45 F.4th 1340
11th Cir.2022Background
- Plaintiffs hold a 2010 default judgment for $318 million against the FARC under the Anti-Terrorism Act and sought to execute on third‑party assets under TRIA § 201(a).
- In 2017 OFAC designated Samark López Bello an SDNT under the Kingpin Act and blocked assets of him and certain companies; plaintiffs moved in 2019 for writs of garnishment/execution against López and his entities under TRIA § 201(a) and Florida garnishment law.
- The district court (adopting a magistrate report) found López and his companies were agencies or instrumentalities of the FARC and entered turnover judgments; López pursued motions to dissolve and an evidentiary hearing followed with competing expert declarations.
- López was later indicted in New York and remains a fugitive; the Eleventh Circuit declined to decide disentitlement and left that to the district court on remand.
- Appeals consolidated: No. 20‑11736 (challenge to turnover judgments) reversed and remanded for a jury trial on agency/instrumentality issues; No. 20‑12467 (preliminary injunction to block sale of 325 Leucadendra) dismissed as moot after sale; No. 20‑12545 (Lopez’s wife Leiva seeking to intervene) affirmed as untimely and appeal dismissed.
- Court reaffirmed Stansell II elements for TRIA § 201(a) execution (judgment vs. terrorist party; amount; blocked assets; agency/instrumentality), held Florida garnishment procedures apply, and clarified knowledge requirements: agency requires knowledge of principal; instrumentality does not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Temporal test for agency/instrumentality under TRIA § 201(a) — must status exist when writ issued? | TRIA requires agency/instrumentality status at time the writ is sought/issued. | Status may be shown by past or present involvement; not limited to the filing date. | Rejected temporal limit; agency/instrumentality may be based on past involvement (Stansell II standard applies). |
| Whether indirect ties suffice to show agency/instrumentality | Plaintiffs: indirect relationships (via El Aissami and Cartel of the Suns to FARC) suffice. | López: indirect/attenuated ties insufficient. | Indirect relationships can suffice under TRIA; degree of attenuation affects weight and creates fact questions. |
| Scienter requirement for agency or instrumentality status | López: must prove knowing participation; due process requires knowledge. | Plaintiffs: knowledge not required (especially for instrumentalities). | Agency requires knowledge of the principal; instrumentality does not require knowledge. |
| Right to jury trial in Florida garnishment proceeding | López: entitled to jury under Fla. Stat. § 77.08 on agency/instrumentality issues. | Plaintiffs/district court: no jury where no material fact disputes. | Jury trial required because evidence created disputed material facts; remand for jury determination. |
| Mootness of preliminary-injunction appeal re: 325 Leucadendra sale | López: district court erred in denying injunction to stop sale. | Plaintiffs: sale completed; relief no longer available. | Appeal moot because property sold to third party; dismissal. |
| Timeliness to intervene (Leiva) | Leiva: allowed to intervene late to protect her claimed 9.95% interest; proceeds should be held pending adjudication. | Plaintiffs/district court: intervention filed too late after levy and writ; interests should have been asserted sooner. | Denial of intervention affirmed as not an abuse of discretion; motion untimely. |
Key Cases Cited
- Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713 (11th Cir. 2014) (establishes TRIA § 201(a) elements and approved standard for agency/instrumentality analyses)
- Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d 107 (2d Cir. 2016) (addresses timing and factual questions on agency/instrumentality under TRIA)
- Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018) (Supreme Court decision affecting interpretation and abrogation of aspects of lower‑court TRIA analyses)
- Chicago, Burlington & Quincy Ry. Co. v. United States, 220 U.S. 559 (1911) (civil statutes may impose liability without scienter)
- Grogan v. Garner, 498 U.S. 279 (1991) (presumption that preponderance of the evidence standard applies in civil actions)
- Ener v. Martin, 987 F.3d 1328 (11th Cir. 2021) (describes fugitive disentitlement doctrine and standard for its application)