Case 0:08-md-01916-KAM Document 2672 Entered on FLSD Docket 08/03/2020 Page 1 of 21

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 0:08-MD-01916 (Marra/Johnson)

IN RE: CHIQUITA BRANDS INTERNATIONAL,

INC. ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
___________________________________

This Order relates to:

ATS ACTIONS:
Does 1-144 v. Chiquita Brands, 08-80465-CIV-MARRA
Does 1-254 v. Chiquita Brands, 11-80405-CIV-MARRA

ATA ACTIONS:
Pescatore et al v. Chiquita Brands, 09-80683-CIV-MARRA
Stansell v. Chiquita Brands, 10-cv-80954-CIV-MARRA
__________________________________________

STANSELL & PESCATORE PLAINTIFFS’ JOINT RESPONSE IN OPPOSITION TO

MOTION TO IMPOSE CONSTRUCTIVE TRUST OVER FARC ASSETS

Counsel for ATS plaintiffs Does 1-144 and Does 1-254 has filed with this Court a Notice

of Charging Lien [DE 2665] that has no basis in law or fact. Moreover, these same ATS Does

have filed a motion for constructive trust (“Motion”) [DE 2667] that also has no basis in law or

fact. The Motion does not even state the elements required by law for a constructive trust, and

for obvious reason—it is because the Does cannot satisfy any one of the requisite elements,

much less all of them.

In a remarkably brazen request, the Motion seeks to impose a constructive trust on “all

assets traceable to the FARC” and to “disgorge” any such assets already recovered by the

Stansell & Pescatore Anti-Terrorism Act plaintiffs (“ATA Plaintiffs”). DE 2677-23. The Does

do not, and indeed cannot, allege any lawful claim or interest they have to any FARC assets.

Unlike the ATA Plaintiffs, none of the Does even sued the FARC, much less obtained a

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judgment against the FARC. Nor did any of the Does obtain so much as a writ of post-judgment

execution upon any specific assets. Even if the Does who were victims of the FARC—as

opposed to victims of the Autodefensas Unidas de Colombia (“AUC”)—were hypothetically to

obtain a judgment someday against Chiquita in their pending MDL material support actions, that

still would not entitle them to execute on any blocked assets of the FARC, nor of any person or

entity other than Chiquita itself.

In fact, the Does acknowledge that it would be impossible for them even to sue the FARC

at this point because the Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 117

(2014), now prohibits general jurisdiction over the FARC and other similar foreign

organizations. See Motion, DE 2667, at 13 (“No credible argument can be made that the FARC

are ‘essentially at home’ in the United States, or even that the FARC have continuous and

systematic contacts with the United States.”). But the Does fail to recognize that the ATA

Plaintiffs’ judgments against the FARC rest on specific jurisdiction, not just general jurisdiction.

Thus, we have not been “unjustly enriched” by “void” judgments. Rather, we have been

properly collecting upon our valid ATA Judgments. As detailed below, U.S. district courts

expressly found in the Stansell and Pescatore cases that the FARC intentionally targeted the

ATA Plaintiffs because they were American nationals, and the FARC directed ransom demands

into the United States. Accordingly, these courts found—correctly—that the FARC was subject

to personal jurisdiction in the United States, after first finding that we had properly effected

service upon the FARC.

In full compliance with the Anti-Terrorism Clarification Act (“ATCA”), 18 U.S.C. §

2333(e), and the related Terrorism Risk Insurance Act of 2002 (“TRIA”), 28 U.S.C. § 1610

(note), the ATA Plaintiffs’ recent post-judgment executions have been upon “blocked assets.”

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Those statutes apply only to U.S. nationals. TRIA authorizes “terrorism victims”—not mere

victims of crime—who hold a “judgment against a terrorist party” to execute on the blocked

assets of “any agency or instrumentality of the terrorist party.”1 The United States has never

identified a single asset in the United States that is owned by the FARC itself—hence our

successful execution efforts upon the U.S.-based assets of “agencies or instrumentalities” of the

FARC.

The Does’ motion is premised entirely on the false assertion that the FARC is not subject

to jurisdiction in the United States. The Does therefore reach the entirely faulty conclusion that

the ATA Plaintiffs’ many prior post-judgment execution recoveries somehow resulted in “unjust

enrichment.” The Does fail to mention that each and every one of the ATA Plaintiffs’ post-

judgment executions was done pursuant to the orders of a U.S. District Judge, and nearly all of

these executions were vigorously opposed by the non-party blocked asset owners—not by the

FARC—and those blocked assets were subject to execution only after plaintiffs proved that each

blocked asset owner under TRIA was indeed an “agency or instrumentality” of the FARC. Nor

do the Does mention that the Eleventh Circuit has already affirmed dozens of the Stansell

Plaintiffs’ post-judgment executions upon various assets. See, e.g., Stansell v. Revolutionary

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

The ATA Plaintiffs’ FARC Cases Were Never Transferred to This Court

The Motion (at pp. 2-3) falsely states that the Stansell v. FARC (MDFL Case 09-cv-2308)

and Pescatore v. Pineda and FARC (DDC Case 08-cv-02245) were transferred to this MDL.

1
The Second and Eleventh Circuit Courts of Appeal have confirmed that TRIA provides subject
matter jurisdiction over post-judgment execution and attachment proceedings against blocked
assets of an agency or instrumentality of the judgment-debtor, even if the agency or
instrumentality itself is not named in the judgment. See Stansell v. FARC, 771 F.3d 713, 737
(11th Cir. 2014); Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 50 (2d Cir. 2010).
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That statement is simply not true. They have never been transferred here. Rather, those actions

against the FARC were separate lawsuits that did not involve Chiquita Brands. The only

Stansell or Pescatore actions transferred to this MDL were those families’ “material support”

lawsuits against Chiquita., Stansell v. Chiquita (MDFL Case 10-cv-786) and Pescatore v.

Chiquita (DDC Case 09-cv-490). The two MDL transfer Orders attached to the instant Motion

clearly identify only those Chiquita case names and numbers as having been transferred. (DE

2267, Exs. 15 and 19). Attorney Paul Wolf’s affidavit also misrepresents to this Court that:

16. Exhibit 15 is a true and correct copy of the August 9, 2010 Transfer Order
from the Judicial Panel on Multidistrict Ligitation, transferring the Stansell v.
Revolutionary Armed Forces of Colombia (FARC), No. 09-2308 (RALMAP)
(M.D. Fla.) to the MDL in Florida. The transfer isn't reflected in the docket of the
case.

20. Exhibit 19 is a true and correct copy of the JPML Conditional Transfer Order
in Pescatore v. FARC, Case No. 1:08-cv-02245 (TJK) (D.D.C.), dated April 15,
2009.

DE 2677-22 (emphasis added). Respectfully, Attorney Wolf is either grossly confused or is just

grossly misrepresenting to this Honorable Court. (We hope it is merely the former.) The reason

the Stansell v. FARC transfer “isn’t reflected in the docket” is because it simply never happened.

And yet the Does have the audacity to imply (Motion at 16) that we have somehow committed

some sort of Rule 11 violation? Truly remarkable.

Had the Does’ counsel bothered to do even a cursory review of the Stansell v. Chiquita

MDFL docket before filing this frivolous Motion, counsel would have seen that U.S. District

Judge Susan Bucklew entered an Order in the Stansell v. Chiquita case denying the plaintiffs’

motion to transfer their material support case against Chiquita case to the Division of Judge

Richard A. Lazzara, who was already presiding over the separate Stansell v. FARC case. In

denying transfer of the Stansell Plaintiff’s case against Chiquita, Judge Bucklew ruled:

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Plaintiffs move to transfer this case to Judge Lazzara, who is presiding over a
related case, Keith Stansell, et al v. Revolutionary Armed Forces of Colombia, et
al, Case No. 8:09-cv-02308-T-26-MAP. The Complaint in Judge Lazzara’s case
seeks civil damages under 18 U.S.C. § 2333, et seq., from the Revolutionary
Armed Forces of Colombia (FARC), designated as a foreign terrorist organization
under 18 U.S.C. § 1189, and 84 individual defendants allegedly responsible for
murdering an American pilot in 2003, and torturing and holding the Plaintiffs
captive for five years after shooting down their aircraft over Colombia.

By contract, the Complaint in this case seeks damages under 18 U.S.C. § 2333, et
seq., against a corporation, Chiquita Brands International, Inc., for allegedly
providing material support to the FARC in violation of 18 U.S.C. §§ 2339A and
2339B. (Doc. 1.) As such, the two cases do not involve common questions of fact
to warrant transfer. The case before Judge Lazzara alleges that the 84 individual
defendants and the FARC committed terrorist acts. This case, involving a
different defendant, alleges that a corporation provided support to the FARC.1
* * *
In addition, transferring the case to Judge Lazzara would not promote judicial
efficiency because the U.S. Judicial Panel on Multidistrict Litigation has issued a
conditional order to transfer this case to U.S. District Judge Kenneth A. Marra of
the Southern District of Florida. Judge Marra is presiding over related cases
against Chiquita Brands International, Inc., in In re: Chiquita Brands
International, Inc., Alien Tort Statute and Shareholder Derivative Litigation,
MDL No. 1916. While the transfer is opposed (Doc. 17), the Panel on
Multidistrict Litigation is likely to hear the opposition at its session on July 29,
2010 and rule on the opposition soon after.

Stansell v. Chiquita, MDFL Case 10-cv-786, May 12, 2010 Order [DE 18].

Thereafter, the Judicial Panel on Multi-District Litigation entered its Conditional Transfer

Order in MDFL Stansell v. Chiquita Case 8:10-cv-786 on August 9, 2010. See DE 2677-15. By

that time Judge Lazzara had already entered the final June 15, 2010 ATA judgment in the

separate Stansell v. FARC MDFL 8:09-cv-2308 lawsuit, all pretrial proceedings had long been

concluded. Not only was the Stansell v. FARC case never transferred to the MDL, it also was

not even eligible for transfer to the MDL on August 9, 2010 because the MDL statute relates to

transfers for “pretrial proceedings.” 28 U.S.C. § 1407(a).

In addition, the Does somehow ignore the reality that the Pescatore Plaintiffs’ case

against the FARC was never transferred to this Court. The MDL transfer Order does not include

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this separate FARC case number, and this Court never mentioned it when it discussed all the

separate ATA actions that were pending at the time Chiquita filed a motion to dismiss. See In re

Chiquita Brands Intern., Inc. Alien Tort Statute and Shareholder Derivative Litigation, 2012 WL

1021819, at *1 (S.D. Fla. Mar. 27, 2012) (listing all ATA case numbers). In fact, the U.S.

