[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-11339

________________________

D.C. Docket No. 8:09-cv-02308-RAL-MAP

KEITH STANSELL, 

MARC GONSALVES, 

THOMAS HOWES, 

JUDITH G. JANIS, 

CHRISTOPHER T. JANIS,

GREER C. JANIS,

MICHAEL I. JANIS,

JONATHAN N. JANIS, 

 Plaintiffs - Appellees,

versus

REVOLUTIONARY ARMED FORCES OF COLUMBIA,

(FARC), et al.,

 Defendants,

JOSE RICUARTE DIAZ HERRERA, 

 Claimant - Appellant,

WACHOVIA BANK,

a Division of Wells Fargo Bank, N.A., et al.,

 Garnishees,

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2

MERCURIO INTERNATIONAL S.A., et al.,

 Claimants.

________________________

No. 13-11959

________________________

D.C. Docket No. 8:09-cv-02308-RAL-MAP

KEITH STANSELL, 

MARC GONSALVES, 

THOMAS HOWES, 

JUDITH G. JANIS,

CHRISTOPHER T. JANIS, 

MICHAEL I. JANIS,

GREER C. JANIS, 

JONATHAN N. JANIS,

 Plaintiffs - Appellees,

versus

REVOLUTIONARY ARMED FORCES OF COLUMBIA (FARC), et al.,

 Defendants,

CARMEN SIMAN, 

ARMANDO JAAR, 

RICARDO JAAR, 

MOISES SAIEH, 

CARLOS SAIEH, 

ABDALA SAIEH, 

JAQUELINE SAIEH, 

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3

U.S. Citizen Beneficial Owner of Brunello Ltd. Trust, 

C. W. SALMAN PARTNERS, 

SALMAN CORAL WAY PARTNERS, 

CONFECCIONES LORD S.A., 

ALM INVESTMENT FLORIDA, INC.,

VILLAROSA INVESTMENTS FLORIDA, INC., 

KAREN OVERSEAS, INC., 

MLA INVESTMENTS, INC., 

JACARIA FLORIDA, INC., 

SUNSET & 97TH HOLDINGS, LLC, 

MARIAM SUTHERLIN, 

JAMCE INVESTMENTS, LTD., 

AMELIA SAIEH,

 Claimants - Appellants,

KATHYA SAIEH, 

JAIME SAIEH, 

LAURA SAIEH, 

SANDRA SAIEH, 

KAREN SAIEH, 

GRANADA ASSOCIATES, INC., 

 Defendants - Appellants.

________________________

No. 13-12019

________________________

D.C. Docket No. 8:09-cv-02308-RAL-MAP

KEITH STANSELL, 

MARC GONSALVES, 

THOMAS HOWES, 

JUDITH G. JANIS, 

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4

CHRISTOPHER T. JANIS, et al.,

 Plaintiffs - Appellees,

versus

REVOLUNTIONARY ARMED FORCES OF COLOMBIA (FARC), et al.,

 Defendants,

PLAINVIEW FLORIDA II, INC.,

C. W. SALMAN PARTNERS, 

SALMAN CORAL WAY PARTNERS, 

 Claimants - Appellants. 

________________________

No. 13-12116

________________________

D.C. Docket No. 8:09-cv-02308-RAL-MAP

KEITH STANSELL, 

MARC GONSALVES, 

THOMAS HOWES, 

JUDITH G. JANIS, 

CHRISTOPHER T. JANIS, et al.,

 Plaintiffs - Appellees,

versus

REVOLUTIONARY ARMED FORCES OF COLOMBIA,

(FARC), et al.,

 Defendants,

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5

CARMEN SIMAN, 

ARMANDO JAAR, 

MOISES SAIEH, 

CARLOS SAIEH, 

 Claimants - Appellants. 

________________________

No. 13-12171

________________________

D.C. Docket No. 8:09-cv-02308-RAL-MAP

KEITH STANSELL, 

MARC GONSALVES, 

THOMAS HOWES, 

JUDITH G. JANIS, 

CHRISTOPHER T. JANIS, 

GREER C. JANIS, 

MICHAEL I. JANIS, 

JONATHAN JANIS, 

 Plaintiffs - Appellees,

versus

REVOLUTIONARY ARMED FORCES OF COLUMBIA (FARC), et al.,

 Defendants,

KATHYA SAIEH,

LAURA SAIEH,

SANDRA SAIEH,

KAREN SAIEH,

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6

 Defendants - Appellants,

CARLOS SAIEH,

BRUNELLO, LTD., 

JACQUELINE SAIEH,

U.S. Citizen Beneficial Owner of Brunello Ltd. Trust,

 Claimants - Appellants. 

________________________

No. 13-12337

________________________

D.C. Docket No. 8:09-cv-02308-RAL-MAP

KEITH STANSELL, 

MARC GONSALVES, 

THOMAS HOWES, 

JUDITH G. JANIS, 

CHRISTOPHER T. JANIS, 

GREER C. JANIS, 

MICHAEL I. JANIS, 

JONATHAN N. JANIS, 

 Plaintiffs - Appellees,

versus

REVOLUTIONARY ARMED FORCES OF COLOMBIA (FARC), et al.,

 Defendants,

LUIS SUTHERLIN, 

 Claimant - Appellant. 

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________________________

Appeals from the United States District Court

for the Middle District of Florida

________________________

(October 16, 2014)

Before WILSON, JORDAN and BLACK, Circuit Judges.

WILSON, Circuit Judge:

These appeals arise from the collection efforts of victims of a terrorist 

kidnapping in Colombia. After obtaining a nine-figure default judgment against 

their captor, they attempted to collect through a series of ex parte garnishments and 

executions against third parties with purported illicit ties to the captor. The thirdparty claimants challenge the judgments against their property on both substantive 

and procedural grounds, including alleged due process violations arising from the 

ex parte manner in which the district court initially handled the proceedings. We 

affirm the district court as to all appeals but one: No. 13-12171, concerning 

Brunello Ltd.

I. Global Discussion

Because common themes run through all appeals, we initially discuss the 

underlying facts and common issues globally. Later, we will apply our 

conclusions to the particular circumstances of each appeal and analyze the unique 

issues in a more individualized manner for each third-party claimant.

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A. Underlying Procedural and Factual Background

 On February 13, 2003, Keith Stansell, Marc Gonsalves, Thomas Howes, 

and Thomas Janis were flying over Colombia while performing counter-narcotics 

reconnaissance. Members of the Revolutionary Armed Forces of Colombia 

(FARC) shot their plane down and, after the plane’s crash landing, captured the 

group. FARC immediately executed Janis and took the survivors hostage, holding 

them for over five years. After they were rescued and returned to the United 

States, Stansell, Gonsalves, and Howes—along with Janis’s wife, Judith G. Janis, 

as personal representative of his estate, and his surviving children, Christopher T. 

Janis, Greer C. Janis, Michael I. Janis, and Jonathan N. Janis—(collectively, 

Plaintiffs) filed a complaint against FARC in the United States District Court for 

the Middle District of Florida under the Antiterrorism Act, 18 U.S.C. § 2333, 

naming FARC and a number of associated individuals as defendants. After courtdirected service of summons by publication, FARC failed to appear, and the 

district court entered a default judgment in favor of Plaintiffs in the amount of 

$318,030,000 on June 15, 2010.

Because of the difficulty inherent in the direct execution of a judgment 

against a terrorist organization, Plaintiffs sought to satisfy their award by seizing

the assets of “agenc[ies] or instrumentalit[ies]” of FARC pursuant to Section 

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201(a) of the Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, § 

201(a), 116 Stat. 2322, 2337 (TRIA),

1 which reads:

Notwithstanding any other provision of law, and except as provided in 

subsection (b), in every case in which a person has obtained a 

judgment against a terrorist party on a claim based upon an act of 

terrorism, or for which a terrorist party is not immune under section 

1605(a)(7) of title 28, United States Code, 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.

TRIA § 201(a). The elements a party is required to establish before executing 

under TRIA § 201 are therefore quite straightforward. The party must first 

establish that she has obtained a judgment against a terrorist party that is either for 

a claim based on an act of terrorism or for a claim for which a terrorist party is not 

immune. Weininger v. Castro, 462 F. Supp. 2d 457, 479 (S.D.N.Y. 2006). The 

party must then show that the assets are blocked as that term is defined in TRIA. 

Id. Finally, the total amount of the execution cannot exceed the amount of 

compensatory damages. Id. If the party wishes to execute against the assets of a 

terrorist party’s agency or instrumentality, the party must further establish that the 

purported agency or instrumentality is actually an agency or instrumentality. Of 

 1 This provision is codified as a note to 28 U.S.C. § 1610. For ease of reference and 

familiarity, we will cite to TRIA § 201, with accompanying subsections where appropriate.

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the preceding elements, only the blocked asset and agency or instrumentality 

determinations are at issue in any of the appeals here.

TRIA defines “blocked assets” as “any asset seized or frozen by the United 

States under section 5(b) of the Trading With the Enemy Act [(TWEA)] or under 

sections 202 and 203 of the International Emergency Economic Powers Act 

[(IEEPA)].” TRIA § 201(d)(2)(A) (citation omitted). Assets are blocked when the 

United States Department of the Treasury Office of Foreign Assets Control 

(OFAC) designates the owner of the assets as a Specially Designated Narcotics 

Trafficker (SDNT). See 31 C.F.R. §§ 594.201, 594.301, 597.201, 597.303. 

OFAC’s blocking power is authorized by TWEA, 12 U.S.C. § 95a, 50 App. U.S.C. 

§§ 1–14, 16–39, 40–44, and the IEEPA, 50 U.S.C. §§ 1701–1706, the blocking 

authority of which TRIA § 201 includes in its definition of blocked assets.

2

 OFAC 

also has blocking authority under other legislation not mentioned in TRIA § 201, 

including the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. §§ 1901–08 

(Kingpin Act). OFAC specifies the jurisdictional basis for any designation it

makes, i.e. the statute under which an individual or entity is designated. Thus, the 

 2 Designees under the IEEPA include those found by OFAC

[t]o play a significant role in international narcotics trafficking centered in 

Colombia; . . . [m]aterially to assist in, or provide financial or technological 

support for or goods or services in support of, the narcotics trafficking activities 

of [SDNTs]; [or] to be owned or controlled by, or to act for or on behalf of, any 

other [SDNT].

31 C.F.R. § 536.312(b) and (c).

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blocking of assets by OFAC does not necessarily bring those assets within the 

ambit of TRIA execution. See Stansell v. Revolutionary Armed Forces of Colom. 

(Mercurio), 704 F.3d 910, 915–17 (11th Cir. 2013) (per curiam) (reversing an 

order permitting TRIA execution of assets that OFAC had blocked pursuant to the 

Kingpin Act).3

 All the individuals and entities party to these appeals (Claimants)4

whose property is in jeopardy due to Plaintiffs’ TRIA execution had been 

designated SDNTs by OFAC, rendering their assets blocked. Other than Herrera, 

no party disputes that the assets in question were blocked at some point for 

purposes of TRIA execution, though some argue that their eventual de-listing 

during the pendency of the proceedings should have been given effect.

TRIA itself does not define the term “agency or instrumentality.” However, 

§ 201 is codified as a note to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 

1330, 1602–11 (FSIA). See 28 U.S.C. § 1610 (note). The FSIA defines the term:

An “agency or instrumentality of a foreign state” means any entity—

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision 

thereof, or a majority of whose shares or other ownership interest is 

owned by a foreign state or political subdivision thereof, and

 3 For the sake of clarity, we will cite this opinion hereinafter as Mercurio, 704 F.3d 910.

4 As an additional tool for clarity, we will use “Claimants” when referring to all claimantappellants collectively and “appellant(s)” when referring to a subset of them.

