Keith Stansell v. Samark Jose Lopez Bello

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 21, 2020
• Docket: 19-11415
• Status: Unpublished

Opinion

Case: 19-11415 Date Filed: 01/21/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11415 Non-Argument Calendar ________________________

D.C. Docket No. 1:19-cv-20896-RNS

KEITH STANSELL, et al.,

Plaintiffs-Appellees,

versus

SAMARK JOSE LOPEZ BELLO, et al.,

Claimants-Appellants.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(January 21, 2020)

Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.

PER CURIAM:

Samark Jose Lopez Bello, Yakima Trading Corporation, EPBC Holdings,

Ltd., 1425 Brickell Ave 63-F LLC, 1425 Brickell Ave Unit 46B LLC, 1425 Case: 19-11415 Date Filed: 01/21/2020 Page: 2 of 10

Brickell Ave 64E LLC, and 200G PSA Holdings LLC (collectively, “Lopez

Bello”) appeal the District Court’s February 15, 2019 order granting the motion

filed by Keith Stansell and other judgment creditors for issuance of post-judgment

writs of garnishment and execution on the assets of Lopez Bello and the entities

affiliated with him. 1 Lopez Bello primarily argues that he was denied due process

because the District Court’s order concerning his property was issued before Lopez

Bello had the opportunity to contest his status as an “agency or instrumentality” of

the Revolutionary Armed Forces of Colombia (“FARC”), a terrorist organization.

For the reasons set forth below, we reject Lopez Bello’s argument that the District

Court’s order offended his due process rights.

I.

In 2010, Keith Stansell, Marc Gonsalves, Thomas Howes, Judith Janis—as

personal representative of Thomas Janis’s estate—and Thomas Janis’s surviving

children (collectively, “Stansell”) obtained a $318 million default judgment against

FARC under the Anti-Terrorism Act, 28 U.S.C. § 2333. Since then, Appellees

have attempted to satisfy that judgment by seizing “the blocked assets of any

[FARC] agency or instrumentality” pursuant to § 201 of the Terrorism Risk

Insurance Act of 2002 (“TRIA”). Under the TRIA, judgment creditors may satisfy

1 Lopez Bello also appeals the District Court’s denial of his subsequent motion to amend the February 15 order pursuant to Federal Rule of Civil Procedure 59(e) and denial of his motion for reconsideration of the aforementioned order. 2 Case: 19-11415 Date Filed: 01/21/2020 Page: 3 of 10

an Anti-Terrorism Act judgment if (1) the asset is designated as “blocked” by the

Department of Treasury’s Office of Foreign Assets Control (“OFAC”); and (2) the

judgment creditors establish that the blocked properties are owned by the terrorist

organization they received a judgment against, or are owned by agencies or

instrumentalities of that terrorist organization. See § 201(a) of TRIA, Pub. L. No.

107-297, 116 Stat. 2322 (codified at 28 U.S.C. § 1610(b)); see also Stansell v.

Revolutionary Armed Forces of Colom., 771 F.3d 713, 726 (11th Cir. 2014)

(“Stansell I”). A party wishing to execute against the assets of a terrorist

organization’s agency or instrumentality must first establish that the entity is, in

fact, an agency or instrumentality. Stansell I, 771 F.3d at 723. This appeal

principally concerns Lopez Bello’s opportunity to contest the judicial

determination that he was an agency or instrumentality of FARC.

On February 13, 2019, Stansell filed an ex parte, expedited motion with the

District Court to enforce the default judgment obtained against FARC in 2010, and

seeking to enforce that judgment against Lopez Bello and his properties. The

District Court determined that Stansell and the other judgment creditors had,

through their “extensive submissions,” established (1) that “they have obtained an

Anti-Terrorism Act judgment against a terrorist party (the FARC) that is based on

an act of international terrorism,” (2) the assets “which the Plaintiffs seek to

execute on” are “‘blocked assets’ as that term is defined under the TRIA and the

3 Case: 19-11415 Date Filed: 01/21/2020 Page: 4 of 10

ATA, 18 U.S.C. §2333(e),” (3) “the total amount of the executions does not exceed

the amount outstanding of the Plaintiffs’ ATA [Anti-Terrorism Act] Judgment,”

and that (4) “the Kingpin Act2 blocked parties and owners of the subject blocked

assets identified in the OFAC Chart are each an agency or instrumentality of the

FARC.” The District Court granted Stansell’s motion and directed the U.S.

Marshals to execute, levy upon, and sell the blocked assets, which included three

parcels of real property, two vessels (yachts), an aircraft, and four automobiles. A

sale of the real property was scheduled for April 16, 2019. Lopez Bello was served

with notice of this order on February 25, 2019.

On March 15, Lopez Bello moved to amend 3 the District Court’s order of

garnishment and execution, seeking a stay of proceedings and an opportunity to

challenge the finding that he and his affiliated entities were agencies or

instrumentalities of FARC before the occurrence of any sale. The District Court

denied Lopez Bello’s motion, reasoning that because Lopez Bello had between

February 25 (the date that Lopez Bello received the Court’s order of garnishment

and execution) and April 16 (the date the sales were scheduled to take place) to

contest the agency-or-instrumentality finding, Lopez Bello’s contention that he had

2 The Kingpin Act gives OFAC the authority to designate foreign narcotics traffickers and block assets owned or controlled by those traffickers. See 21 U.S.C. § 1901 et seq.; 31 C.F.R. § 598.101 et seq. 3 This request was pursuant to Federal Rule of Civil Procedure 59(e). 4 Case: 19-11415 Date Filed: 01/21/2020 Page: 5 of 10

“not had any opportunity to challenge the allegations” was unpersuasive.

Furthermore, the District Court found that “[e]ven within [the instant] motion,

[Lopez Bello has] not set forth any attempt to actually rebut the agents-or-

instrumentalities finding.” When Lopez Bello moved for reconsideration, the

District Court pointed out that Lopez Bello, in the multiple motions he had filed

with the Court, had the opportunity to argue that he was not an agency or

instrumentality of FARC and convince the Court that a stay of proceedings was

proper. Instead of doing that, however, Lopez Bello had “simply asked, generally,

and repeatedly, for ‘an opportunity to rebut the [agency-or-instrumentality

finding],’” but “[n]ot once” had he “explicitly present[ed] argument or evidence

that the Court ha[d] made a manifest error in its initial agency or instrumentality

determination.” Accordingly, the District Court denied Lopez Bello’s motion to

reconsider. 4 The sale of the real property was carried out on April 16, 2019; the

4 Lopez Bello has filed a litany of other motions in an attempt to prevent the sales from occurring. In the District Court, Lopez Bello filed a motion for summary judgment and for dissolution of the writs of garnishment and execution, a motion to stay the sale of the real properties, a motion to administratively terminate the matter pending appeal, and a motion to stay the sale of the vessels. The District Court denied each of these motions. Lopez Bello also filed three separate emergency motions in this Court to stay the sales of his various properties pending appeal, all of which we denied. 5 Case: 19-11415 Date Filed: 01/21/2020 Page: 6 of 10

two vessels were sold on September 3, 2019 and a third vessel5 sold on October

23, 2019. 6

II.

This Court previously addressed many of the due process issues presented

here in Stansell I, which involved the same Plaintiffs (Stansell and other judgment

creditors), but different Claimants. 771 F.3d 713. In that case, the Claimants

contended that they were “denied their rights to notice of the execution

proceedings [against their assets] and an opportunity to be heard.” Id. at 725. Like

here, “[Stansell] initiated [his] collection efforts in each instance ex parte, without

any direct notice to Claimants.” Id. at 724. The District Court in Stansell I found

each claimant to be an agency or instrumentality of FARC and found that the

relevant assets were blocked and subject to attachment and execution. Id. On

appeal, we concluded that, as non-judgment debtor third parties, the Claimants

were entitled to notice of the proceedings involving their assets. Id. at 727. The

default judgment against the judgment debtor, FARC, was insufficient to satisfy

5 The writ of execution for the third vessel belonging to Lopez Bello was issued by the District Court on May 3, 2019. 6 Stansell argues that the sale of the real property renders the entire case moot. Stansell cites this Court’s unpublished opinion in a suit against other alleged “agencies or instrumentalities” of FARC, in which we dismissed the matter for mootness because all of the properties subject to writs of execution had already been sold. Stansell v. Revolutionary Armed Forces of Colom., 772 F. App’x 772 (11th Cir. 2019). However, the instant case differs, and the controversy is not moot, because some of Lopez Bello’s property that is subject to writ of execution has not been sold; namely, an aircraft and four automobiles. 6 Case: 19-11415 Date Filed: 01/21/2020 Page: 7 of 10

due process as to the third-party Claimants because third parties “cannot be

expected to be on notice of the judgment” or prepared to defend against later

attempts to satisfy the judgment with their assets. Id. Additionally, we held that

the Claimants were entitled to a “sufficient opportunity to be heard” on their

“challenge to the agency or instrumentality issue.” Id. at 727–28. Finally, we

clarified that “Claimants were entitled to notice and to be heard before execution,”

but that the Claimants had no entitlement to a hearing prior to attachment or before

a “writ [of execution is] issued.” Id. at 729.7

We resolved a situation similar to Lopez Bello’s with one group of Stansell I

Claimants, referred to in that case as “the Partnerships.” Id. at 738–42. With

respect to these Claimants, Stansell had moved ex parte in the District Court for

writs of garnishment and execution against four parcels of real property owned by

the Partnerships. Id. at 739. The District Court’s order specifically held that “the

Partnerships were not entitled to notice or an opportunity to be heard,” a holding

that, as noted above, we found to be an incorrect statement of the law. Id.

Nevertheless, we found that the Partnerships received adequate notice because the

United States Marshals levied on their real property after the order granting the

7 Lopez Bello misunderstands our holding in Stansell I by repeatedly claiming that it requires notice before the granting of any writ which goes “beyond a mere attachment.” But, just the same as in this case, Stansell I involved writs of garnishment and execution, and we held that the Claimants “were not constitutionally entitled to a hearing before the writ issued.” 771 F.3d at 729. 7 Case: 19-11415 Date Filed: 01/21/2020 Page: 8 of 10

writ of execution was entered. Id. at 741. Because the Partnerships “received

actual notice and appeared,” we held that they were “afforded an opportunity to be

heard” and to contest the granting of the writ after its issuance, which, we

concluded, was sufficient to satisfy due process. Id.

Lopez Bello’s case cannot be meaningfully differentiated from the process

afforded the Partnerships, which was found to be constitutionally adequate. Lopez

Bello admits that he received actual notice of the writ of execution on February 25,

2019, ten days after the order issued, and almost two months prior to the scheduled

sale date for the real properties. Lopez Bello was not precluded from presenting

evidence to contest the preliminary agency-or-instrumentality finding—as the

District Court noted, “there is nothing in the Court’s February 15 order that

prevents [Lopez Bello] from being heard before the sale of [his] properties.” Like

the Partnerships in Stansell I, Lopez Bello “simply did not present any evidence

that changed the district court’s position on the agency or instrumentality

determination,” despite being afforded the opportunity to do so through the filing

of various motions. Stansell I, 771 F.3d at 741. It was not error for the District

Court to refuse to amend the February 15 order when it was presented with no

evidence indicating that any finding or conclusion reached in that order was

incorrect.

8 Case: 19-11415 Date Filed: 01/21/2020 Page: 9 of 10

III.

As an independent basis for asserting that his constitutional rights were

violated, Lopez Bello points to the District Court’s failure to issue a Notice to

Appear pursuant to Fla. Stat. § 56.29(2), which requires such notice prior to

execution in supplemental proceedings to satisfy a judgment. Lopez Bello asserts

that this failure violated his rights under the Due Process Clause. In Stansell I, we

rejected a similar 8 argument that failure to provide notice as contemplated by

Florida law was grounds for reversal, holding that “failure to provide the affidavit

was harmless because the Partnerships had actual notice of the execution

proceedings.” 771 F.3d at 742. So too here. Whether or not each and every

technical procedural requirement of Florida law was complied with is not the

litmus test for a due process violation. Here, as established above, Lopez Bello

received actual notice of the District Court’s February 15 order after it was issued,

and he had the opportunity to contest its findings. Therefore, he was not denied

due process under the United States Constitution.

IV.

Finally, Lopez Bello advances the argument that Florida post-judgment

statutes, as applied to non-judgment debtors in TRIA cases, are themselves

8 In that case, the Claimants objected to Stansell’s failure to furnish the affidavit which is the basis for the District Court’s issuance of a Notice to Appear. See Fla. Stat. § 56.29(2). 9 Case: 19-11415 Date Filed: 01/21/2020 Page: 10 of 10

unconstitutional. Lopez Bello did not make this argument in his motion to amend

the February 15 order, only in his motion for reconsideration. But a motion for

reconsideration cannot be used to raise new arguments that were “previously

available, but not pressed.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957

(11th Cir. 2009) (internal quotations omitted). Lopez Bello did not raise this

argument in his motion to amend the February 15 order, and there is no reason why

such an argument would not have been available to him at that time. Thus, it was

not a proper subject for a motion for reconsideration, and the District Court

correctly declined to address it.

V.

For the foregoing reasons, we affirm the District Court’s denial of Lopez

Bello’s motions challenging the February 15, 2019 order. 9

AFFIRMED.

9 Accordingly, Lopez Bello’s pending motion to supplement the record is DENIED AS MOOT. 10