STANSELL v. Mercurio International S.A., Claimant–Appellant.

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United States Court of Appeals,Eleventh Circuit.

Keith STANSELL, Marc Gonzalves, et al., Plaintiffs–Appellees, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA, Juvenal Ovidio Ricardo Palmera Pineda, et al., Defendants–Appellees, Mercurio International S.A., Claimant–Appellant.

Nos. 11–11125, 11–11690.

Decided: January 09, 2013

Before HULL and BLACK, Circuit Judges, and GOLDBERG,* Judge. Newton Patrick Porter, Tony Korvick, Porter & Korvick, PA, Coral Gables, FL, Richard B. Rosenthal, The Law Offices of Richard B. Rosenthal, PA, Miami, FL, for Plaintiffs–Appellees. June Galkoski Hoffman, Fowler, White, Burnett, PA, Fort Lauderdale, FL, Esther Elisa Galicia, Lilly Ann Sanchez, Matthew John Valcourt, Fowler, White, Burnett, PA, Miami, FL, for Claimant–Appellant. Benjamin M. Shultz, U.S. Dept. of Justice, Douglas Neal Letter, Robert Loeb, U.S. Dept. of Justice, Civ. Div. App. Section, Washington, DC, for United States of America, Amicus Curiae.

At issue in this case is the meaning of “blocked assets” under § 201 of the Terrorism Risk Insurance Act of 2002 (Terrorism Act), Pub.L. No. 107–297, 116 Stat. 2322. Specifically, we decide whether assets frozen pursuant only to the Foreign Narcotics Kingpin Designation Act (Kingpin Act), 21 U.S.C. § 1901 et seq., qualify as “blocked assets” under the Terrorism Act. Under the plain language of the statute, we hold such assets are not “blocked assets.”

I. BACKGROUND

Between 2003 and 2008, Appellees suffered repeated acts of international terrorism at the hands of the Revolutionary Armed Forces of Colombia (FARC). FARC has long been sanctioned by the United States for its international terrorism and narcotics trafficking activities.1 Of particular relevance to this case, FARC has been designated both (1) a “Specially Designated Global Terrorist”2 under the International Economic Emergency Powers Act (Economic Powers Act), 50 U.S.C. §§ 1701, 1702, as well as (2) a “Significant Foreign Narcotics Trafficker” (SFNT) under the Kingpin Act.3 As a result of these designations, all FARC assets subject to United States jurisdiction are frozen.

In 2009, Appellees sued FARC in the United States District Court for the Middle District of Florida under the civil remedies provisions of the Anti–Terrorism Act, 18 U.S.C. § 2333. Appellees sought damages from FARC and its leadership for terrorist acts committed while they were held hostage in the jungles of Colombia. In 2010, Appellees collectively obtained a default judgment against FARC for $318 million in compensatory damages.

Enforcing that judgment against FARC, however, proved difficult. FARC's assets, to the extent any exist within United States jurisdiction, are well concealed. Nonetheless, because Appellees were victim creditors under their judgment with perfected liens on all proceeds derived from FARC's criminal activities, they began diligently pursuing the assets of FARC associates.

One such alleged FARC associate was a Colombian money exchange house, Mercurio International (Mercurio). In 2008, the Secretary of the Treasury and the Office of Foreign Assets Control (OFAC) determined that Mercurio had “act[ed] on behalf of and materially assist[ed]” FARC in laundering narcotics proceeds. Because FARC was sanctioned under the Kingpin Act, OFAC determined Mercurio should also be sanctioned as a “Specially Designated Narcotics Trafficker” (SDNTK) under the Kingpin Act and the Foreign Narcotics Kingpin Sanctions Regulations, 31 C.F.R. § 598.314(b).4 As a consequence of OFAC's designation, all of Mercurio's assets subject to United States jurisdiction were frozen pursuant to the Kingpin Act.