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(3) which is neither a citizen of a State of the United States as defined 

in section 1332(c) and (e) of this title,5 nor created under the laws of 

any third country.

Id. § 1603(b). Claimants here disagree with the district court’s standard as well as 

its factual determinations regarding the agency or instrumentality status of each.

Plaintiffs initiated their collection efforts in each instance ex parte, without 

any direct notice to Claimants. The district court found that, for purposes of TRIA 

execution, each Claimant was an agency or instrumentality6 of FARC and that 

each asset was blocked. Importantly, each Claimant eventually discovered the 

proceedings against their property. In each case, the district court sided with 

Plaintiffs and allowed the collection efforts to proceed (or, where such efforts had 

been completed, to lie).

 5 Those subsections define the citizenship of corporations and legal representatives of 

estates, infants, or incompetents.

6 The district court defined an agency or instrumentality as

Any SDNT . . . , including all of its individual members, divisions and networks, 

that is or was ever involved in the cultivation, manufacture, processing, purchase, 

sale, trafficking, security, storage, shipment or transportation, distribution of 

FARC coca paste or cocaine, or that assisted the FARC’s financial or money 

laundering 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 international narcotics 

trafficking activities of . . . [FARC]; and/or

(2) owned, controlled, or directed by, or acting for or on behalf of, . . . [FARC]; 

and/or

(3) playing a significant role in international narcotics trafficking [related to coca 

paste or cocaine manufactured or supplied by the FARC].

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Claimants appealed the various orders granting Plaintiffs’ motions seeking 

to collect on their judgment using Claimants’ assets and denying the motions filed 

by Claimants seeking relief. They argue separately a number of issues on appeal, 

including many that Claimants share in common with one another: (1) that they 

were denied constitutional and statutory rights to notice and a hearing because they 

were not served with the writs of garnishment and execution or the motions 

requesting them; (2) that they were erroneously designated agencies or 

instrumentalities of FARC by the district court; (3) that their assets were not 

reachable under TRIA § 201 because they have been removed from OFAC’s list of 

SDNTs; (4) that Plaintiffs did not obtain the licenses required to execute against 

OFAC-blocked assets; (5) that the judgments must be set aside for fraud; and (6)

that on remand, we should assign a different judge to the proceedings.

B. Analysis of the Issues

We now turn to an analysis of the common issues argued on appeal.

1. Constitutional and Statutory Due Process

Claimants contend that they were denied their rights to notice of the 

execution proceedings and an opportunity to be heard in violation of the Fifth 

Amendment, Florida law, and the FSIA. Whether a due process violation occurred 

is reviewed de novo. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) 

(per curiam). The de novo standard also applies when determining whether 

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constitutional protections extend to foreign nationals. United States v. Emmanuel, 

565 F.3d 1324, 1330–32 (11th Cir. 2009) (reviewing de novo whether the Fourth 

Amendment applied to a foreign search of a foreign national).

Florida law has specific requirements for notice and an opportunity to be 

heard. See Fla. Stat. § 56.21 (“When levying upon real property, notice of such 

levy and execution sale and affidavit . . . shall be made to the property owner of 

record in the same manner as notice is made to any judgment debtor pursuant to 

this section . . . .”); Fla. Stat. § 56.16 (outlining procedure for third-party claimants 

to halt an execution sale); Fla. Stat. § 77.055 (requiring service of garnishee’s 

answer to the writ on “any . . . person disclosed in the garnishee’s answer to have 

any ownership interest in the” asset); Fla. Stat. § 77.07(2) (permitting “any other 

person having an ownership interest in [garnished] property” to move to dissolve 

the writ with a motion “stating that any allegation in plaintiff’s motion for writ is 

untrue”). In a nutshell, Florida law provides certain protections to third parties 

claiming an interest in property subject to garnishment or execution. Such law is 

effective in proceedings in federal court, unless, as the district court held here, it is 

preempted by federal statute. Fed. R. Civ. P. 69(a)(1). We review de novo a 

district court’s determination that federal law preempts state law. Pace v. CSX 

Transp., Inc., 613 F.3d 1066, 1068 (11th Cir. 2010).

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The FSIA also contains a notice requirement. 28 U.S.C. § 1610(c) 

(requiring notice required under § 1608(e) be provided where property is attached 

under § 1610(a) or (b)). Whether this notice requirement applies to TRIA 

execution is a question of law we review de novo. Mercurio, 704 F.3d at 914.

a. Constitutional Due Process

Preliminarily, we address whether, under the Fifth Amendment, Claimants

were entitled to due process. The district court and Plaintiffs have at some points 

maintained that some were not so entitled due to their status as foreign nationals. 

Where a district court exercises its jurisdiction over property within the United 

States, however, the owners of that property have due process rights regardless of 

their location or nationality. See Russian Volunteer Fleet v. United States, 282 

U.S. 481, 491–92, 51 S. Ct. 229, 232 (1931) (applying the Takings Clause to 

confiscation of foreign-owned property located within the United States); 

Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 413–19, 104 S. Ct. 

1868, 1872–74 (1984) (applying due process protection to a Colombian 

corporation);7 Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de 

Navegacion, 732 F.2d 1543, 1545–49 (11th Cir. 1984) (analyzing due process 

protections vis-à-vis a foreign entity whose property came under the court’s 

 7 Helicopteros dealt with due process protections afforded by the Fourteenth Amendment. 

466 U.S. at 413, 104 S. Ct. at 1872. However, Fourteenth Amendment due process cases are 

informative for Fifth Amendment due process inquiries. Republic of Panama v. BCCI Holdings 

(Luxembourg) S.A., 119 F.3d 935, 944 (11th Cir. 1997).

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jurisdiction); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 

204 (D.C. Cir. 2001) (“Russian Volunteer Fleet makes clear that a foreign 

organization that acquires or holds property in this country may invoke the 

protections of the Constitution when that property is placed in jeopardy by 

government intervention.” (citation omitted)). Therefore, Claimants were entitled 

to the Fifth Amendment’s guarantee of due process.

Now, we consider what due process requires. As Plaintiffs point out in their 

briefs, post-judgment motions and writs typically need not be served on 

defendants, including when collection is pursued under the FSIA. See Peterson v. 

Islamic Republic of Iran, 627 F.3d 1117, 1130 (9th Cir. 2010). Courts have held 

that this principle extends to agencies or instrumentalities of terrorist judgment 

debtors under the FSIA. See, e.g., Estate of Heiser v. Islamic Republic of Iran, 807 

F. Supp. 2d 9, 23 (D.D.C. 2011) (“Congress did not intent [sic] to require service 

of garnishment writs on agencies or instrumentalities of foreign states responsible 

for acts of state-sponsored terrorism . . . .”). To the extent Estate of Heiser holds 

that alleged agencies or instrumentalities which dispute that classification are not 

entitled to notice of execution or garnishment proceedings against their assets, we 

disagree.

TRIA execution requires two separate determinations regarding the property 

being executed: (i) that the asset is blocked, and (ii) that the owner of the asset is 

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an agency or instrumentality of the judgment debtor. TRIA § 201(a). While the 

first can be definitively established by the fact that OFAC has taken action against 

the alleged agency or instrumentality under TWEA or the IEEPA, the second is a 

separate determination in addition to blockage not dispositively decided by OFAC 

designation. Furthermore, because an agency or instrumentality determination 

carries drastic results—the attachment and execution of property—it undeniably 

implicates due process concerns. United States v. Bissell, 866 F.2d 1343, 1352 

(11th Cir. 1989) (“[Due process] is implicated when, as here, persons are deprived 

of their possessory interests in property.”). It follows that parties whose assets are 

under threat of execution pursuant to TRIA § 201 are entitled to notice and an 

opportunity to be heard in order to rebut the allegations and preserve their 

possessory interest in blocked assets. See Dusenbery v. United States, 534 U.S. 

161, 167, 122 S. Ct. 694, 699 (2002) (“[I]ndividuals whose property interests are at 

stake are entitled to notice and an opportunity to be heard.” (internal quotation 

marks omitted)).

Plaintiffs respond by emphasizing that this court and others have repeatedly 

held that due process does not require service of post-judgment motions. 

Typically, however, such motions are directed at the judgment debtor, see Brown 

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v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1357 (5th Cir. 1976),8 not at third 

parties such as Claimants. The difference—one that the district court did not 

appropriately consider—is crucial. Where the owner of the asset being garnished 

is the judgment debtor, “notice upon commencement of a suit is adequate to give a 

judgment debtor advance warning of later proceedings undertaken to satisfy a 

judgment.” Id. at 1364. That same type of notice is not sufficient where the 

claimant is a third party, who cannot be expected to be on notice of the judgment.

It may be argued that agencies or instrumentalities are on constructive notice 

because, as agencies or instrumentalities of the judgment debtor—in this case, 

FARC—they share a legal identity with the judgment debtor. Cf. 28 U.S.C. § 

1603(a) (defining “foreign state” for FSIA purposes to include an agency or 

instrumentality of a foreign state). While that reasoning seems rational in a 

vacuum, when considered in context, it is circular and illogical. That is, a third 

party can only be deemed to be on notice if it is associated with the judgment 

debtor, so it cannot be considered to have such notice until the district court makes 

the agency or instrumentality determination. Without notice and a fair hearing 

where both sides are permitted to present evidence, the third party never has an 

opportunity to dispute its classification as an agency or instrumentality. Cf.

 8 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we 

adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior 

to the close of business on September 30, 1981.

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Alejandre v. Telefonica Larga Distancia de P.R., Inc., 183 F.3d 1277, 1284 (11th 

Cir. 1999) (applying the presumption of separate juridicial status of a state and its 

alleged instrumentality under the FSIA). In short, it puts the cart before the horse 

to hold that Claimants had notice of the agency or instrumentality proceedings 

because they were agencies or instrumentalities of FARC, and such a finding 

would thus never be tested in an adversarial process. Any party could be deemed 

an agency or instrumentality and thus be deemed to be on constructive notice, 

allowing seizure of its assets on a potentially erroneous designation about which it 

never even knew and never had the opportunity to challenge. Therefore, due 

process entitled Claimants to actual notice of the post-judgment proceedings 

against them. We will analyze the adequacy of the notice provided to each 

Claimant in Part II.

Further, because Claimants were entitled to the basic constitutional 

protection of due process, they were entitled to be heard on their challenge to the 

agency or instrumentality issue. The district court eventually held generally that 

“some form” of process was due and that Claimants were afforded an adeqaute

opportunity to be heard by (i) the requirement that Plaintiffs file motions in the 

district court and seek entry of a court order, (ii) the opportunity to challenge their 

respective designations both administratively and judicially, and (iii) the stay 

pending the outcome of Mercurio. The first of these cannot constitute the requisite 

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opportunity to be heard. Requiring evidence from a party seeking to execute 

against a third party’s assets does nothing to give the third party an opportunity to 

be heard. Due process contemplates offering a party an opportunity to rebut 

charges leveled against it, not allowing that party’s opponent to present evidence 

supporting that charge.

The second manner in which Claimants were, according to the district court, 

given an opportunity to be heard is also constitutionally deficient. Again, the 

agency or instrumentality determination is separate from the determination that an 

asset is blocked and carries more immediate and substantial consequences than 

does the SDNT designation. Moreover, designation is a unilateral move that takes 

place and blocks a SDNT’s assets before the SDNT has an opportunity to 

challenge the designation.9

 An administrative challenge to OFAC designation 

affords a party an opportunity to challenge the decision to block its assets, not to 

challenge its status as an agency or instrumentality.

