Keith Stansell v. UBS Financial Services, Inc.

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11736
____________________
KEITH STANSELL,
MARC GONSALVES,
THOMAS HOWES,
JUDITH JANIS,
as Personal Representative of the Estate of Greer Janis,
MICHAEL JANIS, et al.,
Plaintiffs-Counter Defendants-Appellees,
SATORI FINE LINENS,
NEWMIL MARINE, LLC,
Intervenors-Plaintiffs,
versus
REVOLUTIONARY ARMED FORCES OF COLOMBIA,
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2 Opinion of the Court 20-11736
Defendant,
UBS FINANCIAL SERVICES, INC.,
BRANCH BANKING & TRUST COMPANY,
SAFRA NATIONAL BANK OF NEW YORK,
MORGAN STANLEY SMITH BARNEY, LLC,
SAFRA SECURITIES, LLC,
Interested Parties-Appellees,
CITIBANK, N.A.,
Interested Party-Cross Claimant-Counter Claimant,
SAMARK JOSE LOPEZ BELLO, et al.,
Intervenors-Cross Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20896-RNS
____________________
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20-11736 Opinion of the Court 3
____________________
No. 20-12467
____________________
KEITH STANSELL,
MARC GONZALVES,
THOMAS HOWES,
JUDITH JANIS,
as Personal Representative of the Estate of Greer Janis,
MICHAEL JANIS, et al.,
Plaintiffs-Counter Defendants-Appellees,
versus
LEUCADENDRA 325 LLC,
Claimant-Appellant,
SAMARK JOSE LOPEZ BELLO,
Intervenor-Cross Defendant-Appellant.
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4 Opinion of the Court 20-11736
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20896-RNS
____________________
____________________
No. 20-12545
____________________
KEITH STANSELL,
MARC GONSALVES,
THOMAS HOWES,
JUDITH JANIS,
as Personal Representative of the Estate of Greer Janis,
MICHAEL JANIS, et al.,
Plaintiffs-Counter Defendants-Appellees,
SATORI FINE LINENS,
NEWMIL MARINE, LLC,
Intervenors-Plaintiffs,
versus
REVOLUTIONARY ARMED FORCES OF COLOMBIA,
COLES ADVENTURES, LLC,
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20-11736 Opinion of the Court 5
Defendants,
UBS FINANCIAL SERVICES, INC.,
BRANCH BANKING & TRUST COMPANY,
SAFRA NATIONAL BANK OF NEW YORK,
MORGAN STANLEY SMITH BARNEY, LLC,
SAFRA SECURITIES, LLC,
OXBOW CARBON, LLC,
SSMPETCOKE, LLC,
OXBOW ENERGY SOLUTIONS, LLC,
Interested Parties,
LOISINETTE LEIVA,
Trustee of LLP Trust,
Interested Party-Appellant,
CITIBANK, N.A.,
Interested Party-Cross Claimant-Counter Claimant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20896-RNS
____________________
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6 Opinion of the Court 20-11736
Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and
BROWN, District Judge. ∗
JORDAN, Circuit Judge:
For plaintiffs in civil litigation, obtaining a favorable judg-
ment is only one step on the road to financial compensation. That
is because a judgment is essentially worthless unless the holder can
collect on it. See, e.g., David Barnhizer, Abandoning an “Unethi-
cal” System of Legal Ethics, 2012 Mich. St. L. Rev. 347, 401 (“If you
cannot collect the money, the paper value [of a judgment] is little
more than symbolic.”). So when the defendant liable for a sizable
judgment is a foreign terrorist organization, collection efforts are
not surprisingly often directed at third parties.
These consolidated appeals constitute the latest chapter of a
long-running legal battle over attempts to satisfy a 2010 default
judgment of $318 million under the Anti-Terrorism Act, 18 U.S.C.
§ 2333, against the Revolutionary Armed Forces of Colombia (the
Fuerzas Armadas Revolucionarias de Colombia or FARC) for mur-
der and kidnapping. See Stansell v. Revolutionary Armed Forces of
Colombia, 704 F.3d 910 (11th Cir. 2013) (Stansell I); Stansell v. Rev-
olutionary Armed Forces of Colombia, 771 F.3d 713 (11th Cir.
2014) (Stansell II); Stansell v. Revolutionary Armed Forces of Co-
lombia, 772 F. App’x 772 (11th Cir. 2019) (Stansell III); Stansell v.
Lopez Bello, 802 F. App’x 445 (11th Cir. 2020) (Stansell IV). In the
∗The Honorable Michael L. Brown, United States District Judge for the
Northern District of Georgia, sitting by designation.
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20-11736 Opinion of the Court 7
first appeal—Case No. 20-11736—Samark López Bello and several
limited liability companies he owns or controls (EPBC Holdings,
1425 Brickell 63-F, 1425 Brickell 46B, 1425 Brickell 64E, 200G PSA
Holdings, Leucadendra 325, and MFAA Holdings) appeal the dis-
trict court’s orders directing certain garnishees to liquidate and/or
distribute their assets to the plaintiffs who obtained the $318 mil-
lion judgment. In the second appeal—Case No. 20-12467—Mr.
López and Leucadendra 325 appeal the denial of their motion for a
preliminary injunction to stop the sale of real property located at
325 Leucadendra Drive in Coral Gables, Florida. In the third ap-
peal—Case No. 20-12545—Loisinette Leiva (Mr. López’s wife) ap-
peals the district court’s denial of her motion to intervene in the
proceedings concerning the sale of real property located at 325 Leu-
cadendra Drive (and owned by Leucadendra 325, one of the appel-
lants in Case Nos. 20-11736 and 20-12467).
In Case No. 20-11736, we conclude that a jury must decide
whether Mr. López and his companies qualify as agencies or instru-
mentalities of the FARC such that their assets can be garnished by
the plaintiffs to satisfy their $318 million judgment. We therefore
reverse and remand in that appeal. In Case No. 20-12467, we dis-
miss the appeal as moot because 325 Leucadendra has been sold
and we lack the ability to grant the requested relief. In Case No. 20-
12545, we affirm the district court’s order denying Ms. Leiva’s mo-
tion to intervene as untimely and therefore dismiss the appeal.
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8 Opinion of the Court 20-11736
I1
As relevant here, § 201(a) of the Terrorism Risk Insurance
Act of 2002, Pub. L. No. 107-297, codified as a note to 28 U.S.C.
§ 1610, provides that “[n]otwithstanding any other provision of law
. . . the blocked assets of [a] terrorist party [against which a judg-
ment is obtained] (including the blocked assets of any agency or
instrumentality of that terrorist party) shall be subject to execution
or attachment.” In Stansell II, we set out the elements required
under § 201(a) of the TRIA to execute on or attach the assets of a
third party who is alleged to be an agency or instrumentality of a
terrorist party. The movant must prove (1) that he obtained a judg-
ment against a terrorist party for a claim based on an act of terror-
ism, (2) that the amount sought to be executed or attached does
not exceed the compensatory damages awarded to the movant, (3)
that the assets of the third party are blocked (as that term is defined
under the TRIA), and (4) that the third party is an agency or instru-
mentality of the terrorist party. See Stansell II, 771 F.3d at 723.
A
In February of 2017, the Office of Foreign Assets Control—
acting pursuant to the Foreign Narcotics Drug Kingpin Act, 21
U.S.C. §§ 1901–08—determined that Mr. López was a “specially
designated narcotics trafficker” (SDNT) based upon his provision
of material assistance, financial support, or goods and services in
1In the rest of this opinion, we refer to the appellants in Case Nos. 20-11736
and 20-12467 collectively as the López appellants.
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20-11736 Opinion of the Court 9
support of the drug-trafficking activities of Tareck Zaidan El
Aissami Maddah (who served as the former Executive Vice-Presi-
dent of Venezuela and is now the current Minister of Oil & Indus-
try and National Production of Venezuela). The OFAC deter-
mined that Mr. López acted as a “key frontman” for Mr. El Aissami
and his narcotics activities, identified a number of companies
owned or controlled by Mr. López, and blocked the assets of Mr.
