Stansell v. Revolutionary Armed Forces of Colombia

Decision Date23 August 2022
Docket Number20-11736, No. 20-12467, No. 20-12545
Citation45 F.4th 1340
Parties Keith STANSELL, Marc Gonsalves, Thomas Howes, Judith Janis, as Personal Representative of the Estate of Greer Janis, Michael Janis, et al., Plaintiffs-Counter Defendants-Appellees, Satori Fine Linens, Newmil Marine, LLC, Intervenors-Plaintiffs, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA, Defendant, UBS Financial Services, Inc., Branch Banking & Trust Company, Safra National Bank of New York, Morgan Stanley Smith Barney, LLC, Safra SECURITIES, LLC, Interested Parties-Appellees, Citibank, N.A., Interested Party-Cross Claimant-Counter Claimant, Samark Jose Lopez Bello, et al., Intervenors-Cross Defendants-Appellants. Keith Stansell, Marc Gonzalves, Thomas Howes, Judith Janis, as Personal Representative of the Estate of Greer Janis, MICHAEL JANIS, et al., Plaintiffs-Counter Defendants-Appellees, v. Leucadendra 325 LLC, Claimant-Appellant, Samark Jose Lopez Bello, Intervenor-Cross Defendant-Appellant. Keith Stansell, Marc Gonsalves, Thomas Howes, Judith Janis, as Personal Representative of the Estate of Greer Janis, Michael Janis, et al., Plaintiffs-Counter Defendants-Appellees, Satori Fine Linens, Newmil Marine, LLC, Intervenors-Plaintiffs, v. Revolutionary Armed Forces of Colombia, Coles Adventures, LLC, Defendants, UBS Financial Services, Inc., Branch Banking & Trust Company, Safra National Bank of New York, Morgan Stanley Smith Barney, LLC, Safra Securities, LLC, Oxbow Carbon, LLC, SSMPETCOKE, LLC, Oxbow Energy Solutions, LLC, Interested Parties, Loisinette Leiva, Trustee of LLP Trust, Interested Party-Appellant, Citibank, N.A., Interested Party-Cross Claimant-Counter Claimant.
CourtU.S. Court of Appeals — Eleventh Circuit

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-Counter Defendants-Appellees.

Kerri E. Chewning, Archer & Greiner, PC, Voorhees, NJ, Glen Matthew Lindsay, Mr., Saavedra Goodwin, Fort Lauderdale, FL, Jeffrey M. Scott, Jeffrey M. Kolansky, Archer & Greiner, PC, Philadelphia, PA, Adam Seth Fels, Fridman Fels & Soto, PLLC, Coral Gables, FL, for Intervenors-Cross Defendants-Appellants.

Kerri E. Chewning, Archer & Greiner, PC, Voorhees, NJ, Glen Matthew Lindsay, Mr., Saavedra Goodwin, Fort Lauderdale, FL, Jeffrey M. Scott, Archer & Greiner, PC, Philadelphia, PA, Adam Seth Fels, Fridman Fels & Soto, PLLC, Coral Gables, FL, for Claimant-Appellant.

Kerri E. Chewning, Archer & Greiner, PC, Voorhees, NJ, Jeffrey M. Scott, Archer & Greiner, PC, Philadelphia, PA, Adam Seth Fels, Fridman Fels & Soto, PLLC, Coral Gables, FL, for Interested Party-Appellant.

Before William Pryor, Chief Judge, Jordan, Circuit Judge, and Brown, District Judge.*

JORDAN, Circuit Judge:

For plaintiffs in civil litigation, obtaining a favorable judgment is only one step on the road to financial compensation. That is because a judgment is essentially worthless unless the holder can collect on it. See, e.g., David Barnhizer, Abandoning an "Unethical" System of Legal Ethics , 2012 Mich. St. L. Rev. 347, 401 ("If you cannot collect the money, the paper value [of a judgment] is little more than symbolic."). So when the defendant liable for a sizable judgment is a foreign terrorist organization, collection efforts are not surprisingly often directed at third parties.

These consolidated appeals constitute the latest chapter of a long-running legal battle over attempts to satisfy a 2010 default judgment of $318 million under the Anti-Terrorism Act, 18 U.S.C. § 2333, against the Revolutionary Armed Forces of Colombia (the Fuerzas Armadas Revolucionarias de Colombia or FARC) for murder and kidnapping. See Stansell v. Revolutionary Armed Forces of Colombia , 704 F.3d 910 (11th Cir. 2013) ( Stansell I ); Stansell v. Revolutionary Armed Forces of Colombia , 771 F.3d 713 (11th Cir. 2014) ( Stansell II ); Stansell v. Revolutionary Armed Forces of Columbia , 772 F. App'x 772 (11th Cir. 2019) ( Stansell III ); Stansell v. Lopez Bello , 802 F. App'x 445 (11th Cir. 2020) ( Stansell IV ). In the first appeal—Case No. 20-11736Samark López Bello and several limited liability companies he owns or controls (EPBC Holdings, 1425 Brickell 63-F, 1425 Brickell 46B, 1425 Brickell 64E, 200G PSA Holdings, Leucadendra 325, and MFAA Holdings) appeal the district court's orders directing certain garnishees to liquidate and/or distribute their assets to the plaintiffs who obtained the $318 million judgment. In the second appeal—Case No. 20-12467—Mr. López and Leucadendra 325 appeal the denial of their motion for a preliminary injunction to stop the sale of real property located at 325 Leucadendra Drive in Coral Gables, Florida. In the third appeal—Case No. 20-12545Loisinette Leiva (Mr. López's wife) appeals the district court's denial of her motion to intervene in the proceedings concerning the sale of real property located at 325 Leucadendra Drive (and owned by Leucadendra 325, one of the appellants in Case Nos. 20-11736 and 20-12467).