Finally, the third example of Claimants’ opportunity to be heard—the stay—

standing alone, is not sufficient to provide Claimants with due process. However, 

 

9 We disagree with the conclusion that the right to challenge the OFAC designation 

provided a sufficient safeguard for Claimants and their property. Some Claimants had 

commenced proceedings seeking de-listing when turnover judgments were entered against them. 

For those Claimants who eventually succeeded in their challenges, the district court correctly 

ruled that de-listing did not apply retroactively, and the de-listed Claimants were unable to attain 

relief with respect to those assets already executed. It cannot be that available de-listing 

procedures were effective due process bulwarks where a party can be listed, its assets blocked, 

and TRIA execution procedures begun—thus rendering future de-listing ineffective—before the 

party receives notice of the designation or blockage. 

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in conjunction with an actual opportunity for Claimants to be heard, it may satisfy 

due process. We will examine the circumstances of each appeal below to

determine the extent to which each Claimant had a sufficient opportunity to be 

heard.

In addition, due process must not only be adequate; it must be timely. 

Goldberg v. Kelly, 397 U.S. 254, 267–68, 90 S. Ct. 1011, 1020 (1970). Here, 

Claimants argue that they were denied due process because they were not granted 

pre-deprivation hearings—that is, prior to attachment under TRIA. On this point, 

we disagree.

We assess whether the procedure afforded to a party is timely considering 

the three factors set forth in Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct. 

893, 903 (1976), as refined by Connecticut v. Doehr10:

[F]irst, . . . the private interest that will be affected by the prejudgment 

measure; second, . . . the risk of erroneous deprivation through the 

procedures under attack and the probable value of additional or 

alternative safeguards; and third, [we pay] principal attention to the 

 10 In Doehr, the Supreme Court applied the Mathews analysis to a deprivation initiated by 

a private party. See 501 U.S. at 11–16, 111 S. Ct. at 2112–15. Under such circumstances, when 

assessing the third prong of the Mathews test, courts must give “principal attention to the interest 

of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary 

interest the government may have in providing the procedure or forgoing the added burden of 

providing greater protections.” Id. at 11, 111 S. Ct. at 2112. Therefore, we consider the private 

party’s interests in the specific attachment as well as the government’s interests affected by 

“financial or administrative burdens involving predeprivation hearings.” See id. at 16, 111 S. Ct. 

at 2115. We also assess the government’s “substantive interest in protecting any rights of the 

plaintiff[, which] cannot be any more weighty than those rights themselves.” Id. (emphasis 

added). Because we consider the government’s interest “in providing the procedure,” we 

properly consider TRIA judgment creditors’ ability to collect generally, not just that of Plaintiffs 

here.

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interest of the party seeking the prejudgment remedy, with, 

nonetheless, due regard for any ancillary interest the government may 

have in providing the procedure or forgoing the added burden of 

providing greater protections.

501 U.S. 1, 11, 111 S. Ct. 2105, 2112 (1991). The first factor weighs in 

Claimants’ favor. See id. at 11, 111 S. Ct. at 2112–13 (listing the “significant” 

consequences of attachment). Although Plaintiffs point out that SDNTs have a 

diminished interest in their blocked assets because their ability to alienate that 

property is already restricted, SDNTs do retain some interest, especially because 

the possibility of unblocking remains, as occurred with a number of Claimants

here. Cf. Bissell, 866 F.2d at 1352–54 (recognizing the continued interest of a 

criminal defendant in frozen property prior to forfeiture). As discussed below, delisting does not operate retroactively, so attachment creates an independent 

restraint on property that may be effective even where de-listing occurs during the 

pendency of garnishment or execution proceedings.

11

However, the second and third factors weigh substantially in favor of 

immediate attachment. Before a writ of garnishment or execution pursuant to 

TRIA § 201 issues, a district court must determine that the property owner is a 

SDNT designated under TWEA or the IEEPA and is an agency or instrumentality 

of the judgment debtor terrorist party. The district court did that here, after 

 11 At the same time, it is relevant that the burden accompanying attachment under TRIA 

is no more substantial than the already-existing burden of blockage. In other words, attachment 

under TRIA is less burdensome than, for example, pre-hearing seizure of an asset.

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Plaintiffs made factual proffers on those issues. The risk of erroneous deprivation 

is therefore diminished. The third factor weighs heavily in favor of a later hearing: 

ensuring adequate satisfaction of judgments against terrorist parties. During the 

pendency of execution proceedings, a number of events may occur which make 

satisfaction using a particular asset impossible. Other judgment creditors may seek 

to execute against the asset. The government may take action that makes the asset 

unreachable, including seizure or de-listing of the alleged agency or 

instrumentality (which may or may not be the result of a finding that the SDNT 

designation was incorrectly reached), the latter of which would enable the asset 

owner to move the asset (or proceeds from its sale) outside the reach of any United 

States district court. Cf. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 

663, 679, 94 S. Ct. 2080, 2090 (1974) (“[P]reseizure notice and hearing might 

frustrate the interests served by the statutes . . . if advance warning of confiscation 

were given.”); Mitchell v. W.T. Grant Co., 416 U.S. 600, 610, 94 S. Ct. 1895, 1901 

(1974) (noting “the risk of destruction or alienation if notice and a prior hearing are 

supplied, and the low risk of a wrongful determination of possession” as 

considerations supporting the constitutionality of pre-notice seizure of household 

goods). Mere attachment is a minimally intrusive manner of reducing these risks, 

especially because blocked assets, by definition, already have more substantial 

restraints on their alienation. Because the factors weigh in favor of immediate 

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attachment, Claimants were not constitutionally entitled to a hearing before the 

writ issued. In sum, Claimants were entitled to notice and to be heard before 

execution, though not necessarily before attachment.

b. Statutory Entitlements to Notice and Hearing

Now we consider whether Florida procedure governs TRIA execution. 

Plaintiffs contend, and the district court held, that TRIA § 201 partially conflicts 

with Florida garnishment and execution statutes and that their notice and hearing 

provisions therefore do not govern garnishment and execution procedure under 

TRIA § 201. Essentially, the district court held that, because TRIA § 201’s 

purpose is to facilitate collecting on judgments against terrorist parties, any state 

legislation that might hinder collection efforts in any manner—even if their 

purpose was to give potentially innocent, third-party claimants the opportunity to 

contest execution efforts—conflicted with TRIA § 201. We disagree. Nothing 

about the language or purpose of TRIA § 201 indicates that it conflicts with 

Florida’s requirements that owners of property being garnished or executed against 

are entitled to notice, notwithstanding TRIA’s use of the word “notwithstanding.” 

United States v. Holy Land Found. for Relief & Dev., 722 F.3d 677, 687–89 (5th 

Cir. 2013) (refusing to give effect to an interpretation of TRIA § 201 that would 

read “notwithstanding” to “operate[] to override all statutes that, by their purpose 

or effect, shield assets from attachment or execution”); see Altria Grp., Inc. v. 

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Good, 555 U.S. 70, 77, 129 S. Ct. 538, 543 (2008) (noting that courts presume that 

preemption does not apply).

We cannot say that the state garnishment law in this case is preempted.

Contrary to the district court’s conclusion, Florida law does not shield terrorist 

assets from execution. Instead, Florida’s notice requirements simply provide the 

procedure for executing against the full range of assets that fall within the ambit of 

TRIA § 201. Florida’s statutory notice scheme for garnishment proceedings does 

not conflict with TRIA’s “notwithstanding” provision because the assets TRIA 

subjects to execution are still subject to execution. Therefore, TRIA § 201 does 

not preempt Florida law, and judgment creditors seeking to satisfy judgments 

under it must follow the notice requirements of Florida law. See Fed. R. Civ. P. 

69(a)(1).

Claimants also assert that, pursuant to the FSIA, specifically 28 U.S.C. § 

1610(c), Plaintiffs should have served a copy of the default judgment required by 

28 U.S.C. § 1608(e) on Claimants. Here, Claimants are wrong for a number of 

reasons. First, § 1610(c) governs “attachment[s] or execution[s] referred to in 

subsections (a) and (b) of this section.” The attachments and executions here were 

obtained pursuant to TRIA § 201, not 28 U.S.C. § 1610(a) or (b). Second, § 

1608(e) deals with default judgments obtained against foreign states and their 

political subdivisions and agencies or instrumentalities. FARC is not a foreign 

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state, and Claimants are not political subdivisions or agencies or instrumentalities 

of one. Therefore, § 1608(e) notice is, by its very plain terms, not required in this 

context.

In sum, the district court erred when it held that Florida law did not govern 

the garnishment and execution procedures and that the alleged agencies or 

instrumentalities were not entitled to due process. Whether and how this affects 

the disposition of each appeal is contingent on their respective facts, and we thus

reserve the more particularized analyses for the discussions of each appeal below.

2. Agency or Instrumentality

Claimants’ second primary argument on appeal is that they were erroneously 

found to be agencies or instrumentalities of FARC. They object both to the district 

court’s chosen standard for identifying agencies or instrumentalities and to the 

district court’s ultimate determinations. Turning to the preliminary question, 

whether the district court applied the correct standard in reaching the agency or 

instrumentality determination is a legal question we review de novo. Mercurio, 

704 F.3d at 914.

Claimants argue that, because TRIA does not have its own definition of 

“agency or instrumentality” and is codified as a note to 28 U.S.C. § 1610, the 

district court should have applied the FSIA definition, 28 U.S.C. § 1603(b), which 

applies to § 1610. To apply that definition here, we would have to tweak § 

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1603(b)’s definition because it requires that a purported agency or instrumentality 

be an organ of, or majority-owned by, “a foreign state or political subdivision 

thereof,” 28 U.S.C. § 1603(b)(2), and Claimants are alleged to be agencies or 

instrumentalities of a non-state terrorist organization. By suggesting that agencies 

or instrumentalities of parties other than foreign states or their political 

subdivisions may be subject to TRIA execution, Claimants seem to imply that, 

where the statute contains standards that are inapplicable to non-state terrorist 

parties, we should simply relax the foreign state requirement. Assuming that such 

a re-reading of the statute is appropriate, applying the § 1603(b) standard to TRIA 

§ 201 would permit TRIA execution against terrorist parties or parties that are 

organs of or majority-owned by a terrorist party, regardless of whether the terrorist 

party is a state or non-state actor. See 28 U.S.C. § 1603(b)(2).

We cannot adopt this flexible application of § 1603(b) because it would 

create an absurd result and leave TRIA § 201 nearly meaningless. First, because 

this would only permit execution against organs, political subdivisions, and

majority-owned organizations, individuals are affirmatively excluded from 

execution. Samantar v. Yousuf, 560 U.S. 305, 314–16, 130 S. Ct. 2278, 2286–87

(2010). Section 1603(b)(3) further limits agency or instrumentality findings to 

parties “which [are] neither . . . citizen[s] of a State of the United States . . . , nor 

created under the laws of any third country.” 28 U.S.C. § 1603(b)(3). Because 

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any organization with legal personhood would necessarily be either “a citizen of a 

State of the United States . . . [or] created under the laws of any third country,”

none could be an agency or instrumentality under this definition.12 Therefore, 

applying the FSIA’s definition of agencies or instrumentalities to TRIA would 

leave only terrorist states as potential sponsors of agencies or instrumentalities 

under TRIA § 201, eviscerating TRIA’s effectiveness vis-à-vis non-state terrorist 

organizations. This cannot stand, as TRIA’s definition clearly contemplates nonstate judgment debtors being subjected to TRIA execution. See TRIA § 201(d)(4) 

(defining “terrorist party” to include both state actors and non-state terrorist 

organizations). Accordingly, the district court was correct to apply a different 

standard so that Congress’s intent could be carried out.13 See Hausler v. JP 

 12 And this is a generous interpretation of the final clause of § 1603(b)(3). The “third 

country” element uses as a reference the “foreign state or political subdivision thereof” of which 

the party is purported to be an organ or by which it is purported to be owned. Where the agency 

or instrumentality’s parent is not a foreign state or its subdivision, the mention of a third country 

would be illogical or inapplicable. At best, it could be explained as effectively making every 

country a “third country.” Under such an interpretation, all organizations created under the laws 

of any country are created under the laws of a third country and thus excluded from the 

definition of an agency or instrumentality.