López and those companies. See Press Release, U.S. Dep’t of the
Treasury,Treasury Sanctions Prominent Venezuelan Drug Traf-
ficker Tareck El Aissami and His Primary Frontman Samark López
Bello, 2017 WL 563391 (Feb. 13, 2017); Bruce Zagaris, U.S. Treas-
ury Designates Venezuela’s Vice President under Narco Kingpin
Act, 33 Int’l Enforcement L. Rep. 48 (Feb. 24, 2017). 2
Two years later, in February of 2019, the plaintiffs who had
obtained the $318 million judgment against the FARC filed an ex
parte motion in the district court for writs of garnishment and exe-
cution against the assets of the López appellants (e.g.,
2 We had held in Stansell I, 704 F.3d at 915–16, that assets frozen under the
Kingpin Act were not “blocked assets” under the then-existing version of the
TRIA. But in 2018 Congress enacted the Anti-Terrorism Clarification Act,
Pub. L. 115-253, 132 Stat. 3183, and as a result the Anti-Terrorism Act now
provides that “blocked assets” under § 201 of the TRIA include the assets of a
terrorist party (and the assets of any agency or instrumentality of that terrorist
party) “seized or frozen” by the United States pursuant to the Kingpin Act. See
18 U.S.C. § 2333(e). In § 3(b) of the Anti-Terrorism Clarification Act, Congress
further provided that this amendment to the Anti-Terrorism Act “shall apply
to any judgment entered before, on, or after the date of enactment.” The
López appellants do not contest the applicability of § 2333(e) in this case.
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10 Opinion of the Court 20-11736
condominiums, vessels, and bank accounts). They proceeded un-
der § 201(a) of the TRIA and invoked Florida’s garnishment and
execution statutes, Fla. Stat. §§ 56.0101, 77.01 et seq. On the mer-
its, the plaintiffs asserted, through affidavits and other evidence,
that the López appellants could be tied to the FARC through their
connections with Mr. El Aissami. The district court agreed with
the plaintiffs, and found in an ex parte order that Mr. El Aissami
and the López appellants were agencies or instrumentalities of the
FARC. See D.E. 22.
Upon receiving notice of the ex parte proceeding, the López
appellants filed motions—with supporting lay and expert affida-
vits—to dissolve the writs of garnishment. They made a number
of arguments, including that the ex parte proceeding violated their
due process rights and that the district court had erred in finding
them to be agencies or instrumentalities of the FARC. See, e.g.,
D.E. 55, 80, 97.
The district court denied the López appellants’ request to
cancel the sale of several Miami-area properties, see D.E. 101, but
referred to a magistrate judge the motion to dissolve the writs of
garnishment with respect to bank accounts held by Mr. López. The
magistrate judge, following an evidentiary hearing, issued a report
(a) recommending that the district court deny the motion to dis-
solve and (b) finding that the López appellants were agencies or
instrumentalities of the FARC. See D.E. 248. The district court
overruled the López appellants’ objections and adopted the
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20-11736 Opinion of the Court 11
magistrate judge’s report. See D.E. 279. It later issued final turno-
ver judgments as to the garnished assets. See D.E. 339.
B
In March of 2019, just after the plaintiffs filed their ex parte
motions for writs of garnishment, a federal grand jury in New York
returned an indictment against Mr. López charging him with vio-
lating OFAC sanctions by using bulk cash to pay for charter flights
between Venezuela and Moscow. See United States v. López
Bello, Case No. 19-Cr-144 (S.D.N.Y). Mr. López has not turned
himself in or been arrested, and remains a fugitive.
The fugitive disentitlement doctrine, which is equitable in
nature, “empowers courts to dismiss the lawsuits or appeals of fu-
gitives from the law.” Ener v. Martin, 987 F.3d 1328, 1331 (11th
Cir. 2021) (citation omitted). We asked the parties to discuss the
doctrine at oral argument, and they did so.
Having considered the matter, we choose not to address
whether the doctrine should apply. The plaintiffs never asked the
district court to invoke the doctrine, and that court therefore did
not pass on it. Our review on the application of the doctrine is for
abuse of discretion, see id., and under the circumstances we think
it best for the district court to consider the matter on remand. First,
“[w]e are . . . a court of review, not a court of first view.” Callahan
v. U.S. Dep’t of Health & Hum. Servs., 939 F.3d 1251, 1266 (11th
Cir. 2019) (citation omitted). Second, one of the relevant factors is
whether the litigant’s fugitive status has a “sufficient connection”
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12 Opinion of the Court 20-11736
to the present action, see Ener, 987 F.3d at 1332, and reasonable
arguments can be made on both sides of that issue here. Third, it
is not clear whether the doctrine—even if applicable to Mr.
López—would apply to his companies. Fourth, we have cases go-
ing both ways as to whether the doctrine can and should apply to
litigants who are defending civil lawsuits. Compare Pesin v. Rodri-
guez, 244 F.3d 1250, 1252–53 (11th Cir. 2001) (applying the doctrine
to a defendant in an action for return of a child under a statute im-
plementing the Hague Convention), with FDIC v. Pharaon, 178
F.3d 1159, 1162 (11th Cir. 1999) (“We conclude that application of
the fugitive disentitlement doctrine in this case to bar Appellant, a
fugitive in a criminal case, from defending himself in a civil case,
albeit a related one, would not be a ‘reasonable response to the
problems and needs that provoke[d]’ the doctrine.”) (citation omit-
ted).
II
The López appellants raise a number of arguments about
the TRIA on appeal. We address them below. 3
3 To the extent that the López appellants claim that the ex parte proceeding
culminating in the initial writs of garnishment denied them due process, we
rejected that argument in Stansell IV, 802 F. App’x at 448–49, and therefore do
not address it further here. As to any arguments not discussed in our opinion,
we summarily affirm.
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A
Addressing an issue of statutory notice, we held in Stansell
II that § 201 of the TRIA “does not preempt Florida [garnishment]
law” with respect to post-judgment execution or attachment, and
that “judgment creditors seeking to satisfy judgments under [§ 201]
must follow the notice requirements of Florida law.” 771 F.3d at
730. We also explained that in Florida “execution and garnishment
proceedings are ancillary proceedings.” Id. at 733 (citations omit-
ted).
The López appellants, without acknowledging this aspect of
Stansell II, argue that a post-judgment action brought pursuant to
§ 201 of the TRIA is a new and independent civil suit rather than
an ancillary proceeding. Based on this premise, they then assert
that the district court erred in failing to schedule a Rule 16 confer-
ence, refusing to enter a scheduling order, and allowing the plain-
tiffs to call Paul Craine (a former DEA agent) as one of their wit-
nesses without prior disclosure. See Appellants’ Br. at 22–26.
With respect to the lack of a Rule 16 conference and sched-
uling order, the López appellants have failed to identify any real
harm or prejudice. There is therefore no basis for reversal. See 28
U.S.C. § 2111 (“On the hearing of any appeal . . . the court shall give
judgment . . . without regard to errors or defects which do not af-
fect the substantial rights of the parties.”); Fed. R. Civ. P. 61 (“At
every stage of the proceeding, the court must disregard all errors
and defects that do not affect any party’s substantial rights.”);
Palmer v. Hoffman, 318 U.S. 109, 116 (1943) (“He who seeks to
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14 Opinion of the Court 20-11736
have a judgment set aside because of an erroneous ruling carries
the burden of showing that prejudice resulted.”). As for the admis-
sion of Mr. Craine’s testimony at the evidentiary hearing without
prior disclosure, it too does not require reversal because we are re-
manding for a jury trial.
B
According to the López appellants, § 201(a) of the TRIA re-
quired the plaintiffs to prove that they were agencies or instrumen-
talities of the FARC at the time that the ex parte writs of garnish-
ment were sought and issued (i.e., in February of 2019), and not at
any earlier point in time. Exercising plenary review as to this issue
of statutory interpretation, see Cho v. Surgery Partners, Inc., 30
F.4th 1035, 1040 (11th Cir. 2022), we disagree with the López ap-
pellants.
To recap, § 201(a) of the TRIA provides that “[n]otwith-
standing any other provision of law . . . the blocked assets of [a]
terrorist party [against which a judgment is obtained] (including
the blocked assets of any agency or instrumentality of that terrorist
party) shall be subject to execution or attachment.” The López ap-
pellants contend that the phrase “shall be subject to execution or
attachment” is “stated in the present, as the word ‘shall’ connotes
the present,” so the agency/instrumentality status must exist at the
time the application for a writ of garnishment is filed. See Appel-
lants’ Br. at 28. They rely on language in Kirschenbaum v. 650 Fifth
Ave. & Related Props., 830 F.3d 107, 136 (2d Cir. 2016) (Kirschen-
baum I) (“[I]nsofar as Plaintiffs contend that Alavi itself was
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20-11736 Opinion of the Court 15
sufficiently owned, controlled, or directed by Iran to render it an
agency or instrumentality of a terrorist party under the TRIA, ques-
tions of fact exist as to whether Alavi was so owned, controlled, or
directed at the time Plaintiffs’ complaints were filed.”), abrogated
on other grounds by Rubin v. Islamic Republic of Iran, 138 S. Ct.
816 (2018).
A third party’s assets must be blocked under the TRIA when
the motion for a writ of garnishment is filed, and when the writ is
issued. See Stansell II, 771 F.3d at 723, 748. But that does not mean
that agency/instrumentality status must be determined as of that
point in time.
The district court in Stansell II ruled that an agency or in-
strumentality was “[a]ny SDNT . . . that is or was ever involved” in
any aspect of the FARC’s narcotics trafficking operations “or that
assisted the FARC’s financial or money laundering network” be-
cause it “was either (1) materially assisting in, or providing financial
or technological support for or to, or providing goods or services
in support” of, the FARC’s international narcotics trafficking activ-
ities; and/or (2) “owned, controlled, or directed by, or acting for or
on behalf of” the FARC; and/or (3) “playing a significant role in”
the FARC’s narcotics trafficking. See id. at 724 n.6 (emphasis
added). Although Stansell II did not address the specific temporal
argument made by the López appellants, it did hold that “the dis-
trict court developed a proper standard” for determining
agency/instrumentality status under § 201(a) of the TRIA because
that standard was based on the plain and ordinary meaning of those
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16 Opinion of the Court 20-11736
terms. See id. at 732 (concluding also that “the agencies or instru-
mentalities here were, according to [the] OFAC, part of [the]
FARC’s money laundering operations”) (emphasis added). Be-
cause the formulation we expressly approved in Stansell II encom-
passed past involvement or association with a terrorist party, the
Second Circuit’s language in Kirschenbaum I—if read the way the
López appellants suggest—is inconsistent with our precedent. We
conclude, based on Stansell II, that the magistrate judge and the
district court correctly rejected the contention that a third party
must be an agency or instrumentality of a terrorist party at the time
that execution or attachment is sought under the TRIA. 4
We add two more linguistic points. First, contrary to the
assertion of the López appellants, the word “shall” does not neces-
sarily connote the present tense. “Depending on how finely [one]
4 We are not sure how to read the language in Kirschenbaum I that the López
appellants rely on. In another portion of its opinion the Second Circuit used
both the past tense and the present tense in explaining agency/instrumentality
status under the TRIA. See Kirschenbaum I, 830 F.3d at 135 (“To demonstrate
that Defendants are ‘agencies or instrumentalities’ of a terrorist party under
the TRIA, . . . Plaintiffs must show that each Defendant (1) was a means
through which a material function of the terrorist party is accomplished,
(2) provided material services to, or on behalf of, or in support of the terrorist
party, or (3) was owned, controlled, or directed by the terrorist party.”) (em-
phasis added). On remand the district court read the Second Circuit’s lan-
guage just as the López appellants have, but its decision was later set aside on
other grounds. See Kirschenbaum v. 650 Fifth Ave. Co., 257 F. Supp. 3d 463,
521 (S.D.N.Y. 2017) (Kirschenbaum II), vacated sub nom., Havlish v. 650 Fifth
Ave. Co., 934 F.3d 174 (2d Cir. 2019).
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20-11736 Opinion of the Court 17
slice[s] the semantic nuances, shall can bear five to eight senses
even in a single document.” Bryan A. Garner, Garner’s Dictionary
of Legal Usage 952 (3d ed. 2011). Indeed, “shall” is “commonly
used as a future-tense modal verb.” Id. See also United States v.
Arredondo, 31 U.S. 691, 741 (1832) (“In the English original, the
words are ‘shall be’—words in the future.”); Carpenters Amended
& Restated Health Benefit Fund v. Holleman Constr. Co., 751 F.2d
763, 769 (5th Cir. 1985) (noting that “shall be subject” is a future-
tense phrase). Second, in a statute like § 201(a) of the TRIA, the
word “shall” is used in its usual “mandatory” legal sense. See
Black’s Law Dictionary 1653 (11th ed. 2019); Webster’s Third New
Int’l Dictionary of the English Language Unabridged 2085 (2002).
Because “shall” is used as a “command and statement of intention,”
it “adds nothing to clarify the temporal question before us.” Omni
MedSci, Inc. v. Apple, Inc., 7 F.4th 1148, 1154 (Fed. Cir. 2021).
C
The López appellants make two additional arguments about
§ 201(a) of the TRIA. They assert that indirect ties are not enough
to establish that they were agencies or instrumentalities of the
FARC. And they maintain that they cannot be agencies or instru-
mentalities unless they acted knowingly. See Appellants’ Br. at 34–
42.
We quickly dispense with the first argument. In Stansell II
we affirmed, as not clearly erroneous, the district court’s factual
findings that certain third parties were agencies or instrumentali-
ties of the FARC. See 771 F.3d at 742, 746. In so doing, we
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18 Opinion of the Court 20-11736
explained that as to some third parties the evidence was sufficient
to establish the “required relationship between [the] FARC and
[the third parties], even if that relationship was indirect.” Id. at 742.
See also id. at 746 (“Plaintiffs proffered evidence of connections to
[the] FARC that met the district court’s standard, and the appellants
here failed to rebut that evidence.”). Accord Stansell v. Revolution-
ary Armed Forces of Colombia, Case No. 10-471 (TJK), 2019 WL
4040680, at *4 (D.D.C. Aug. 26, 2019) (Stansell V) (agreeing with
Stansell II that an indirect relationship suffices).
If that were not enough, nothing in § 201(a) of the TRIA sug-
gests that an instrumentality relationship with a terrorist party
needs to be direct. Imagine, for example, that the FARC hires A to
oversee and coordinate the laundering of its narcotics proceeds in
different parts of the world. Then A subcontracts, hires, or uses
other individuals or entities (B, C, and D) to carry out the money
laundering operation in other countries. In that example, B, C, and
D could be (depending on the nature of the arrangement, agree-
ment, or understanding) instrumentalities of the FARC notwith-
standing their lack of a direct contractual relationship with the
FARC.
The second argument—the one pertaining to knowledge—
is one we did not address in Stansell II, and proves more difficult.
The Second Circuit has left open whether, under § 201(a) of the
TRIA, a person or entity must have known, or had reason to know,
that it was providing services to or assisting a terrorist party to be
considered an agency or instrumentality. See Kirschenbaum I, 830
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20-11736 Opinion of the Court 19
F.3d at 136. In Kirschenbaum II, 257 F. Supp. 3d at 522, which was
later vacated by the Second Circuit due to the improper exclusion
of certain witnesses, see Havlish, 934 F.3d at 182–83, the district
court explained that it did not need to decide the knowledge ques-
tion because the evidence showed that the alleged agencies and in-
strumentalities in that case had the requisite knowledge. Never-
theless, in dicta the court said it did not believe knowledge was re-
quired:
As a matter of law, . . . this Court does not believe
knowledge of instrumentality status is a required ele-
ment for a TRIA § 201(a) claim . . . . [G]enerally,
agency principles prevent an agent from lacking
knowledge as to its princip[al]. But people or entities
may become the unwitting instruments of another.
The fact that they may be, or are, unaware of their
status as instruments does not eliminate their role as
such. In this regard, an instrumentality may be pas-
sive[.]
Kirschenbaum II, 257 F. Supp. 3d at 523 (citations omitted). The
court added that the “breadth and purpose” of § 201(a) indicated an
intent on Congress’ part “to cast a broad net to effectuate deter-
rence.” Id. As far as we can tell, there is no other discussion of this
knowledge question in any other cases or in the literature.
