Caballero v. Fuerzas Armadas Revolucionarias de Colombia

Decision Date29 December 2021
Docket NumberCase No. 2:20-cv-07602-JWH
Citation562 F.Supp.3d 867
Parties Antonio CABALLERO, Plaintiff, v. FUERZAS ARMADAS REVOLUCIONARIAS DE COLOMBIA, and Norte Del Valle Cartel, Defendants, and Julio Cesar Alvarez Montelongo, Intervenor.
CourtU.S. District Court — Central District of California

Joseph I. Zumpano, Pro Hac Vice, Leon N. Patricios, Pro Hac Vice, Zumpano Patricios PA, Coral Gables, FL, Richard Henderson Coombs, Jr., Richard Coombs Jr. Law Offices, Laguna Beach, CA, Darren J. Devlin, Law Offices of Jason C. Tatman APC, San Diego, CA, for Plaintiff.

MEMORANDUM OPINION AND ORDER REGARDING PENDING MOTIONS [ECF Nos. 89–94]

John W. Holcomb, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Anthony Caballero's father—a Colombian politician and diplomat—was kidnapped, tortured, and killed by forces from the Ejercito de Liberacion (the "ELN") and Fuerzas Armadas Revolucionarias de Colombia (the "FARC").1 The FARC and the ELN committed those heinous acts to facilitate their distribution of illicit drugs throughout the United States.2 FARC forces subsequently threatened Caballero, causing him to abandon his family farm and to flee Colombia.3 Caballero successfully sued the ELN in a Florida state court for the abuse that his father suffered, and Caballero received an award of millions of dollars in damages.4 Caballero then sued the FARC in the United States District Court for the Southern District of Florida under the Anti-Terrorism Act (the "ATA"), 18 U.S.C. § 2333, for the FARC's terrorist acts against him.5 On May 20, 2020, Caballero prevailed again, and the Southern District of Florida entered judgment in his favor in the amount of $45 million.6 This Court now confronts issues pertaining to Caballero's efforts to collect that judgment.

Caballero commenced this enforcement action in August 2020.7 A few days later, Caballero moved ex parte for a writ of execution pursuant to § 201(a) of the Terrorism Risk Insurance Act of 2002 ("TRIA"), Pub. L. No. 107-297, § 201(a), 116 Stat. 2322 (codified at 28 U.S.C. § 1610 note), for post-judgment execution on the blocked assets of four non-parties: Julio Cesar Alvarez Montelongo ("Alvarez"); Noryban Productions, S.A. de C.V.; JCAM Editora Musical, S.A. de C.V.; and J.C.A.M. Publishing, LLC.8 The Court granted that Application in January 2021.9 In doing so, based upon the evidence that Caballero submitted in support of his Application, the Court determined that Alvarez and the other non-parties were "agencies or instrumentalities" of the FARC.10 See TRIA § 201(a). Accordingly, the Court directed the Clerk to issue a writ of execution and thereby authorized "Caballero to attach any assets within this Court's jurisdiction in the putative names of, held for the benefit of, or that were blocked due to their association with" Alvarez and the other non-parties.11 In March 2021, Alvarez moved to intervene in this action;12 the Court granted that motion a month later.13

Presently before the Court are five motions through which Alvarez seeks the following relief:

• an order dissolving the writ of execution because Caballero has not established that Alvarez is an agency or instrumentality of the FARC;14
• an order vacating the Order Re Writ of Execution and dismissing this action because the subject assets are not blocked and because Caballero's judgment is already satisfied;15
• an order vacating the Order Re Writ of Execution and dismissing this action because the underlying judgment is void;16
• an order vacating the Order Re Writ of Execution and dismissing this action for lack of personal jurisdiction and for failure to comply with California law;17 and • leave of Court for Alvarez to take reciprocal depositions of Caballero and his witnesses.18

Also pending before the Court is a motion by Caballero to compel the deposition of Alvarez in this District.19

The Court conducted a hearing on the six pending motions on July 23, 2021. The Court addresses each motion in turn.

II. DISCUSSION
A. Alvarez's Motion Regarding Blocked Assets

TRIA § 201(a) authorizes a terrorism victim to execute upon the "blocked assets" of a terrorist party or its agency or instrumentality. Section 201(a) of TRIA provides:

Notwithstanding any other provision of law, and except as provided in subsection (b), in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under section 1605(a)(7) of title 28, United States Code, the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.

Alvarez seeks to dissolve the Writ of Execution and to dismiss this action on the grounds that Alvarez's assets are not "blocked" for the purposes of TRIA and that Caballero's judgment is already satisfied.