Moreover, the rationale of the third country exception “is that if a foreign state acquires 

or establishes a company or other legal entity in a foreign country, such entity is presumptively 

engaging in activities that are either commercial or private in nature,” rendering that entity 

unprotected by the principle of sovereign immunity for purposes of the FSIA. H.R. Rep. No. 94-

1487, at 15 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6614. The flipside is that, when a 

foreign state establishes a legal entity under its own laws, it seeks to engage in the “public, noncommercial activity” which the FSIA protects. This rationale is inapplicable to TRIA § 201, 

providing further support for the inapplicability of § 1603(b) to TRIA § 201.

13 At the same time, it is not proper for the district court to rely solely on OFAC 

designation as creating an irrebuttable presumption of agency or instrumentality status. The 

agency or instrumentality determination is separate from the blocked asset determination. The 

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Morgan Chase Bank, N.A., 740 F. Supp. 2d 525, 531 (S.D.N.Y. 2010) (recognizing

that Congress’s purpose in enacting TRIA § 201 was to “‘deal comprehensively 

with the problem of enforcement of judgments rendered on behalf of victims of 

terrorism’” (quoting H.R. Rep. No. 107-779, at 27 (2002) (Conf. Rep.), reprinted 

in 2002 U.S.C.C.A.N. 1430, 1434)).

Making the FSIA’s standard more flexible does not help, either. If either the 

Samantar non-individual requirement or the majority-ownership requirement is 

applied, TRIA § 201 would still be toothless. Sovereign countries—the parties the 

FSIA contemplates—operate with more transparency, and their agencies or 

instrumentalities are likelier to be diplomatic organs or state-owned enterprises 

with clear ownership structures that makes application of § 1603(b) feasible. See, 

e.g., Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004) (holding that the 

Korean Deposit Insurance Corporation was “an organ of a foreign state because [it] 

was formed by statute . . . and presidential decree”); S & S Mach. Co v. 

Masinexportimport, 706 F.2d 411, 414 (2d Cir. 1983) (identifying “state central 

banks and export associations” as the “paradigm of a state agency or 

instrumentality”). On the other hand, terrorist organizations such as FARC operate 

in the shadows out of necessity. For example, a corporation organized under 

 

 

district court must therefore provide alleged agencies or instrumentalities an opportunity to 

challenge allegations of agency or instrumentality status with their own evidence.

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Florida law will almost certainly not list FARC as a shareholder of record. Instead, 

it will operate through layers of affiliated individuals and front companies.

Indeed, the agencies or instrumentalities here were, according to OFAC, part 

of FARC’s money laundering operations. These operations result from a need for 

clandestine operation, the type § 1603(b) cannot possibly address. Applying § 

1603(b) to TRIA § 201 would put the victims of terrorist organizations in the same 

place they were prior to TRIA’s enactment: proud owners of multi-million-dollar 

judgments with no means of enforcing those judgments. This would counteract 

Congress’s purpose in enacting TRIA. See Hausler, 740 F. Supp. 2d at 531.

Because the realities of terrorism make it unrealistic to apply the FSIA 

standard to TRIA execution, we think that the district court developed a proper 

standard. As the district court noted in its orders finding agency or instrumentality 

status, its standard “us[ed] the plain and ordinary meaning of those terms.” 

Claimants here give us no reason to believe that any other standard is preferable or 

proper.

In addition to attacking the standard applied by the district court, Claimants 

challenge the district court’s factual determinations regarding agency or 

instrumentality status. Because these challenges present fact-specific questions, 

we leave this discussion to the individualized analyses, where we will review the 

district court’s determinations for clear error. United States v. Perkins, 348 F.3d 

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965, 969 (11th Cir. 2003) (“We assess the district court’s findings of fact under the 

clearly erroneous standard . . . .”).

3. Effect of OFAC De-listing.

Claimants argue that their OFAC de-listing should operate retroactively to 

put their assets out of Plaintiffs’ reach because they are no longer blocked for 

purposes of TRIA § 201. Plaintiffs respond that, once the writ of garnishment is 

served on the garnishee and their lien attaches, subsequent de-listing has no effect. 

OFAC’s regulations clearly set out the result in such a situation:

Any amendment, modification, or revocation . . . of any order, 

regulation, ruling, instruction, or license issued by . . . [OFAC] shall 

not, unless otherwise specifically provided, be deemed to affect . . . 

any civil or criminal suit or proceeding commenced or pending prior 

to such amendment, modification, or revocation. All penalties, 

forfeitures, and liabilities under any such order, regulation, ruling, 

instruction, or license shall continue and may be enforced as if such 

amendment, modification, or revocation had not been made.

31 C.F.R. § 536.402 (emphasis added). Claimants contend that the district court 

incorrectly interpreted this regulation to prevent giving retroactive effect to OFAC 

de-listing. We review a district court’s interpretation of a regulation de novo. 

Owner-Operator Indep. Drivers Ass’n v. Landstar Sys., Inc., 622 F.3d 1307, 1320 

(11th Cir. 2010).

Pursuant to the clear terms of the OFAC regulation, if Plaintiffs commenced 

their garnishment proceedings prior to revocation of the OFAC order listing them 

as SDNTs, then the order of revocation “shall not . . . be deemed to affect” the 

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garnishment proceedings. 31 C.F.R. § 536.402. The question is, then, when 

proceedings commenced relative to Claimants’ de-listing. Because Federal Rule of 

Civil Procedure 69(a)(1) commands that state civil procedure governs execution 

proceedings, Florida law governs this issue. In Florida, execution and garnishment 

proceedings are ancillary proceedings. See Burdine’s, Inc. v. Drennon, 97 So. 2d 

259, 260 (Fla. 1957); Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 

167–68 (Fla. Dist. Ct. App. 1986). Thus, an execution or garnishment proceeding 

“commence[s] when the writ is issued or the pleading setting forth the claim of the 

party initiating the action is filed.” Fla. R. Civ. P. 1.050. Therefore, a civil 

proceeding commenced no later than service of the writ on the garnishee in each 

case. Under § 536.402, any OFAC de-listing after that moment was ineffectual for 

determining whether the asset was blocked for TRIA § 201 purposes.

Precedent cited by Claimants seemingly holding that de-listing operates 

retroactively does not support that proposition. Claimants’ cherry-picked language 

from Ministry of Defense and Support for the Armed Forces of the Islamic 

Republic of Iran v. Elahi appears to indicate that the assets must be blocked at the 

time judgment against the asset is finalized. See 556 U.S. 366, 369, 377–79, 129 

S. Ct. 1732, 1735, 1739–40 (2009) (“We ultimately hold that the Cubic Judgment 

was not a ‘blocked asset’ at the time the Court of Appeals handed down its 

decision . . . .”). The controlling determination in that case, though, was that the 

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asset in question was never blocked because Iran’s interest in it arose after the 

Treasury Department unblocked all Iranian assets. Id. at 376, 129 S. Ct. at 1739. 

In Holy Land Foundation, the assets were unreachable because they were 

unblocked during the pendency of the original civil suit, prior to the 

commencement of any execution proceeding. 722 F.3d at 687 (holding that the 

government’s restraining order against a blocked asset obtained prior to the entry 

of a civil judgment unblocked it for TRIA purposes).

This rule is not just prescribed by law; it is also good policy. Applying delisting to the “blocked asset” element of an ongoing TRIA execution proceeding 

would undermine the finality of a judgment until direct review of the judgment 

concludes. Further, such a policy would provide an incentive to SDNTs to draw 

out and delay execution proceedings while their OFAC administrative challenges 

were pending. Such a tactic counters the policy of satisfying judgments, especially 

where OFAC de-listing is not necessarily an exoneration. 

4. OFAC Licenses

Claimants also argue that the execution violated OFAC regulations which 

purportedly require a party executing or attaching blocked assets to obtain a license 

from OFAC. See 31 C.F.R. § 598.205(a) and (e). This section, however, applies 

only where a party is designated pursuant to the Kingpin Act and the Foreign 

Narcotics Kingpin Sanctions Regulations, 31 C.F.R. § 598.314(b) (Kingpin 

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Regulations). See 31 C.F.R. § 598.205 (listing the Kingpin Act as authority for the 

regulation requiring licensure). The only party designated under the Kingpin Act 

and its accompanying regulations was Herrera; therefore, this argument is 

inapplicable to the other parties.14

5. Fraud

Claimants argue that the means by which Plaintiffs moved against their 

assets constituted fraud, creating grounds for setting aside the judgments under 

Federal Rule of Civil Procedure 60(b)(3). We review a district court’s denial of a 

Rule 60(b)(3) motion for abuse of discretion. Cox Nuclear Pharmacy, Inc. v. CTI, 

Inc., 478 F.3d 1303, 1314 (11th Cir. 2007). The movant must establish fraud by 

clear and convincing evidence. Id. Claimants here take issue with Plaintiffs’

deliberate failure to formally serve them with process, purportedly dubious legal 

arguments and factual allegations, and failure to disclose adverse law.

However, none of the complained-of acts or omissions provide clear and 

convincing evidence of fraud. The failure to serve was based on the good-faith but 

erroneous belief that it was not required, which was based on cases instructing that 

post-judgment motions need not be served. See, e.g., Peterson, 627 F.3d at 1130. 

Even where Plaintiffs’ legal arguments later turned out to be incorrect, we have no 

reason to doubt that they were made in good faith. That TRIA § 201 did not allow 

 14 As discussed below, the licensing requirement does not affect the outcome of Herrera’s 

appeal.

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execution against assets blocked under the Kingpin Act was not raised by any party 

until the Department of Justice intervened as amicus in the Mercurio appeal, 

indicating a lack of bad faith in pursuing Herrera’s assets. The allegedly 

fraudulent factual allegations were not misrepresentations, even if they were based 

on scant evidence, and the failure to disclose that some parties had begun the 

process of challenging their designation was not fraudulent. Finally, Claimants do 

not identify the adverse law Plaintiffs failed to disclose. Because Claimants do not 

identify facts amounting to fraud, we affirm the district court’s denial of the 

60(b)(3) motions.15

6. Reassignment

Finally, Claimants request reassignment to a new district court judge on 

remand. We consider three factors when a party requests reassignment: “(1) 

whether the original judge would have difficulty putting his previous views and 

findings aside; (2) whether reassignment is appropriate to preserve the appearance 

of justice; (3) whether reassignment would entail waste and duplication out of 

proportion to gains realized from reassignment.” United States v. Torkington, 874 

F.2d 1441, 1447 (11th Cir. 1989) (per curiam). Only Brunello faces a remand, but 

 

15 Because Plaintiffs and their counsel acted in good faith throughout the proceedings, the 

appellant’s motion for sanctions pursuant to 28 U.S.C. § 1927 in Appeal No. 13-11339 is denied. 

See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2006) (“We have 

consistently held that an attorney multiplies proceedings unreasonably and vexatiously within the 

meaning of the statute only when the attorney’s conduct is so egregious that it is tantamount to 

bad faith.” (internal quotation marks omitted)).