The pertinent phrase in § 201(a) of the TRIA is “agency or
instrumentality.” To figure out whether knowledge is required for
either status, we must determine the “ordinary public meaning” of
the words agency and instrumentality at “the time of enactment.”
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20 Opinion of the Court 20-11736
United States v. Dominguez, 997 F.3d 1121, 1124 (11th Cir. 2021)
(citing Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020)).
Around 2002, the words agency and instrumentality were
largely understood as synonymous in lay usage. See, e.g., 1 Shorter
Oxford English Dictionary 41, 1391 (5th ed. 2002) (defining agency
as an “[i]ntervening action towards an end” and instrumentality as
“[a] thing which is employed for a purpose or end”); Webster’s
New World College Dictionary 25, 741 (4th ed. 2000) (defining
agency as “that by which something is done; means; instrumental-
ity” and instrumentality as “a means or agency”); Roget’s II – The
New Thesaurus 27, 551 (1988) (defining both words as “[t]hat by
which something is accomplished or some end achieved”); Web-
ster’s New World Thesaurus 18 (1985) (defining agency, in part, as
“[a]n instrumentality”). That lay understanding generally remains
the same today. See, e.g., Webster’s Third New Int’l Dictionary
40, 1172 (2012) (defining agency as “a person or thing through
which power is exerted or an end is achieved: instrumentality,
means” and instrumentality as “something by which an end is
achieved” or “something that serves as an intermediary or agent
through which one or more functions of a controlling force are car-
ried out”) (capitalization altered); The American Heritage Diction-
ary of the English Language 32, 908 (4th ed. 2009) (defining agency
as“[t]he means or mode of acting; instrumentality” and instrumen-
tality as “[a] means; an agency”).
In the legal world, however, the words were understood dif-
ferently. Agency reflected a more formal fiduciary relationship
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20-11736 Opinion of the Court 21
imposing certain duties and obligations, while instrumentality
meant any means of accomplishing an end. For example, the lead-
ing American legal dictionary at the time of the TRIA’s passage de-
fined agency as “[a] fiduciary relationship created by express or im-
plied contract or by law, in which one party (the agent) may act on
behalf of another party (the principal) and bind that party by words
or actions.” Black’s Law Dictionary 62 (7th ed. 1999). That same
dictionary defined instrumentality as [a] thing used to achieve an
end or purpose,” though it also provided an alternative definition
which treated agency as a synonym (“[a] means or agency though
which a function of another entity is accomplished”). See id. at 802.
Other legal sources also viewed agency and instrumentality differ-
ently. See Merriam-Webster’s Dictionary of Law 251 (1996) (defin-
ing “instrumentality” as “something through which an end is
achieved or occurs”); Restatement (Second) of Agency § 1(1) (ALI
1958) (“Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent by the
other so to act.”); Bryan A. Garner, A Dictionary of Modern Legal
Usage 38 (2d ed. 1995) (“An agent is a business representative who
handles contractual arrangements between the principal and third
persons.”).
One lexicographer has put the legal understanding of agency
this way: “Nonlawyers are largely unfamiliar with agency used in
this way, although they understand the personal noun agent as
meaning ‘representative.’” Bryan A. Garner, Garner’s Dictionary
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22 Opinion of the Court 20-11736
of Legal Usage 38 (3d ed. 2011). The difference between agency
and instrumentality, in their legal senses, has generally remained
consistent over time. See, e.g., I Bouvier Law Dictionary 109, 1340
(Desk ed. 2012) (defining agency as “the relationship between the
principal and the agent” and instrumentality as “[a] means by
which something is accomplished” and “the means by which some-
thing is achieved or performed”). 5
So which understanding governs? Because Congress used
the words agency and instrumentality in § 201(a) of the TRIA to
permit the execution and attachment of assets, we think that the
legal understanding is the better one. A traditional canon of statu-
tory construction is that terms joined by the disjunctive “or”—like
agency and instrumentality here—have different meanings unless
the context dictates otherwise. See, e.g., United States v. Woods,
571 U.S. 31, 45 (2013); Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979); 1A Norman Singer, Sutherland on Statutes and Statutory
Construction § 21.14 (7th ed. & Nov. 2021 update). Using the legal
understanding of these words here is textually appropriate and
preferable because it prevents them from being superfluous to each
other. See Antonin Scalia & Bryan A. Garner, Reading Law: The
5 The legal understanding of agency and instrumentality set out in the text is
admittedly not uniform. One legal dictionary, while defining agency in part
as “a consensual fiduciary relationship in which one party acts on behalf of and
under the control of another in dealing with third parties,” also defines both
agency and instrumentality in their lay sense as a person or thing through
which “an end is achieved.” See Merriam-Webster’s Dictionary of Law 18, 249
(2016).
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20-11736 Opinion of the Court 23
Interpretation of Legal Texts 176 (2012) (“Because legal drafters
should not include words that have no effect, courts should avoid
a reading that renders some word altogether redundant.”). With
this premise, we turn to whether knowledge is required for agency
or instrumentality status.
We begin with agency. When the TRIA was enacted in
2002, an agency relationship generally required both (1) a “mani-
festation by the principal to the agent that the agent may act on his
account,” and (2) “consent by the agent to so act.” Restatement
(Second) of Agency, at § 15. See also id. at cmt. b (“The agency
relation[ship] exists only if the agent consents to it.”); John
Bourdeau et al., 3 Am. Jur. 2d Agency § 14 (2d ed. & May 2022
update) (“As between the parties to the relationship, there must be
a meeting of the minds in establishing the agency, and the consent
of both the principal and the agent is necessary to create an agency
relationship although such consent may be implied rather than ex-
pressed.”). Given that consent (i.e., agreement) by the agent was
(and is) required, and that consent “usu[sually]” is given by a per-
son “who has knowledge or understanding,” Merriam-Webster’s
Dictionary of Law, at 97, it seems to us that an agent must know
(or at least be aware of) the identity of his principal in order to cre-
ate an agency relationship. See also I Bouvier Law Dictionary, at
532 (defining consent as “the knowing and intentional act of ac-
ceptance or agreement to a proposition”); Kirschenbaum II, 257 F.
Supp. 3d at 523 (stating in dicta that “generally, agency principles
prevent an agent from lacking knowledge as to its princip[al]”). We
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24 Opinion of the Court 20-11736
hold, therefore, that to be an agency of a terrorist party under §
201(a) of the TRIA one must know the identity of the terrorist party
with whom the agent-principal relationship exists. 6
We recognize, of course, that we are using domestic under-
standings of the word agency to interpret the TRIA, which has in-
ternational application given the breadth and geographic scope of
terrorist activity. And we realize as well that in the world of ter-
rorism, affiliations and relationships are not likely to track the for-
malisms of law. But we are tasked with interpreting a domestic
statute, and we think that Congress used agency in its legal sense
in § 201(a). And because execution or attachment under the TRIA
must occur in the United States, courts should be able to apply the
understanding of agency we have set out.
On then, to instrumentality, as to which we reach a different
conclusion. As noted above, in a legal sense an instrumentality is a
person or thing through which or by which some end or purpose
is achieved. We have found no indication that to be an instrumen-
tality one must know the person or entity seeking the end result.
To the contrary, the word has been used to refer to unwitting cogs
in a criminal scheme. See, e.g., United States v. Bachynsky, 949
F.2d 722, 735 (5th Cir. 1991) (“For each false diagnosis submitted,
6 In our view, the mistake made by the district court in Kirschenbaum II (albeit
in dicta) was lumping agency and instrumentality together and treating them
as meaning the same thing. As we have hopefully explained in the text, the
words have distinct legal meanings, and those different understandings lead to
divergent results with respect to whether knowledge is required.
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20-11736 Opinion of the Court 25
an unwitting patient was made an instrumentality of the fraud.”);
Michael N. Giuliano, 22 C.J.S. Criminal Law: Substantive Princi-
ples § 170 (May 2022 update) (“Ordinarily, a person who causes a
crime to be committed through the instrumentality of an innocent
or unwitting agent is punishable as a principal.”).
