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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEITH STANSELL,
MARC GONSALVES,
THOMAS HOWES,
JUDITH G. JANIS,
CHRISTOPHER T. JANIS,
GREER C. JANIS,
MICHAEL I. JANIS,
JONATHAN N. JANIS,
CASE NO.:
Plaintiffs,
vs.
CHIQUITA BRANDS INTERNATIONAL, INC.
Defendant.
________________________________/
COMPLAINT
Plaintiffs sue Defendant and allege:
THE ACTION, EXCLUSIVE JURISDICTION & VENUE
1.
This is a civil action for damages arising from acts of international terrorism committed
by Defendant by knowingly providing material support to the REVOLUTIONARY ARMED
FORCES OF COLOMBIA (“FARC”). 1
2.
This action is brought pursuant to the civil remedies provisions of the Anti-Terrorism
Act, 18 U.S.C. § 2333 which provides:
“(a) Action and jurisdiction.--Any national of the United States injured in his or
her person, property, or business by reason of an act of international terrorism, or
his or her estate, survivors, or heirs, may sue therefor in any appropriate district
court of the United States and shall recover threefold the damages he or she
sustains and the cost of the suit, including attorney's fees.”
1
Plaintiffs are suing the FARC Defendants in related case number 8:09-cv-2308-RAL-MAP
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Plaintiffs seek damages against Defendant for knowingly providing material support to a
known terrorist organization in violation of 18 U.S.C. §2339A and § 2339B.
4.
Defendant knowingly provided currency or monetary instruments, weapons (including
arms and ammunition), and other forms of material support and resources and transport of
munitions, to the FARC, a foreign terrorist organization that has killed, maimed, injured,
kidnapped and held hostage thousands of civilians, including many U.S. citizens.
5.
Chiquita’s substantial payments and provision of weapons to the FARC supported the
commission of acts of international terrorism, as defined by 18 USC §2331, including the
terrorist acts that killed Thomas Janis and injured the remaining Plaintiffs. Defendant is
therefore civilly liable under 18 U.S.C. §2333 of the Anti-Terrorism Act (“ATA”) to
Plaintiffs.
6.
Defendant knew that FARC was a terrorist organization and that it kidnapped, killed
and terrorized thousands of people in Colombia.
7.
Pursuant to 18 U.S.C. § 2338, the district courts of the United States have
exclusive jurisdiction over this action and extraterritorial jurisdiction pursuant to 18 USC
§ 2333B(d). This Court has subject matter jurisdiction over these claims and this action.
No exclusions or limitations under the Anti-Terrorism Act apply here. This Court also
has diversity jurisdiction under 28 U.S.C. § 1332 because the state of incorporation and
principal places of business and residence for Defendant are in a state other than Florida
or Connecticut.
2
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Venue is proper where any Plaintiff resides pursuant to 18 U.S.C. § 2334(a), therefore
venue is proper in this district because Plaintiffs KEITH STANSELL and THOMAS HOWES
reside in the Middle District of Florida.
9.
This action is not subject to the February 20, 2008 Transfer Order issued by the United
States Judicial Panel on Multidistrict Litigation, In Re: Chiquita Brands International, Inc.
Alien Tort Statute and Shareholders Derivative Litigation. This action does not involve any
claims arising under or related to the Alien Tort Statute (ATS), 28 U.S.C. §1350. This action
is not based on Chiquita’s payments to the right wing paramilitary group AUC. The
Shareholders Derivative Litigation portion of the MDL proceedings is now concluded by
settlement. There are two ATA actions in S.D.FL. MDL Case No. 1916 alleging liability
related to Chiquita’s support of the FARC. The Julin v Chiquita ATA action, S.D.FL. Case
No. 08-cv-20641-KAM, was originally filed in the Southern District by the Julin Plaintiffs.
The Pescatore v. Chiquita ATA action, D.C. Case No. 09-cv-00490-RMC, was transferred
from the District of Columbia without opposition from Plaintiff. The Julin and Pescatore
ATA actions involve FARC kidnappings in 1993/1994 with subsequent murders in 1995/1996
and the causation facts at issue in those actions are far different from the instant action.
Chiquita has already admitted the fact of its payments to the FARC in a factual proffer
supporting its guilty plea and the SLC has issued a 268 Report detailing factual findings of its
internal investigation. Finally, issues of causation, damages and setoff are common to issues
in two other related actions previously filed in the Middle District of Florida: Stansell v
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FARC et al, Case No. 09-cv-2308-RAL-MAP, and Stansell et al vs. BGP, Inc. CNPC, et al,
Case No. 09-cv-2501-JSM-AEP. 2
THE PLAINTIFFS
10.
Plaintiff KEITH STANSELL is a U.S. citizen residing in Manatee County, Florida who
was injured by repeated acts of international terrorism occurring from February 13, 2003 and
continuing through the date of his rescue on July 2, 2008.
11.
Plaintiff MARC GONSALVES is a U.S. citizen residing in Connecticut who was
injured by repeated acts of international terrorism occurring from February 13, 2003 and
continuing through the date of his rescue on July 2, 2008.
12.
Plaintiff THOMAS HOWES is a U.S. citizen residing in Brevard County, Florida who
was injured by repeated acts of international terrorism occurring from February 13, 2003 and
continuing through the date of his rescue on July 2, 2008.
13.
Plaintiff, JUDITH G. JANIS, is a U.S. citizen and resident of Alabama and is the
surviving spouse and personal representative of the Estate of Thomas J. Janis.
14.
Plaintiff CHRISTOPHER T. JANIS is a U.S. citizen and resident of New York State
and the surviving son of Thomas J. Janis. Christopher Janis is on active duty with the United
States military.
15.
Plaintiff GREER C. JANIS is a U.S. citizen and resident of Virginia and the surviving
daughter of Thomas J. Janis.
2
Plaintiffs have a pending Motion to Transfer Case No. 09-cv-2501 to Judge Lazzara and will be filing a
Motion to Transfer this action to Judge Lazzara.
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Plaintiff MICHAEL I. JANIS is a U.S. citizen and resident of Alabama and the
surviving son of Thomas J. Janis. Michael Janis is on active duty with the United States
military.
17.
Plaintiff, JONATHAN N. JANIS is a U.S. citizen and resident of Orange County
Florida and the surviving son of Thomas J. Janis.
18.
At all times material, decedent, Thomas J. Janis was a citizen of the United States. The
FARC murdered Thomas Janis on February 13, 2003 and he is survived by his wife Judith
Janis, and four children: Christopher, Greer, Michael and Jonathan.
DEFENDANT
19.
Defendant Chiquita Brands International, Inc. (“Chiquita”) is a multinational
corporation incorporated in New Jersey and with its principal place of business in Cincinnati,
Ohio and is subject to the jurisdiction of this Court.
20.
Chiquita is a leading producer and distributor of bananas and other produce
worldwide.
21.
In March 1989, Chiquita – then known as United Brands – formed a wholly owned
subsidiary C.I. Bananos de Exportacion, S.A. (“Banadex”), an export company that
consolidated all of Chiquita’s Colombian operating divisions and which was headquartered
in Medellin, Colombia.
22.
At all times material hereto, Banadex was Chiquita’s wholly-owned, controlled
subsidiary, agent and/or alter ego which it used to conduct and manage its business
operations in Colombia including over 200 banana production farms operating within
Colombia.
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Between 1989 and 1999, and again in 2004, Defendant purposefully and intentionally
provided material support to the FARC when they knew that the FARC was a foreign
terrorist organization and knew of its ongoing international terrorism activities, including the
kidnapping, hostage taking, imprisonment, and murder of U.S. nationals.
24.
Defendant had fair warning and knew or should have known that its activities would
subject them to the extraterritorial jurisdiction of the U.S. for civil liability under the AntiTerrorism Act.
25.
Defendant has purposefully directed their activities at U.S. citizens residing in this
District and is therefore subject to the personal jurisdiction of this Court compatible with fair
play and substantial justice.
26.
Defendant is also subject to the jurisdiction of this Court under Florida’s long arm
statute, Fla. Stat. §48.193 because defendants engaged in substantial and not isolated business
activities in Florida.
27.
Defendant intentionally and purposefully hid and concealed from the public and
Plaintiffs its involvement in its payments and provision of material support to the FARC.
DEFENDANTS’ PURPOSEFUL DIRECTION OF ACTIVITIES
AT CITIZENS OF THE UNITED STATES
28.