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as we discuss below, our remand includes specific instructions that give the district 

court little discretion. Moreover, we are confident that Judge Lazzara will be fair 

and just. Therefore, reassignment is unnecessary.

III. Individualized Discussion

We now turn to a discussion of the facts of the individual appeals and apply 

our generalized conclusions to the circumstances of each appeal. Where an appeal 

raises a unique argument, we analyze that argument to decide whether it is grounds 

for reversing the district court.

A. No. 13-11339 (Herrera)

OFAC designated Jose Ricuarte Diaz Herrera as a SDNT on May 13, 2010, 

75 Fed. Reg. 27,118, for allegedly assisting in FARC’s financial fronts network, 

thereby blocking his assets.16 Herrera attempted to use an electronic funds transfer 

 16 Herrera was designated under the Kingpin Act and the Kingpin Regulations. The 

Kingpin Act permits designation of foreign persons 

materially assisting in, or providing financial or technological support for or to, or 

providing goods or services in support of, the international narcotics trafficking 

activities of a significant foreign narcotics trafficker . . . ; . . . owned, controlled, 

or directed by, or acting for or on behalf of, a significant foreign narcotics 

trafficker . . . ; . . . [or] playing a significant role in international narcotics 

trafficking.

21 U.S.C. § 1904(b)(2)–(4); see also 31 C.F.R. § 598.314(b). OFAC did not specify on which of 

these grounds it based its decision to designate Herrera. Although TRIA § 201(d)(2)(A) does not 

expressly list assets blocked pursuant to the Kingpin Act among those assets subject to execution 

or attachment pursuant to TRIA § 201, the district court held that those assets were in fact 

subject to execution or attachment because “[t]he Kingpin Act . . . was enacted pursuant to 

Congressional findings and authority arising from the [IEEPA].” We later held that execution or 

attachment under TRIA § 201 does not include those assets blocked under the Kingpin Act and is 

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(EFT) to transfer some of his own money from a Colombian brokerage firm 

account into a deposit account in his name at a Colombian bank in June of 2010. 

Wachovia, N.A., acting as an intermediary in the EFT, halted the transfer no later 

than September 8, 2010, and notified OFAC, as it must under 31 C.F.R. § 501.603. 

Herrera subsequently began the process for de-listing as a SDNT by filing a 

petition with the OFAC office in Bogota, Colombia, as provided in 31 C.F.R. § 

501.807. That petition was granted when OFAC removed Herrera’s SDNT 

designation and unblocked his assets effective April 30, 2013. 78 Fed. Reg. 

28,700-01 (May 15, 2013).

On December 15, 2010, Plaintiffs moved for a writ of garnishment against 

the blocked Wachovia funds. The district court granted the motion on December 

16, holding that (1) Herrera was an agency or instrumentality of FARC; (2) funds 

blocked under the Kingpin Act were subject to garnishment under TRIA § 201; (3) 

Plaintiffs did not need a license from OFAC to garnish the funds; (4) the blocked 

funds were property within the United States; and (5) Herrera was not entitled to 

notice or a hearing. After the writ was served on Wachovia, Wachovia filed an 

answer to the writ on January 11, 2011, wherein it objected to the writ’s issuance 

based on their assertion that Federal Rule of Civil Procedure 19 may have required 

 

 

limited to those assets which were blocked under the acts expressly listed in TRIA § 

201(d)(2)(A): TWEA and the IEEPA. Mercurio, 704 F.3d at 917. Herrera bases his appeal 

partly on the district court’s erroneous order, which we discuss below.

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the joinder of other parties and other beneficiaries, including Herrera. The district 

court entered judgment against Wachovia on January 18, 2011, reaffirming that 

Herrera was not entitled to notice or a hearing. No notice of these proceedings was 

served on Herrera.

Herrera’s attorney in New York learned of the garnishment proceedings no 

later than January 26, 2011, eight days after the district court’s entry of judgment; 

the attorney was advised by counsel representing Wachovia to “take up his 

grievances with Judge Lazzara.” Herrera and his attorney failed to take any action 

until Herrera hired a Florida attorney on February 24, 2011. According to Herrera, 

before the attorney could accept fees for his representation in any matter related to 

the OFAC designation, he had to apply for and be issued a license from OFAC, 

which he obtained on May 12, 2011. Herrera still waited to file anything in the 

district court to address the garnishment proceedings until October 31, 2011, when 

he filed (1) a motion for relief from the judgment entered on January 18 pursuant 

to Federal Rules of Civil Procedure 12(b)(5), 55(c), and 60(b), as well as the Fifth 

Amendment; (2) a motion for relief from the writ of garnishment pursuant to 

Federal Rule of Civil Procedure 69(a)(1) and Florida garnishment law as well as 

the Fifth Amendment; and (3) a motion to disqualify Judge Lazzara pursuant to 28 

U.S.C. § 455(a) and (b) as well as the Fifth Amendment. The district court denied 

the motion to disqualify on December 5, 2011, and stayed the remainder of the 

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motions pending the outcome of Mercurio. After we released that opinion, the 

district denied the remaining motions, holding that laches barred consideration of 

them and that our opinion in Mercurio could not apply retroactively. Herrera 

appeals from that order.

Typically, a turnover judgment is the final, appealable judgment in 

garnishment proceedings. Here, the district court entered that turnover judgment 

on January 18, 2011. Federal Rule of Appellate Procedure 4(a) requires parties to 

file any notice of appeal within thirty days after judgment is entered. Herrera did 

not file anything with the district court until October 31, 2011, more than nine 

months after the entry of judgment, when he filed motions seeking various types of 

relief. The district court denied the consolidated motion on February 26, 2013. 

Herrera timely filed a notice of appeal from that order. The order was final and 

appealable. See Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1401 

(11th Cir. 2000); Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 

1332, 1338 (11th Cir. 1999).

Nonetheless, the orders denied motions to set aside the judgment, so we 

must consider “only the propriety of the denial or grant of relief and . . . not . . . 

issues in the underlying judgment.” Id. Denials of Rule 60(b) and 55(c) motions 

are generally subject to an abuse of discretion standard of review. In re Worldwide 

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Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003); EEOC v. Mike Smith Pontiac 

GMC, Inc., 896 F.2d 524, 528 (11th Cir. 1990).

However, motions to set aside for voidness under Rule 60(b)(4) are subject 

to de novo review. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001). We 

hold that the district court did not abuse its discretion or err in denying the 

motions.

A judgment can be set aside for voidness where the court lacked jurisdiction 

or where the movant was denied due process. United Student Aid Funds, Inc. v. 

Espinosa, 559 U.S. 260, 271, 130 S. Ct. 1367, 1377 (2010). This includes lack of 

personal jurisdiction and defective due process for failure to effect proper service. 

Worldwide Web, 328 F.3d at 1299. Herrera is correct to point out that a motion to 

set aside a judgment for voidness pursuant to Federal Rule of Civil Procedure 

60(b)(4) is not subject to a typical laches analysis. Hertz Corp. v. Alamo Rent-aCar, Inc., 16 F.3d 1126, 1130 (11th Cir. 1994). “However, there are limitations on 

this doctrine [that jurisdictional defects are grounds for granting a 60(b)(4) 

motion] . . . [including] that objections to personal jurisdiction (unlike subject 

matter jurisdiction) are generally waivable.” Worldwide Web, 328 F.3d at 1299. 

Because Herrera knowingly sat on his rights for nine months before filing anything 

at all with the district court, he waived his right to object to any defects in the 

service of process or to any denial of his right to be heard. See Espinosa, 559 U.S. 

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41

at 275, 130 S. Ct. at 1380 (“Rule 60(b)(4) does not provide a license for litigants to 

sleep on their rights.”).

Herrera claims that the delay was out of his control because his attorney was 

required to obtain a license before he could be paid using the blocked funds. 

Assuming this excuses his delay,17 Herrera still fails to provide us with grounds for 

considering the motion because he waited an additional five months after his 

attorney was licensed to file anything with the district court. Herrera does not give 

an acceptable reason for this delay. Therefore, the district court did not err in 

denying the Rule 60(b)(4) motion.

The additional grounds for voidness Herrera argues apply here are meritless. 

The district court had subject matter jurisdiction. It is well settled that a judgment 

is not void “simply because it is or may have been erroneous.” Espinosa, 559 U.S. 

at 270, 130 S. Ct. at 1377 (internal quotation marks omitted); see also Oakes v. 

Horizon Fin., S.A., 259 F.3d 1315, 1319 (11th Cir. 2001) (“[I]t is well-settled that a 

mere error in the exercise of jurisdiction does not support relief under Rule 

60(b)(4).”).

 17 And we merely assume this for purposes of this analysis. It is not difficult to imagine 

that Herrera would be able to find an attorney who would file a notice of appeal before the 

deadline, a Federal Rule of Appellate Procedure 4(a)(6) request for reopening the time to file an 

appeal, or a Rule 60(b) motion immediately upon learning of the judgment against Herrera at 

least to keep Herrera’s opportunity to seek redress from spoiling while the license application 

was pending.

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42

Plaintiffs’ contention that assets blocked under the Kingpin Act are subject 

to TRIA execution is not a claim that the district court lacked jurisdiction. The 

district court had entered judgment on the writ before we issued Mercurio, so the 

mere fact that we later decided that TRIA § 201 does not apply to assets blocked 

under the Kingpin Act means the district court’s judgment may have been 

erroneous, but it does not mean the court lacked subject matter jurisdiction. 

Therefore, the district court had subject matter jurisdiction, and a motion to set 

aside the judgment for voidness does not lie based on lack of subject matter 

jurisdiction.

Herrera’s argument that the judgment was void because Plaintiffs failed to 

obtain licenses from OFAC is likewise unavailing. Voidness for purposes of a 

60(b)(4) motion contemplates lack of jurisdiction or defects in due process that 

deprive a party of notice or an opportunity to be heard. Espinosa, 559 U.S. at 271, 

130 S. Ct. at 1377. It is not sufficient to cite a regulation that makes use of the 

word “void,” see 31 C.F.R. § 598.205(a) and (e), and Herrera does not provide 

additional argument for why execution of OFAC-blocked assets without a license 

constitutes a “fundamental infirmity.” See Espinosa, 559 U.S. at 270, 130 S. Ct. at 

1377.

Motions filed pursuant to Rule 60(b)(6) and 60(b)(3) are not subject to the 

very generous timing considerations that 60(b)(4) motions are because they do not 

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43

carry the same jurisdictional and due process concerns. See, e.g., Hertz, 16 F.3d at 

1130 (holding only that Rule 60(b)(4) motions are not subject to the “reasonable 

time” requirement). Thus, they “must be made within a reasonable time.” Fed. R. 

Civ. P. 60(c)(1). Even assuming again that we should not expect Herrera to have 

filed his motion before his attorney was licensed, the five-month delay that 

followed his licensure surely was unreasonable. Therefore, we will not consider 

the 60(b)(6) or 60(b)(3) claims.

Rule 55(c) provides an additional, less “stringent” standard: good cause. See

Jones v. Harrell, 858 F.2d 667, 669 (11th Cir. 1988). However, that standard 

applies to setting aside an entry of default and is inapplicable in the instant case 

because the district court, in fact, entered a default judgment. See Fed. R. Civ. P. 

55(c) (providing the court may set aside an entry of default for good cause and a 

default judgment under Rule 60(b)). Accordingly, our Rule 60(b) analysis governs 

this issue. See Harrell, 858 F.2d at 669 (“Because a judgment had not been 

entered the trial court had the discretion to set aside the entry of default under Rule 

55(c) rather than under the more stringent provisions of Fed. R. Civ. P. 60(b) that 

would have controlled if judgment had been entered.”).

Therefore, we affirm the district court’s order denying Herrera’s requested 

relief.

B. No. 13-12019 (The Partnerships and Plainview)

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Salman Coral Way Partners and C.W. Salman Partners (collectively, “the 

Partnerships”) are partnerships organized under Florida law. Plainview Florida II, 

Inc. (Plainview) owns a 50-percent share of each of the Partnerships. The 

remaining 50 percent is owned by Granada & Associates, Inc. (Granada), which is 

not a party to this appeal.

OFAC designated the Partnerships as SDNTs under the IEEPA on March 7, 

2007, because of alleged ties to the North Valley Cartel (NVC). Specifically, 

OFAC alleged that the Partnerships were owned by SDNT individuals who 

themselves had ties to the NVC. The Partnerships argued that those individuals, 

Carlos Saieh and Moises Saieh, had ownership interests in Granada, not any direct 

interest in the Partnerships. Additionally, the OFAC press release did not mention 

FARC. The Partnerships challenged their designation and received licenses from 

OFAC to continue operations. OFAC de-listed the Partnerships, as well as 

Granada and the Saiehs, on January 10, 2012.

As in Herrera’s case, Plaintiffs sought to execute against the Partnerships’ 

blocked assets under TRIA § 201. On August 31, 2011, Plaintiffs moved, ex parte, 

for writs of garnishment against deposit accounts held by the Partnerships at 

Terrabank, N.A. In support of the motion, Plaintiffs submitted the OFAC press 

release documenting the Partnerships’ alleged ties to the NVC and affidavits from 

two experts familiar with Colombian narcotrafficking. The affidavits, one from a 

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Senior Analyst in the Office of Naval Intelligence and the other from a Colombian 

Marine Corps officer, documented FARC’s ties to the NVC. Both testified that the 

NVC, including its “individual members, divisions, and networks,” was an agency 

or instrumentality of FARC based on the district court’s standard. The district 

court granted the writs of garnishment on September 6, 2011.18 Based on the fact 

that OFAC had designated the Partnerships as SDNTs because of alleged ties to the 

NVC, the district court found that they were agencies or instrumentalities of the 

NVC. Because of the testimony that the NVC, including its members, divisions, 

and networks, was an agency or instrumentality of FARC, the district court 

determined that the Partnerships were in turn agencies or instrumentalities of 

FARC,19 opening their blocked assets to execution by Plaintiffs under TRIA § 201. 

The Partnerships had not previously been directly linked to FARC by OFAC or 

any other executive or judicial authority.

The district court further determined that the Partnerships were not entitled 

to notice or an opportunity to be heard. Specifically, the court held that because 

TRIA § 201 preempts Florida garnishment law and does not contain any provisions 

for notice or an opportunity to be heard, the Partnerships would not be afforded 

 18 The writ as to Plainview’s account was issued in error because it was never a SDNT. 

Plaintiffs resolved the matter by returning the amount in Plainview’s account to Plainview.

19 The district court found that the NVC’s “OFAC designated member organizations, 

partners, affiliates, and/or money laundering financial network members, are all agencies or 

instrumentalities of the FARC, [including] the Terrabank, N.A. SDNT account holders who are 

all OFAC designated members, affiliates, front persons, or entities within the [NVC].”

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those protections. Accordingly, the order granting the writs of garnishment was 

entered without formal notice to the Partnerships. On September 8, 2011, the 

district court stayed all garnishment proceedings pending the outcome of the 

Mercurio appeal. The district court later granted a motion for clarification from 

Plaintiffs, which allowed Plaintiffs to continue the garnishment action during 

Mercurio’s pendency.

20 After service of the writs, Terrabank turned over the 

contents of the deposit accounts on September 23 without filing an answer.

On October 7, 2011, Plaintiffs moved for a writ of execution against four 

parcels of real property owned by the Partnerships. The district court granted the 

writ on October 11. Like the order granting the writ of garnishment, this order 

held that the Partnerships were not entitled to notice or an opportunity to be heard.

On November 29, 2011, United States Marshals levied on the real property 

by posting notice in conspicuous places and providing direct notice to the 

Partnerships, tenants, and management. They also published notice of the levy in a 

local newspaper for four weeks. This was the first notice the Partnerships received 

of the proceedings against their property. The Partnerships moved to vacate the 

orders granting the writs of garnishment and execution and to quash the resulting 

writs on February 21, 2012, arguing that they were entitled to notice and an 

 20 The Mercurio appeal concerned TRIA execution against a SDNT that had been 

designated by OFAC under the Kingpin Act. Because the Partnerships had been designated 

under the IEEPA, the district court allowed garnishment against them and other IEEPAdesignated SDNTs to continue.

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opportunity to be heard prior to issuance of the writs and requesting an evidentiary 

hearing. They also argued that the district court incorrectly found them to be 

agencies or instrumentalities of FARC. In support, they attached an affidavit from 

their accountant outlining their ownership structure: 50 percent owned by Granada 

and 50 percent owned by Plainview. The affidavit also asserted that Granada’s 

only capital contribution to the partnerships was its 1992 purchase of the 50 

percent ownership stake and that Granada did not have access to the Partnerships’ 

bank accounts or control over its operations. The next day, the district court stayed 

ruling on that motion and reminded Plaintiffs of previous orders staying execution 

on the real property.

On January 9, 2013, we reversed the district court in Mercurio. The district 

court then lifted the stay and ordered Plaintiffs to respond to the Partnerships’ 

motion to vacate. Plaintiffs’ response conceded that the Partnerships were entitled 

to “some form” of due process and argued that they had received adequate notice 

through the OFAC designations and the levy on the real property. Though 

Plaintiffs had previously argued—and the district court had agreed—that the 

Partnerships were not entitled to notice, the district court denied the Partnerships’ 

request to reply to this change in Plaintiffs’ argument. The district court denied the 

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Partnerships’ motion to vacate on April 19, 2013.21 It held that the Partnerships 

received due process through (i) the notice of their OFAC designations, (ii) the 

stay of the sale of the real property, (iii) the opportunity to challenge OFAC’s 

designations both administratively and through judicial review, (iv) “the 

requirement that the Plaintiffs file a motion and seek entry of a court order,” and 

(v) the notice that came with the levy on the real property. The court further held 

that OFAC’s removal of the Partnerships’ SDNT status was irrelevant because 

OFAC’s regulations do not permit retroactive effect of de-listing. See 31 C.F.R. § 

536.402.

The Partnerships timely filed a notice of appeal on April 29, 2013. We 

granted their motion to stay the sale of the real property on July 9. On appeal, the 

Partnerships argue that (1) they were denied constitutional due process, (2) they 

 21 For an order to be appealable, it must be final. 28 U.S.C. § 1291. Writs of 

garnishment and orders denying relief from such writs are not appealable; typically, there is no 

appellate jurisdiction until the district court enters an order directing the disposition of the 

property. United States v. Branham, 690 F.3d 633, 635 (5th Cir. 2012) (per curiam). Because 

Terrabank turned over the money in the subject accounts as soon as it received the writ, there 

was no order from the district court directing disposition of the account. In its place, the order 

denying the motion to vacate functions as a final, appealable order as to the garnishment 

proceedings because it “end[ed] the litigation on the merits,” and there was nothing left for the 

court to do because the judgment was already executed. See Green Tree Fin. Corp.-Ala. v. 

Randolph, 531 U.S. 79, 86, 121 S. Ct. 513, 519 (2000) (internal quotation marks omitted); 

Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S. Ct. 308, 311 (1964) (“[T]he requirement 

of finality is to be given a practical rather than a technical construction.” (internal quotation 

marks omitted)). It also functions as a final, appealable order for the execution writs because the 

only thing left to do there was hold the execution sale. See In re Martin Bros. Toolmakers, Inc., 

796 F.2d 1435, 1437 (11th Cir. 1986) (recognizing the “qualification of the [final judgment] 

rule[] allowing review whenever an order directs immediate delivery of physical property and 

subjects the losing party to irreparable harm” (internal quotation marks omitted)).

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were denied statutory entitlements to notice and a hearing, (3) the agency or 

instrumentality standard applied by the district court was erroneous, and (4) the 

evidence did not support the agency or instrumentality finding.

First, contrary to the district court’s decision, the notice the Partnerships 

received of their OFAC designation was not sufficient as to the TRIA execution 

proceedings. Such a designation provides notice to the designee that its assets 

have been blocked and of a number of other consequences, including the potential

for TRIA execution. Having notice of the potential for proceedings without notice 

of their timing, location, adverse parties, nature, etc., is not sufficient to satisfy due 

process. The OFAC designation did not give the Partnerships notice that was 

“reasonably calculated, under all the circumstances, to apprise interested parties of 

the pendency of the action and afford them an opportunity to present their 

objections,” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. 

Ct. 652, 657 (1950), because it does not “give a person in jeopardy of serious 

loss . . . opportunity to meet” that particular proceeding, Joint Anti-Fascist Refugee 

Comm. v. McGrath, 341 U.S. 123, 171–72, 71 S. Ct. 624, 649 (1951) (Frankfurter, 

J., concurring).

The notice conveyed to the Partnerships through the levy on their real 

property, however, did provide sufficient notice of the execution proceedings. The 

Supreme Court has specifically stated “that in most cases, the secure posting of a 

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50

notice on the property of a person is likely to offer that property owner sufficient 

warning of the pendency of proceedings possibly affecting his interests.” Greene 

v. Lindsey, 456 U.S. 444, 452, 102 S. Ct. 1874, 1879 (1982). While a posting may 

not be sufficient where the notice is not conveyed due to, for example, removal of 

the posting by children, see id. at 453–54, 102 S. Ct. at 1879–80, such argument is 

not available where there is no evidence that the postings could not be relied upon 

to convey notice, see Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 885 

F.2d 858, 862 (Fed. Cir. 1989). In fact, the Partnerships not only fail to provide 

evidence that the postings were an unreliable means of providing notice under the 

circumstances; they also received actual notice and appeared. Therefore, notice as 

to the real property execution was adequate.22 See Espinosa, 559 U.S. at 275, 130 

S. Ct. at 1380.

The Partnerships were also afforded an opportunity to be heard. As 

discussed supra, the Partnerships were not entitled to a pre-writ hearing. 

Nevertheless, they had the opportunity to present evidence refuting the agency or 

instrumentality designation. They simply did not present any evidence that 

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

determination.

 22 We can also infer that the Partnerships received notice of the garnishment proceedings 

against their accounts because their motion seeking relief from the real property execution also 

challenged the writs of garnishment.

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Even if constitutional due process standards are met, the Partnerships argue 

that the writs of garnishment and execution should be quashed for failure to 

comply with Florida’s statutory requirements for garnishment and execution. 

Despite the fact that the district court erred in holding that Florida law did not 

apply, the circumstances indicate that the decision was harmless. The Partnerships 

were not prevented from taking advantage of Florida law specifically providing for 

third-party challenges to garnishment proceedings. See Fla. Stat. § 77.07(2). The 

third party can move to dissolve the writ of garnishment by “stating that any 

allegation in plaintiff’s motion for writ is untrue.” Id. If the relevant allegation—

here, agency or instrumentality status—is found to be untrue, the court dissolves 

the writ. Id. The Partnerships followed this procedure, and the district court, after 

due consideration of their argument, concluded that the agency or instrumentality 

allegation was “proved to be true.” See id. It therefore properly denied the motion 

to dissolve the writ. Any failure by the district court to conform to Florida’s notice 

procedures was harmless because the Partnerships received actual notice and were 

able to contest the allegations as provided in § 77.07; they merely failed to succeed 

on the merits.