In enacting the TRIA after the terrorist attacks on September
11, 2001, Congress found that the government should provide
“temporary financial compensation” to parties injured by acts of
terrorism. See TRIA § 101(a)(6) (congressional findings). The ex-
press purpose of the TRIA was to establish a temporary federal pro-
gram “that provides for a transparent system of shared public and
private compensation for insured losses resulting from acts of ter-
rorism.” TRIA § 101(b) (congressional purpose). We conclude that
this goal is furthered by allowing the execution and attachment of
assets belonging to instrumentalities who were unaware of the ter-
rorist party or parties involved. Permitting such execution and at-
tachment makes it easier for victims of terrorism to collect on judg-
ments obtained against terrorist organizations. And it eases the fi-
nancial pressure on private insurance markets and better allows the
industry to “absorb any future losses.” See TRIA § 101(b)(2). In
this respect, therefore, we agree with the dicta in Kirschenbaum II
that knowledge is not required for instrumentality status under the
TRIA. See 257 F. Supp. 3d at 523 (“The fact that they may be, or
are, unaware of their status as instrument[alitie]s does not elimi-
nate their role as such. In this regard, an instrumentality may be
passive[.]”).
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26 Opinion of the Court 20-11736
When the case returns to the district court for a trial—more
on that later—the court will have to instruct the jury on agency
and instrumentality consistent with Stansell II as supplemented by
today’s opinion. And it will need to explain that under the TRIA
knowledge is required for agency status but not for instrumentality
status.
D
The López appellants contend that they will be denied due
process unless we require knowledge for both agency and instru-
mentality status under § 201(a) of the TRIA, and urge us to impose
a knowledge requirement in order to avoid constitutional prob-
lems. See Appellants’ Br. at 40–43. We have held that knowledge
is not required for instrumentality status, so we limit our discussion
to that status.
In the criminal arena, the Supreme Court has not “under-
taken to delineate a precise line or set forth comprehensive criteria
for distinguishing between crimes that require a mental element
and crimes that do not.” Staples v. United States, 511 U.S. 600, 620
(1994) (citation and internal quotation marks omitted). Just ten
years ago, we noted the lack of clarity in this area of the law. See
Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1354–55 (11th Cir.
2012).
The TRIA, however, is not a criminal provision. Instead,
§ 201(a) is a civil remedy providing for the execution and attach-
ment of assets to satisfy certain judgments against terrorist parties.
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20-11736 Opinion of the Court 27
And in the civil context, the Supreme Court has held that Congress
can impose liability without requiring knowledge. In Chicago,
Burlington & Quincy Ry. Co. v. United States, 220 U.S. 559 (1911),
a railroad company challenged the assessment of a penalty for the
violation of a federal safety law and argued in part that it could not
be held responsible because it lacked knowledge of the violation.
Explaining that the action to impose the penalty was “a civil one,”
the Supreme Court rejected the railroad’s argument: “The power
of the legislature to declare an offense, and to exclude the elements
of knowledge and due diligence from any inquiry as to its commis-
sion, cannot, we think, be questioned.” Id. at 578.
We too have rejected the argument that, as a constitutional
matter, a civil penalty requires actual knowledge on the part of the
person or entity involved. See Mayers v. U.S. Dep’t of Health &
Hum. Servs., 806 F.2d 995, 999–1000 (11th Cir. 1986). Other cir-
cuits have come to similar conclusions. See, e.g., Bettor Racing,
Inc. v. Nat’l Indian Gaming Comm’n, 812 F.3d 648, 652 (8th Cir.
2016) (“Nor is scienter required to justify a fine.”); Conn. Bar Ass’n
v. United States, 620 F.3d 81, 102 (2d Cir. 2010) (“Strict liability gen-
erally raises due process concerns with respect to criminal, not
civil, statutes.”); Humanitarian L. Project v. U.S. Treasury Dep’t,
578 F.3d 1133, 1152 (9th Cir. 2009) (“[C]ivil penalties may be im-
posed without mens rea requirements because they are indeed
civil.”); N. Wind, Inc. v. Daley, 200 F.3d 13, 19 (1st Cir. 1999) (“As
a general matter, scienter is not required to impose civil penalties
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28 Opinion of the Court 20-11736
for regulatory violations when the regulation is silent as to state of
mind.”).
The López appellants do not acknowledge or discuss these
cases. Nor do they provide a convincing argument as to why we
can or should deviate from them. We therefore reject their argu-
ment that due process demands a knowledge requirement for in-
strumentality status under the TRIA.
III
As we explained in Stansell II, the TRIA does not preempt
Florida garnishment law. See 771 F.3d at 730 (“[T]he district court
erred when it held that Florida law did not govern the garnishment
and execution procedures.”). Because the plaintiffs here invoked
Florida’s garnishment statutes to attach the assets of the López ap-
pellants under § 201(a) of the TRIA, they and the district court had
to adhere to those statutes.
The López appellants assert that under Florida law the dis-
trict court erred in denying them a jury trial on the issues of agency
and instrumentality. See Appellants’ Br. at 34–54. On the record
before us, we agree.
A
The López appellants, who were contesting the ex parte gar-
nishments, “were entitled to be heard on their challenge to the
agency or instrumentality issue.” Stansell II, 771 F.3d at 727. One
of the Florida garnishment statutes provides that “[o]n demand of
either party a jury summoned from the body of the county shall be
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20-11736 Opinion of the Court 29
impaneled to try the issues.” Fla. Stat. § 77.08. This statute pro-
vides a “right to jury trial in a garnishment proceeding,” though a
“motion for summary judgment . . . is . . . permissible” if “there is
no disputed issue of material fact.” Sec. Bank, N.A. v. BellSouth
Advert. & Publ’g Corp., 679 So. 2d 795, 800 n.5 (Fla. 3d Dist. Ct.
App. 1996). See also Zelaya/Cap. Int’l Judgment, LLC v. Zelaya,
769 F.3d 1296, 1304 (11th Cir. 2014) (explaining that a “jury trial
[under § 77.08] is not required . . . if it would serve no purpose”).
In the district court, the López appellants argued that the
agency/instrumentality issues should be submitted to a jury under
§ 77.08. See, e.g., D.E. 230 at 208. The magistrate judge concluded,
and the district court agreed, that the plaintiffs had met their bur-
den under the TRIA and that there were no material issues of fact
with respect to Mr. López’s status as an agency or instrumentality
of the FARC. See D.E. 248 at 21–23; D.E. 279 at 2.
The question for us, then, is whether the evidence presented
created issues of material fact as to Mr. López’s agency or instru-
mentality status. If so, a jury trial was required. See, e.g., Allen v.
Brevard Cnty. Loan & Mortg. Co., 158 So. 305, 306 (Fla. 1934) (re-
versing judgment in favor of garnishee and remanding for a jury
trial because there was “conflicting evidence” as to whether the
garnishee was indebted to the judgment debtor). In this respect,
we note that under both federal law and Florida law summary
judgment should be denied where conflicting inferences can be
drawn from the evidence, even if the evidence itself is not in dis-
pute. See Manners v. Cannella, 891 F.3d 959, 967 (11th Cir. 2018);
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30 Opinion of the Court 20-11736
Burroughs Corp. v. Am. Druggists’ Ins. Co., 450 So. 2d 540, 544
(Fla. 2d Dist. Ct. App. 1984).
The plaintiffs, who sought garnishment under § 201(a) of the
TRIA, bore the burden in the dissolution proceeding of establishing
that the López appellants were agencies or instrumentalities of the
FARC. This is the burden-of-proof allocation under both Florida
garnishment law and the TRIA. See Fla. Stat. § 77.07(2) (on a mo-
tion to dissolve a writ of garnishment “if the allegation in the plain-
tiff’s motion which is denied is not proved to be true, the garnish-
ment shall be dissolved”); Kirschenbaum II, 257 F. Supp. 3d at 515(addressing the TRIA); Harrison v. Republic of Sudan, Case No. 13-
cv-3127 (PKC), 2017 WL 946422, at *3 (S.D.N.Y. Feb. 10, 2017) (ad-
dressing the TRIA). Cf. Rubin v. Islamic Republic of Iran, 810 F.