Prior to 1997, the FARC were known terrorists operating in Colombia who engaged
in international terrorism, including premeditated, politically motivated violence, threats of
violence, hostage takings, murders and other terrorist related activities perpetrated against
noncombatant targets including U.S. nationals including directing terrorist activities across
national and international borders in order to influence U.S. and Colombian policy.
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On October 8, 1997 the Secretary of State of the United States, designated the FARC
designated foreign terrorist organization (FTO), pursuant to Title 8, United States Code,
Section 1189. The FARC was re-designated on September 5, 2001. At all times material to
this action, the FARC was and is a designated foreign terrorist organization. As a result of
this designation, it is unlawful for persons subject to the jurisdiction of the United States to
provide material support and resources to the FARC. Specifically, 8 U.S.C. § 1189(a)(1)
authorizes the Secretary of State to designate an organization as a foreign terrorist
organization . . . if the Secretary finds that (A) the organization is a foreign organization; (B)
the organization engages in terrorist activity . . . ; and (C) the terrorist activity or terrorism of
the organization threatens the security of United States nationals or the national security of
the United States. 8 U.S.C. § 1189(a)(1). On October 8, 1997, the European Union and
Colombian governments also designated FARC as a terrorist organization. The FARC was
also identified by the President of the United States as a significant foreign narcotics
trafficker, or drug kingpin, pursuant to the Kingpin Act on May 29, 2003.
30.
On February 13, 2003 Plaintiffs were conducting a counter narcotics surveillance
mission in a U.S registered civilian aircraft (Cessna 208 tail number N1116G) when the
FARC opened fire on the aircraft. Post-crash investigation revealed the FARC had hit the
aircraft with heavy machine gun fire before it had crash landed. Plaintiffs’ aircraft was not a
military aircraft, the aircraft was not equipped with weapons systems and bore no markings
of any U.S. or Colombian military force or organization. Plaintiffs were civilians, nonmilitary personnel, not part of any armed forces, employed by a U.S. corporation, and were
not a military force of any origin.
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FARC members have publicly admitted that the FARC had intentionally fired at the
aircraft to shoot it down, and capture its crew, knowing that it was a U.S. registered aircraft
and U.S. national crew on-board.
32.
All five occupants of the plane survived a crash-landing, but were immediately taken
captive by FARC terrorists who quickly located the downed plane. The American pilot,
Thomas Janis was shot and killed by FARC members within minutes of the landing, and his
body were left a short distance from the damaged plane. The Colombian host nation rider,
Sgt. Luis Alcides Cruz, was also shot and killed by FARC members at the same time and
place as Tom Janis. The other three Americans, Keith Stansell, Marc Gonsalves, and Thomas
Howes were seized by force, taken hostage, and marched into the jungle by FARC members,
where they were held captive for 1,967 days until their rescue July 2, 2008.
33.
About two months after the plane crash, on April 27, 2003, the FARC issued a public
communique taking credit for seizing and holding the three Americans hostage. In that
public letter, published to the United States, the FARC offered to release approximately 250
high level Colombian citizens that it was then holding hostage, together with the three
Americans captured on February 13, 2003, in exchange for certain political concessions from
the Colombian government and to illegally influence the policy of the U.S. The FARC
demanded that the Colombian government carve out of its sovereign territory a demilitarized
zone (DMZ), which would be used as a new base of operations for the FARC, and release
hundreds of FARC terrorists currently held by the Colombian authorities, as a condition for
the release of the three American hostages. These terrorist acts were well publicized in media
outlets worldwide.
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The FARC publicly demanded, in a form of communication published in the U.S., the
release of two convicted FARC terrorists in the U.S. or the defendants would kill, injure, and
continue to forcible detain the plaintiffs.
35.
The foregoing terrorist acts were committed by the terrorist group or organization the
FARC.
FARC TERRORIST ORGANIZATION
36.
The Revolutionary Armed Forces of Colombia – an English translation of the Spanish
name of the group “Fuerzas Armadas Revolucionarias de Colombia” (commonly known as
and referred to hereinafter as the “FARC”) – is an armed and violent terrorist organization in
the Republic of Colombia.
37.
The FARC is, and has been since its inception in 1964, engaged in terrorist acts
against the government of the Republic of Colombia, which is a constitutional, multi-party
democracy. The FARC seeks to destabilize all levels of the Colombian government by means
of violence, including murders and hostage takings, threats of violence, and other terrorist
related activities. The FARC’s activities throughout Colombia have caused hundreds of
civilian deaths and injuries.
38.
The FARC has been strongly anti-American, characterizing American citizens as
“military targets,” it has engaged in violent acts against U.S. nationals in Colombia, including
murders and hostage takings.
The FARC Secretariat and Estado Mayor
39.
The FARC is a highly structured terrorist organization with a central command
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structure. At the top of the organization is the Secretariat, the top seven leaders who are the
ultimate decision makers of the FARC. The number and identity of Secretariat members
changes periodically.
Members of the Secretariat also have additional responsibilities,
including acting as advisors to different regions of the FARC.
40.
The central governing body of the FARC is the Estado Mayor, or general counsel,
which is directly under the Secretariat.
It is comprised of the seven members of the
Secretariat, and approximately 20 others. Although the membership of the Estado Mayor
changes, its members are comprised of Bloc Commanders, senior Front Commanders, and
other individuals who have attained leadership positions within the FARC.
41.
The Secretariat and Estado Mayor set FARC policies for the entire organization, its
international terrorism activities, including policies related to hostage taking and murder and
the manufacture and distribution of cocaine paste and cocaine. The Secretariat and Estado
Mayor also control distribution of narcotics trafficking and other criminal activity proceeds
amongst and between the various Fronts for payroll, weapons, ammunition, uniforms, chains,
fencing, food, supplies, medicine, medical care, communication equipment and other
expenses of operating a terrorist organization and maintaining hostages and kidnap victims.
The FARC Blocs, Fronts and Mobile Columns
42.
The FARC is comprised of approximately 77 Fronts and Mobile Columns
(collectively, "Fronts"). These are designated by number (e.g., the "16th Front") or by name
(such as "Teofilo Forero Castro Mobile Column” (“TFMC”)). The size of each Front varies,
with between several dozen to more than hundreds of FARC members comprising a Front.
43.
Front Commanders are typically assisted by one or more Finance Officers, who
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oversee all financial matters for the Front, including material support of terrorist activities,
hostage captivity and maintenance and illegal narcotics manufacturing and distribution.
44.
Groups of Fronts and Mobile Columns are organized into geographical clusters, called
Blocs or Joint Commands. All Front Commanders report to the leadership of each Bloc,
which is comprised of a small group of leaders which form the Estado Mayor of that particular
Bloc. The individual in charge of each Bloc Estado Mayor is known as the Bloc Commander
for that Bloc.
45.
The FARC control illegal narcotics production Colombia and engage in international
narcotics distribution and sale directed at the U.S. and its citizens, outside of the borders of
Colombia and defendants use kidnapping, hostage taking and murder as part of their illegal
narcotics trafficking as terrorist activities.
46.
At all times material hereto, the FARC was a well known terrorist organization
operating in Colombia who engaged in international terrorism, including premeditated,
politically motivated violence, threats of violence, hostage takings, murders and other
terrorist related activities perpetrated against noncombatant targets including U.S. nationals
including directing terrorist activities across national and international borders in order to
influence U.S. and Colombian policy.
47.
Prior to 1999, the FARC had kidnapped or murdered many U.S. and Colombian
nationals. These terrorist acts were well publicized in media outlets worldwide.
48.
The FARC is not a foreign state or agency of a foreign state. The FARC is not a
nation. The FARC is not an armed force of a nation. The FARC is not an “armed forces.”
The FARC is not a military force of any origin. The FARC is a terrorist organization or
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group. The events giving rise to these acts of terrorism and plaintiffs’ claims were not part of
a declared war, not part of an armed conflict between two nations, and not part of armed
conflict between military forces of any origin. There is no “act of war” exclusion applicable
to this action and these claims and therefore this Court has subject matter over this action and
these claims.
50.
FARC supports its operations through kidnappings, extortion, drug trafficking and
“war taxes” it collects from residents, businesses and landowners.
51.
In addition to kidnapping over twenty-three Americans between 1993 and 1997 alone,
FARC has also committed many murders, including killing Americans. During the period
relevant to this action, FARC held significant influence over, controlled, or was fighting
other terrorist organizations for control of labor unions in Colombia’s banana growing
regions.