The execution of the real property was likewise proper under Florida law. 

The Partnerships complain that Plaintiffs did not furnish the required affidavit, 

rendering the execution invalid. See Fla. Stat. § 56.21; cf. In re King, 463 B.R. 

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555, 566 (Bankr. S.D. Fla. 2011) (setting aside an execution sale where judgment 

creditors failed to comply with the § 56.21 30-day requirement). However, 

“[w]hen a particular provision of a statute relates to some immaterial matter, where 

compliance is a matter of convenience rather than substance, or where the 

directions of a statute are given with a view to the . . . conduct of business merely, 

the provision may generally be regarded as directory” and not mandatory. Neal v. 

Bryant, 149 So. 2d 529, 532 (Fla. 1962) (internal quotation marks omitted) (noting 

the exception to the generally mandatory nature of statutory directives introduced 

by the word “shall”). Here, we know that failure to provide the affidavit was 

harmless because the Partnerships had actual notice of the execution proceedings 

and simply failed to disprove the agency or instrumentality allegations over the 

months between their receipt of notice and the district court’s denial of their 

motions. Therefore, any failure to comply with statutory notice requirements is not 

grounds for reversal.

The Partnerships, moreover, were afforded an opportunity to present 

evidence to the district court rebutting Plaintiffs’ allegation that they were agencies 

or instrumentalities of FARC. In fact, the Partnerships presented evidence of their 

ownership, presumably under the incorrect understanding that § 1603(b) would 

control for TRIA § 201. As discussed above regarding the writs of garnishment, 

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the court properly found that evidence immaterial to the agency or instrumentality 

allegation.

The Partnerships also argue that there was not a sufficient evidentiary basis 

for the agency or instrumentality determination. This argument is unavailing. The 

evidence Plaintiffs presented to the district court was sufficient to establish the 

required relationship between FARC and the Partnerships, even if that relationship 

was indirect. Cf. In re Air Crash Disaster Near Roselawn, Ind., on Oct. 31, 1994, 

96 F.3d 932, 940–41 (7th Cir. 1996) (holding that an entity majority-owned by an 

agency or instrumentality of a foreign state is itself an agency or instrumentality of 

that foreign state under the FSIA). The district court therefore did not clearly err in 

reaching the agency or instrumentality determination.

The remaining arguments raised by the Partnerships are meritless for reasons 

set forth in the global discussion. Therefore, we affirm the district court and lift 

the stay we imposed by order.

C. No. 13-11959 (Jamce Investments, Ltd., et al.)

The appellants here assert ownership of cash deposits held at various banks. 

The organizational appellants are the Partnerships, Granada, Confecciones Lord 

S.A. (Lord), ALM Investment Florida, Inc. (ALM), Villarosa Investments Florida, 

Inc. (Villarosa), Karen Overseas, Inc. (Overseas), MLA Investments, Inc. (MLA), 

Jacaria Florida, Inc. (Jacaria), Sunset & 97th Holdings, LLC (Sunset), and Jamce 

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54

Investments, Ltd. (Jamce) (collectively, “the Organizations). The individual 

appellants are Jacqueline Saieh (Jacqueline), Miriam Sutherlin (Miriam), Sandra 

Saieh (Sandra), Laura Saieh (Laura), Karen Saieh (Karen), Kathya Saieh (Kathya), 

Jaime Saieh (Jaime), Amelia Saieh (Amelia), Abdala Saieh (Abdala), Carlos Saieh 

(Carlos), Carmen Siman de Jaar (Carmen), Armando Jaar (Armando), Ricardo Jaar 

(Ricardo), and Moises Saieh (Moises) (collectively, “the Individuals”).23

These appellants were all OFAC-designated SDNTs when Plaintiffs filed ex 

parte motions for writs of garnishment against their blocked assets under TRIA on 

September 7, 2011. Fifteen of the writs were issued to Terrabank as to accounts 

held by Ricardo, Armando, Moises, Carlos, Carmen, Abdala, Jacaria, Lord, MLA, 

Granada, Overseas, Villarosa, the Partnerships, and ALM. Five more were issued 

to OceanBank, N.A. as to accounts held by Carmen, Abdala, Moises, Carlos, 

Sunset, and ALM. One was issued to Wells Fargo, N.A. as to an account held by 

Jamce. After obtaining OFAC’s approval, Terrabank turned the contents of the 

accounts over to Plaintiffs’ attorneys without filing an answer to the writs on 

 23 Some of the Individuals have asserted standing to challenge the writ of garnishment 

issued to Wells Fargo as to Jamce, claiming that Jamce was a trust and that they were its 

beneficiaries. The district court rejected that assertion, finding that Jamce was a corporation. See

KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d 1321, 1324–25 (11th Cir. 2004) (recognizing 

that corporations themselves—and not shareholders—are the only parties with standing as to 

injuries against them). The Individuals give us no reasons to disturb that finding. Accordingly, 

only Jamce has standing to challenge the issuance of a writ of garnishment against its account. 

The Individuals with no personal interest in any of the assets garnished pursuant to the orders at 

issue, Jacqueline, Miriam, Sandra, Laura, Karen, Kathya, Jaime, and Amelia, therefore do not 

have standing. The other Individuals do not have standing to the extent that they challenge the 

writ issued as to Jamce.

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55

September 23, 2011. The other banks filed answers, but the court entered turnover 

judgments against them as to all writs. After judgment was entered, a number of 

motions were filed seeking relief from the judgments. The final orders on appeal 

here are an order discharging Terrabank, two turnover judgments, four orders 

denying Rule 60(b) motions24, and the denial of Jamce’s Rule 59(e) motion. The 

order discharging Terrabank and the first turnover judgment were not timely 

appealed, and we therefore do not have jurisdiction to consider them. Fed. R. App. 

P. 4(a). Thus, only the later-in-time turnover judgment (against Jamce’s Wells 

Fargo account), the denials of the Rule 60(b) motions, and the denial of Jamce’s 

Rule 59(e) motion are at issue here.25

 24 The Rule 60(b) motions were also filed pursuant to Rules 59(e) and 69(a)(1). The 

district court correctly declined to consider the motions under Rule 59(e) because they were not 

timely filed. See Fed. R. Civ. P. 59(e); Wright v. Preferred Research, Inc., 891 F.2d 886, 890 

(11th Cir. 1990) (per curiam) (construing the old Rule 59(e), which included a deadline of 10 

days after entry of judgment). Further, failure to comply with statutory law pursuant to Rule 

69(a)(1) is not sufficient grounds to set aside a judgment under Rule 60(b)(4); the movant must 

demonstrate denial of due process or a jurisdictional error. Espinosa, 559 U.S. at 271, 130 S. Ct. 

at 1377; Am. Bankers Ins., 198 F.3d at 1338 (“An appeal of a ruling on a Rule 60(b) motion . . . 

does not raise issues in the underlying judgment for review.”). We note that these appellants do 

not argue that the district court “lacked even an arguable basis for jurisdiction.” See Espinosa, 

559 U.S. at 271, 130 S. Ct. at 1377 (internal quotation marks omitted). Their Rule 60(b)(4) 

motions, then, rest on an alleged denial of due process because they make no other argument that 

would constitute grounds for setting aside the judgment under Rule 60(b)(4). 25 For an order to be appealable, it must be final. 28 U.S.C. § 1291. With respect to the 

writs issued to OceanBank and Wells Fargo, finality was accomplished when the district court 

entered turnover judgments against them after receiving their answers to the writs. Writs of 

garnishment and orders denying relief from such writs are not appealable; typically, there is no 

appellate jurisdiction until the district court enters an order directing the disposition of the 

property. Branham, 690 F.3d at 635. Because Terrabank turned over the money in the subject 

accounts as soon as it received the writ, there was no order from the district court directing 

disposition of the account. In its place, the order discharging Terrabank functions as a final, 

appealable order because it “end[ed] the litigation on the merits,” and there was nothing left for 

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Jamce appeals a turnover judgment entered against an account it held at 

Wells Fargo. However, Jamce waived any opposition to Plaintiffs’ motion seeking 

entry of judgment on the writ of garnishment when, after receiving notice of the 

motion through counsel, it failed to timely respond to the motion. The day after 

the district court entered the judgment, Jamce filed a Rule 59(e) motion, which the 

district court denied, specifically noting the electronic notice provided. Jamce 

appealed the judgment itself on the day it was issued and later amended the notice 

of appeal to include the Rule 59(e) motion denial. Because Jamce waived 

opposition to the motion seeking entry of judgment, we affirm the judgment. 

Further, a Rule 59(e) motion cannot be used simply as a tool to reopen litigation 

where a party has failed to take advantage of earlier opportunities to make its case. 

Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005). 

Therefore, we also affirm the order denying Jamce’s Rule 59(e) motion.

A number of the Individuals and Granada appeal the order denying their 

Rule 60(b) motion to set aside the execution of the real property owned by the 

Partnerships. In the denial, the district court held that they did not have standing 

because they did not own the real property under Florida law. The appellants do 

 

 

the court to do because the judgment was already executed. See Randolph, 531 U.S. at 86, 121 

S. Ct. at 519 (internal quotation marks omitted); Gillespie, 379 U.S. at 152, 85 S. Ct. at 311. 

Additionally, the denials of the Rule 60(b) motions are appealable. Am. Bankers Ins., 198 F.3d 

at 1338. Rule 59(e) motion denials are likewise appealable.

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57

not challenge that determination here, and they have thus waived argument on that 

issue. Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995).

On November 2, Carmen, Armando, Ricardo, Carlos, and Moises moved to 

quash the garnishment, to reconsider the order granting Plaintiffs’ motion for an 

issuance of writs of garnishment, for relief from judgment, to set aside the 

judgment, to stay the garnishment, and to deposit garnished funds into the court 

registry. On November 21, they also moved to alter judgment, to amend or correct 

the order on Plaintiffs’ motion for judgment, to stay execution, and to deposit 

garnished funds into the court registry. After the stay discussed above was lifted, 

the district court denied the motions on April 9 and 12, 2013, respectively. The 

Organizations brought a similar motion seeking relief on April 30, 2012, and the 

district court denied it on April 25, 2013.

The appeal of those remaining orders—all denying Rule 60(b) motions—

also fails. Contra the argument of these appellants, TRIA § 201 permits execution 

against the assets of parties not named in the original lawsuit; that is the purpose of 

the specific allowance for execution against agencies or instrumentalities provided 

by that section. See Mercurio, 704 F.3d at 913 & n.5 (citing Weinstein v. Islamic 

Republic of Iran, 609 F.3d 43, 50 (2d Cir. 2010)).

 The appellants’ arguments regarding an alleged denial of due process also 

lack merit because any such violation was harmless. As we concluded in the 

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global discussion, no pre-deprivation hearing was warranted. Moreover, the 

appellants here had sufficient opportunities to present their arguments to the 

district court. Ultimately, the district court gave due consideration to these 

arguments.

The district court made the factual determination that each of the appellants

in this appeal was an agency or instrumentality of FARC. Even if the appellants

had given us reason to believe that that determination was clear error (they have 

not), they certainly do not give us reason to believe that such error is grounds for 

setting aside a judgment. The remaining grounds advanced by the appellants for 

reversing the district court are meritless, as detailed in the global discussion.

The turnover judgment as to Jamce’s property was properly entered after 

Jamce defaulted. The Rule 60(b) motions do not establish any grounds on which 

we may grant such extraordinary relief. We therefore affirm the orders from which 

this appeal is brought.