Supp. 2d 402, 404 (D. Mass. 2011) (explaining that under Massachu-
setts law the plaintiff seeking post-judgment attachment has the
burden to show entitlement to the assets in question, and conclud-
ing that “[t]here is no reason, textual or otherwise, to conclude that
[the] TRIA shifts this burden of proof away from the plaintiff”),
aff’d, 709 F.3d 49 (1st Cir. 2013). 7
7 Like the parties, we assume that the preponderance of the evidence standard
governs in a Florida garnishment dissolution proceeding involving the TRIA.
See Grogan v. Garner, 498 U.S. 279, 286 (1991) (“‘[W]e presume that [the pre-
ponderance of the evidence] standard is applicable in civil actions between pri-
vate litigants unless ‘particularly important individual interests or rights are at
stake.’”) (citation omitted); S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC,
139 So. 3d 869, 872 (Fla. 2014) (same); Paul M. Coltoff et al., 38 C.J.S.
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20-11736 Opinion of the Court 31
As a reminder, we repeat the substantive TRIA standard we
approved in Stansell II. An agency or instrumentality is “any SDNT
. . . that is or was ever involved” in the FARC’s narcotics trafficking
operations “or that assisted the FARC’s financial or money laun-
dering network” because it “was either (1) materially assisting in,
or providing financial or technological support for or to,” or
“providing goods or services in support of,” the FARC’s interna-
tional narcotics trafficking activities; and/or (2) “owned, con-
trolled, or directed by, or acting for or on behalf of” the FARC;
and/or (3) “playing a significant role in” the FARC’s narcotics traf-
ficking. See Stansell II, 771 F.3d at 724 n.6, 732. And, as discussed
earlier, knowledge is required for agency status but not for instru-
mentality status.
We held in Stansell II that an “indirect” relationship can suf-
fice to meet this standard, but did not elaborate further on what
such a relationship consists of. See id. at 742. Common sense indi-
cates, however, that the more attenuated the link the more difficult
it will be to prove agency/instrumentality status. To use a pop
culture analogy, the mere associations used in the game “Six De-
grees of Kevin Bacon”—which involves linking American actor
Kevin Bacon to other actors via their roles in six film titles or less—
would not suffice under § 201 of the TRIA. Cf. David Colker, “Six
Garnishment § 259 (May 2022 update) (in a garnishment proceeding the judg-
ment creditor “must prove the allegations by a preponderance of the evi-
dence”).
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32 Opinion of the Court 20-11736
Degrees of Bacon Separation,” L.A. Times (June 18, 1996) (“One of
[Elvis] Presley’s films was ‘Viva Las Vegas’ (1964), which also fea-
tured Ann-Margret. Ann-Margret appeared in ‘Carnal Knowledge’
(1971) with Jack Nicholson. And Nicholson was in ‘A Few Good
Men’ (1992) with Bacon. It took three films to make the connec-
tion, so Presley can be said to have a Bacon number of 3.”).
B
The plaintiffs’ agency/instrumentality theory in the district
court was based on a series of indirect connections. As the plaintiffs
told the magistrate judge, “we have acknowledged from the outset
that we were trying to prove up an indirect relationship.” D.E. 230
at 204.
As summarized by the magistrate judge, the plaintiffs’ evi-
dence showed the following. First, according to the OFAC Mr.
López—an SDNT—operated as the “frontman” or testaferro for
Mr. El Aissami—also an SDNT. Second, Mr. López laundered and
moved money for Mr. El Aissami (1) flowing to the latter as a result
of his ties to and membership in the Cartel of the Suns and (2) de-
rived from the sale of cocaine manufactured by the FARC. Third,
the Cartel of the Suns earned significant income from the sale and
exportation of FARC cocaine, and high-ranking members of the
Cartel safeguarded cocaine-producing laboratories and helped es-
cort drug shipments from Colombia into Venezuela. See D.E. 248
at 18–19, 22. According to the magistrate judge, whose report was
adopted by the district court, Mr. El Aissami was “the key link in
the chain,” and Mr. López’s connections to him went
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20-11736 Opinion of the Court 33
“unrebutted.” Id. at 19. As an example, the magistrate judge
pointed to evidence that Mr. El Aissami provided protection to
Daniel Barrera Barrera, a Colombian drug lord who was designated
as an SDNT in part due to his partnership with the FARC. See id.
at 19–20 (“López Bello’s connection to El Aissami, and El Aissami’s
connection to the FARC through Barrera Barrera, entirely under-
mines any serious argument that López Bello cannot be connected
to the FARC, at least indirectly.”).
The magistrate judge and the district court, as noted earlier,
concluded that there were no material issues of fact as to whether
Mr. López was an agency or instrumentality of the FARC. Alt-
hough we understand why they viewed the evidence as supporting
the plaintiffs’ position, under § 77.08 they were not tasked with be-
ing the ultimate triers of fact. As we see the record, the evidence
presented by the López appellants created issues of material fact
and necessitated a jury trial. We recount that evidence in the light
most favorable to them. See Scott v. Harris, 550 U.S. 372, 378
(2007).
William Marquardt, a forensic accountant and director for
Berkeley Research Group (BRG), was the first expert witness for
the López appellants. He testified (1) that the 2017 OFAC determi-
nation of Mr. López as an SDNT did not mention the FARC; and
(2) that he performed a data analysis comparing an OFAC list of
individuals associated with the FARC but was unable to link any of
those individuals to Mr. López or his companies (including the di-
rectors, officers, shareholders, and managers of those companies).
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34 Opinion of the Court 20-11736
See D.E. 230 at 20, 22. He opined, therefore, that none of the per-
sons the OFAC directly tied to the FARC were connected, linked,
or associated with Mr. López or any of his companies. See id. at
23.
The López appellants’ second expert witness was Ernesto
Carrasco Ramirez, a Colombian attorney who specialized in crim-
inal law and served as a director of BRG. While in Colombia, he
worked for the Solicitor General’s Office (from 1991 to 1994) and
the Attorney’s General’s Office (from 1994 to 1998). In the latter
position he served as the Director of the National Prosecutors’ Of-
fice for a year or so and learned about the FARC and its activities.
See id. at 32–35. In later jobs in the private sector, such as with
Kroll International in Mexico City and ON Partners in Colombia,
he maintained contacts with Colombian government sources who
had information related to the FARC. See id. at 37–38.
Mr. Carrasco did not meet or interview Mr. López. See id.
at 51. Based on his “personal knowledge” and contact with
sources, however, he was “unable to establish any direct or indirect
link between [Mr.] López . . . and the FARC.” Id. at 39. See also
id. at 45 (“[T]here is no connection between [Mr.] López . . . and
[the] FARC.”). With respect to the Cartel of the Suns—whom he
described as a “group of Venezuelan generals and probably high-
ranking officers” of the Chavez and Maduro regimes “dedicated to
drug trafficking”—he testified that there was a “close link” between
the FARC and the Chavez regime with the Cartel of the Suns “at
an intellectual and political level.” Id. at 44. But he did “not
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20-11736 Opinion of the Court 35
identify the connection between [Mr.] López . . . and the Cartel [of
the Suns].” Id.
The López appellants also introduced the declarations of
Mr. López and of Richard Gregorie. The plaintiffs objected on the
ground that those two individuals were not present at the eviden-
tiary hearing, but the magistrate judge overruled the objection, and
the district court did not disturb that ruling. See id. at 52. 8
In his first declaration, made under penalty of perjury, Mr.
López stated based on “personal knowledge” that he never “di-
rectly or indirectly . . . [was] associated with[,] provided material
assistance to[,] engaged in financial transactions with[,] or sup-
ported in any way, financially, logistically, or otherwise, the
FARC.” D.E. 113-1 at ¶¶ 2, 7. He made the same statements of
denial with respect to his companies. See id. at ¶¶ 8–13. In his
second declaration, made under penalty of perjury and pursuant to
28 U.S.C. § 1746, Mr. López reiterated that the statements in his
first declaration were factual and based on his personal knowledge.