In an effort to collect their judgment against FARC, Appellees filed a motion for a Writ of Garnishment in the district court against Mercurio's Kingpin Act frozen assets. Appellees argued that, even though Mercurio was not named in the FARC judgment, its assets could be garnished as the “blocked assets” of an “agency or instrumentality” of FARC.5 In support of that proposition, Appellees relied on § 201(a) of the Terrorism Act, which provides in relevant part:

[I]n every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism ․ the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.

Terrorism Act § 201(a).

In their motion for garnishment, Appellees alleged all four of § 201(a)'s elements were met: (1) the judgment being enforced was against a terrorist party—FARC; (2) the judgment was based on FARC's acts of terrorism; (3) Mercurio's assets were “blocked assets” within the meaning of the Terrorism Act; and (4) garnishment against Mercurio would partially satisfy an award of compensatory damages. Essentially, Appellees argued that, because FARC is a judgment-debtor “terrorist party” and Mercurio was designated an SDNTK under the Kingpin Act due to its alleged connection with FARC, Mercurio's assets could be garnished as the “blocked assets” of a “terrorist party.”

In 2011, the district court granted ex parte Appellees' motion for a writ of garnishment, reasoning that their claim satisfied all of § 201(a)'s requirements. In particular, the district court concluded that Mercurio's assets, which were frozen only under the Kingpin Act, constituted “blocked assets” according to the Terrorism Act's definition of that term in § 201(d)(2)(A). The district court subsequently adopted Appellees' proposed order and issued a writ of garnishment.

After the district court's judgment, but before Appellees were able to execute against the assets, Mercurio filed a motion to dissolve the writ of garnishment. Mercurio contended OFAC was in the process of rescinding its SDNTK designation under the Kingpin Act, and asked the court to therefore reverse its prior judgment. The district court denied the motion. Mercurio then filed a notice of appeal with respect to the garnishment judgment and a motion for stay pending appeal, which the district court subsequently granted.6

II. STANDARD OF REVIEW

This Court reviews legal questions, including the interpretation of federal statutes, de novo. Halperin v. Reg'l Adjustment Bureau, Inc., 206 F.3d 1063, 1066 (11th Cir.2000).

III. DISCUSSION

This case focuses solely on the interpretation of § 201(d)(2) of the Terrorism Act, which defines “blocked assets” for purposes of that statute.7 Appellees contend that Mercurio's assets are “blocked assets” under the Terrorism Act because the Kingpin Act is historically connected and similar to one of the statutes expressly listed in § 201(d)(2)(A): the Economic Powers Act. Appellees claim the Kingpin Act's history reveals it to be a “sub-species” of the Economic Powers Act. The Kingpin Act, Appellees contend, was “expressly modeled” on the Economic Powers Act and was “birthed from” that statute's “successful execution.”8 As a result, “an asset seized or frozen ‘under the Kingpin Act’ is by definition an asset seized or frozen under” the Economic Powers Act.

Our analysis must begin with the language of the statute. Harris v. Garner, 216 F.3d 970, 972–73 (11th Cir.2000) (en banc). In general, statutory definitions control the meaning of a statute's terms. Burgess v. United States, 553 U.S. 124, 129–30, 128 S.Ct. 1572, 1577, 170 L.Ed.2d 478 (2008). In pertinent part, § 201(d)(2)(A) defines a “blocked asset” to “mean[ ] ․ any asset seized or frozen by the United States under section 5(b) of the Trading With the Enemy Act [Trading Act] ․ or under sections 202 and 203 of the International Emergency Economic Powers Act [Economic Powers Act] ․” Terrorism Act § 201(d)(2)(A).

The plain language of § 201(d)(2)(A) is unambiguous. The Terrorism Act defines what a “blocked asset” “means,” not what the term merely could “include.” When a statutory definition declares what a term “means” rather than “includes,” any meaning not stated is excluded. Colautti v. Franklin, 439 U.S. 379, 392–93 & n. 10, 99 S.Ct. 675, 684 & n. 10, 58 L.Ed.2d 596 (1979). This is because the term “means” denotes an exhaustive definition, while “includes” is merely illustrative. United States v. Probel, 214 F.3d 1285, 1288–89 (11th Cir.2000). Section 201(d)(2)(A) declares that “blocked asset” means an asset frozen under select provisions of the Trading Act and the Economic Powers Act. Assets frozen under the Kingpin Act, however, are absent from that definition. The unavoidable conclusion is that “blocked assets” under the Terrorism Act does not mean assets frozen pursuant to the Kingpin Act.