CHIQUITA’S MATERIAL SUPPORT & CONCEALMENT
52.
From 1989 through 1999, Chiquita knowingly and intentionally made numerous
and substantial secret payments to FARC, and also provided FARC with weapons,
ammunition and other supplies through its transportation contractors. Chiquita did so
knowing that FARC was a violent terrorist organization.
53.
Chiquita’s payments to FARC, which began as cash at FARC’s request, escalated into
regular monthly payments ranging from $20,000.00 to $100,000.00. Over time, the payments
were fixed to a percentage of Banadex’s gross revenues, with as much as ten percent being
diverted to FARC.
54.
Chiquita went to great lengths to hide its relationship with FARC.
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The payments were often delivered by a former American military pilot known as
“Kaiser,” who held a management position with Chiquita in Colombia. Kaiser would travel
with bodyguards throughout the Uraba region to deliver the cash to the FARC, often in
places such as Chogorod and Carepa. Kaiser continues to work for Chiquita in Latin
America.
56.
In order to conceal the payments, Chiquita placed false names and non-existent
employees on its payroll, providing the funds on local paydays to regional FARC
commanders.
57.
Chiquita also assisted and/or advised FARC terrorists on how to create front
organizations, enabling Chiquita to continue to channel funds to FARC and to mislead law
enforcement, regulators, auditors, and anyone else who might examine Chiquita and
Banadex’s books and records.
58.
Chiquita also drew up fictitious contracts with legitimate operating organizations or,
alternatively, overvalued existing contracts it maintained with such organizations. This was
done for the express purpose of hiding its secret payments to FARC.
59.
Chiquita also worked with FARC-controlled labor unions, such as Sintrabanano, as
another means of channeling payments to FARC. Chiquita also collaborated with
FARC and assisted FARC in subverting many local labor unions, and wresting control of
local labor unions from other terrorist organizations. In doing so, Chiquita anticipated and
strived to obtain a competitive advantage over other banana growers facing less
accommodating unions.
60.
FARC also helped Chiquita by harassing its competitors in the region.
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In addition, Chiquita funneled weapons to FARC (and assisted FARC in the transport
of weapons) through Chiquita’s local transportation contractors.
62.
Chiquita willfully provided this material support to FARC even though as early as
the1980s, the Department of State publically listed FARC as a terrorist organization,
including in all of its subsequent annual terrorism reports. For instance, in its publically
available terrorism report titled “Patterns of Global Terrorism: 1987,” the Department of
State noted that FARC was “anti-US” and engaged in “[a]rmed attacks against Colombian
targets, bombings of US businesses, kidnappings of Colombians and foreigners for ransom,
and assassinations.”
63.
Defendants knew that FARC engaged in acts of terrorism against US interests in
Colombia and knew the danger that providing material support to FARC would pose to the
safety of other individuals and entities working within Colombia, but Defendant ignored
these risks in order to further their own narrow business interests in growing and exporting
bananas in Colombia. As such, Defendant is liable to plaintiffs for all damages arising from
defendant’s provision of material support to FARC.
64.
This kidnapping and murder was subsequently documented in a U.S. Department of
State report, “Patterns in Global Terrorism: 1997,” which noted:
Frank Pescatore, a US geologist and mining consultant, was kidnapped by the
FARC in December 1996 and later killed by his captors; his body was
discovered 23 February 1997.
Similarly, the FARC’s 1993/1994 kidnappings and subsequent 1995/1996 murders of U.S.
national missionaries (Mark Rich, Dave Mankins, Rick Tenenoff, Stephen Welsh and
Timothy Van Dyke) was also well publicized in U.S. media.
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CHIQUITA’S MARCH 19, 2007 GUILTY PLEA
65.
On March 19, 2007, Chiquita pled guilty to violating U.S. anti-terrorism laws by
funding another Colombian terrorist organization, the AUC from 1997 through 2004. In so
doing, Chiquita acknowledged that it had for years 1989 through 1997 it made payments to
FARC as well.
66.
Chiquita’s President, CEO and Chairman of the Board signed the United States’
Factual Proffer, Docket Entry 123-3 in District of Columbia Case No. 07-cr-00055, and
stated that on behalf of Chiquita and after consulting with its attorneys, Chiquita stipulated
that the statement of facts was true and accurate and would have been proven beyond a
reasonable doubt if the government had proceeded to trial. Paragraph 20 of the Factual
Proffer stated that “Defendant Chiquita had previously paid money to other terrorist
organizations operating in Columbia”, including the FARC, and that “Defendant Chiquita
made these earlier payments from in or around 1989 through in or about 1997, when the
FARC and the ELN controlled areas where Chiquita had its banana-producing operations.”
67.
Chiquita admitted to using many concealment tactics similar to those alleged in
paragraphs 55 - 59 above as a means of disguising and hiding its AUC payments. Later, in
2007, as part of the sentence imposed on it pursuant to the guilty plea, Chiquita agreed to pay
a $25 million fine to the U.S. government.
68.
On May 11, 2008, CBS News broadcast a 60 Minutes report on Chiquita’s payments
to terrorists in Colombia, in which Chiquita’s Chief Executive Officer, Fernando Aguirre,
admitted that Chiquita hid its payments to the terrorists so well that: “if we hadn’t gone to the
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Justice Department, we probably would not be here talking about this whole issue. No one
would know about this.”
69.
Until the DOJ made public its plea agreement with Chiquita on March 14, 2007, none
of the Plaintiffs had any knowledge of Chiquita’s payments and provisions to the FARC.
70.
Moreover, Plaintiffs could not have discovered Chiquita’s payments and provisions to
the FARC by the exercise of reasonable diligence because Chiquita actively and fraudulently
concealed theses activities.
CHIQUITA’S SPECIAL LITIGATION COMMITTEE REPORT
71.
A 268 page report was issued in February 2009 which summarizes and synthesizes
the facts that have been developed in the investigation conducted by the Special Litigation
Committee (the “SLC”) of the Board of Directors (the “Board”) of Chiquita Brands
International, Inc.
72.
The SLC report documented Chiquita’s decision to place its own business interests
above the safety of others in Colombia and the manner it used its wholly-owned subsidiary,
Banadex, to make illicit payments to FARC with the direct knowledge and authorization of
Chiquita’s officers in Colombia and at its Cincinnati, Ohio headquarters. The following are
excerpts from the SLC Report.
73.
Chiquita personnel based in Central America and Colombia were well aware of the
FARC’s violent acts before the Company received its first demand for payment. Each of the
Colombian based employees interviewed by the Chiquita Shareholder Litigation Committee
(“SLC”) credibly related their experience with the FARC and stated that, during this time
period, the FARC was responsible for daily acts of violence, including killings.
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Initial Payments to Guerrilla Groups
74.
At some point between 1987 and 1989, Banadex received a demand for payment from
the FARC in the amount of $10,000, delivered by a FARC representative to [a Banadex farm
manager]. [The Banadex farm manager] told [Banadex Employee #1] about the demand. This
was the first demand.
75.
[Banadex Employee #1] then called [Chiquita Employee #2], and told him that the
FARC had demanded another “extortion payment”. In turn, [Chiquita Employee #2] called
Robert Kistinger, who, at the time, was head of Chiquita’s Latin American operations based
in Cincinnati. According to Kistinger, [Chiquita Employee #2] told him that the Company
had been “approached for protection money.”
76.
Several weeks after learning about the demand for payment from the FARC,
[Banadex Employee #1] was told to travel to Cincinnati to meet with members of senior
management to discuss the demand. In Cincinnati, [Banadex Employee #1] met with
Kistinger, Dennis Doyle, then-Vice President and Chief Operating Officer (“COO”) of
the Banana Group, and Charles Morgan, the Company’s then-General Counsel.
77.
[Banadex Employee #1] said that this meeting was brief and memorable, at least for
him. He said that when he communicated the amount of the demand, Doyle responded,
“Let’s pay it.” While he did not recall the specifics of this meeting at which the payment was
approved, Kistinger said that executives at the Company had a “number of discussions”
about how to respond to this demand and the future demands that the Company anticipated.
78.
According to [Banadex Employee #1], no alternatives to making the payment were
discussed at the meeting.
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After the meeting, [Chiquita Employee #2] instructed [Banadex Employee #1] to
meet him at a hotel in Guatemala in order to put the payment process in motion. [Chiquita
Employee #2] had come from Honduras, where he had obtained $10,000 from the General
Manager’s Fund (generally, an account in a division’s general ledger from which the General
Manager is permitted to make discretionary payments), which he gave to [Banadex
Employee #1], who brought it back to Colombia. [Banadex Employee #1] then delivered the
cash (which he arranged to be converted from dollars to pesos) to [the Banadex farm
manager], who in turn delivered the payment to the FARC.