See D.E. 149 at ¶ 6. He then stated, again based on “personal
knowledge,” see id. at ¶ 12, the following:
8 It seems to us that the magistrate judge’s evidentiary ruling was correct. As
far as we know, there is no requirement that witnesses provide live testimony
at the summary judgment phase of a case. Things might have been different
if the parties had engaged in reciprocal discovery and the plaintiffs were unable
to depose Mr. López or Mr. Gregorie, but here there was no discovery.
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36 Opinion of the Court 20-11736
♦ “I am not, nor have I ever been[,] involved in narcotics
drug trafficking.”
♦ “I am not, nor have I ever been, a frontman for Tareck El
Aissami.”
♦ “I am not, nor have I ever been, a member of the Cartel of
the Suns.”
♦ “I have not, nor have I ever, laundered drug proceeds for
Tareck El Aissami.”
Id. at ¶¶ 8–11.
Mr. Gregorie, a managing director of BRG, worked for the
Department of Justice for 42 years and handled a number of com-
plex prosecutions, including those of leaders of the Medellin and
Cali drug cartels. While at the U.S. Attorney’s Office in the South-
ern District of Florida, he served as the Chief of Narcotics and the
Chief of the Criminal Division. See D.E. 97-3 at 1. In his declara-
tion, submitted under penalty of perjury and pursuant to § 1746,
Mr. Gregorie explained that he had reviewed the 2017 OFAC press
release designating Mr. López an SDNT and the affidavits of the
plaintiffs’ experts. Based on that review, he opined (1) that the al-
legations in the OFAC designation were “unsupported;” (2) that
there was no evidence, source, or document demonstrating that
Mr. López (a) was ever involved in a narcotics transaction, (b) ever
conducted a transaction with a member of the FARC, or (c) ever
had any relationship with a member of the FARC; and (3) that the
Cartel of the Suns, a Venezuelan organization, is not the FARC.
See id. at 2.
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20-11736 Opinion of the Court 37
This evidence, viewed collectively and taken in the light
most favorable to the López appellants, created material issues of
fact as to whether Mr. López and his companies were agencies or
instrumentalities of the FARC. Take Mr. López’s two declarations.
Though the declarations were self-serving and uncorroborated, the
factual statements in them were based on personal knowledge, as
Mr. López would know whether he was ever a frontman for Mr.
El Aissami, or whether he ever laundered narcotics proceeds for
him, or whether he ever associated with someone from the FARC
or the Cartel of the Suns. Those statements therefore had to be
accepted as true at summary judgment. See United States v. Stein,
881 F.3d 853, 857–58 (11th Cir. 2018) (en banc). Even if we ignored
Mr. López’s declarations, the testimony of Mssrs. Marquardt, Car-
rero, and Gregorie created issues of material fact. Together, they
opined that that Mr. López was not involved in narcotics traffick-
ing, and that they could find no direct or indirect connection be-
tween Mr. López (or his companies) and the FARC, its members,
or the Cartel of the Suns.
To tie the bow, we also note that during cross-examination
at the evidentiary hearing each of the plaintiffs’ own experts pro-
vided some testimony which permitted inferences supporting the
position of the López appellants. First, Douglas Farah and Paul
Craine acknowledged that they had not reviewed the financial
statements or transactions of any of Mr. López’s companies. See
D.E. 230 at 91–92, 188. So even if Mr. López were individually
characterized as an agency or instrumentality of the FARC, it is not
USCA11 Case: 20-11736 Date Filed: 08/23/2022 Page: 38 of 45
38 Opinion of the Court 20-11736
apparent that the companies also had that status. Second, Mr.
Farah and Luis Cote Gómez conceded that the OFAC did not link
Mr. El Aissami to the FARC, did not tie Mr. López and his compa-
nies to the FARC, and did not connect Mr. López to the Cartel of
the Suns. See id. at 101–02, 124–25. Third, when asked by the mag-
istrate judge whether “Mr. El Aissami’s activities also relate to po-
tential things that have nothing directly to do with the FARC,”
such as corruption in the Venezuelan oil industry, Mr. Craine an-
swered “[y]es, potentially.” Id. at 190. And he admitted that crimes
like embezzlement of government funds would not relate “directly
to the FARC.” Id. at 191.
In sum, we conclude that the evidence, viewed in the light
most favorable to the López appellants, presented a jury question
on their agency/instrumentality status under § 201(a) of the TRIA.
IV
Two of the consolidated appeals—Case Nos. 20-12467 & 20-
12545—concern the attachment and sale of real property located at
325 Leucadendra Drive in Coral Gables, Florida.
A
In Case No. 20-12467, Mr. López and Leucadendra 325 ap-
peal the district court’s denial of their motion for a preliminary in-
junction to prevent the sale of the property. In their initial brief,
Mr. López and Leucadendra 325 contend that they are also appeal-
ing the district court’s July 6, 2020, order denying their motion to
strike the writ of execution on the property. See Appellants’ Br. at
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20-11736 Opinion of the Court 39
10. But the notice of appeal in this case was never amended to in-
clude the July 6th order. Instead, the appeal of that order resulted
in the opening of a separate case, which Mr. López and Leucaden-
dra 325 voluntarily dismissed in September of 2020. See Stansell v.
Revolutionary Armed Forces of Colombia, No. 20-12888 (11th
Cir.) (notice of appeal filed Jul. 30, 2020). So this appeal—Case No.
20-12467—concerns only the order denying Mr. López’s and Leu-
cadendra 325’s motion for a preliminary injunction to prevent the
sale of the property.
Mr. López and Leucadendra 325 argue that the district court
erred in failing to stop the sale. See Appellants’ Br. at 55–57. Be-
cause that sale took place and the property was sold to a third party,
we cannot grant the requested relief (i.e., preventing the sale). Cf.
United States v. Certain Real & Pers. Prop. Belonging to Hayes,
943 F.2d 1292, 1296 (11th Cir. 1991) (“The sale of the property to a
third-party purchaser has terminated this Court’s ability to grant
the claimant her requested remedy, the return of her one-half in-
terest in the property.”). Their appeal, then, is moot, and we must
dismiss it. See Bender v. CenTrust Mortg. Corp., 51 F.3d 1027,
1029 (11th Cir. 1995) (holding that the appeal of a “request for a
preliminary injunction to enjoin [a] sale” is moot where the sale to
a third party has already taken place). 9
9Although Mr. López and Leucadendra 325 also request that we “order [the
appellees] to pay [them] the entire proceeds of the [s]ale,” Appellants’ Br. at
57, that relief pertains to the district court’s July 6th order, which as we have
explained is not at issue here.
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40 Opinion of the Court 20-11736
B
On July 2, 2020, after the district court denied the motions
of Mr. López and Leucadendra 325 to stop the sale of the property
located at 325 Leucadendra Drive, but before the sale, Ms. Leiva—
Mr. López’s wife—filed a motion to intervene as of right under
Rule 24(a)(2) with respect to that property. She asserted that, “on
behalf of [the] LLP Trust,” she was the owner of 9.95% of the com-
panies “which in turn” owned the property. She argued that she
was not an agency or instrumentality of the FARC, and that as a
result her 9.95% interest was not subject to execution or attach-
ment under the TRIA. She asked the court to not distribute the
proceeds of the sale to the plaintiffs until it determined her interest
in the property. See D.E. 406 at 1, 3 (motion); D.E. 406-1 at 2–10
(memorandum of law).
The district court denied Ms. Leiva’s motion to intervene as
untimely. First, the court explained that Mr. López and his counsel
(“and presumably [Ms.] Leiva”) knew as of February of 2017 that
the OFAC had blocked the property at 325 Leucadendra Drive and
knew as of March of 2020 that a writ of execution had been issued
against that property. Second, the same counsel who represented
Mr. López represented Ms. Leiva. Third, although Mr. López had
filed numerous motions with respect to the property since that
time, none of the motions “mentioned that his wife own[ed] an in-
terest in the property.” D.E. 413 at 2 & n.1. Because Ms. Leiva had
USCA11 Case: 20-11736 Date Filed: 08/23/2022 Page: 41 of 45
20-11736 Opinion of the Court 41
raised her alleged ownership interest at the “eleventh” hour, her
motion was untimely. See id. at 2. 10
Generally speaking, the denial of a motion to intervene is
not a final order. Nevertheless, we have provisional appellate juris-
diction to review the district court’s denial of Ms. Leiva’s Rule
24(a)(2) motion to intervene under the so-called “anomalous rule.”