Appellees argue that the Terrorism Act's legislative history and statutory purpose favor an expansive interpretation of “blocked assets.”9 According to Appellees, the Terrorism Act's legislative history demonstrates Congress intended to provide terrorism victims broadly-applicable and easily-obtained remedies. In the words of one legislator, “blocked asset” was defined “broadly ․ to include any asset of a terrorist party that has been seized or frozen by the United States in accordance with law.” 148 Cong. Rec. S11524, at S11528 (daily ed. Nov. 19, 2002) (statement of Sen. Harkin).

Legislative history does not change the clear, codified text of the Terrorism Act. See, e.g., United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989). When statutory text is unambiguous, this Court must apply that language as written. Albernaz v. United States, 450 U.S. 333, 336, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). Indeed, a statute's plain language controls unless it is “inescapably ambiguous.” United States v. Veal, 153 F.3d 1233, 1245 (11th Cir.1998) (internal quotation marks omitted) (emphasis added). Because the definition of “blocked asset” is unambiguous, the statute's legislative history may not be used to create an ambiguity where none exists. See Rush, 874 F.2d at 1514.10

Even if § 201(d)(2)(A)'s definition of “blocked assets” were ambiguous, § 201(d)(2)(B)(i) forecloses the possibility that Kingpin Act frozen assets come within the definition of “blocked assets.” According to § 201(d)(2)(B)(i), “blocked assets” do “not include property that is subject to a license issued by the United States Government for final payment, transfer, or disposition ․ in connection with a transaction for which the issuance of such license has been specifically required by statute.” Terrorism Act § 201(d)(2)(B)(i) (emphasis added).11 The Kingpin Act, however, according to its text and accompanying regulations, requires the procurement of a government-issued license before private individuals may execute against assets frozen under the Act.12 Thus, § 201(d)(2)(B)(i) further solidifies what the plain text of § 201(d)(2)(A) makes clear: assets frozen pursuant to the Kingpin Act are not “blocked assets” under the Terrorism Act.

Finally, Appellees argue in the alternative that, although the Kingpin Act is not expressly listed in § 201(d)(2)(A)'s definition, it should be treated as though it were the Economic Powers Act, which is expressly listed. Because the designation regimes specified in the two statutes are similar in some regards, Appellees contend the statutes are effectively identical, as entities “designated under the Kingpin Act would ․ also satisfy the criteria for designation” under the Economic Powers Act. Compare 31 C.F.R. § 536.312 (listing the designation criteria for the Economic Powers Act), with 31 C.F.R. § 598.314 (listing the designation criteria for the Kingpin Act).

Similarities between laws, however, do not make them the same law. The Kingpin Act is not the Economic Powers Act. Nor is it, for that matter, the Trading Act. Expanding § 201(d)(2)(A) beyond its unambiguous terms is an action only Congress may take. Because this Court's inquiry focuses only on what the statute clearly expresses, the Kingpin Act cannot be treated as though it were the Economic Powers Act.

IV. CONCLUSION

The district court erred in concluding assets frozen pursuant to the Kingpin Act constitute “blocked assets” under the Terrorism Act. As the plain language of § 201(d)(2)(A) states, the Terrorism Act defines “blocked assets” to cover only those assets frozen under specified sections of the Trading Act and the Economic Powers Act. Mercurio's assets were frozen under neither of those statutes. Thus, the district court's judgment in favor of Appellees relied on an erroneous interpretation of the Terrorism Act. We reverse and remand the district court's order granting a writ of garnishment in favor of Appellees.

REVERSED and REMANDED.

PER CURIAM: