Stansell v. Revolutionary Armed Forces Colombia

• Decision Date: 16 October 2014
• Docket Number: 13–12337.,13–12116,13–12019,13–12171,13–11959,Nos. 13–11339,s. 13–11339
• Citation: 771 F.3d 713
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Keith STANSELL, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Greer C. Janis, Michael I. Janis, Jonathan N. Janis, Plaintiffs–Appellees, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA, (FARC), et al., Defendants, Jose Ricuarte Diaz Herrera, Claimant–Appellant, Wachovia Bank, a Division of Wells Fargo Bank, N.A., et al., Garnishees, Mercurio International S.A., et al., Claimants. Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Michael I. Janis, Greer C. Janis, Jonathan N. Janis, Plaintiffs–Appellees, v. Revolutionary Armed Forces of Colombia (FARC), et al., Defendants, Carmen Siman, Armando Jaar, Ricardo Jaar, Moises Saieh, Carlos Saieh, Abdala Saieh, Jaqueline Saieh, U.S. Citizen Beneficial Owner of Brunello Ltd. Trust, C.W. Salman Partners, Salman Coral Way Partners, Confecciones Lord S.A., ALM Investment Florida, Inc., Villarosa Investments Florida, Inc., Karen Overseas, Inc., MLA Investments, Inc., Jacaria Florida, Inc., Sunset & 97th Holdings, LLC, Mariam Sutherlin, Jamce Investments, Ltd., Amelia Saieh, Claimants–Appellants, Kathya Saieh, Jaime Saieh, Laura Saieh, Sandra Saieh, Karen Saieh, Granada Associates, Inc., Defendants–Appellants. Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, et al., Plaintiffs–Appellees, v. Revolutionary Armed Forces of Colombia (FARC), et al., Defendants, Plainview Florida II, Inc., C.W. Salman Partners, Salman Coral Way Partners, Claimants–Appellants. Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, et al., Plaintiffs–Appellees, v. Revolutionary Armed Forces of Colombia, (FARC), et al., Defendants, Carmen Siman, Armando Jaar, Moises Saieh, Carlos Saieh, Claimants–Appellants. Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Greer C. Janis, Michael I. Janis, Jonathan Janis, Plaintiffs–Appellees, v. Revolutionary Armed Forces of Colombia (FARC), et al., Defendants, Kathya Saieh, Laura Saieh, Sandra Saieh, Karen Saieh, Defendants–Appellants, Carlos Saieh, Brunello, Ltd., Jacqueline Saieh, U.S. Citizen Beneficial Owner of Brunello Ltd. Trust, Claimants–Appellants. Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Greer C. Janis, Michael I. Janis, Jonathan N. Janis, Plaintiffs–Appellees, v. Revolutionary Armed Forces of Colombia (FARC), et al., Defendants, Luis Sutherlin, Claimant–Appellant.

771 F.3d 713

Keith STANSELL, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Greer C. Janis, Michael I. Janis, Jonathan N. Janis, Plaintiffs–Appellees,

v.REVOLUTIONARY ARMED FORCES OF COLOMBIA, (FARC), et al., Defendants,Jose Ricuarte Diaz Herrera, Claimant–Appellant,

Wachovia Bank, a Division of Wells Fargo Bank, N.A., et al., Garnishees,

Mercurio International S.A., et al., Claimants.

Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Michael I. Janis, Greer C. Janis, Jonathan N. Janis, Plaintiffs–Appellees,

v.Revolutionary Armed Forces of Colombia (FARC), et al., Defendants,Carmen Siman, Armando Jaar, Ricardo Jaar, Moises Saieh, Carlos Saieh, Abdala Saieh, Jaqueline Saieh, U.S. Citizen Beneficial Owner of Brunello Ltd. Trust, C.W. Salman Partners, Salman Coral Way Partners, Confecciones Lord S.A., ALM Investment Florida, Inc., Villarosa Investments Florida, Inc., Karen Overseas, Inc., MLA Investments, Inc., Jacaria Florida, Inc., Sunset & 97th Holdings, LLC, Mariam Sutherlin, Jamce Investments, Ltd., Amelia Saieh, Claimants–Appellants,Kathya Saieh, Jaime Saieh, Laura Saieh, Sandra Saieh, Karen Saieh, Granada Associates, Inc., Defendants–Appellants.

Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, et al., Plaintiffs–Appellees,

v.Revolutionary Armed Forces of Colombia (FARC), et al., Defendants,Plainview Florida II, Inc., C.W. Salman Partners, Salman Coral Way Partners, Claimants–Appellants.

Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, et al., Plaintiffs–Appellees,

v.Revolutionary Armed Forces of Colombia, (FARC), et al., Defendants,Carmen Siman, Armando Jaar, Moises Saieh, Carlos Saieh, Claimants–Appellants.

Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Greer C. Janis, Michael I. Janis, Jonathan Janis, Plaintiffs–Appellees,

v.Revolutionary Armed Forces of Colombia (FARC), et al., Defendants,Kathya Saieh, Laura Saieh, Sandra Saieh, Karen Saieh, Defendants–Appellants,Carlos Saieh, Brunello, Ltd., Jacqueline Saieh, U.S. Citizen Beneficial Owner of Brunello Ltd. Trust, Claimants–Appellants.

Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T. Janis, Greer C. Janis, Michael I. Janis, Jonathan N. Janis, Plaintiffs–Appellees,

v.Revolutionary Armed Forces of Colombia (FARC), et al., Defendants,Luis Sutherlin, Claimant–Appellant.

Nos. 13–11339, 13–11959, 13–12019, 13–12116, 13–12171, 13–12337.

United States Court of Appeals, Eleventh Circuit.

Oct. 16, 2014.

Richard B. Rosenthal, Law Office of Richard B. Rosenthal, PA, Miami, FL, Tony Korvick, Newton Patrick Porter, Porter & Korvick, PA, Coral Gables, FL, for Plaintiffs–Appellees.

Joseph S. Rosenbaum, Joseph S. Rosenbaum, PA, Guy Richard Strafer, G. Richard Strafer, PA, Richard Carroll Klugh, Jr., Law Offices of Richard C. Klugh, Simon Ferro, Jr., Ferro Law Office, Jacqueline Shapiro, Attorney at Law, John E. Bergendahl, Law Offices of John E. Bergendahl, Miami, FL, Joseph W. Ozmer, II, Wargo & French, LLP, Atlanta, Ga, Michael Ross Tein, Lewis Tein, PL, Coconut Grove, FL, for Plainview Florida II, Inc., C.W. Salman Partners, Salman Coral Way Partners, Claimants–Appellants.

Appeals from the United States District Court for the Middle District of Florida.D.C. Docket No. 8:09–cv–02308–RAL–MAP.

Before WILSON, JORDAN and BLACK, Circuit Judges.

WILSON, Circuit Judge:

These appeals arise from the collection efforts of victims of a terrorist kidnapping in Colombia.After obtaining a nine-figure default judgment against their captor, they attempted to collect through a series of ex parte garnishments and executions against third parties with purported illicit ties to the captor.The third-partyclaimants challenge the judgments against their property on both substantive and procedural grounds, including alleged due process violations arising from the ex parte manner in which the district court initially handled the proceedings.We affirm the district court as to all appeals but one: No. 13–12171, concerning Brunello Ltd.

I.Global Discussion

Because common themes run through all appeals, we initially discuss the underlying facts and common issues globally.Later, we will apply our conclusions to the particular circumstances of each appeal and analyze the unique issues in a more individualized manner for each third-partyclaimant.

A.Underlying Procedural and Factual Background

On February 13, 2003, Keith Stansell, Marc Gonsalves, Thomas Howes, and Thomas Janis were flying over Colombia while performing counter-narcotics reconnaissance.Members of the Revolutionary Armed Forces of Colombia (FARC) shot their plane down and, after the plane's crash landing, captured the group.FARC immediately executed Janis and took the survivors hostage, holding them for over five years.After they were rescued and returned to the United States, Stansell, Gonsalves, and Howes—along with Janis's wife, Judith G. Janis, as personal representative of his estate, and his surviving children, Christopher T. Janis, Greer C. Janis, Michael I. Janis, and Jonathan N. Janis—(collectively, Plaintiffs) filed a complaint against FARC in the United States District Court for the Middle District of Florida under the Antiterrorism Act, 18 U.S.C. § 2333, naming FARC and a number of associated individuals as defendants.After court-directed service of summons by publication, FARC failed to appear, and the district court entered a default judgment in favor of Plaintiffs in the amount of $318,030,000 on June 15, 2010.

Because of the difficulty inherent in the direct execution of a judgment against a terrorist organization, Plaintiffs sought to satisfy their award by seizing the assets of “agenc[ies] or instrumentalit[ies]” of FARC pursuant to Section 201(a) of the Terrorism Risk Insurance Act of 2002,Pub.L. No. 107–297, § 201(a),116 Stat. 2322, 2337(TRIA),¹ which reads:

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.

TRIA § 201(a).The elements a party is required to establish before executing under TRIA § 201 are therefore quite straightforward.The party must first establish that she has obtained a judgment against a terrorist party that is either for a claim based on an act of terrorism or for a claim for which a terrorist party is not immune.Weininger v. Castro,462 F.Supp.2d 457, 479(S.D.N.Y.2006).The party must then show that the assets are blocked as that term is defined in TRIA.Id.Finally, the total amount of the execution cannot exceed the amount of compensatory damages.Id.If the party wishes to execute against the assets of a terrorist party's agency or instrumentality, the party must further establish that the purported agency or instrumentality is actually an agency or instrumentality.Of the preceding elements, only the blocked asset and agency or instrumentality determinations are at issue in any of the appeals here.

TRIA defines “blocked assets” as “any asset seized or frozen by the United States under section 5(b) of the Trading With the Enemy Act[ (TWEA) ] or under sections 202and203 of the International Emergency Economic Powers Act[ (IEEPA) ].”TRIA § 201(d)(2)(A)(citation omitted).Assets are blocked when the United States Department of the Treasury Office of Foreign Assets Control(OFAC) designates the owner of the assets as a Specially Designated Narcotics Trafficker (SDNT).See31 C.F.R. §§ 594.201,594.301,597.201,597.303.OFAC's blocking power is authorized by TWEA, 12 U.S.C. § 95a, 50 App. U.S.C. §§ 1–14, 16–39, 40–44, and the IEEPA,50 U.S.C. §§ 1701–1706, the blocking authority of which TRIA § 201 includes in its definition of blocked assets.²OFAC also has blocking authority under other legislation not mentioned in TRIA § 201, including the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. §§ 1901– 08(Kingpin Act).OFAC specifies the jurisdictional basis for any designation it makes, i.e. the statute under which an individual or entity is designated.Thus, the blocking of assets by OFAC does not necessarily bring those assets within the ambit of TRIA execution.SeeStansell v. Revolutionary Armed Forces of Colom. (Mercurio),704 F.3d 910, 915–17(11th Cir.2013)(per curiam)(reversing an order permitting TRIA execution of assets that OFAC had blocked pursuant to the Kingpin Act).³All the individuals and entities party to these appeals (Claimants)⁴ whose property is in jeopardy due to Plaintiffs' TRIA execution had been designated SDNTs by OFAC, rendering their assets blocked.Other than Herrera, no party disputes that the assets in question were blocked at some point for purposes of TRIA execution, though some argue that their eventual de-listing during the pendency of the proceedings should have been given effect.

TRIA itself does not define the term “agency or instrumentality.”However, § 201 is codified as a note to the Foreign Sovereign Immunities Act,28 U.S.C. §§ 1330,1602–11(FSIA).See28 U.S.C. § 1610 (note).The FSIA defines the term:

An “agency or instrumentality of a foreign state” means any entity—

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is...