District Court for Columbia has continued to require the Pescatore Plaintiffs to file regular

Status Reports on the related litigation against Chiquita, because Plaintiffs’ Chiquita case was

likely to be returned under 28 U.S.C. § 1407 (“Each action so transferred shall be remanded by

the panel at or before the conclusion of such pretrial proceedings to the district from which it was

transferred unless it shall have been previously terminated”). See also Lexecon Inc. v. Milberg

Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (holding cases that are transferred by the

MDL panel are remanded after pretrial proceedings conclude). Obviously, those Status Reports

would have been unnecessary if the Pescatore case against the FARC was actually before this

Court all along. In reality, it never was.

The ATA Plaintiffs’ Claims Were Never Precluded

The Does also argue that the Pescatore Plaintiffs’ Judgment against the FARC was

prohibited by their settlement with Chiquita because “[r]es judicata bars the filing of claims

which were raised or could have been raised in an earlier proceeding.” Motion at 17. This

argument is meritless. The Pescatore Plaintiffs filed separate cases, against separate parties,

involving separate claims and separate issues; res judicata is simply inapplicable here. In fact,

the first case cited by the Does directly contradicts their own argument. As the Eleventh Circuit

stated in Citibank, N. A. v. Data Lease Financial Corp., 904 F.2d 1498, 1502 (11th Cir. 1990):

"`When a person suffers injury as the result of the concurrent or consecutive acts
of two or more persons, he has a claim against each of them.... Accordingly, a
judgment for or against one obligor does not result in the merger or bar of the

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claim that the injured person may have against another obligor.'" Id., quoting
Restatement (Second) of Judgments § 49 comment a (1980).

(citation omitted). See also Restatement (Second) of Judgments § 49 (1982) (“A judgment

against one person liable for a loss does not terminate a claim that the injured party may have

against another person who may be liable therefor.”). Chiquita and the FARC are not the same

party or agents of each other, and they are not in privity, even if the Pescatore Plaintiffs filed

analogous federal claims against them, based on a similar set of facts. See Citibank, N. A., 904

F.2d at 1502 (“Citibank and the directors are not in privity simply because Data Lease made

identical claims against each of them.”).3 Indeed, if privity actually existed between the FARC

and Chiquita, the ATA Plaintiffs could have just sued the FARC first and then argued that

Chiquita was bound by the judgment based on res judicata, rather than spend years litigating in

this Court; but that is not the law. See EEOC, 383 F.3d at 1286 (noting privity is a flexible legal

term that generally requires that a non-party have “his interests adequately represented by

someone with the same interests who is a party.”).

Neither the FARC nor Chiquita had the same litigation interests because the Pescatore

Plaintiffs did not make identical claims against Chiquita and the FARC when they filed their

Anti-Terrorism Act complaints. These complaints were filed separately under 18 U.S.C. §

2333(a). The claims against Chiquita were premised on Chiquita’s alleged violation of the

material support statute (18 U.S.C. § 2339A), and the claims against the FARC were premised

on the FARC’s violations of the prohibitions against kidnaping and murder in 18 U.S.C. §§ 1203
3
The Does incorrectly argue that “privity is a matter determined by state law.” Motion at 18. The
Eleventh Circuit, however, clearly stated in CSX Transp., Inc. v. Brotherhood of Maint. of Way
Employees, 327 F.3d 1309, 1316 (11th Cir. 2003) “that federal preclusion principles apply to
prior federal decisions, whether previously decided in diversity or federal question
jurisdiction.”). See also EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1289 (11th Cir. 2004)
(noting in a federal case, “federal privity principles . . . employ a discernibly higher standard than
the Alabama law”).

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& 2332. These claims involve separate elements and a separate nucleus of operative facts

(money transfers to a terrorist organization rather than kidnapping and murder). A judgment

concerning Chiquita’s money transfers to the FARC would have no impact on whether the

FARC was responsible for the kidnapping and murder of an American national.

In addition, these separate claims involving different parties are not sufficiently

connected to require res judicata, nor even a conclusion that the parties were necessary and

indispensable. See Temple v. Synthes Corp., 498 U.S. 5, 7 (1990) (per curiam) (“It has long been

the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single

lawsuit... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tortfeasor with the

usual “joint-and-several” liability is merely a permissive party to an action against another with

like liability.’”).

Even assuming, arguendo, that res judicata somehow barred the Pescatore Plaintiffs

from asserting separate claims against the FARC because of their settlement with Chiquita, the

Does’ argument would still fail. “Res judicata is not a jurisdictional issue; rather, it is an

affirmative defense that may be waived by the party allowed to assert it.” United States v. Metro.

St. Louis Sewer Dist. (MSD), 952 F.2d 1040, 1043 (8th Cir. 1992) (holding third-party

intervenors had no standing to raise the defense of res judicata). Moreover, even if the court in

the Pescatore FARC case had been independently obligated to consider res judicata, its failure to

do so would have no bearing on the enforceability of its judgment. As the Ninth Circuit noted:

When the same claim or issue is litigated in two courts, the second court to
reach judgment should give res judicata effect to the judgment of the first,
regardless of the order in which the two actions were filed. . . . Sometimes,
however, the second court does not give preclusive effect to the judgment
of the first court. This can occur when res judicata is not asserted in the
second court, or when the second court decides, rightly or wrongly, that
the doctrine does not apply. Should the claim or issue then come before a
third court, as it did before the Central District in this case, that court is

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faced with conflicting judgments from the first two courts. The governing
rule to be applied is quite clear. The third court should give res
judicata effect to the last previous judgment entered.

Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1529–30 (9th Cir. 1985) (citing

Treinies v. Sunshine Mining Co., 308 U.S. 66, 75-78 (1939)). Here, the court in the Pescatore

FARC case explicitly recognized the settlement in the Chiquita case before it entered a final

judgment against the FARC. See Pescatore, 345 F. Supp. 3d at 70-71 (noting the Pescatore

FARC case “trailed [the Chiquita MDL] related case in Florida for years; that case has now

settled.”). Accordingly, because the Pescatore FARC case is now the “last in time,” Americana

Fabrics, Inc., 754 F.2d 1530, it is fully enforceable.

Attorney Wolf’s Notice of Charging Lien Has no Basis in Law or Fact

The present Motion is based in part on a “Notice of Charging Lien” filed by Attorney

Wolf in this MDL on July 12, 2020. DE 2665. Neither the Motion or the Notice of Charging

Lien itself recite the law governing charging liens in Florida, because Attorney Wolf knows—or

should—that he has no such lien under Florida law, and that he and his clients satisfy none of the

requirements for a charging lien on the Stansell post-judgment execution recoveries in their

separate FARC lawsuit, a suit that was never transferred to this MDL.4

Charging liens are a creature of Florida common law. Brickell East Condominium

Association, Inc., v. Indian Harbor Insurance Co., Case No. 18-24791-Civ-

WILLIAMS/TORRES, 2020 WL 869725 (S.D. Fla. Jan. 10, 2020). Such a lien is an equitable

right to have costs and fees due an attorney for services rendered in a suit secured by the

judgment or recovery in that suit. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v.

Baucom, 428 So. 2d 1383, 1384 (Fla. 1983) (emphasis added). The Florida Supreme Court has

4
Nor does Attorney Wolf have any right to assert a charging lien on any other ATA plaintiffs’
recoveries from Chiquita in their respective material support lawsuits.
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identified four requirements for a valid charging lien:

To impose such a lien, the attorney must show: (1) an express or implied contract
between attorney and client; (2) an express or implied understanding for payment
of attorney’s fees out of the recovery; (3) either an avoidance of payment or a
dispute as to the amount of fees; and (4) timely notice.

Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).

Here, Attorney Wolf (presumably) has a valid contract with his own clients, Does 1-144

and Does 1-254, to compensate him for his services in his material support lawsuits against

Chiquita, suits that were transferred into this MDL. But Attorney Wolf does not have, and never

had—nor does he allege ever having—any express or implied contract for legal services with any

of the ATA Plaintiffs, nor any express or implied understanding for payment of attorney’s fees by

them to Attorney Wolf. There has been no “avoidance” or “non-payment” of any fees due to

Attorney Wolf, nor any dispute as to the amount of his fees. Finally, even if Attorney Wolf’s

charging lien were valid—and it most certainly is not—it would be wildly untimely anyhow

because the Stansell v FARC MDFL Case 09-cv-2308 post-judgment executions commenced

over 10 years ago. Indeed, those post-judgment executions began promptly after Judge Lazzara

entered his judgment in favor of the Stansell plaintiffs—against the FARC, not Chiquita—back

on June 15, 2010.

The ATS Does Do Not Meet Any—Much Less All—of the

Requisite Elements to Impose a Constructive Trust

“A constructive trust arises from a situation where one party has defrauded another.” City

Nat’l Bank of Miami v. Gen. Coffee Corp. (In re Gen. Coffee Corp.), 828 F.2d 699, 703 (11th

Cir. 1987). In General Coffee Corp., the Court reaffirmed Florida’s long accepted, majority view

“that a constructive trust arises as a matter of law when the facts giving rise to [a] fraud occur.”

Id. at 701–02. The purpose of a constructive trust is to prevent the unjust enrichment of culpable

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parties. Am. Nat'l Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1541 (11th Cir.1983). The

beneficiary of the trust is entitled to have his original interest restored in his property which was

wrongfully taken. Id. (citing Johnson v. Johnson, 349 So. 2d 698, 699 (Fla. Dist. Ct.

App.1977)).

Mitsubishi Int'l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507 (11th Cir.1994), cert.

denied, 513 U.S. 1146 (1995), succinctly states that “[a] constructive trust arises where a person

who holds title to property is subject to an equitable duty to convey it to another on the ground

that he would be unjustly enriched if he were permitted to retain it.” Id. at 1518 (citation

omitted). The remedy applies where money is obtained by fraud, unless there is an adequate

remedy at law. Id. at 1519.

Here, the Does do not allege—nor could they allege—that the ATA Plaintiffs’ court-

ordered TRIA post-judgment execution proceedings were somehow fraudulent, or that these

assets were “wrongfully taken,” or that the ATA Plaintiffs were somehow “culpable” for merely

enforcing post-judgment execution rights under the law. Any such accusation, had it even been

made, would have been patently frivolous. Nor do the Does allege that they were ever a

“beneficiary of the trust” or that they ever had any interest in the property that was subject to the

ATA Plaintiffs’ TRIA executions.

The four elements that must be established for a court to impose a constructive trust

include: (1) a promise, express or implied; (2) a transfer of property and reliance thereon; (3) a

confidential relationship; and (4) unjust enrichment. Bender v CenTrust Mortg. Corp., 51 F.3d

1027, 1030 (11th Cir. 1995), citing Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022,

1024 (Fla. Dist. Ct. App. 1996); Heina v. LaChucua Paso Fino Horse Farm, Inc., 752 So. 2d

630, 637 n. 4 (Fla. Dist. Ct. App. 1999). The party seeking a constructive trust must prove all

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elements by clear and convincing evidence. Gersh v. Cofman, 769 So. 2d 407, 409 (Fla. Dist. Ct.

App. 2000); Abreu v. Amaro, 534 So. 2d 771, 772 (Fla. Dist. Ct. App. 1988). Here, there was

never any promise, nor reliance, nor confidential relationship, nor unjust enrichment. The Does

Motion not only fails to prove the requisite elements of constructive trust by clear and

convincing evidence, they have not even alleged the requisite elements.

Moreover, a constructive trust cannot be imposed on general assets. See Trend Setter

Villas of Deer Creek v. Villas on the Green, Inc., 569 So. 2d 766, 768 (Fla. Dist. Ct. App. 1990).

In Mitsubishi, the court held that “[o]rdinarily, ‘[t]he general federal rule of equity is that a court

may not reach a defendant's assets unrelated to the underlying litigation and freeze them so that

they may be preserved to satisfy a potential money judgment.’ ” 14 F.3d at 1521 (citation

omitted). Here, the Does improperly seek to use their pending tort action against Chiquita to

attempt to assert a constructive trust on assets of blocked parties other than the FARC which are

unrelated to the Does v. Chiquita lawsuits.

The Does Did Not Sue the FARC, and

Without a Judgment Against the FARC, and a Writ of Execution issued under TRIA,
They Have No Right to Execute Upon Any FARC or FARC Related Assets

The Does’ Motion argues at length why they believe that the FARC is not subject to ATA

jurisdiction in the United States, and they falsely state that:

Neither the Stansell nor Pescatore Plaintiffs had to show any evidence to obtain
default judgments against the FARC. Nor did they state prima facie cases of
personal jurisdiction.

Motion at 24, n. 10. Once again, even a cursory review of the case files would have revealed the

falsity of these assertions. The Stansell Plaintiffs’ motion for default judgment against the

FARC defendants was supported by affidavits of all 8 plaintiffs, including the three FARC

hostages who were tortured and held in captivity for over five-and-one-half years, and an

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Appendix with an additional 25 supporting exhibits.5 The Pescatore Plaintiffs’ motion for

default judgment against the FARC was also supported by dozens of declarations and exhibits.6

Remarkably, the Does fail to inform this Court that the respective District Judges in

Stansell v FARC and Pescatore v. FARC both expressly ruled that the FARC was indeed properly

subject to jurisdiction in the United States, including:

 Middle District of Florida U.S. District Judge Richard Lazzara, Stansell et al. vs.

FARC et al, [ATA action] Case 8:09-cv-2308, June 15, 2010 Order granting default judgment

(Dkt. No. 232) (“Plaintiffs also show that the Court has personal jurisdiction over Defendants

that comports with due process and that they have standing to sue in this case under Article III of

the United States Constitution. Id at 17-50.);7 and

 District of Columbia U.S. District Judge Rosemary Collyer, Pescatore et al. v.

Pineda and FARC, [ATA action] D.D.C. Case No. 1:08-cv-02245, November 4, 2010

Memorandum Opinion (Dkt. No. 16 at 1) (“Finding that Defendants have properly been served,

and that personal and subject matter jurisdiction exist for this action”).

In both of these cases, the Judges found that the FARC specifically targeted the ATA

Plaintiffs because they were Americans, and that the FARC communicated its ransom demands

into the United States. Stansell v. Revolutionary Armed Forces of Colombia (FARC), No. 8:09-

CV-2308-T-26MAP, 2010 WL 11507790, at *2 (M.D. Fla. June 14, 2010) (holding plaintiffs

proved that “the Court has personal jurisdiction over Defendants” and referencing Plaintiffs’

motion that “[t]he FARC and its members are subject to specific jurisdiction . . . because they

5
See MDFL 8:09-cv-2308 Appendix DE 229.
6
See DDC 1:08-cv-02245 DE Nos. 14 & 40.
7
The Stansell plaintiffs effected service of process on many FARC defendants by personal
service in U.S. and Colombian prisons, and the FARC and the remaining defendants were served
by court ordered publications in Spanish language newspapers in Bogota and Caracas.

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purposefully directed their terrorist acts at U.S. nationals and Florida residents, including the

shooting of a U.S. civilian aircraft, then murdering a U.S. national, taking hostage three U.S.

nationals, broadcasting proof of life videos and demanding an exchange of terrorist prisoners”);

Pescatore v. Palmera Pineda, 345 F. Supp. 3d 68, 76 (D.D.C. 2018) (“FARC not only kidnapped

and killed [Mr. Pescatore] but also eviscerated his body in order to prolong ransom negotiations

with his family [in the United States]. . . . Mr. Pescatore’s kidnapping and murder was clearly the

result of intentional malice, not negligence. Indeed, as the only non-Colombian in his group, he

was the only one taken so that his captors could extort a ransom.”). In fact, in Pescatore, the

district court issued a separate memorandum opinion on the FARC’s personal jurisdiction and

noted that “Defendants targeted American citizens, sought ransom on them, and killed them,

including Mr. Pescatore. . . . Due to the purposeful targeting of Americans by [FARC’s]

terrorism, Defendants have minimum contacts here to establish personal jurisdiction.” Pescatore,

No. 1:08-cv-02245-RMC (D.D.C. Nov. 4, 2010) at 10, quoting Mwani v. Bin Laden, 417 F.3d 1

(D.C. Cir. 2005) (“[t]he defendants’ decision to purposefully direct their terror at the United

States, and the fact that the plaintiffs’ injuries arose out of one of those terrorist activities . . .

[which] should suffice to cause the defendants to ‘reasonably anticipate being haled into’ an

American court.”). Accordingly, the ATA Plaintiffs’ claims easily met the requirements for

specific jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (“Where a

forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented

to suit there, . . . this ‘fair warning’ requirement is satisfied if the defendant has ‘purposefully

directed’ his activities at residents of the forum, . . . and the litigation results from alleged

injuries that ‘arise out of or relate to’ those activities.”) (citations omitted).

Moreover, other federal and state courts have entered final default judgments against the

FARC based on ATS claims, including:

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 Miami-Dade Circuit Court (Eig, J.), Caballero v. FARC and North Valley Cartel,

[Alien Tort Statute-Civil RICO action] Case No. 12-48803-CA-02, May 2, 2014 Memorandum

Opinion at pp. 21-23 finding that the Court had personal jurisdiction over all the Defendants due

to their narcotics trafficking conspiracy in the United States, reported as Caballero v. FARC,

2014 Fla. Cir. LEXIS 51243 (Fla. 11th Cir. Ct. May 2, 2014); and

 Southern District of Florida (Huck, J.), John Doe v. ELN and FARC, [ATS-RICO

action] Case 1:10-cv-21517, January 5, 2012 Order granting motion for default judgment (Dkt.

Entry 43) (neither Judge Huck’s Order or final judgment make any specific findings or

statements on whether the FARC was subject to personal jurisdiction, and neither John Doe’s

Motion for Default Judgment [DE 30] or Memorandum of Law on Damages [DE 31] even

mention the subject of personal jurisdiction).9

Although the ATA Plaintiffs do not concede that the Caballero or John Doe ATS

judgments against the FARC were validly entered,10 the reality remains that they were successful

in obtaining those judgments. As such, their resulting respective post-judgment execution

recoveries indicate that the Does here could have obtained a similar judgment, if they had

diligently tried to pursue lawful executions on FARC-related blocked assets in the United States.

The ATS and Civil RICO both have 10 year statutes of limitations; so the Does long ago waived

9
John Doe has made several post-judgment execution recoveries to date, including a recent June
8, 2020 turnover Order (DE 288) resulting in a completed turnover of more than $16 million
recovered from IEEPA blocked assets of FARC agency or instrumentality Petrocedeno S.A.
10
The FARC ATS claims are void because the extraterritorial reach of the ATS is limited, there
is no ATS organizational liability, and there was no “state action” requisite to a violation of the
law of nations. See Cardona v. Chiquita Brands Intern., Inc., 760 F.3d 1185, 1188 (11th Cir.
2014); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018); In re Chiquita Brands Intern.,
Inc., 792 F. Supp. 2d 1301, 1357 (S.D. Fla. 2011). In addition, there is no civil RICO liability for
extraterritorial conduct. See RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2106
(2016). Here, the FARC’s terrorist acts against Caballero and John Doe—alien nationals who
were not targeted Americans—did not occur within the U.S. Therefore, there was no jurisdiction.
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their legal right to pursue a lawsuit against the FARC, and absent a judgment, the Does have no

conceivable claims whatsoever now or in the future.

The ATA Plaintiffs Have Not Been Unjustly Enriched

The Stansell Plaintiffs’ judgment arises from the February 13, 2003 FARC shoot-down of

a U.S. civilian aircraft performing a vital counter-narcotics surveillance mission of the FARC’s

trafficking activities in the Colombian jungle. The FARC swarmed the crash site within minutes

and promptly executed Tom Janis, the American pilot (and retired decorated Delta Force

member) and the Colombian Army host-nation passenger . The FARC then marched the three

hostages away in chains and then tortured them for over five and one-half years. Multiple proof-

of-life videos were sent by the FARC as part of their efforts to leverage these high-value

American hostages for a FARC prisoner exchange. The hostages were rescued on July 2, 2008,

at which time the Janis family received confirmation that it was the FARC that had in fact killed

Mr. Janis.

