ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

This cause comes before the Court upon the Report and Recommendation filed by Magistrate Judge Amanda Arnold Sansone on March 25, 2019, (Doc. 1194). In the Report and Recommendation ("R&R"), Magistrate Judge Sansone recommends that the Plaintiffs' Motion for Turnover Judgment under the Terrorism Act (Doc. 1185) be granted and the Court enter final judgment in garnishment against Ocean Bank for $928,756.29, subject to certain conditions.

All parties were furnished copies of the R&R and were afforded the opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). Plaintiffs filed a limited objection to the R&R (the "Objection") regarding whether the Terrorism Risk Insurance Act, codified at 28 U.S.C. § 1610 (the "TRIA"), requires them to obtain a license for a TRIA Turnover Judgment under these facts. Doc. 1195. The United States filed a Statement of Interest (the "Statement") which indicates that Plaintiffs need no Department of the Treasury Office of Foreign Assets Control ("OFAC") license to obtain turnover judgment under the Anti-Terrorism Act, 18 U.S.C. § 2333; and OFAC would not provide an ex post authorization to turnover the funds as reasoned in the R&R. Doc. 1197. The Court having reviewed the R&R, the Objection, and the Statement, and otherwise being advised of the premises will sustain the objection, modify-in-part the R&R, and grant the Motion for Turnover Judgment.

I. BACKGROUND1

Plaintiffs obtained a judgment for $318,030,000 in compensatory damages against the Revolutionary Armed Forces of Colombia ("FARC") and many individuals due to a 2003 international act of terrorism. Docs. 1, 233. Plaintiffs began collection on their judgment and moved for writs of garnishment against Aero Continente's assets at Ocean Bank. Doc. 314. The Court entered an order that Aero Continente is an agency or instrumentality of the FARC because it is involved in "the cultivation, manufacture, processing, purchase, sale, trafficking, security, storage, shipment or transportation, [or] distribution of FARC coca paste or cocaine." Doc. 322 at ¶ 15. The Court then issued a writ of garnishment against Aero Continente's assets held by Ocean Bank. Id. at ¶ 28(i). OFAC also designated Aero Continente as a Specially Designated Narcotics Trafficker ("SDNT").

Thereafter, the Eleventh Circuit held that assets frozen under the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. §§ 1901-08 (the "Kingpin Act") are not "blocked assets" as defined by Section 201 of the TRIA. Therefore, it held that those funds were not available for the enforcement of judgments under the Anti-Terrorism Act. Stansell v. Revolutionary Armed Forces of Colom., 704 F.3d 910 (11th Cir. 2013) ("Stansell I"). This Court stayed the execution on the writs of garnishments, including Aero Continente's assets at Ocean Bank, as a result. Docs. 562, 592.

On October 3, 2018, Congress enacted the Anti-Terrorism Clarification Act of 2018, Pub. Law 115-25 (the "Clarification Act") which expanded the TRIA's definition of "blocked assets" to include assets blocked by the Kingpin Act. 18 U.S.C. § 2333(e). Plaintiff moved for a renewed writ of garnishment against Aero Continente's assets held at Ocean Bank, and to lift the Court's stay on the issuance and enforcement of the Kingpin Act writs. Doc. 1161. The Court granted the motion. Doc. 1166.

In their Motion for Turnover Judgment against Ocean Bank under the TRIA, (the "Motion"), Doc. 1185, Plaintiffs argue that Aero Continente is a SDNT under the Kingpin Act, (§ 1904(b)), and they are thus entitled to receive its assets held at Ocean Bank. Id. This Court referred the Motion to Magistrate Judge Sansone for a report and recommendation. Doc. 1186. Magistrate Judge Sansone entered an R&R recommending that the Court grant the Motion under certain conditions.

Plaintiffs object to the R&R based on its finding that they need a license from OFAC to execute under Section 201 of the TRIA. They recognize that that conclusion does not adversely affect the R&R's ultimate recommendation with which they agree, but they insist that the conclusion regarding the OFAC license is erroneous. The United States concurs.

II. LEGAL STANDARD

When a party makes a timely and specific objection to a magistrate judge's report and recommendation, the district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). With regard to those portions of the report and recommendation not objected to, the district judge applies a clearly erroneous standard of review. See Gropp v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). The district judge may accept, reject, or modify in whole or in part, the report and recommendation of the magistrate judge. Fed. R. Civ. P. 72. The district judge may also receive further evidence or recommit the matter to the magistrate judge with further instructions. Id.

III. DISCUSSION

The R&R states:

Doc. 1194 at 7.

Plaintiffs object to this finding. They also object to the statement in the R&R that the 2006 letter in Weininger v. Castro from the Southern District of New York United States Attorney's Office "predates Stansell II and the newly amended [TRIA]."2 Doc. 1194 at 7-8. Plaintiffs maintain that the Clarification Act did not amend the TRIA, it only amended the Anti-Terrorism Act, which brought assets blocked under the Kingpin Act within the scope of the TRIA's definition of "blocked asset." Doc. 1195 at 2.

