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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11415
Non-Argument Calendar
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D.C. Docket No. 1:19-cv-20896-RNS
KEITH STANSELL, et al.,
Plaintiffs-Appellees,
versus
SAMARK JOSE LOPEZ BELLO, et al.,
Claimants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 21, 2020)
Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.
PER CURIAM:
Samark Jose Lopez Bello, Yakima Trading Corporation, EPBC Holdings,
Ltd., 1425 Brickell Ave 63-F LLC, 1425 Brickell Ave Unit 46B LLC, 1425
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Brickell Ave 64E LLC, and 200G PSA Holdings LLC (collectively, “Lopez
Bello”) appeal the District Court’s February 15, 2019 order granting the motion
filed by Keith Stansell and other judgment creditors for issuance of post-judgment
writs of garnishment and execution on the assets of Lopez Bello and the entities
affiliated with him. 1 Lopez Bello primarily argues that he was denied due process
because the District Court’s order concerning his property was issued before Lopez
Bello had the opportunity to contest his status as an “agency or instrumentality” of
the Revolutionary Armed Forces of Colombia (“FARC”), a terrorist organization.
For the reasons set forth below, we reject Lopez Bello’s argument that the District
Court’s order offended his due process rights.
I.
In 2010, Keith Stansell, Marc Gonsalves, Thomas Howes, Judith Janis—as
personal representative of Thomas Janis’s estate—and Thomas Janis’s surviving
children (collectively, “Stansell”) obtained a $318 million default judgment against
FARC under the Anti-Terrorism Act, 28 U.S.C. § 2333. Since then, Appellees
have attempted to satisfy that judgment by seizing “the blocked assets of any
[FARC] agency or instrumentality” pursuant to § 201 of the Terrorism Risk
Insurance Act of 2002 (“TRIA”). Under the TRIA, judgment creditors may satisfy
1
Lopez Bello also appeals the District Court’s denial of his subsequent motion to amend
the February 15 order pursuant to Federal Rule of Civil Procedure 59(e) and denial of his motion
for reconsideration of the aforementioned order.
2
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an Anti-Terrorism Act judgment if (1) the asset is designated as “blocked” by the
Department of Treasury’s Office of Foreign Assets Control (“OFAC”); and (2) the
judgment creditors establish that the blocked properties are owned by the terrorist
organization they received a judgment against, or are owned by agencies or
instrumentalities of that terrorist organization. See § 201(a) of TRIA, Pub. L. No.
107-297, 116 Stat. 2322 (codified at 28 U.S.C. § 1610(b)); see also Stansell v.
Revolutionary Armed Forces of Colom., 771 F.3d 713, 726 (11th Cir. 2014)
(“Stansell I”). A party wishing to execute against the assets of a terrorist
organization’s agency or instrumentality must first establish that the entity is, in
fact, an agency or instrumentality. Stansell I, 771 F.3d at 723. This appeal
principally concerns Lopez Bello’s opportunity to contest the judicial
determination that he was an agency or instrumentality of FARC.
On February 13, 2019, Stansell filed an ex parte, expedited motion with the
District Court to enforce the default judgment obtained against FARC in 2010, and
seeking to enforce that judgment against Lopez Bello and his properties. The
District Court determined that Stansell and the other judgment creditors had,
through their “extensive submissions,” established (1) that “they have obtained an
Anti-Terrorism Act judgment against a terrorist party (the FARC) that is based on
an act of international terrorism,” (2) the assets “which the Plaintiffs seek to
execute on” are “‘blocked assets’ as that term is defined under the TRIA and the
3
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ATA, 18 U.S.C. §2333(e),” (3) “the total amount of the executions does not exceed
the amount outstanding of the Plaintiffs’ ATA [Anti-Terrorism Act] Judgment,”
and that (4) “the Kingpin Act2 blocked parties and owners of the subject blocked
assets identified in the OFAC Chart are each an agency or instrumentality of the
FARC.” The District Court granted Stansell’s motion and directed the U.S.
Marshals to execute, levy upon, and sell the blocked assets, which included three
parcels of real property, two vessels (yachts), an aircraft, and four automobiles. A
sale of the real property was scheduled for April 16, 2019. Lopez Bello was served
with notice of this order on February 25, 2019.