See, e.g., Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1301 (11th Cir.
2008). “If we find that the district court’s disposition of the mo-
tions to intervene was correct, then our jurisdiction evaporates[.]”
Chiles v. Thornburgh, 865 F.2d 1197, 1212 (11th Cir. 1989).
Our review of a timeliness determination under Rule 24 is
for abuse of discretion. See Comm’r, Ala. Dep’t of Corr. v. Ad-
vance Loc. Media, LLC, 918 F.3d 1161, 1170 (11th Cir. 2019).
“[T]he abuse of discretion standard allows a range of choice for the
district court, so long as that choice does not constitute a clear error
of judgment.” In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994) (in-
ternal quotation marks and citation omitted).
To intervene as of right pursuant to Rule 24(a)(2), a movant
must show (1) that her request is timely; (2) that she has an interest
10Although the district court denied Ms. Leiva’s motion to intervene, it af-
forded her two weeks to seek an appellate stay. See D.E. 421. Pending our
consideration of her motion for a stay, the district court ordered the plaintiffs’
attorneys to hold 9.95% of the sale proceeds in their trust account. If Ms. Leiva
failed to obtain a stay in that time, the funds were to be disbursed. Ms. Leiva
did not file her motion for a stay until the thirteenth day of that fourteen-day
period. We denied a stay, and the funds were ultimately disbursed.
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42 Opinion of the Court 20-11736
relating to the property or transaction that is the subject of the ac-
tion; (3) that “[s]he is so situated that disposition of the action, as a
practical matter, may impede or impair h[er] ability to protect that
interest”; and (4) that her interest is not adequately represented by
parties to the action. See Lloyd v. Ala. Dep’t of Corr., 176 F.3d
1336, 1339–40 (11th Cir. 1999). Ms. Leiva argues that her motion
was timely because (a) her interests were protected by Mr. López
and Leucadendra 325 until the district court denied their motions
to stop the sale of the property, and (b) she did not seek to delay
the sale and instead asked only that the proceeds not be distributed
until her interest in the property could be adjudicated.
Ms. Leiva’s interests were not, in fact, adequately repre-
sented by Mr. López and Leucadendra 325. They were challenging
the attachment to and sale of the property on the grounds that Mr.
López was not an agency or instrumentality of the FARC. Ms.
Leiva’s claim to the property did not rest on those grounds. Her
position was that, regardless of Mr. López’s status as an agency or
instrumentality of the FARC, she herself was not such an agency
or instrumentality, and as a result had a right to a portion of the
sale proceeds equal to her partial ownership interest. In other
words, she was attempting to assert a defense akin to an innocent
owner defense under the TRIA. 11
11 Given our resolution, we have no occasion to pass on the existence of such
a defense under the TRIA or its application to Ms. Leiva’s case. See generally
Estate of Levin v. Wells Fargo Bank, N.A., --- F.4th ----, No. 21-7036, 2022 WL
USCA11 Case: 20-11736 Date Filed: 08/23/2022 Page: 43 of 45
20-11736 Opinion of the Court 43
Ms. Leiva’s claim to the property was also factually distinct
from that of Mr. López and Leucadendra 325. Her motion
acknowledged that the district court would need to consider and
adjudicate whether she had an interest in the property before the
sale proceeds could be fully disbursed. The court would have had
to parse through a series of real property transactions and stock
transfers involving four different legal entities that Ms. Leiva de-
scribed in her motion—none of which were at issue in the proceed-
ings as litigated by Mr. López and Leucadendra 325. 12
3364493, at *6 (D.C. Cir. Aug. 16, 2022) (“[B]locked funds can be attached [un-
der the TRIA] only if no intermediary or upstream bank asserts an interest as
an innocent third party.”); United States v. All Funds on Deposit with R.J.
O’Brien & Assocs., 783 F.3d 607, 620–21 (7th Cir. 2015) (finding that “there are
no . . . limit[s]” to the scope of the “notwithstanding” clause in the TRIA and
holding that the broadness of the clause “supersedes the innocent ownership
requirement of civil forfeiture”); Kirschenbaum I, 830 F.3d at 136 (noting with-
out deciding that an innocent owner defense may be available under the
TRIA); Kirschenbaum v. Assa Corp., 934 F.3d 191, 199 n.9 (2d Cir. 2019)
(“declin[ing] to decide whether TRIA has . . . an innocent-owner defense”);
Kirschenbaum II, 257 F. Supp. 3d at 524 (“find[ing] that the concept of an ‘in-
nocent owner’ is . . . inapplicable to TRIA § 201(a) as a matter of law”); Stansell
v. Revolutionary Armed Forces of Colombia, No. 09-cv-2308, 2013 WL
12203820, at *5 (M.D. Fla. Apr. 19, 2013) (Stansell VI) (“No other parties, claim-
ants, property owners, or ‘innocent’ beneficiaries have rights greater that the
terrorism victim judgment holders and these rights are not considered in the
TRIA statutory scheme.”) (citation omitted).
12 We acknowledge that there “are circumstances in which post-judgment in-
tervention may be justified.” Howse v. S/V Canada Goose I, 641 F.2d 317,
320 (5th Cir. Unit B 1981). For example, we reversed the denial of a motion
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44 Opinion of the Court 20-11736
We conclude that Ms. Leiva was aware that her “rights
could be adversely affected” from the time the U.S. Marshal levied
the writ of execution against the property. See United States v. Jef-
ferson Cnty., 720 F.2d 1511, 1516 (11th Cir. 1983). She knew at that
time (at least as early as March of 2020) that her interests were not
aligned with and thus not protected by Mr. López and 325 Leuca-
dendra. As such, she could and should have intervened in the pro-
ceedings earlier, and sooner than five days prior to the scheduled
sale. Because the district court did not abuse its discretion in deny-
ing her motion as untimely under these circumstances, we affirm
its order. Cf. FDIC v. Hanrahan, 612 F.2d 1051, 1053 (7th Cir. 1980)
to intervene as untimely in FTC v. American Legal Distributors, Inc., 890 F.2d
363, 365–66 (11th Cir. 1989). The circumstances in American Legal Distribu-
tors, however, differed from those here. First, in that case we noted that time-
liness is not an “automatic barrier . . . in post-judgment proceedings where
substantial problems in formulating relief remain to be resolved.” Id. at 365(internal quotation marks omitted). Here, however, the district court did not
have “substantial problems” to resolve with respect to the property at the time
that it denied Ms. Leiva’s motion to intervene. Second, the FTC, the party
who could have opposed intervention in American Legal Distributors, did not
oppose it for the limited purpose sought. See id. In contrast, intervention here
was contested. Third, in American Legal Distributors we reversed the denial
of the motion to intervene only as it “relat[ed] to the future sale and distribu-
tion of the frozen assets,” and affirmed the district court’s order as to assets for
which sale had already been authorized. See id. Ms. Leiva sought to intervene
regarding an asset for which a sale date had been set and was scheduled to take
place just days later. So American Legal Distributors does not compel reversal
here. In any event, Ms. Leiva failed to assert that she was relying on American
Legal Distributors in the district court, and she did not cite or rely on that case
on appeal.
USCA11 Case: 20-11736 Date Filed: 08/23/2022 Page: 45 of 45
20-11736 Opinion of the Court 45
(holding that wife’s motion to intervene, which was filed 49 days
after the date of attachment of husband’s interest in jointly held
property under a contract for sale, was untimely). Our jurisdiction
therefore evaporates, and we dismiss Ms. Leiva’s appeal. See
Chiles, 865 F.2d at 1212.
V
In Case No. 20-11736, we reverse the turnover judgments
because there are issues of fact as to whether Mr. López and his
companies are or were agencies or instrumentalities of the FARC.
In Case No. 20-12467, we dismiss the appeal of Mr. López and Leu-
cadendra 325 as moot. In Case No. 20-12545, we agree with the
district court that Ms. Leiva’s motion to intervene was untimely
and dismiss the appeal. The case is remanded to the district court
for further proceedings consistent with our opinion.
AFFIRMED in part, DISMISSED in part, and REVERSED
AND REMANDED in part.