They point out that the United States appeared in this action and set forth that under the "TRIA, terrorism victims may execute against certain blocked assets, without getting authorization from OFAC, if the assets are judicially determined to be within [the] TRIA's scope." Id. (citing Stansell v. FARC/Mercurio, 11th Cir. Case Nos: 11-11125 & 11-11690, United States Amicus Brief at 10). Thus, they argue that once the Court determines that the Kingpin Act's blocked assets are subject to execution, as the Court has here, no OFAC license is required. Plaintiffs also contend that the Eleventh Circuit did not hold that terrorism victim judgment creditors must obtain an OFAC license to execute on blocked assets subject to the TRIA. Doc. 1195 at 3 (citing Stansell II, 771 F.3d at 734).

The United States objects to the Magistrate Judge's refusal to recommend that the Court's order granting Plaintiffs' Motion contain an instruction that "no OFAC license is required to turn over the garnished funds to Plaintiffs." Doc. 1197 at 6 (citing Doc. 1194 at 7-8). Instead, the Magistrate Judge recommended that the Court conclude that a license is required under these facts; and that OFAC's regulations permit Plaintiffs to obtain the required license subsequent to execution of the assets. Doc. 1194 at 8. The United States contends that the R&R's reasoning is erroneous.

a. The TRIA and the Clarification Act of 2018

The TRIA governs post-judgment attachment proceedings in certain cases arising out of terrorist acts under the civil remedies provision of the Anti-Terrorism Act, 18 U.S.C. § 2333. These acts include judgments such as the one held by Plaintiffs.

Congress amended Section 201 of the TRIA to provide that:

Pub. L. No. 107-297, 116 Stat. 2322 (codified at 28 U.S.C. § 1610 note).

The TRIA defines the term "blocked assets" at Section 201(d)(2) to include:

28 U.S.C. § 1610 note.

Thus, Section 201(a) of the TRIA allows a plaintiff to execute a judgment on blocked assets of a terrorist party, or its agency or instrumentality, to satisfy a judgment against the terrorist party, where:

Doe v. JPMorgan Chase Bank, N.A., 899 F.3d 152, 156 (2d Cir. 2018).

In 2018, Congress passed the Clarification Act which expanded the scope of the assets covered by the TRIA. Section 3 of the Clarification Act3 changed the civil remedies available under the Anti-Terrorism Act and states:

18 U.S.C. § 2333(e).

Therefore, the Clarification Act qualifies assets seized or frozen under the Kingpin Act as "blocked assets" under the TRIA, as long as those assets otherwise meet the TRIA's requirements for turnover. And the TRIA makes those assets subject to execution or attachment despite any other provision of law, including those assets designated pursuant to the Kingpin Act and the Foreign Narcotics Kingpin Sanctions Regulations, 31 C.F.R. § 598.314(b). See 31 C.F.R. § 598.205 (listing the Kingpin Act as authority for the regulation requiring licensure).4 See also 28 U.S.C. § 1610 note.

As noted in the Statement, to the extent assets are subject to the TRIA, as they are here, Section 201 overrides the OFAC regulations that require a party to obtain a license before it can attach an asset owned by a terrorist group or its agent or instrumentality. See, e.g. Estate of Heiser v. Bank of Tokyo Mitsubishi UFJ, New York Branch, 919 F.Supp.2d 411, 422 (S.D.N.Y. 2013) ("[I]n the event a court determines that blocked assets are subject to TRIA, those funds may be distributed without a license from OFAC."), Martinez v. Republic of Cuba, No. 07 Civ. 6607, ECF No. 79 (S.D.N.Y. Oct. 16, 2015), at 6-7 (same). See also Harrison v. Republic of Sudan, 802 F.3d 399, 407 (2d Cir. 2015), adhered to on denial of reh'g, 838 F.3d 86 (2d Cir. 2016), and rev'd and remanded on other grounds, 139 S.Ct. 1048 (2019)5 ("Nonetheless, barring any contrary authority, a court will accept that no OFAC license is required on the authority of a DOJ Statement of Interest filed pursuant to 28 U.S.C. § 517."). See also Doe, 899 F.3d at 162 (Chin, J, dissenting) (noting that in Harrison the court held that "TRIA judgment holders are exempt from the normal OFAC licensure requirement," and concluding that the OFAC license requirement did not apply when financial institutions, acting as intermediary, received blocked electronic funds transfers).

Thus, Plaintiffs and the United States argue that Plaintiffs do not need an OFAC license for execution of Kingpin Act blocked assets under the TRIA on these specific facts. The Court agrees.

Upon consideration of the R&R, the Objection, the Statement, and upon this Court's independent examination of the file, it is determined that the R&R should be modified to reflect that Plaintiffs do not require an OFAC license under these circumstances and otherwise adopted.

Accordingly, it is now ORDERED:

DONE AND ORDERED.