Stansell v. Revolutionary Armed Forces of Colom. (FARC)
| Decision Date | 29 March 2022 |
| Docket Number | 16-MC-00405 (LGS)(SN) |
| Parties | KEITH STANSELL, et al., Plaintiffs, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA (FARC), et al., Defendants. OLIVIA PESCATORE, et al., Plaintiffs, v. JUVENAL OVIDIO RICARDO PALMERA PIENDA, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
TO THE HONORABLE LORNA G. SCHOFIELD:
REPORT AND RECOMMENDATION
For more than a decade, Antonio Caballero, the Stansell family and the Pescatore family have sought redress for the abuses inflicted on them and their families by Fuerzas Armadas Revolucionarias de Colombia (“FARC”), the Ejercito de Liberacion Nacional (the “ELN”), and the El Norte del Valle Cartel (the “NDVC”). They have obtained judgments against these groups under the Antiterrorism Act (“ATA”) and now seek to satisfy those judgments. These efforts have brought these judgment holders into conflict.
The Stansells and Pescatores (who have combined their collection efforts)[1] registered their judgments in this District and, through the Terrorism Risk Insurance Act (“TRIA”), sought the turnover of assets of purported FARC agents and instrumentalities. Caballero intervened, also seeking to satisfy his judgment with these assets. In response, the third parties holding those accounts sought interpleader relief, naming the Stansells, Pescatores, and Caballero as defendants. They, in turn, answered and crossclaimed against each other. Each judgment holder seek a declaratory judgment finding that their ATA judgment is valid while their opponents' is not. Their arguments also implicate issues raised by Samark Jose Lopez Bello and the Yakima Trading Corporation (“Yakima”), third party asset holders affected by the turnovers.
Both sides succeed in defending their own judgments but fail in attacking their opponents'. Accordingly, the Court recommends entering a declaratory judgment that Caballero's judgment is not void as a matter of law, that Caballero is entitled to collect both the economic and non-economic compensatory damages awarded to him, and that Stansells and Pescatores may collect their entire ATA judgments as compensatory damages under TRIA's provisions. To the degree that the parties' crossclaims are inconsistent with this judgment, the Court recommends that they be dismissed.
Two elements are necessary to understand this matter's intertwined procedural and factual background: the history of the parties' judgments and the present proceeding that brought these judgment creditors into conflict. The Court addresses each in turn. The relevant facts are uncontested. The Court has, where appropriate, taken judicial notice of the court records of the cases related to this one. See e.g., Jianjun Lou v. Trutex, Inc., 872 F.Supp.2d 344, 350 (S.D.N.Y. 2012)(“In the Rule 12(b)(6) context, a court may take judicial notice of prior pleadings, orders, judgments, and other related documents that appear in the court records of prior litigation and that relate to the case sub judice.”) (quoting Ferrari v. Cnty. of Suffolk, 790 F.Supp.2d 34, 38 n.4 (E.D.N.Y. 2011)) (internal quotations omitted).
The Stansells and Pescatores were both victims of FARC's brutality. In February 2003, Keith Stansell, Marc Gonsalves, Thomas Howes, and Thomas Janis were flying an anti-drug mission in Colombia when they were shot down by FARC. All four survived, but Janis was killed by FARC shortly after landing. Stansell, Gonsalves, and Howes were held hostage for more than five years. Stansell v. Revolutionary Armed Forces of Colombia, No. 09-cv-2308 (RAL), 2010 WL 11507790, at *1 (M.D. Fla. June 14, 2010) (“Stansell I”).
They and their families sued FARC under the private cause of action created by the ATA. See 18 U.S.C. § 2333(a) (“§ 2333(a)”). In June 2010, they obtained a judgment in the Middle District of Florida after FARC defaulted. After trebling the damages as required by the ATA, Stansell, Gonsalves, and Howes each received awards of $74,010,000. Janis's spouse Judith was awarded $36,000,000, and each of Janis's four children was awarded $15,000,000. The total judgment is $318,030,000. Id. at *4.
The Stansell Plaintiffs later received a declaratory judgment in the Southern District of Florida finding that the full Stansell I award was “for compensatory damages.” Stansell v. Revolutionary Armed Forces of Columbia, No. 19-cv-20896 (RNS), 2020 WL 4692748, at *2 (S.D. Fla. July 16, 2020) (“Stansell II”). A few months later, Lopez Bello intervened in the original Stansell proceeding in the Middle District of Florida “to remove references to compensatory damages” through a motion under Federal Rule of Civil Procedure 60(a). Stansell et al. v. Revolutionary Armed Forces of Colombia et al., No. 09-cv-2308 (CEH), ECF No. 1222 at 5 (“Stansell III”). That motion was denied. Id. at 5.
