 West Palm Beach, FL 33401
Email: jmartinezresly@cov.com E-mail: rwilkins@jonesfoster.com
Ligia M. Markman Jose E. Arvelo

One City Center One City Center
850 Tenth Street, NW 850 Tenth Street, NW
Washington, DC 20001-4956 Washington, DC 20001-4956
E-mail: lmarkman@cov.com E-mail: jarvelo@cov.com
Mark W. Mosier Shankar Duraiswamy

One City Center One City Center
850 Tenth Street, NW 850 Tenth Street, NW
Washington, DC 20001-4956 Washington, DC 20001-4956
E-mail: mmosier@cov.com E-mail: sduraiswamy@cov.com
Maureen F. Browne Sidney Alton Stubbs, Jr.

Covington & Burling, LLP Jones, Foster, Johnston & Stubbs, P.A.
One City Center 505 South Flagler Drive
850 Tenth Street, NW Suite 1100
Washington, DC 20001-4956 West Palm Beach, FL 33401
E-mail: mbrowne@cov.com E-mail: sstubbs@jonesfoster.com
Megan L. Rodgers Stephanie Shropshire

333 Twin Dolphin Drive One City Center
Suite 700 850 Tenth Street, NW
Redwood Shores, CA 94065 Washington, DC 20001-4956
E-mail: mrodgers@cov.com E-mail: sshropshire@cov.com
/s/ Ramon Rasco

Ramon A. Rasco

Chiquita Julin Reply MSJ Duress Defense

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Case 0:08-md-01916-KAM Document 1414 Entered on FLSD Docket 05/02/2017 Page 1 of 28

UNITED STATES DISTRICT COURT

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

TANIA JULIN, et al.,

CHIQUITA BRANDS INTERNATIONAL, INC.

OLIVIA PESCATORE, et al.,

CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

ESTATE OF JANE PESCATORE SPARROW,

CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

PLAINTIFFS REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR

TABLE OF AUTHORITIES .......................................................................................................... ii

Dixon v. United States,

Guang Ju Lin v. U.S.,

Rhode Island Rec. Center v. Aetna Casualty and Surety Co.,

United States v. Agard,

United States v. Alexander,

United States v. Alvear,

United States v. Ashu,

United States v. Bailey,

United States v. Becerra,

United States v. Bell,

United States v. Benitez,

United States v. Butler,

United States v. Castro-Gomez,

United States v. Chi Tong Kuok,

United States v. Colacurcio,

United States v. Contento-Pachon,

United States v. Deleveaux,

United States v. Flores-Santos,

United States v. Foster,

United States v. Fuentes-Flores,

United States v. Gant,

United States v. Gaviria,

United States v. Gomez,

United States v. Gonzalez,

United States v. Gorham Bey,

United States v. Harper,

United States v. Hill,

United States v. Holliday,

United States v. Jankowski,

United States v. Jennell,

United States v. Jones,

United States v. Keller,

United States v. Louis,

United States v. Maestre-Polo,

United States v. Meraz-Valeta,

United States v. Milligan,

United States v. Monea,

United States v. Otis,

United States v. Paolello,

United States v. Posada-Rios,

United States v. Rice,

United States v. Salgado-Ocampo,

United States v. Shryock,

United States v. Sixty Acres in Etowah Cnty.,

United States v. Smith,

United States v. Vasquez-Landaver,

8 U.S.C. 1323 ................................................................................................................................8

18 U.S.C. 1543 and 1546(a)........................................................................................................5

Handbook on Criminal Law, 28, 635(1972) .................................................................................3

Substantive Criminal Law, 5.3, 219(West 1996) ..........................................................................7

I. Duress and Necessity are Justification Defenses with Common Elements

. . . To excuse a criminal act, the Defendant must prove by a preponderance of the