In Case No. 20-11736, we conclude that a jury must decide whether Mr. López and his companies qualify as agencies or instrumentalities of the FARC such that their assets can be garnished by the plaintiffs to satisfy their $318 million judgment. We therefore reverse and remand in that appeal. In Case No. 20-12467, we dismiss the appeal as moot because 325 Leucadendra has been sold and we lack the ability to grant the requested relief. In Case No. 20-12545, we affirm the district court's order denying Ms. Leiva's motion to intervene as untimely and therefore dismiss the appeal.

I1

As relevant here, § 201(a) of the Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, codified as a note to 28 U.S.C. § 1610, provides that "[n]otwithstanding any other provision of law ... the blocked assets of [a] terrorist party [against which a judgment is obtained] (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment." In Stansell II , we set out the elements required under § 201(a) of the TRIA to execute on or attach the assets of a third party who is alleged to be an agency or instrumentality of a terrorist party. The movant must prove (1) that he obtained a judgment against a terrorist party for a claim based on an act of terrorism, (2) that the amount sought to be executed or attached does not exceed the compensatory damages awarded to the movant, (3) that the assets of the third party are blocked (as that term is defined under the TRIA), and (4) that the third party is an agency or instrumentality of the terrorist party. See Stansell II , 771 F.3d at 723.

A

In February of 2017, the Office of Foreign Assets Control—acting pursuant to the Foreign Narcotics Drug Kingpin Act, 21 U.S.C. §§ 1901 –08—determined that Mr. López was a "specially designated narcotics trafficker" (SDNT) based upon his provision of material assistance, financial support, or goods and services in support of the drug-trafficking activities of Tareck Zaidan El Aissami Maddah (who served as the former Executive Vice-President of Venezuela and is now the current Minister of Oil & Industry and National Production of Venezuela). The OFAC determined that Mr. López acted as a "key frontman" for Mr. El Aissami and his narcotics activities, identified a number of companies owned or controlled by Mr. López, and blocked the assets of Mr. López and those companies. See Press Release, U.S. Dep't of the Treasury, Treasury Sanctions Prominent Venezuelan Drug Trafficker Tareck El Aissami and His Primary Frontman Samark López Bello , 2017 WL 563391 (Feb. 13, 2017) ; Bruce Zagaris, U.S. Treasury Designates Venezuela's Vice President under Narco Kingpin Act , 33 Int'l Enforcement L. Rep. 48 (Feb. 24, 2017).2

Two years later, in February of 2019, the plaintiffs who had obtained the $318 million judgment against the FARC filed an ex parte motion in the district court for writs of garnishment and execution against the assets of the López appellants (e.g., condominiums, vessels, and bank accounts). They proceeded under § 201(a) of the TRIA and invoked Florida's garnishment and execution statutes, Fla. Stat. §§ 56.0101, 77.01 et seq. On the merits, the plaintiffs asserted, through affidavits and other evidence, that the López appellants could be tied to the FARC through their connections with Mr. El Aissami. The district court agreed with the plaintiffs, and found in an ex parte order that Mr. El Aissami and the López appellants were agencies or instrumentalities of the FARC. See D.E. 22.

Upon receiving notice of the ex parte proceeding, the López appellants filed motions—with supporting lay and expert affidavits—to dissolve the writs of garnishment. They made a number of arguments, including that the ex parte proceeding violated their due process rights and that the district court had erred in finding them to be agencies or instrumentalities of the FARC. See, e.g., D.E. 55, 80, 97.

The district court denied the López appellants’ request to cancel the sale of several Miami-area properties, see D.E. 101, but referred to a magistrate judge the motion to dissolve the writs of garnishment with respect to bank accounts held by Mr. López. The magistrate judge, following an evidentiary hearing, issued a report (a) recommending that the district court deny the motion to dissolve and (b) finding that the López appellants were agencies or instrumentalities of the FARC. See D.E. 248. The district court overruled the López appellants’ objections and adopted the magistrate judge's report. See D.E. 279. It later issued final turnover judgments as to the garnished assets. See D.E. 339.

B

In March of 2019, just after the plaintiffs filed their ex parte motions for writs of garnishment, a federal grand jury in New York returned an indictment against Mr. López charging him with violating OFAC sanctions by using bulk cash to pay for charter flights between Venezuela...

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