Frank Pescatore was kidnapped by FARC forces commanded by Palmera Pineda in 1996. They sought to ransom him, but later killed him when he attempted to escape. Undeterred, FARC applied make-up to make him appear alive and continued to seek a ransom. When it was not paid, they disposed of his body. Pescatore et al., v. Palmera Pineda et al., 345 F.Supp.3d 68, 70 (D.D.C. 2018). His family obtained a default judgment in which his widow received $5,000,000, his father and four children received $3,000,000 each, and his three siblings received $1,000,000 each. The total award, after each of these were trebled, came to $69,000,000. Id. at 78.
Like the Stansells and Pescatores, Caballero's family was devastated by FARC violence. Caballero's father, Carlos, was a leading Columbian politician, former ambassador to the United Nations, and outspoken critic of drug trafficking. He also owned land along a trafficking route, so to deter resistance among local landowners, the ELN kidnapped him. FARC and the ELN then tortured him for six months before executing him. They made threats against Caballero as well, forcing him to flee to the United States. Caballero v. FARC, No. 18-cv-25337 (KMM), 2020 WL 7481302, at *1 (S.D. Fla. May 20, 2020) (“Caballero III”).
On these tragic facts, Caballero secured two judgments. First, in 2012, he sued FARC, the ELN, and the NDVC, in the Eleventh Judicial Circuit Court of Florida, alleging violations of the Alien Tort Statute (“ATS”), the federal and Florida versions of the Civil Racketeer Influenced and Corrupt Organizations (“RICO”) statutes, and Columbian law. Caballero v. FARC et al., No. 12-48803-CA-02 (LSW), 2014 WL 12956651, at *1 (“Caballero I”). The defendants did not appear, and a default was entered in December 2013. Id. Five months later, the defendants were found liable for every violation alleged. Id. A final judgment was issued in November 2014. Caballero v. FARC et al., No. 12-48803-CA-02, 2014 WL 12956652 (Fla. Cir. Ct. Nov. 18, 2014) (“Caballero II”). At the time, Caballero was a resident alien. Caballero I, 2014 WL 12956651, at *3.
Then, in 2018, Caballero, now a U.S. citizen, brought claims against FARC and the NDVC under the ATA. Caballero III, 2020 WL 7481302, at *2. Again, neither FARC nor the NDVC appeared, and, drawing on the facts of his state court action, Caballero secured a default judgment against both. Id. at *7. The Caballero III court followed Caballero II on the question of damages as well, awarding $45,000,000 in non-economic damages, and $1,729,667 in economic damages, both of which were trebled as required by the ATA. Id. The Stansells and Pescatores attempted to intervene in that proceeding, but their motion was denied. Caballero v. ELN et al., No. 18-cv-25337 (KMM), 2019 WL 11505371 (S.D. Fla. June 27, 2019) (“Caballero IV”).
Since then, Caballero has obtained turnover motions based on this judgment in other courts. See, e.g., Caballero v. FARC et al., No. 21-cv-11393 (IT), 2021 WL 4477436 (D. Mass. Sept. 30, 2021).
The present dispute arose after the Stansells and Pescatores registered their judgments in this District and sought to initiate turnover proceedings. Their targets are several accounts held by third-party garnishees Citibank, N.A. (“Citibank), Sumitomo Mitsui Banking Corporation (“Sumitomo Mitsui”), and Equiniti Trust Company (“Equiniti”). These accounts are blocked by the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”). Blocked assets of foreign terrorist organizations (e.g., FARC) as well as their agencies and instrumentalities[2] are subject to attachment and execution under Section 201(a) of the Terrorism Risk Insurance Act of 2002, Pub. L. 107-297, codified at 28 U.S.C. § 1610 note (“TRIA § 201(a)”).
The Stansells registered their judgment in this District on November 11, 2016. ECF No. 5.[3] The Pescatores followed two years later. Pescatore, ECF No. 1. After registering their judgments, they filled turnover motions under TRIA § 201(a)).
Caballero entered the picture on December 30, 2020, and announced his intention to seek the same assets. ECF No. 124. With multiple parties targeting these accounts, the garnishees sought interpleader relief. Equiniti filed the first interpleader complaint, then Citibank and Sumitomo Mitsui followed suit. Some of these complaints were later amended. Caballero and the Stansells and Pescatores answered, crossclaiming against each other, and answering their crossclaims. The full set of complaints, with their associated answers and crossclaims is catalogued in Table 1 in Appendix A.
Despite the volume of activity, the claims and counterclaims of the Stansells, Pescatores, and Caballero turn on similar arguments. The Stansells and Pescatores (whether in their original...
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