1. "Blocked" Assets

Alvarez concedes that in 2017 the United States Office of Foreign Assets Control ("OFAC") designated Alvarez as a Specially Designated Narcotics Trafficker ("SDNT") pursuant to the Foreign Narcotics Kingpin Designation Act (the "Kingpin Act"), Pub. L. No. 106-120, § 801 et seq. , 113 Stat. 1606 (codified at 21 U.S.C. §§ 1901 et seq. ).20 However, Alvarez contends that in 2017, individuals designated—and assets blocked—under the Kingpin Act did not qualify as "blocked" for the purposes of TRIA.21

In 2017, when Alvarez was designated as an SDNT under the Kingpin Act, TRIA § 201 defined a "blocked asset" to mean only assets "seized or frozen by the United States under section 5(b) of the Trading With the Enemy Act [Trading Act] ... or under sections 202 and 203 of the International Emergency Economic Powers Act [Economic Powers Act]...." TRIA § 201(d)(2)(A); see also Stansell v. Revolutionary Armed Forces of Colombia , 704 F.3d 910, 915 (11th Cir. 2013) (" Stansell I"). In 2018, Congress amended the ATA (the statute upon which Caballero's judgment is based) for the express purpose of redefining the term "blocked asset" to include the assets of a party designated under the Kingpin Act.

Pub. L. No. 115-253, § 3(a), 132 Stat. 3183 (the "2018 Amendment") (codified at 18 U.S.C. § 2333(e) ). As amended, the ATA provides, in pertinent part, the following:

[F]or purposes of section 201 of the Terrorism Risk Insurance Act of 2002 ( 28 U.S.C. [§] 1610 note), in any action in which a national of the United States has obtained a judgment against a terrorist party pursuant to this section, the term "blocked asset" shall include any asset of that terrorist party (including the blocked assets of any agency or instrumentality of that party) seized or frozen by the United States under section 805(b) of the Foreign Narcotics Kingpin Designation Act ( 21 U.S.C. [§] 1904(b) ).

18 U.S.C. § 2333(e). Congress further established that the 2018 Amendment "shall apply to any judgment entered before, on, or after the date of enactment of this Act." 2018 Amendment § 3(b).

Alvarez does not meaningfully contest the plain language of the 2018 Amendment or the fact that Congress expressly stated its intent for the 2018 Amendment to apply retroactively to judgments previously obtained under the ATA.22 Indeed, in view of the plain text of the 2018 Amendment, Alvarez's assets, which were "blocked" after Alvarez was designated under the Kingpin Act, are subject to execution under TRIA. In this regard, however, Alvarez contends that the application of the 2018 Amendment to his assets would violate the Ex Post Facto Clause of the United States Constitution, Art. I, § 10, cl. 1.23

The Ex Post Facto Clause of the Constitution "flatly prohibits retroactive application of penal legislation." Landgraf v. USI Film Prods. , 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). It "not only ensures that individuals have ‘fair warning’ about the effect of criminal statutes, but also ‘restricts governmental power by restraining arbitrary and potentially vindictive legislation.’ " Id. at 266–267, 114 S.Ct. 1483 (quoting Weaver v. Graham , 450 U.S. 24, 28–29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citations omitted)). However, as the Supreme Court has recognized, the Clause's restrictions "are of limited scope." Id. at 267, 114 S.Ct. 1483. "Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary." Id. at 267–268, 114 S.Ct. 1483. The Ex Post Facto Clause thus applies only to civil statutes that are "so punitive in either purpose or effect as to negate [Congress’] intention to deem it civil." Smith v. Doe , 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (internal quotations omitted). Here, Alvarez contends that 18 U.S.C. § 2333 is punitive in nature and, therefore, that the retroactive application of the 2018 Amendment to Alvarez's blocked assets would violate the Ex Post Facto Clause. The Court is not persuaded.

Alvarez focuses his argument on the treble damages provision of the ATA, 18 U.S.C. § 2333(a), which Alvarez contends is "overwhelmingly punitive."24 That argument, however, misses the mark. The ATA establishes a claim for relief for victims of terrorism against foreign terrorist organizations . See 18 U.S.C. § 2333(a) & (d)(2). Caballero is not seeking a judgment (or treble damages) against Alvarez—he is seeking only to enforce and collect upon the ATA judgment that he previously obtained against the FARC, a designated foreign terrorist organization. Thus, 18 U.S.C. § 2333(a) is only peripherally relevant here. Moreover, the TRIA does not shift "liability from a terrorist party to its instrumentality." Bennett v. Islamic Republic of Iran...

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