United States District Court, M.D. Florida, Tampa Division
KEITH STANSELL, MARC GONSALVES, THOMAS HOWES, JUDITH G. JANIS, CHRISTOPHER T. JANIS, MICHAEL I. JANIS and JONATHAN N. JANIS, Plaintiffs,
REVOLUTIONARY ARMED FORCES OF COLOMBIA (FARC), et al., Defendants.
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.
cause comes before the Court upon the Report and
Recommendation filed by Magistrate Judge Amanda Arnold
Sansone on March 25, 2019, (Doc. 1194). In the Report and
Recommendation (“R&R”), Magistrate Judge
Sansone recommends that the Pla int if f s' Motion for
Turnover Judgment under the Terrorism Act (Doc. 1185) be
granted and the Court enter fina l judgment in garnishment
against Ocean Bank for $928, 756.29, subject to certain
parties were furnished copies of the R&R and were
afforded the opportunity to file objections pursuant to 28
U.S.C. § 636(b)(1). Plaintiffs filed a limited objection
to the R&R (the “Objection”) regarding
whether the Terrorism Risk Insurance Act, codified at 28
U.S.C. § 1610 (the “TRIA”), requires them to
obtain a license for a TRIA Turnover Judgment under these
facts. Doc. 1195. The United States filed a Statement of
Interest (the “Statement”) which indicates that
Plaintiffs need no Department of the Treasury Office of
Foreign Assets Control (“OFAC”) license to obtain
turnover judgment under the Anti-Terrorism Act, 18 U.S.C.
§ 2333; and OFAC would not provide an ex post
authorization to turnover the funds as reasoned in the
R&R. Doc. 1197. The Court having reviewed the R&R,
the Objection, and the Statement, and otherwise being advise
d 0f the premises will sustain the objection, modify-in -part
the R&R, and grant the Motion for Turnover Judgment.
obtained a judgme nt for $318, 030, 0 00 in c ompe ns a tory
damage s aga inst the Revolutionary Armed Forces of Colombia
(“FARC”) and many individua ls due to a 2003
international act of terrorism. Docs. 1, 233. Plaintiffs
began collection on their judgment and moved for writs of
garnishment against Aero Continente's assets at Ocean
Bank. Doc. 314. The Court entered an order that Aero
Continente is an agency or instrumentalit y of the FARC
because it is involved in “the cultivation,
manufacture, processing, purchase, sale, trafficking,
security, storage, shipment or transportation, [or]
distribution of FARC coca paste or cocaine.” Doc. 322
at ¶ 15. The Court then issued a writ of garnishment
against Aero Continente's assets held by Ocean Bank.
Id. at ¶ 28(i). OFAC also designated Aero
Continente as a Specially Designated Narcotics Trafficker
the Eleventh Circuit held that assets frozen under the
Foreign Narcotics K in g pin Designation Act, 21 U.S.C.
§ § 1901-08 (the “Kingpin Act”) are not
“blocked assets” as defined by Section 201 of the
TRIA. Therefore, it held that those funds were not available
for the enforcement of judgments under the Anti-Terrorism
Act. Stansell v. Revolutionary Armed Forces of
Colom., 704 F.3d 910 (11th Cir. 2013)
(“Stansell I”). This Court stayed the
execution on the writs of garnishments, including Aero
Continente's assets at Ocean Bank, as a result. Docs.
October 3, 2018, Congress enacted the Anti-Terrorism
Clarification Act of 2018, Pub. Law 115-25 (the
“Clarification Act”) which expanded the
TRIA's definition of “blocked assets” to
include assets blocked by the Kingpin Act. 18 U.S.C. §
2333(e). Plaintiff moved for a renewed writ of garnishment
against Aero Continente's assets held at Ocean Bank, and
to lift the Court's stay on the issuance and enforcement
of the Kingpin Act writs. Doc. 1161. The Court granted the
motion. Doc. 1166.
their Motion for Turnover Judgment against Ocean Bank under
the TRIA, (the “Motion”), Doc . 1185, Plaintiffs
argue that Aero Continente is a SDNT under the Kingpin Ac t,
(§ 1904(b)), and they are thus entitled to receive its
assets held at Ocean Bank. Id. This Court referred
the Motion to Magistrate Judge Sansone for a report and
recommendation. Doc. 1186. Magistrate Judge Sansone entered
an R&R recommending that the Court grant the Motion under
object to the R&R based on its finding that they need a
license from OFAC to exe cute unde r Se c tion 201 of the
TRIA. The y re cognize that that conclusion does not
adversely affect the R&R's ultimate re commendation
with which they agree, but the y insist that the conclusion
regarding the OFAC license is erroneous. The United States
party makes a timely and specific objection to a magistrate
judge's report and recommendation, the district judge
“shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); Jeffrey S. v. State Bd. of Educ. of
State of Ga ., 896 F.2d 507, 512 (11th Cir. 1990). With
regard to those portions of the report and recommendation not
objected to, the district judge applies a clearly erroneous
standard of review. See Gropp v. United Airlines,
Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). The
district judge may accept, reject, or modify in whole or in
part, the report and recommendation of the magistrate judge.
Fed.R.Civ.P. 72. The district judge may also receive further
evidence or recommit the matter to the magistrate judge with
further instructions. Id.
[T]he request for a determination that no OFAC license is
require d to execute blocked assets under the Kingpin Act
appears inappropriate. Judgment creditors seeking to execute
property under the Kingpin Act must obtain a license from
OFAC. [Stansell v. Revolutionary Armed Forces of
Colom., 771 F.3d 713, 734 (11th Cir. 2014)] Stansell
II, 771 F.3d at 734 (citations omitted); see also
Doe v. JPMorgan Chase Bank, N.A., 899 F.3d 152, 158 (2d
Cir. 2018) (footnote and citations omitted) (stating
applicable OFAC regulations “unambiguous ly prohibit
unlicensed transfers of blocked assets”).
Doc. 1194 at 7.
object to this finding. They also object to the statement in
the R& R that the 200 6 letter in Weininger v.
Castro from the Southern District of New York United
State s Attorney's Office “predates Stansell
II and the newly amended [TRIA].” Doc. 1194 at 7-8.
Plaintiff's maintain that the Clarification Act did not
amend the TRIA, it only a me nde d the Anti-Terror is m Act,
which brought assets blocked under the Kingpin Act within the
scope of the TRIA's definition of “blocked
asset.” Doc. 1195 at 2.
point out that the United States appeared in this action and
set forth that under the “TRIA, terrorism victims may
execute against certain blocked assets, without getting
authoriza tion from OFAC, if the assets are judicially
determined to be within [the] TRIA's scope.”
Id. (citing Stansell v. FARC/Mercurio, 11th
Cir. Case Nos: 11-11125 & 11-11690, United States Amicus
Brief at 10). Thus, they argue that once the Court determines
that the Kingpin Act's blocked assets are subject to
execution, as the Court has here, no OFAC license is
required. Plaintiff's also contend that the Eleventh
Circuit did not hold that terrorism victim judgment creditors
must obtain an OFAC license to execute on blocked assets
subject to the TRIA. Doc. 1195 at 3 (citing Stansell I
I, 771 F.3d at 734).
United States objects to the Magistrate Judge's refusal
to recommend that the Court's order granting P la in
tiffs' Motion contain an instruction that “no OFAC
license is required to turn over the garnished funds to
Plaintiffs.” Doc. 1197 at 6 (citing Doc. 1194 at 7-8).
Instead, the Magistrate Judge recommended that the Court
conclude that a license is required under these facts; and
that OFAC's regulations permit Plaintiffs to obtain the