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Stansell v. Revolutionary Armed Forces of Colombia (Farc)

United States District Court, M.D. Florida, Tampa Division

June 20, 2019




         This 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 conditions.

         All 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.

         I. BACKGROUND[1]

         Plaintiffs 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 (“SDNT”).

         Thereafter, 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. 562, 592.

         On 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.

         In 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 certain conditions.

         Plaintiffs 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 concurs.


         When a 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.


         The R&R states:

[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.

         Plintiff's 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].”[2] 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.

         They 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).

         The 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 required ...

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