80.
Following the initial payment, Banadex continued to make payments in response
to extortion demands on a more or less regular basis, mostly to the FARC but also to
other guerrilla groups. [Banadex Employee #1] believed the initial authorization he
received was sufficient to cover subsequent payments of the same type and for
approximately the same amounts if necessary to ensure the safety of Company
employees and property. [Banadex Employee #1] said that he knew that senior
management in Cincinnati was aware of the payments, the payments were recorded in
the Company’s books, and they were reviewed periodically by [Chiquita Employee #2]
and the Company’s internal auditors.
81.
All payments to guerrilla groups were delivered by an intermediary and were
made in cash. The SLC believes that the total amount of guerrilla payments ranged
from $100,000 to $200,000 per year.
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During the course of its investigation, the SLC examined guerilla payments going
back to the late 1980s and the SLC Report, page 30, fn. 27, states that these payments “ended
sometime between 1997 and 1999”. 3
Internal Procedures and Accounting Relating to FARC Payments
83.
The FARC payments were considered “sensitive” payments and given special and
confidential treatment. The Company made efforts to limit the number of people who had
knowledge of the guerrilla payments.
84.
FARC payments were initiated within the Company by completing a document called
a “1016,” which was required by Chiquita’s accounting procedures for virtually every
disbursement. Each 1016 was approved by [a Banadex employee] and typically included the
following information: (i) the purpose of the payment, (ii) an accounting code, (iii) the date,
(iv) the person requesting payment, and (v) an authorizing signature. For FARC payments,
the description on the 1016 was coded (for example, as a payment for “military transport”) in
order to conceal the nature of the payments from local staff in Colombia.
85.
Once a properly authorized 1016 was submitted to the Accounting Department,
the funds were disbursed. As noted above, all payments to FARC were
delivered by an intermediary and were made in cash.
3
The SLC did not attempt to reconstruct every aspect of the payments to the guerrilla groups in the same
manner as it did for payments to the convivir/AUC in the later period. The SLC did, however, make a thorough
effort to understand (i) the security issues relating to guerrilla activity in Colombia in areas where the Company
operated going back to the late 1980s; and (ii) the personnel in the Company responsible for approving and
making the payments during that period.
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86.
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[Banadex Employee #1] told the SLC that [Banadex Contract Employee #2] and
[Banadex Contract Employee #1] were two intermediaries that Banadex used to make the
guerrilla payments.
87.
The Company’s Internal Audit Department developed a special accounting process
for recording “sensitive” payments, which were described as payments requiring an
“appropriate level of confidentiality” that “would not fall into other account classifications
such as Contributions, Donations, Consulting Services, Public Relations, etc.” As a general
matter, the accounting process involved (i) ensuring the adequacy of supporting
documentation for purposes of compliance with the Foreign Corrupt Practices Act (“FCPA”),
(ii) conducting a quarterly review of sensitive payment transactions, and (iii) providing the
underlying payment documentation to the General Counsel in Cincinnati. This process was
described in memoranda authored by Bud White and distributed widely throughout the
Company, which were redistributed on an annual basis by the Internal Audit Department.
The process applied to payments to FARC.
88.
The evidence gathered by the SLC, from documents and testimony, varies as to how
FARC payments were recorded in Banadex’s books. The evidence suggests that the
payments were recorded on Banadex’s General Ledger as either: (i) general manager’s
expenses drawn from the General Manager’s fund or (ii) security payments drawn from an
operations account.
89.
The FARC payments were not explicitly recorded as “guerrilla payments” in
Banadex’s accounting records.
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90.
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Individuals at Banadex and at Company headquarters in Cincinnati were aware of the
payments to FARC. As documented above, [Banadex Employee #1], [Banadex employee
#3], [Chiquita Employee #2], and Kistinger knew about the payments, in part because of
their involvement in the original decision to approve the payments or in making the payments
thereafter. The Legal and Internal Audit Departments knew about the payments due to their
roles in monitoring the FCPA reports. William Tsacalis, then-Controller and Chief
Accounting Officer, also knew about the payments. Tsacalis said that he was generally
aware of the guerrilla payments and was “under the impression that if we didn’t make
payments to guerrillas, people would get killed.” [Chiquita Employee #3] was also aware of
the guerrilla payments, which he learned about while preparing to conduct the 1995 audit of
Banadex. Steven Warshaw, then-Chief Administrative Officer and Chief Financial Officer,
said that he did not “specifically recall the terminology ‘guerrilla,’” but did say that he
recalled that Chiquita had to make “protection payments” in Colombia.
91.
However, several witnesses, including their direct reports, said that they are virtually
certain that Keith Lindner and Warshaw were aware of the FARC payments during the time
that they were made, and they inferred that because Keith Lindner was aware of the
payments, Carl Lindner was aware of them as well. The SLC believes that the evidence
supports the conclusion that Keith Lindner, then-President and COO, and Steven Warshaw,
then-Chief Administrative Officer and Chief Financial Officer, knew the payments were
being made.
92.
Robert Olson, then VP and General Counsel for Chiquita, said that when he was first
told about the FARC payments soon after joining the Company in 1995, he was led to
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believe that the Audit Committee had been informed of the payments. He also said that this
impression was confirmed when the FARC payments were discussed at a 1997 Audit
Committee meeting in such a way that confirmed his impression that the Audit Committee
had received reports of the FARC payments at an earlier date. Further, Kistinger said that he
believed Jean Sisco, the long-time Chair of the Audit Committee, knew about the FARC
payments because either he or someone else told her about them.
93.
The SLC was unable to determine with precision when the Company stopped making
the FARC payments. According to at least one witness, the Company made the payments to
the FARC until 1999.
94.
In 2004 Chiquita made a further payment to the FARC in the form of a kidnapping
ransom payment. This payment occurred after Chiquita knew or should have known of the
well publicized murder and hostage taking of Plaintiffs.
ACCRUAL OF CAUSE OF ACTION AND EQUITABLE TOLLING
95.
Section 2335(a) of Title 18 of the United States Code provides for a four-year statute
of limitations period for actions brought under § 2333(a), requiring that such actions be
“commenced within 4 years after the date the cause of action accrued.” The statute is silent
as to when an ATA action accrues.
96.
Plaintiffs claims are subject to equitable tolling principles and the diligence-discovery
rule of accrual. The diligence-discovery rule postpones accrual of a claim and the doctrine of
equitable tolling suspends the statute of limitations once a claim has accrued.
97.
Under the discovery rule of accrual, the four-year limitations period did not start
running until the disclosure of Chiquita’s guilty plea on March 19, 2007.
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98.
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Plaintiffs contend that, even with the exercise of due diligence, they did not and could
not have discovered Chiquita’s connection to FARC and its terrorist activities, or Plaintiffs’
resulting injuries, before the March 19, 2007 guilty plea.
99.
Equitable tolling' is a doctrine under which plaintiffs may sue after the statutory time
period has expired if they have been prevented from doing so due to inequitable
circumstances. Equitable tolling principles apply to all federal causes of action where time
limits are in the character of a true statute of limitations.
100.
The language of § 2335(b) contemplates a defendant whose existence is known and is
essentially unable to be sued under the circumstances. If a plaintiff does not know of a
defendant, the defendant’s absence from the jurisdiction is immaterial. It does not follow
logically that the statutory tolling provision would preclude the application of equitable
tolling principles to someone about whom a plaintiff does not know or someone who has
concealed his involvement. Thus, 18 U.S.C. § 2335(b) is not inconsistent with, nor does it
foreclose, Plaintiffs’ assertion of equitable tolling.
101.
The running of the statute of limitations was tolled by the Defendant’s systematic,
long-running, and successful concealment of its connection to the FARC.
102.
Equitable tolling is available and appropriate because of extraordinary circumstances
that are both beyond Plaintiffs’ control and unavoidable even with diligence. Because
Defendant's fraudulent concealment left the public and Plaintiffs ignorant of the facts or
existence of these claims, the limitations period is tolled until discovery of the fraud which
occurred sometime after March 19, 2007.
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103.
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Defendants individually and collectively had fair warning and knew or should have
known that their activities would subject them to the extraterritorial jurisdiction of the U.S.
for civil liability under the Anti-Terrorism Act.
104.
Defendant wrongfully concealed material facts relating to its wrongdoing, the
concealment prevented plaintiffs' discovery of the nature of the claim within the limitations
period; and the plaintiffs exercised due diligence in pursuing the discovery of the claim
during the period they seek to have tolled.
105.
Plaintiffs were prevented from discovering the facts supporting a material support
claim because of Chiquita’s furtive, secret payments, including large sums of cash personally
transported and made by a senior Chiquita employee on a regular basis; falsification of
names and non-existent employees on Chiquita’s payroll to provide funds to regional FARC
commanders on local paydays; assistance in creating false front organizations and dummy
corporations to channel funds; creation of fictitious contracts with legitimate organizations or
overvaluation of existing contracts to bury secret payments in its bookkeeping; cooperation
with FARC-controlled labor unions, including Sintrabanano, to channel payments to FARC,
funneling weapons to FARC and assistance of the transport of weapons through Chiquita’s
local transportation contractors; payments to AUC through intermediaries known as
“convivirs”; making false and misleading entries on its books and records; and filing false
and/or misleading documents with the Colombian and United States governments.
ANTI-TERRORISM ACT
106.
Plaintiffs claim that Chiquita provided material support, in the form of money,
weapons, and services, to the FARC through 1999, and again in 2004, which supported the
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FARC in its ability to murder, kidnap and continue to hold hostage Plaintiffs, and that this
material support was itself an act of international terrorism which was causally related to
Plaintiffs’ damages.
107.
18 U.S.C. §§ 2331 and 2333 were initially enacted in 1990 as the Anti-Terrorism Act
of 1990, Pub.L. No. 101-519, § 132, 104 Stat. 2250 (1990), but were repealed as the result of
a technical deficiency. They were subsequently re-enacted as part of the Federal Courts
Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506 (1992).
108.
In 1994, Congress passed 18 U.S.C. § 2339A, which criminalizes the provision of
material support to terrorists:
“Whoever, within the United States, provides material support or resources or
conceals or disguises the nature, location, source, or ownership of material
support or resources, knowing or intending that they are to be used in
preparation for, or in carrying out, a violation of section … 1203, … 2332,
….. of this title …., or in preparation for, or in carrying out, the concealment
or an escape from the commission of any such violation, shall be fined under
this title, imprisoned not more than 10 years, or both.”
18 U.S.C. § 2339A(a). “Material support or resources” is a defined term and includes
provision of currency or monetary instruments, weapons, transportation, and false
documentation.. 18 U.S.C. § 2339A(b).
109.
Two years later, Congress passed the Antiterrorism And and Effective Death Penalty
Act of 1996 (“AEDPA”), PL 104-132 (S 735) which provides in part:
SEC. 301. FINDINGS AND PURPOSE.
(a) FINDINGS.--The Congress finds that-(1) international terrorism is a serious and deadly problem that threatens the vital
interests of the United States;
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(7) foreign organizations that engage in terrorist activity are so tainted by their
criminal conduct that any contribution to such an organization facilitates that
conduct.
(b) PURPOSE.--The purpose of this subtitle is to provide the Federal Government
the fullest possible basis, consistent with the Constitution, to prevent persons
within the United States, or subject to the jurisdiction of the United States, from
providing material support or resources to foreign organizations that engage in
terrorist activities.
110.
Congress extended criminal liability to those providing material support to foreign
terrorist organizations in Section 303 of the AEDPA:
“Whoever, within the United States or subject to the jurisdiction of the United
States, knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined under this title or
imprisoned not more than 10 years, or both.”
18 U.S.C. § 2339B(a)(1). 4 Section 2339B adopts the definition of “material support or
resources” provided in section 2339A, and looks to 8 U.S.C. § 1189 for the definition of
“terrorist organization”.
111.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a).
112.
§ 2339A of Title 18 of the United States Code created a civil cause of action
for those injured by terrorist acts against individuals who provided support to terrorist groups
knowing or intending that they are to be used in preparation for, or in carrying out, a
violation of 18 U.S.C. §1203 or § 2332.
113. 18 U.S.C. § 1203. Hostage taking, provides:
4
In 2004 Congress amended §2339B(a)(1) as set forth in ¶ 141 herein.
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“(a) Except as provided in subsection (b) of this section, whoever, whether
inside or outside the United States, seizes or detains and threatens to kill, to
injure, or to continue to detain another person in order to compel a third
person or a governmental organization to do or abstain from doing any act as
an explicit or implicit condition for the release of the person detained, or
attempts or conspires to do so, shall be punished by imprisonment for any
term of years or for life and, if the death of any person results, shall be
punished by death or life imprisonment.” (emphasis supplied).
114.
§2332 of the ATA, in turn, criminalizes the killing (whether classified as homicide,
voluntary manslaughter, or involuntary manslaughter), conspiring to kill, or inflicting bodily
injury on, any American citizen outside the United States.
115.
The mental element required to fix liability on Chiquita for providing support to the
FARC terrorist organization is present if Chiquita knew the character and terrorist nature of
the FARC - which they did.
116.
Chiquita’s provision of money and support to an organization that commits terrorist
acts was intentional misconduct because Chiquita knew that the FARC engaged in terrorist
acts, or was deliberately indifferent to whether it did or not, and Chiquita knew there was a
substantial probability that the FARC engaged in terrorism and would continue to do so.
117.
The facts known to Chiquita placed it on notice of a risk of contributing to murder or
hostage taking or the continued detention of U.S. national hostages, therefore Chiquita
cannot ignore the facts and plead ignorance of the risk.
118.
Extending liability to secondary actors is recognized under the ATA.
119.
Chiquita knowingly provided substantial assistance to international terrorism.
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120.
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Chiquita possessed general awareness of its role as part of an overall illegal activity,
and Chiquita’s knowing and substantial assistance to a terrorist organization with a long and
proven track record for murdering and kidnapping Americans.
121.
Chiquita was guilty of many “atypical practices” from which it is possible to infer
knowledge necessary for aiding and abetting liability, including Chiquita making furtive,
secret payments, including large sums of cash personally transported and made by a senior
Chiquita employee on a regular basis; falsification of names and non-existent employees on
Chiquita’s payroll to provide funds to regional FARC commanders on local paydays;
assistance in creating false front organizations and dummy corporations to channel funds;
creation of fictitious contracts with legitimate organizations or overvaluation of existing
contracts to bury secret payments in its bookkeeping; cooperation with FARC-controlled
labor unions, including Sintrabanano, to channel payments to FARC, funneling weapons to
FARC and assistance of the transport of weapons through Chiquita’s local transportation
contractors; payments to AUC through intermediaries known as “convivirs”; making false
and misleading entries on its books and records; and filing false and/or misleading
documents with the Colombian and United States governments.
CAUSATION
122.
Because money is fungible, it is not generally possible to say that a particular dollar
caused a particular act or paid for a particular gun, nor is this level of “but for” causation
required under the ATA.
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123.
Filed 04/05/10 Page 29 of 82
Chiquita’s provision of funds and other support to the FARC was a substantial factor
in the FARC’s maintaining its ability to carry out future terrorist acts and was a proximate
cause of the terrorist acts suffered by Plaintiffs from February 13, 2003 through July 2, 2008.
124.
Chiquita, as a reasonably prudent person, could have foreseen that a harm like the one
that the plaintiffs suffered might result from its conduct, therefore there is proximate
causation.
125.
It was entirely foreseeable that transmitting money to a terrorist organization would
lead to violence and Congress had precisely that lethal connection in mind in passing the
ATA.
126.
A donor of even $1,000 to a terrorist organization can be liable under the ATA
because knowing contributors as a whole significantly enhance the risk of terrorist acts and
thus the probability that the Plaintiff's decedent and Plaintiffs would be future victims.
127.
Chiquita knowingly and intentionally supplied secret monthly payments of between
$20,000 and $100,000 to FARC over a ten year period beginning in 1989 and continuing
through 1999, and again in 2004, knowing that FARC was a violent terrorist organization.
128.
The FARC routinely buried large caches of currency obtained from illegal support
payments received from companies, including Chiquita, and then used these caches many
years later to finance future terrorist activities. For example, a Colombian Army unit that
was actively searching for the FARC unit guarding Plaintiffs discovered a $20 million buried
cache of U.S. currency in an area near where Plaintiffs were being held.
129.
Moneys paid by Chiquita to the FARC in 1994 through 1997, and again in 2004, were
used in part to finance operations in 2003 through 2008, including purchase of weapons,
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ammunition, chains, fencing, food, supplies, communication equipment, payrolls and other
expenses of maintaining a terrorist organization and political hostages.
130.
Further, weapons and ammunition provided by Chiquita in 1994 through 1999 were
still being used by the FARC between 2003 – 2008 and these cash payments, weapons and
ammunition were a cause in fact and/or played a causal role and/or contributed to causing the
FARC’s terrorist acts against Plaintiffs alleged herein.
131.
Chiquita’s ransom payment to the FARC in 2004 provided additional substantial
material support to the FARC which played a causal role in enabling the FARC to maintain
its ongoing captivity of Plaintiffs Stansell, Gonsalves and Howes.
COUNT ONE
(Keith Stansell 18 U.S.C. § 2333)
132.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
133.
Plaintiff Keith Stansell is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333.
134.
At all times material, Plaintiff was a civilian employee of Northrup Grumman
engaged in a counter-narcotics surveillance mission and was not injured as a result of any
“act of war” as defined by 18 U.S.C. §2331(4) because Plaintiffs were not injured by reason
of any “declared war”, or “armed conflict between two or more nations”, or “armed conflict
between military forces of any origin”.
135.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
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“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
136.
Defendant has admitted that unlike kidnap victims held for money ransom payment,
Plaintiffs were “political hostages” whose detention and captivity fall within the definition of
“international terrorism” above. 5
137.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
138.
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
5
S.D.Fl. Case No. 08-cv-20641, Docket Entry 32, pp. 21-23
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139.
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Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
140.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
141.
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
142.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
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policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
143.
Plaintiffs’ 1,967 days of captivity as FARC hostages occurred outside the territorial
jurisdiction of the U.S. The material support provided by Defendants to the FARC also
occurred outside the territorial jurisdiction of the U.S. and transcend international boundaries.
144.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
145.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
146.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
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147.
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Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
148.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
149.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that and continued to injure Plaintiffs.
150.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
151.
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
152.
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
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or was a cause in fact, in the FARC’s ability to kill or hold hostage Plaintiffs, and then
continue to maintain their captivity, because the support and resources provided to the FARC
was used in part to maintain Plaintiffs’ captivity and/or freed up other FARC resources to be
diverted for the purpose of maintaining Plaintiffs’ captivity.
153.
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
154.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
155.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that killed and held Plaintiffs hostage and/or (ii) was used in part directly
by the these Fronts/Mobile Columns to kill, and hold hostage and continue to maintain
Plaintiffs’ captivity.
156.
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
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terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
157.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
158.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
159.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
160.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
WHEREFORE, Plaintiff, Keith Stansell, demands judgment in his favor against
Defendant for his past and future physical and mental pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the enjoyment of life, emotional distress,
loss of years of his life, including treble damages under 18 U.S.C. §2333, plus costs,
attorneys fees, and such other monetary and equitable relief as this Honorable Court deems
appropriate to compensate plaintiff.
36
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Filed 04/05/10 Page 37 of 82
COUNT TWO
(Marc Gonsalves – 18 USC § 2333)
161.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
162.
Plaintiff Marc Gonsalves is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333.
163.
At all times material, Plaintiff was a civilian employee of Northrup Grumman
engaged in a counter-narcotics surveillance mission and was not injured as a result of any
“act of war” as defined by 18 U.S.C. §2331(4) because Plaintiffs were not injured by reason
of any “declared war”, or “armed conflict between two or more nations”, or “armed conflict
between military forces of any origin”.
164.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
37
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intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
165.
Defendant has admitted that unlike kidnap victims held for money ransom payment,
Plaintiffs were “political hostages” whose detention and captivity fall within the definition of
“international terrorism” above. 6
166.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
167.
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
168.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
169.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
170.
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
6
S.D.Fl. Case No. 08-cv-20641, Docket Entry 32, pp. 21-23
38
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Filed 04/05/10 Page 39 of 82
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
171.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
172.
Plaintiffs’ 1,967 days of captivity as FARC hostages occurred outside the territorial
jurisdiction of the U.S. The material support provided by Defendants to the FARC also
occurred outside the territorial jurisdiction of the U.S. and transcend international boundaries.
39
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173.
Filed 04/05/10 Page 40 of 82
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
174.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
175.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
176.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
177.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
178.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that and continued to injure Plaintiffs.
40
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179.
Filed 04/05/10 Page 41 of 82
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
180.
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
181.
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to kill or hold hostage Plaintiffs, and then
continue to maintain their captivity, because the support and resources provided to the FARC
was used in part to maintain Plaintiffs’ captivity and/or freed up other FARC resources to be
diverted for the purpose of maintaining Plaintiffs’ captivity.
182.
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
41
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183.
Filed 04/05/10 Page 42 of 82
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
184.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that killed and held Plaintiffs hostage and/or (ii) was used in part directly
by the these Fronts/Mobile Columns to kill, and hold hostage and continue to maintain
Plaintiffs’ captivity.
185.
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
186.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
187.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
188.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
42
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Filed 04/05/10 Page 43 of 82
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
189.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
WHEREFORE, Plaintiff, Marc Gonsalves, demands judgment in his favor against
Defendant for his past and future physical and mental pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the enjoyment of life, emotional distress,
loss of years of his life, including treble damages under 18 U.S.C. §2333, plus costs,
attorneys fees, and such other monetary and equitable relief as this Honorable Court deems
appropriate to compensate plaintiff.
COUNT THREE
(Thomas Howes - 18 U.S.C. § 2333)
190.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
191.
Plaintiff Thomas Howes is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333.
192.
At all times material, Plaintiff was a civilian employee of Northrup Grumman
engaged in a counter-narcotics surveillance mission and was not injured as a result of any
“act of war” as defined by 18 U.S.C. §2331(4) because Plaintiffs were not injured by reason
of any “declared war”, or “armed conflict between two or more nations”, or “armed conflict
between military forces of any origin”.
43
Case 8:10-cv-00786-SCB-TBM Document 1
193.
Filed 04/05/10 Page 44 of 82
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
194.
Defendant has admitted that unlike kidnap victims held for money ransom payment,
Plaintiffs were “political hostages” whose detention and captivity fall within the definition of
“international terrorism” above. 7
195.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
7
S.D.Fl. Case No. 08-cv-20641, Docket Entry 32, pp. 21-23
44
Case 8:10-cv-00786-SCB-TBM Document 1
196.
Filed 04/05/10 Page 45 of 82
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
197.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
198.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
199.
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
200.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
45
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Filed 04/05/10 Page 46 of 82
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
201.
Plaintiffs’ 1,967 days of captivity as FARC hostages occurred outside the territorial
jurisdiction of the U.S. The material support provided by Defendants to the FARC also
occurred outside the territorial jurisdiction of the U.S. and transcend international boundaries.
202.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
203.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
204.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
46
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Filed 04/05/10 Page 47 of 82
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
205.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
206.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
207.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that and continued to injure Plaintiffs.
208.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
209.
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
47
Case 8:10-cv-00786-SCB-TBM Document 1
210.
Filed 04/05/10 Page 48 of 82
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to kill or hold hostage Plaintiffs, and then
continue to maintain their captivity, because the support and resources provided to the FARC
was used in part to maintain Plaintiffs’ captivity and/or freed up other FARC resources to be
diverted for the purpose of maintaining Plaintiffs’ captivity.
211.
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
212.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
213.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that killed and held Plaintiffs hostage and/or (ii) was used in part directly
by the these Fronts/Mobile Columns to kill, and hold hostage and continue to maintain
Plaintiffs’ captivity.
48
Case 8:10-cv-00786-SCB-TBM Document 1
214.
Filed 04/05/10 Page 49 of 82
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
215.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
216.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
217.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
218.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
WHEREFORE, Plaintiff, Thomas Howes, demands judgment in his favor against
Defendant for his past and future physical and mental pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the enjoyment of life, emotional distress,
loss of years of his life, including treble damages under 18 U.S.C. §2333, plus costs,
attorneys fees, and such other monetary and equitable relief as this Honorable Court deems
appropriate to compensate plaintiff.
49
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Filed 04/05/10 Page 50 of 82
COUNT FOUR
(Judith Janis - 18 U.S.C. § 2333)
219.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
220.
Plaintiff Judith Janis is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333 for the
February 13, 2003 murder and wrongful death of her husband Thomas Janis.
221.
At all times material, Plaintiff’s decedent was a civilian employee of Northrup
Grumman engaged in a counter-narcotics surveillance mission and was not injured as a result
of any “act of war” as defined by 18 U.S.C. §2331(4) because Plaintiff were not injured by
reason of any “declared war”, or “armed conflict between two or more nations”, or “armed
conflict between military forces of any origin”.
222.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
50
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Filed 04/05/10 Page 51 of 82
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
223.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
224.
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
225.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
226.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
227.
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-51
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Filed 04/05/10 Page 52 of 82
(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
228.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
229.
Mr. Janis’ murder occurred outside the territorial jurisdiction of the U.S. The
material support provided by Defendants to the FARC also occurred outside the territorial
jurisdiction of the U.S. and transcend international boundaries.
230.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
52
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Filed 04/05/10 Page 53 of 82
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
231.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
232.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
233.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
234.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
235.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that injured Plaintiffs.
236.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
53
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237.
Filed 04/05/10 Page 54 of 82
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
238.
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to murder Mr. Janis, because the support and
resources provided to the FARC was used in part to shoot down the civilian aircraft and
murder Mr. Janis and/or freed up other FARC resources to be diverted for the purpose of
committing these acts.
239.
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
240.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
54
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re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
241.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that murdered Mr. Janis and/or (ii) was used in part directly by the these
Fronts/Mobile Columns to murder Mr. Janis.
242.
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
243.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
244.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
245.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
246.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
55
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WHEREFORE, Plaintiff, Judith Janis, demands judgment in her favor against
Defendant for her past and future mental pain and suffering, mental anguish, emotional
distress, loss of solatium, loss of companionship, society, affection, consortium and
guidance, including treble damages under 18 U.S.C. §2333, plus costs, attorneys fees, and
such other monetary and equitable relief as this Honorable Court deems appropriate to
compensate plaintiff.
COUNT FIVE
(Christopher T. Janis - 18 U.S.C. § 2333)
247.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
248.
Plaintiff Christopher Janis is a U.S. national injured by reason of an act of
international terrorism and seeks non-economic compensatory damages under 18 U.S.C. §
2333 for the February 13, 2003 murder and wrongful death of his father Thomas Janis.
249.
At all times material, Plaintiff’s decedent was a civilian employee of Northrup
Grumman engaged in a counter-narcotics surveillance mission and was not injured as a result
of any “act of war” as defined by 18 U.S.C. §2331(4) because Plaintiff were not injured by
reason of any “declared war”, or “armed conflict between two or more nations”, or “armed
conflict between military forces of any origin”.
250.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
56
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that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
251.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
252.
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
253.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
254.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
57
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255.
Filed 04/05/10 Page 58 of 82
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
256.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
58
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257.
Filed 04/05/10 Page 59 of 82
Mr. Janis’ murder occurred outside the territorial jurisdiction of the U.S. The
material support provided by Defendants to the FARC also occurred outside the territorial
jurisdiction of the U.S. and transcend international boundaries.
258.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
259.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
260.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
261.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
262.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
59
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by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
263.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that injured Plaintiffs.
264.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
265.
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
266.
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to murder Mr. Janis, because the support and
resources provided to the FARC was used in part to shoot down the civilian aircraft and
murder Mr. Janis and/or freed up other FARC resources to be diverted for the purpose of
committing these acts.
60
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267.
Filed 04/05/10 Page 61 of 82
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
268.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
269.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that murdered Mr. Janis and/or (ii) was used in part directly by the these
Fronts/Mobile Columns to murder Mr. Janis.
270.
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
271.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
272.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
61
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knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
273.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
274.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
WHEREFORE, Plaintiff, Christopher Janis, demands judgment in his favor against
Defendant for his past and future mental pain and suffering, mental anguish, emotional
distress, loss of solatium, loss of companionship, society, affection, consortium and
guidance, including treble damages under 18 U.S.C. §2333, plus costs, attorneys fees, and
such other monetary and equitable relief as this Honorable Court deems appropriate to
compensate plaintiff.
COUNT SIX
(Greer C. Janis - 18 U.S.C. § 2333)
275.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
276.
Plaintiff Greer Janis is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333 for the
February 13, 2003 murder and wrongful death of her father Thomas Janis.
62
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277.
Filed 04/05/10 Page 63 of 82
At all times material, Plaintiff’s decedent was a civilian employee of Northrup
Grumman engaged in a counter-narcotics surveillance mission and was not injured as a result
of any “act of war” as defined by 18 U.S.C. §2331(4) because Plaintiff were not injured by
reason of any “declared war”, or “armed conflict between two or more nations”, or “armed
conflict between military forces of any origin”.
278.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
279.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
63
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280.
Filed 04/05/10 Page 64 of 82
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
281.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
282.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
283.
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
284.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
64
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provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
285.
Mr. Janis’ murder occurred outside the territorial jurisdiction of the U.S. The
material support provided by Defendants to the FARC also occurred outside the territorial
jurisdiction of the U.S. and transcend international boundaries.
286.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
287.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
288.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
65
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Filed 04/05/10 Page 66 of 82
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
289.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
290.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
291.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that injured Plaintiffs.
292.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
293.
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
66
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294.
Filed 04/05/10 Page 67 of 82
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to murder Mr. Janis, because the support and
resources provided to the FARC was used in part to shoot down the civilian aircraft and
murder Mr. Janis and/or freed up other FARC resources to be diverted for the purpose of
committing these acts.
295.
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
296.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
297.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that murdered Mr. Janis and/or (ii) was used in part directly by the these
Fronts/Mobile Columns to murder Mr. Janis.
67
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298.
Filed 04/05/10 Page 68 of 82
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
299.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
300.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
301.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
302.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
WHEREFORE, Plaintiff, Greer Janis, demands judgment in her favor against
Defendant for her past and future mental pain and suffering, mental anguish, emotional
distress, loss of solatium, loss of companionship, society, affection, consortium and
guidance, including treble damages under 18 U.S.C. §2333, plus costs, attorneys fees, and
such other monetary and equitable relief as this Honorable Court deems appropriate to
compensate plaintiff.
68
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COUNT SEVEN
(Michael I. Janis - 18 U.S.C. § 2333)
303.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
304.
Plaintiff Michael Janis is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333 for the
February 13, 2003 murder and wrongful death of his father Thomas Janis.
305.
At all times material, Plaintiff’s decedent was a civilian employee of Northrup
Grumman engaged in a counter-narcotics surveillance mission and was not injured as a result
of any “act of war” as defined by 18 U.S.C. §2331(4) because Plaintiff were not injured by
reason of any “declared war”, or “armed conflict between two or more nations”, or “armed
conflict between military forces of any origin”.
306.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
69
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Filed 04/05/10 Page 70 of 82
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
307.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
308.
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
309.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
310.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
311.
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-70
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Filed 04/05/10 Page 71 of 82
(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
312.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
313.
Mr. Janis’ murder occurred outside the territorial jurisdiction of the U.S. The
material support provided by Defendants to the FARC also occurred outside the territorial
jurisdiction of the U.S. and transcend international boundaries.
314.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
71
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§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
315.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
316.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
317.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
318.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
319.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that injured Plaintiffs.
320.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
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321.
Filed 04/05/10 Page 73 of 82
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
322.
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to murder Mr. Janis, because the support and
resources provided to the FARC was used in part to shoot down the civilian aircraft and
murder Mr. Janis and/or freed up other FARC resources to be diverted for the purpose of
committing these acts.
323.
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
324.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
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re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
325.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that murdered Mr. Janis and/or (ii) was used in part directly by the these
Fronts/Mobile Columns to murder Mr. Janis.
326.
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
327.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
328.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
329.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
330.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
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WHEREFORE, Plaintiff, Michael Janis, demands judgment in his favor against
Defendant for his past and future mental pain and suffering, mental anguish, emotional
distress, loss of solatium, loss of companionship, society, affection, consortium and
guidance, including treble damages under 18 U.S.C. §2333, plus costs, attorneys fees, and
such other monetary and equitable relief as this Honorable Court deems appropriate to
compensate plaintiff.
COUNT EIGHT
(Jonathan N. Janis - 18 U.S.C. § 2333)
331.
Plaintiff adopts and incorporates the allegations and facts contained in prior
paragraphs and in allegations common to all counts.
332.
Plaintiff Jonathan Janis is a U.S. national injured by reason of an act of international
terrorism and seeks non-economic compensatory damages under 18 U.S.C. § 2333 for the
February 13, 2003 murder and wrongful death of his father Thomas Janis.
333.
At all times material, Plaintiff’s decedent was a civilian employee of Northrup
Grumman engaged in a counter-narcotics surveillance mission and was not injured as a result
of any “act of war” as defined by 18 U.S.C. §2331(4) because Plaintiff were not injured by
reason of any “declared war”, or “armed conflict between two or more nations”, or “armed
conflict between military forces of any origin”.
334.
Plaintiff was victimized by acts of "international terrorism" as defined by 18 U.S.C. §
2331(1) which states:
“(1) the term “international terrorism” means activities that-(A) involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or
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that would be a criminal violation if committed within the jurisdiction
of the United States or of any State;
(B) appear to be intended-(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.”
335.
Plaintiffs have been injured in their person, property or business by reason of acts of
international terrorism committed by Defendant that involved violence, were dangerous to
human life, and violated the criminal laws of the United States, including the prohibitions
against providing material support to terrorists, kidnapping, and killing a U.S. citizen as set
forth in 18 U.S.C. §§ 1203, 2332, 2339A & 2339B.
336.
Defendant’s payments and material support to the FARC from 1992 to 1999, and
again in 2004, supported violations of 18 U.S.C. §1203 (hostage taking) and §2332
(homicide) and Plaintiffs’ civil remedy is actionable under §2333 (1992).
337.
Defendant’s payments and material support to the FARC from 1994 to 1999 violated
the provisions of 18 U.S.C. §§2339A (1994) and Plaintiffs’ civil remedy is actionable under
§2333 (1992).
338.
Defendant’s payments and material support to the FARC from October 8, 1997 [when
FARC was designated as an FTO by the Secretary of State] to 1999, and again in 2004,
violated 18 U.S.C. §2339B(a)(1)(1996).
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339.
Filed 04/05/10 Page 77 of 82
Defendants’ giving money and other material support to the FARC, like giving a
loaded gun to a child, is “an act dangerous to human life”, is an act of international terrorism,
and it violates a criminal law of the United States, 18 USC §2339B(a)(1). ), which provides
in relevant part:
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for
life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section 140(d)
(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
340.
Section 2339B(a) on its face does not require proof that the provider of material
support intended for that support to further the terrorist activities of the organization; the
provider need only have knowledge that the organization has been designated a foreign
terrorist organization.
Defendants’ provision of material support to the FARC appears to
have been intended: (i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; because Defendants knew the
FARC was a designated foreign terrorist organization, or because Defendants knew the
FARC was engaged in terrorist activity.
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341.
Filed 04/05/10 Page 78 of 82
Mr. Janis’ murder occurred outside the territorial jurisdiction of the U.S. The
material support provided by Defendants to the FARC also occurred outside the territorial
jurisdiction of the U.S. and transcend international boundaries.
342.
Congress intended that the intentional or reckless provision of material support to a
terrorist organization in violation of §2339A or §2339B fulfills each prong of §2331(1)’s
definition of “international terrorism” and therefore suffices to establish civil liability under
§2333(a). Defendants’ material support to the FARC, as alleged herein, are acts of
international terrorism actionable under § 2333(a).
343.
Chiquita is a “person” as defined by 18 USC §2331(3) as “any individual or entity
capable of holding a legal or beneficial interest in property”.
344.
Defendant knowingly provided material support to the FARC which Defendant knew
was a terrorist organization, and eventually a designated Foreign Terrorist Organization, or
knowing that it was engaged in terrorist activities. This material support of acts of international
terrorism assisted the FARC with its ongoing terrorist activities, including murder, hostage
taking and the continuing ability to maintain captivity and torture of hostages, including
Plaintiffs.
345.
Defendant’s activities of providing material support to the FARC were themselves
violent and dangerous acts to human life that were, and are, a violation of the criminal laws
of the United States.
346.
The FARC’s terrorist acts against Plaintiffs were intended to intimidate or coerce the
Colombian and United States civilian population, to influence policy of the U.S. Government
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by intimidation or coercion, and to affect the conduct of a government by kidnapping,
hostage taking and assassination.
347.
Defendants’ provision of material support to the FARC supported the FARC in
continued acts of international terrorism that injured Plaintiffs.
348.
Defendants’ payment of moneys and provision of material support to the FARC from
1989 to 1999, and again in 2004, was a proximate cause of Plaintiff’s damages. “But for”
causation is not required under the ATA.
349.
Congress intended these provisions to impose, “liability at any point along the causal
chain of terrorism.” S.Rep. No. 102-342 at 22. In enacting the material support statute
Congress made an express finding of fact that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.” (emphasis supplied). Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. 104-32, § 301(a)(7), 110 Stat. 1214, 1247
(1996).
350.
Money is fungible; Defendant’s giving money and material support to the FARC – a
known terrorist organization and later a designated FTO - freed up resources to be used for
terrorist acts. The material support provided by Defendant to the FARC played a causal role,
or was a cause in fact, in the FARC’s ability to murder Mr. Janis, because the support and
resources provided to the FARC was used in part to shoot down the civilian aircraft and
murder Mr. Janis and/or freed up other FARC resources to be diverted for the purpose of
committing these acts.
79
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351.
Filed 04/05/10 Page 80 of 82
Defendant intentionally and purposefully hid and concealed from Plaintiffs its
involvement in providing material support to the FARC terrorist activities, thereby delaying
Plaintiffs discovery of their cause of action and entitling Plaintiffs to equitable tolling of any
statute of limitations for the time period of Defendant’s concealment, and for the time they
were held captive in the jungles of Colombia.
352.
Defendant’s giving money and providing material support to a FARC Front or
member in one geographic area of Colombia benefitted the FARC organization as a whole
because these moneys are centralized at the FARC’s central command (Secretariat) and then
re-distributed to FARC Fronts and columns operating in other geographic areas of Colombia,
including to fund the continued captivity of hostages, like Plaintffs.
353.
Defendants’ payment of moneys to the FARC in areas where it had banana growing
operations both: (i) freed up FARC resources being paid by the Secretariat to FARC Fronts
or Mobile Columns that murdered Mr. Janis and/or (ii) was used in part directly by the these
Fronts/Mobile Columns to murder Mr. Janis.
354.
The legislative history of 18 USC §2333 indicates that Congress intended to allow a
plaintiff to recover from anyone at any point along the full length of the causal chain of
terrorism. Plaintiff has standing by demonstrating causation and that his injuries will be
redressed by a favorable decision.
355.
By providing material support to the FARC, Defendant is liable for the injuries and
damages suffered by Plaintiffs as a result of the FARC’s terrorist acts against them.
356.
Defendant is vicariously liable for the acts of its employees, agents, independent
contractors, and those of its alter ego wholly owned-controlled subsidiary Banadex, and
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knowledge of any employee, agent, subsidiary or independent contractor is imputed to
Defendant.
357.
FARC’s activities were intended to: (a) intimidate or coerce the civilian population of
Colombia; (b) influence the policy of the governments of Colombia and the United States by
intimidation or coercion; and (c) affect the conduct of the governments of Colombia and the
United States by mass destruction, assassination, or kidnapping.
358.
By willfully providing material support to FARC, Defendant supported FARC’s acts
of international terrorism and other violations of law that have injured plaintiffs.
WHEREFORE, Plaintiff, Jonathan Janis, demands judgment in his favor against
Defendant for his past and future mental pain and suffering, mental anguish, emotional
distress, loss of solatium, loss of companionship, society, affection, consortium and
guidance, including treble damages under 18 U.S.C. §2333, plus costs, attorneys fees, and
such other monetary and equitable relief as this Honorable Court deems appropriate to
compensate plaintiff.
DATED: April 3, 2010
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/s Newton Porter______________
NEWTON P. PORTER
Trial Counsel
(Florida Bar No. 833738)
nporter@porterandkorvick.com
PORTER & KORVICK, P.A.
Pinecrest Professional Building
9655 South Dixie Highway Suite 208
Miami, Florida 33156
Telephone:
(305) 373-5040
Facsimile:
(305) 668-9154
Attorneys for Plaintiff s
Filed 04/05/10 Page 82 of 82
/s_Tony Korvick_________________
TONY KORVICK
Trial Counsel
(Florida Bar No. 768405)
tkorvick@porterandkorvick.com
PORTER & KORVICK, P.A.
Pinecrest Professional Building
9655 South Dixie Highway Suite 208
Miami, Florida 33156
Telephone:
(305) 373-5040
Facsimile:
(305) 668-9154
Attorneys for Plaintiff s
82