On March 15, Lopez Bello moved to amend 3 the District Court’s order of
garnishment and execution, seeking a stay of proceedings and an opportunity to
challenge the finding that he and his affiliated entities were agencies or
instrumentalities of FARC before the occurrence of any sale. The District Court
denied Lopez Bello’s motion, reasoning that because Lopez Bello had between
February 25 (the date that Lopez Bello received the Court’s order of garnishment
and execution) and April 16 (the date the sales were scheduled to take place) to
contest the agency-or-instrumentality finding, Lopez Bello’s contention that he had
2
The Kingpin Act gives OFAC the authority to designate foreign narcotics traffickers
and block assets owned or controlled by those traffickers. See 21 U.S.C. § 1901 et seq.; 31
C.F.R. § 598.101 et seq.
3
This request was pursuant to Federal Rule of Civil Procedure 59(e).
4
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“not had any opportunity to challenge the allegations” was unpersuasive.
Furthermore, the District Court found that “[e]ven within [the instant] motion,
[Lopez Bello has] not set forth any attempt to actually rebut the agents-or-
instrumentalities finding.” When Lopez Bello moved for reconsideration, the
District Court pointed out that Lopez Bello, in the multiple motions he had filed
with the Court, had the opportunity to argue that he was not an agency or
instrumentality of FARC and convince the Court that a stay of proceedings was
proper. Instead of doing that, however, Lopez Bello had “simply asked, generally,
and repeatedly, for ‘an opportunity to rebut the [agency-or-instrumentality
finding],’” but “[n]ot once” had he “explicitly present[ed] argument or evidence
that the Court ha[d] made a manifest error in its initial agency or instrumentality
determination.” Accordingly, the District Court denied Lopez Bello’s motion to
reconsider. 4 The sale of the real property was carried out on April 16, 2019; the
4
Lopez Bello has filed a litany of other motions in an attempt to prevent the sales from
occurring. In the District Court, Lopez Bello filed a motion for summary judgment and for
dissolution of the writs of garnishment and execution, a motion to stay the sale of the real
properties, a motion to administratively terminate the matter pending appeal, and a motion to
stay the sale of the vessels. The District Court denied each of these motions. Lopez Bello also
filed three separate emergency motions in this Court to stay the sales of his various properties
pending appeal, all of which we denied.
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two vessels were sold on September 3, 2019 and a third vessel5 sold on October
23, 2019. 6
II.
This Court previously addressed many of the due process issues presented
here in Stansell I, which involved the same Plaintiffs (Stansell and other judgment
creditors), but different Claimants. 771 F.3d 713. In that case, the Claimants
contended that they were “denied their rights to notice of the execution
proceedings [against their assets] and an opportunity to be heard.” Id. at 725. Like
here, “[Stansell] initiated [his] collection efforts in each instance ex parte, without
any direct notice to Claimants.” Id. at 724. The District Court in Stansell I found
each claimant to be an agency or instrumentality of FARC and found that the
relevant assets were blocked and subject to attachment and execution. Id. On
appeal, we concluded that, as non-judgment debtor third parties, the Claimants
were entitled to notice of the proceedings involving their assets. Id. at 727. The
default judgment against the judgment debtor, FARC, was insufficient to satisfy
5
The writ of execution for the third vessel belonging to Lopez Bello was issued by the
District Court on May 3, 2019.
6
Stansell argues that the sale of the real property renders the entire case moot. Stansell
cites this Court’s unpublished opinion in a suit against other alleged “agencies or
instrumentalities” of FARC, in which we dismissed the matter for mootness because all of the
properties subject to writs of execution had already been sold. Stansell v. Revolutionary Armed
Forces of Colom., 772 F. App’x 772 (11th Cir. 2019). However, the instant case differs, and the
controversy is not moot, because some of Lopez Bello’s property that is subject to writ of
execution has not been sold; namely, an aircraft and four automobiles.