D. No. 13-12337 (Sutherlin)

Luis Sutherlin claims that Jamce is a trust, that he is its beneficiary, and that 

he is thus entitled to challenge the execution of assets owned by Jamce. However, 

the district court found that Jamce is a corporation. Sutherlin does not give us 

reason to disturb that finding. Therefore, only Jamce has standing to challenge the 

execution of its assets. See KMS Rest. Corp., 361 F.3d at 1324–25 (recognizing 

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that corporations themselves—and not shareholders—are the only parties with 

standing to contest injuries to the corporation). Consequently, this appeal is 

dismissed.

E. No. 13-12116 (Individual Claimants)

The appellants here appeal a series of turnover judgments for accounts in the 

names of Carmen, Carlos, Armando, and Moises at UBS AG, Bank of America 

(BOA), and HSBC Bank USA, N.A. (HSBC), as well as an order denying a Rule 

59(e) motion.26 All the appellants party to this appeal were SDNTs when Plaintiffs 

initiated garnishment proceedings against them. Significantly, the appellants made 

appearances in the district court after receiving notice of the garnishment 

proceedings and well before judgment was entered against them. First, they filed a 

motion to quash the writs of garnishment issued to UBS and BOA on November 2, 

2011. Then, on February 12, 2013, they filed a brief opposing a lift of the stay. 

Finally, they filed multiple motions opposing entry of judgment.

As an initial matter, the district court’s denial of the Rule 59(e) motion on 

jurisdictional grounds was not proper. The district court based that decision on 

Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402 

(1982) (per curiam). The district court quoted that opinion’s language for the 

 26 They also appeal an order denying relief from a writ of garnishment issued to BOA as 

to an account held by Brunello. We address that writ and the associated turnover judgment 

below.

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proposition that the filing of a notice of appeal divested it of jurisdiction to 

consider the Rule 59 motion. Id. (“The filing of a notice of appeal is an event of 

jurisdictional significance—it confers jurisdiction on the court of appeals and 

divests the district court of its control over those aspects of the case involved in the 

appeal.”). However, Griggs was based on the language of an old version of 

Federal Rule of Appellate Procedure 4, which provided that a notice of appeal filed 

during the pendency of a Rule 59 motion would have no effect. In 1993, Rule 4(a) 

was specifically amended in response to Griggs and now provides that a notice of 

appeal filed during the pendency of a Rule 59 motion is simply suspended. See 

Katerinos v. U.S. Dep’t of Treasury, 368 F.3d 733, 737–38 (7th Cir. 2004) (“The 

rule therefore was amended in 1993 to provide that a premature notice of appeal is 

no longer void, but merely suspended; it becomes effective . . . when the order 

disposing of the last such remaining motion is entered.” (internal quotation marks 

omitted)); see also Fed. R. App. P. 4(a)(4)(B)(i). The district court retained 

jurisdiction to consider the Rule 59 motion, and we have jurisdiction because the 

notice of appeal became effective following the district court’s denial of that 

motion. In addition, the appellants here filed amended notices of appeal after the 

district court disposed of the Rule 59(e) motion giving us jurisdiction to consider 

the appeal of the denial. See Stallworth v. Shuler, 758 F.2d 1409, 1410 (11th Cir. 

1985) (per curiam).

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The appellants here first claim that their due process rights were violated by 

the district court’s failure to provide them with notice and an opportunity to be 

heard. Notwithstanding their complaints about lack of formal service, any failure 

to provide notice was harmless because the appellants received actual notice and 

appeared. First, they filed a motion to quash the writs of garnishment issued to 

UBS and BOA on November 2, 2011. Then, on February 12, 2013, they filed a 

brief opposing a lift of the stay. Finally, they filed multiple motions opposing 

entry of judgment. Therefore, because they appeared, the appellants were not 

prejudiced by the lack of notice because they received actual notice. Cf. Murphy v. 

Travelers Ins. Co., 534 F.2d 1155, 1159 (5th Cir. 1976) (holding that a party’s 

voluntary appearance “waiv[ed] any potential defects founded on service or venue 

problems”).

The Rule 59(e) motion does not save the appellants, either. We review 

denials of Rule 59(e) motions for an abuse of discretion. Thomas v. Farmville 

Mfg. Co., 705 F.2d 1307, 1307 (11th Cir. 1983) (per curiam). The district court’s 

denial of the Rule 59(e) motion based on a miscomprehension of the law was an 

abuse of discretion. United States v. Merrill, 513 F.3d 1293, 1301 (11th Cir. 

2008). However, we affirm the denial on the merits. See Parks v. City of Warner 

Robins, 43 F.3d 609, 613 (11th Cir. 1995) (“[W]e may affirm the district court’s 

decision on any adequate ground, even if it is other than the one on which the court 

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actually relied.”). The appellants here simply failed to litigate the agency or 

instrumentality issue when they had notice of the proceedings. They then 

attempted to use the Rule 59(e) motion to reopen litigation, an improper basis for 

moving under Rule 59(e). Michael Linet, Inc., 408 F.3d at 763 (holding that a 

party “cannot use a Rule 59(e) motion to relitigate old matters, raise argument or 

present evidence that could have been raised prior to the entry of judgment”). We 

thus affirm the denial of the motion.

The appellants here also contend that they were improperly designated as 

agencies or instrumentalities. We have already determined that the district court 

applied the correct standard. Moreover, we cannot say that the district court 

clearly erred in making the factual determination that they were agencies or 

instrumentalities of FARC. Plaintiffs proffered evidence of connections to FARC 

that met the district court’s standard, and the appellants here failed to rebut that 

evidence.

Finally, any other arguments raised do not support reversal. Therefore, we 

affirm the district court’s orders at issue in this appeal.

F. No. 13-12171 (Brunello)

Brunello, Ltd. is a Caymanian corporation that was designated a SDNT on 

November 8, 2006, for alleged ties to the NVC. It began the de-listing process 

soon after that. Plaintiffs moved for a writ of garnishment against BOA on 

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September 15, 2011, where they believed Brunello held a blocked asset. The 

district court issued the writ on September 20, 2011. BOA answered the writ 

claiming that it was indebted to Brunello. On November 16, it amended the 

answer, disclaiming any debt owed to Brunello and informing the district court and 

Plaintiffs that Merrill Lynch, Pierce, Fenner & Smith, Inc., (Merrill Lynch) was 

indebted to Brunello. BOA had mistakenly reported to OFAC that it held an asset 

belonging to Brunello; Brunello actually held the account in question with Merrill 

Lynch. Both BOA and Merrill Lynch are wholly owned subsidiaries of Bank of 

America Corporation.

Meanwhile, Brunello had successfully challenged its OFAC designation, 

which was reflected in OFAC’s updated SDNT list, published on January 10, 2012. 

Brunello then moved to dissolve the writ of garnishment on January 23, 2013, 

asserting that BOA did not possess any of its assets. On January 29, while that 

motion was pending, Plaintiffs moved to amend the writ of garnishment to add 

Merrill Lynch as a party indebted to Brunello. Brunello filed its opposition to that 

motion on January 30, and, the next day, the district court denied Brunello’s 

motion to quash and granted Plaintiffs’ motion to amend. The clerk issued the 

amended writ on March 13. Merrill Lynch was served on April 8. The district 

court entered a turnover judgment against Merrill Lynch on May 6, and Brunello 

timely filed an appeal. While Brunello raises many of the same arguments 

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discussed above, it uniquely asserts that the district court improperly related back,

nunc pro tunc, the writ of garnishment. Because we agree with Brunello on that 

point, we reverse the turnover judgment and remand to the district court with 

instructions to quash the underlying writ of garnishment and return any turned over 

funds.

The purpose of a nunc pro tunc order is not “to revise history, but only to 

correct inaccurate records.” Justice v. Town of Cicero, 682 F.3d 662, 664 (7th Cir. 

2012) (internal quotation marks omitted).

A nunc pro tunc order merely recites court actions previously taken 

but not properly or adequately recorded. The failure of a court to act, 

or its incorrect action, can never authorize a nunc pro tunc entry. If a 

court does not render judgment or renders one which is imperfect or 

improper, it has no power to remedy any of these errors or omissions 

by treating them as clerical misprisions.

Cypress Barn, Inc. v. W. Elec. Co., 812 F.2d 1363, 1364 (11th Cir. 1987) (citation 

and internal quotation marks omitted). In other words, a nunc pro tunc order’s 

“purpose . . . is to correct mistakes or omissions in the record so that the record 

properly reflects the events that actually took place.” Glynne v. Wilmed 

Healthcare, 699 F.3d 380, 383–84 (4th Cir. 2012). It cannot change substantive 

rights retroactively. See Transamerica Ins. Co. v. South, 975 F.2d 321, 325–26

(7th Cir. 1992).

Here, the nunc pro tunc order substituted a new party that actually was 

indebted to Brunello for one that was not. A nunc pro tunc order that has the effect 

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of retroactively inserting in a writ a garnishee who was never mentioned in the 

original writ, was not a party to the proceedings, and was never served with the 

original writ is perhaps the most obvious violation of the limitations on the 

doctrine. Such an order does not “merely recite[] court actions previously taken 

but not properly or adequately recorded,” Cypress Barn, 812 F.2d at 1364, “correct 

inaccurate records,” Justice, 682 F.3d at 664 (internal quotation marks omitted), or 

“reflect[] the events that actually took place,” Glynne, 699 F.3d at 384. Rather, it 

“revise[s] history,” Justice, 682 F.3d at 664, “to remedy [an] error” borne of “its 

incorrect action,” Cypress Barn, 812 F.2d at 1364 (internal quotation marks 

omitted). It works an injustice on the parties that were not earlier named in the 

writ; it does not correct, in Plaintiffs’ words, a mere “wrinkle.” See Sage v. Cent. 

R.R. Co. of Iowa, 93 U.S. 412, 417 (1876) (“While it is true that the court may 

enter an order in a cause nunc pro tunc, where the action asked for has been 

delayed by or for the convenience of the court, it is never done where the parties 

themselves have been at fault, or where it will work injustice.” (citations omitted)).

In response to Brunello’s argument that the nunc pro tunc order was entered 

improperly, Plaintiffs allege that the garnishee originally named in the writ, BOA, 

answered the writ in a “misleading” fashion and engaged in “questionable 

conduct.” Assuming that claim is true, it is irrelevant. The proper garnishee was a 

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completely separate entity.27 It is immaterial that both garnishees were owned by 

the same entity or that BOA may have misled Plaintiffs.

Thus, the motion for a writ of garnishment against Merrill Lynch was filed 

on the date it was filed, not the date on which the writ against BOA was filed, 

which came after Brunello’s de-listing. For that reason, TRIA § 201’s requirement 

that the subject asset is “blocked” was not met as a matter of law. See Holy Land 

Found., 722 F.3d at 687. We reverse the turnover judgment and remand to the 

district court with instructions to quash the writ of garnishment.

IV. Conclusion

In the proceedings below, it seems no party was free of fault. Plaintiffs 

should have provided formal notice of the garnishment and execution proceedings 

to the owners of the property, as Florida law provides. Initially, the district court 

incorrectly concluded that no process was due to the owners of property here, none 

of whom could be deemed to be on notice of the underlying proceedings against 

FARC. Ultimately, though, Claimants bear their share of the blame for either 

sitting on their rights to challenge the allegations against them or simply failing to 

rebut the charges. Therefore, with the exception of the turnover judgment against 

Brunello’s account, we affirm the district court.

 27 The district court did not determine that BOA and Merrill Lynch were alter egos. 

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AFFIRMED IN PART; DISMISSED IN PART; REVERSED AND 

REMANDED IN PART.

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