After obtaining their ATA judgment in 2010, the Stansell Plaintiffs attempted to execute

on the blocked assets of Mercurio Internacional, S.A., a FARC money launderer that was

designated under the 1999 Kingpin Act. Prior to the Kingpin Act, the U.S. Treasury’s Office of

Foreign Assets Control (“OFAC”) was designating narcotics traffickers under President

Clinton’s 1996 IEEPA Executive Order 12978 declaring a national emergency with respect to

traffickers centered in Colombia. The program was so successful that Congress expanded it

worldwide in enacting the Kingpin Act. On appeal, the Eleventh Circuit in Stansell v.

FARC/Mercurio held that the TRIA definition of “blocked asset”—assets blocked under IEEPA

or TWEA—did not include assets blocked under the Kingpin Act, a separate act of Congress,

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and the Mercurio execution was reversed. Stansell v. FARC (Mercurio), 704 F.3d 910 (11th Cir.

2013).

After the Mercurio decision, the Stansell Plaintiffs commenced a laborious, expensive

five-year journey—spanning three separate Congresses—and on October 3, 2018, they were

finally able to win passage of the Anti-Terrorism Clarification Act (“ATCA”) with a clarifying

amendment that expanded the definition of “blocked assets” under TRIA—but only for terrorism

victims holding an ATA judgment, which by definition is limited to U.S. nationals. 18 U.S.C.

§2333(e). In the five years after the Mercurio decision, the Stansell Plaintiffs continued to

successfully complete over 40 TRIA executions on blocked assets of money launderers for the

Cali Cartel, North Valley Cartel, Bermudez Suaza Organization and Ochoa Vasco Network—all

of whom were blocked under the original IEEPA narcotics sanctions program (a/k/a the Clinton

list), not the Kingpin Act. In every instance, the Stansell Plaintiffs proffered expert witness

testimony to prove the link between the money launderer, their cartel or network, and the FARC,

which is required under TRIA. The North Valley Cartel Financial Network appealed over 40 of

the Stansell TRIA executions, and those executions were approved and affirmed by the Eleventh

Circuit in Stansell v. FARC, 771 F.3d 713 (11th Cir. 2014).

The Stansell Plaintiffs have never executed on an asset that was owned by the FARC. All

the executions have been against non-parties that we have proven to be an “agency or

instrumentality” of the FARC, whose blocked assets were thus subject to post judgment

execution under TRIA and the ATA. Nor does TRIA require any “tracing” of the blocked asset

to the FARC. If a blocked asset is owned by a FARC “agency or instrumentality,” it is subject to

TRIA execution—even if the asset was derived from a source other than the FARC.

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Now, after literally a decade of litigation, after literally millions of dollars of litigation

and lobbying expenses incurred, after four completed appeals (including an unsuccessful NVC

petition for certiorari to the U.S. Supreme Court seeking “clawback”), and after three more

pending appeals before the Eleventh Circuit, the ATS Does are trying to waltz in and help

themselves to a seat at the table for a free meal, all on the Stansell Plaintiffs’ extensive efforts.

Even the Caballero v. FARC and John Doe v. FARC ATS plaintiffs are not so brazen as to try

such an egregiously improper stunt. And this Court should not countenance it.

Although the Does are not moving to intervene in the Stansell v. FARC post-judgment

proceedings, the law on intervention by competing creditors is instructive here: “The Eleventh

Circuit has several times explained” that an intervenor’s interest in the underlying proceeding

must be “something more than an economic interest,” and “one which the substantive law

recognizes as belonging to or being owned by the applicant.” Buckley Towers Condominium, Inc.

v. QBE Ins. Corp., Case No. 07-22988-CIV-MORENO/TORRES, 2008 WL 11318164, at *2

(S.D. Fla. Nov. 4, 2008) (internal citations omitted). “Intervention as of right is proper only

where all four requirements have been established.” Arcia v. Detzner, CASE NO. 12–22282–

CIV–ZLOCH, 2012 WL 12844562, at *1 (S.D. Fla. Sept. 28, 2012) (emphasis in original). See,

e.g., Buckley, 2008 WL 11318164, at *3 (stating that “a third party’s ability to recover in a

separate suit ordinarily does not give the third party a right to intervene.”); United States v. Alisal

Water Corp., 370 F.3d 915, 920 (9th Cir. 2004) (“[A]n allegedly impaired ability to collect

judgments arising from past claims does not, on its own, support a right to intervention. To hold

otherwise would create an open invitation for virtually any creditor of a defendant to intervene in

a lawsuit where damages might be awarded.”) (internal citation omitted).

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In the Eleventh Circuit, an intervenor’s purported interest in the underlying action must

be “direct, substantial, and legally protectable” in the “subject matter of the litigation” for Rule

24(a)(2) purposes. See Mount Hawley Insurance Co. v. Sandy Lake Properties, Inc., 425 F.3d

1308, 1311 (11th Cir. 2005) (citations omitted). A “legal” interest “is something more than an

economic interest”; it is something that “the substantive law recognizes as belonging to or being

owned by the [intervenor].” Id. (quoting United States v. South Fla. Water Mgmt. Dist., 922 F.2d

704, 710 (11th Cir. 1991)). In Mount Hawley, the court concluded there was no “legally

protectable interest” where the intervenor stated that “there will be less money available from

which he can recover his wrongful death damages” if the original plaintiff succeeded in its

action. Id. As Judge Huck explained in Doe I, an interest in preserving potentially collectable

funds falls short of a legally protectable interest:

[T]he interest must derive from a legal right. A party’s interest in a “pool or fund
from which to recover his damages”—the precise interest asserted here—does not
give that party a substantive right in any particular funds, such that he or she
could claim a protectable interest in a proceeding which might entitle another
party to claim an interest in the same pool of funds.

Doe v. Ejercito De Liberacion Nacional, 2012 WL 10713165, at *3 (Aug. 2, 2012) (emphasis in

original). See also CSpan Financial, LLC v. Blane, 2012 U.S. Dist. LEXIS 119359, *5 (S.D. Fla.

Aug. 23, 2012) (finding that an “interest in the outcome of [a] case” that “will have a bearing on

the pool of funds that will be available” for another case is “purely economic” and thus “not a

legally protectable interest”); Am. Guarantee & Liab Ins. Co. v. Estime-Thompson, P.A., Case

No. 08-21626-CIV-UNGARO, 2008 WL 11333273, at *3 (S.D. Fla. Sept. 16, 2008) (holding

that the interest of judgment creditors in “protecting the pool or funds from which to recover

their damages” from the defendants did not give the creditors a right to intervene); Typhoon

Media Corp. v.CVS Pharmacy, Inc., CASE NO. 11-61613-CIV-ROSENBAUM, 2013 WL

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12090020, at *3 (third-party judgment creditor’s interest in funds received pursuant to settlement

agreement is “purely economic” and “by itself does not warrant intervention as of right”).

The foregoing intervention cases involved prospective intervenors who were judgment

creditors. The Does never even sued the FARC, and the time for them to do so passed long ago.

The Does Do Not Have an OFAC License to Execute on FARC Assets

Even if the Does had judgments against the FARC—they don’t—they still would have no

legal right to the property that the ATA Plaintiffs have executed and levied. See, e.g., Stansell v.

FARC, No. MC 10-471 (TJK), 2019 WL 4040680 (D.D.C. Aug. 26, 2019). This property was

not owned by the FARC, but rather by its “agents or instrumentalities.” Id. at *6. Moreover, the

property at issue was blocked by the U.S. Treasury Department’s Office of Foreign Assets

Control (“OFAC”) under the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”), 21

U.S.C. § 1901 et seq., and it is only subject to execution by American nationals under the

ATCA. See Stansell v. FARC, 704 F.3d 910 (11th Cir. 2013) (discussing pre-ATCA law). Thus,

if the ATA Plaintiffs lack legal rights to any Kingpin Act assets, the assets would revert back to

OFAC and be uncollectable by anyone who was not “a national of the United States.” 18 U.S.C.

§ 2333(e); 31 C.F.R. § 598.205(e) (unauthorized judicial executions of Kingpin Act assets are

null and void). 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 “unambiguously prohibit

unlicensed transfers of blocked assets”); 31 CFR §§ 598.316 Transfer; 598.202 Prohibited

Transaction; 598.203 Prohibited transactions involving blocked property.

The ATA Plaintiffs do not need an OFAC license for their court ordered post-judgment

TRIA executions. See Harrison v. Republic of Sudan, 802 F.3d 399, 406-07 (2d Cir. 2015);

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Statement of Interest of the United States, filed April 26, 2019) in Stansell v. FARC, MDFL Case

09-cv-2308, DE 1197 at 6.

Conclusion

The Does’ Motion to impose constructive trust should be denied. Indeed, the Motion is

altogether frivolous. Although the Motion would justify our filing of a Rule 11 motion, we will

not unduly burden the Court by adding to its judicial labor.

Respectfully submitted August 3, 2020

/s/ Tony Korvick_____________________ /s/ Nathaniel Tarnor___________________

Newton P. Porter, Esq. (Fla Bar 833738)
Tony Korvick, Esq. (Fla. Bar 0768405)
PORTER & KORVICK, P.A.
9655 South Dixie Highway Suite 208
Miami, Florida 33156
Telephone: (305) 373-5040
Email: nporter@porterandkorvick.com
Email: tkorvick@porterandkorvick.com
Local Counsel for the Pescatore Plaintiffs
Nathaniel A. Tarnor, Esq.
HAGENS BERMAN SOBOL SHAPIRO, LLP
555 Fifth Avenue, Suite 1700
New York, NY 10017
Telephone: (646) 543-4992
Email: NathanT@hbsslaw.com
Counsel for the Pescatore Plaintiffs
Pro Hac Vice Motion Pending

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed
with the Clerk of the Court by using the CM/ECF system on August 3, 2020, which will send a
notice of electronic filing to all counsel of record, and also served upon:
OFFICE OF FOREIGN ASSETS CONTROL
U.S. Department of the Treasury
1500 Pennsylvania Ave. NW
Washington DC
Via email to OFAC counsel in compliance with 31 CFR 501.605

/s/ Tony Korvick_______________

Newton P. Porter, Esq. (Fla Bar 833738)
Tony Korvick, Esq. (Fla Bar 0768405)
PORTER & KORVICK, P.A.
9655 South Dixie Highway Suite 208
Miami, Florida 33156
Telephone: (305) 373-5040
Email: nporter@porterandkorvick.com
Email: tkorvick@porterandkorvick.com

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