6
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due process as to the third-party Claimants because third parties “cannot be
expected to be on notice of the judgment” or prepared to defend against later
attempts to satisfy the judgment with their assets. Id. Additionally, we held that
the Claimants were entitled to a “sufficient opportunity to be heard” on their
“challenge to the agency or instrumentality issue.” Id. at 727–28. Finally, we
clarified that “Claimants were entitled to notice and to be heard before execution,”
but that the Claimants had no entitlement to a hearing prior to attachment or before
a “writ [of execution is] issued.” Id. at 729.7
We resolved a situation similar to Lopez Bello’s with one group of Stansell I
Claimants, referred to in that case as “the Partnerships.” Id. at 738–42. With
respect to these Claimants, Stansell had moved ex parte in the District Court for
writs of garnishment and execution against four parcels of real property owned by
the Partnerships. Id. at 739. The District Court’s order specifically held that “the
Partnerships were not entitled to notice or an opportunity to be heard,” a holding
that, as noted above, we found to be an incorrect statement of the law. Id.
Nevertheless, we found that the Partnerships received adequate notice because the
United States Marshals levied on their real property after the order granting the
7
Lopez Bello misunderstands our holding in Stansell I by repeatedly claiming that it
requires notice before the granting of any writ which goes “beyond a mere attachment.” But, just
the same as in this case, Stansell I involved writs of garnishment and execution, and we held that
the Claimants “were not constitutionally entitled to a hearing before the writ issued.” 771 F.3d at
729.
7
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writ of execution was entered. Id. at 741. Because the Partnerships “received
actual notice and appeared,” we held that they were “afforded an opportunity to be
heard” and to contest the granting of the writ after its issuance, which, we
concluded, was sufficient to satisfy due process. Id.
Lopez Bello’s case cannot be meaningfully differentiated from the process
afforded the Partnerships, which was found to be constitutionally adequate. Lopez
Bello admits that he received actual notice of the writ of execution on February 25,
2019, ten days after the order issued, and almost two months prior to the scheduled
sale date for the real properties. Lopez Bello was not precluded from presenting
evidence to contest the preliminary agency-or-instrumentality finding—as the
District Court noted, “there is nothing in the Court’s February 15 order that
prevents [Lopez Bello] from being heard before the sale of [his] properties.” Like
the Partnerships in Stansell I, Lopez Bello “simply did not present any evidence
that changed the district court’s position on the agency or instrumentality
determination,” despite being afforded the opportunity to do so through the filing
of various motions. Stansell I, 771 F.3d at 741. It was not error for the District
Court to refuse to amend the February 15 order when it was presented with no
evidence indicating that any finding or conclusion reached in that order was
incorrect.
8
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III.
As an independent basis for asserting that his constitutional rights were
violated, Lopez Bello points to the District Court’s failure to issue a Notice to
Appear pursuant to Fla. Stat. § 56.29(2), which requires such notice prior to
execution in supplemental proceedings to satisfy a judgment. Lopez Bello asserts
that this failure violated his rights under the Due Process Clause. In Stansell I, we
rejected a similar 8 argument that failure to provide notice as contemplated by
Florida law was grounds for reversal, holding that “failure to provide the affidavit
was harmless because the Partnerships had actual notice of the execution
proceedings.” 771 F.3d at 742. So too here. Whether or not each and every
technical procedural requirement of Florida law was complied with is not the
litmus test for a due process violation. Here, as established above, Lopez Bello
received actual notice of the District Court’s February 15 order after it was issued,
and he had the opportunity to contest its findings. Therefore, he was not denied
due process under the United States Constitution.
IV.
Finally, Lopez Bello advances the argument that Florida post-judgment
statutes, as applied to non-judgment debtors in TRIA cases, are themselves
8
In that case, the Claimants objected to Stansell’s failure to furnish the affidavit which is
the basis for the District Court’s issuance of a Notice to Appear. See Fla. Stat. § 56.29(2).
9
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unconstitutional. Lopez Bello did not make this argument in his motion to amend
the February 15 order, only in his motion for reconsideration. But a motion for
reconsideration cannot be used to raise new arguments that were “previously
available, but not pressed.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009) (internal quotations omitted). Lopez Bello did not raise this
argument in his motion to amend the February 15 order, and there is no reason why
such an argument would not have been available to him at that time. Thus, it was
not a proper subject for a motion for reconsideration, and the District Court
correctly declined to address it.
V.
For the foregoing reasons, we affirm the District Court’s denial of Lopez
Bello’s motions challenging the February 15, 2019 order. 9
AFFIRMED.
9
Accordingly, Lopez Bello’s pending motion to supplement the record is DENIED AS
MOOT.
10