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United States v. Two General Electric Aircraft Engines

United States District Court, District of Columbia

November 2, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TWO GENERAL ELECTRIC AIRCRAFT ENGINES, WITH ENGINE SERIAL NUMBERS 695244 AND 705112, AND ALL RECORDS PERTAINING THERETO Defendant.

          MEMORANDUM OPINION AND ORDER

          GLADYS KESSLER UNITED STATES DISTRICT JUDGE.

         I. Background

         This case began on December 30, 2014, when the United States filed a Verified Complaint for Forfeiture in Rem against two General Electric aircraft engines with engine serial numbers 695244 and 705112 (the "Defendant Engines"). See Unopposed Order to Repatriate the Defendant Properties ("Repatriation Order") [Dkt. No. 32] (describing the history of this case). At the time of the Government's Complaint, these engines were located in Antalya, Turkey. Id. i Subsequently, Evans Meridians, Ltd. ("Evans, " "Claimant"), filed a verified claim to the Defendant Engines.. Id. After filing this claim, and unbeknownst to the Court or the Government, Evans transported the Defendant Engines from Turkey to Shanghai, China, on or about July 27, 2015. Id.

         In response, and pursuant to the Government's Motion for Order to Repatriate, [Dkt. No. 31], on January 27, 2016, the Court ordered Evans to either repatriate the Defendant Engines to the United States or post a bond of $6, 000, 000 by March 31, 2016. Repatriation Order. To date, Evans has done neither.[1]

         Accordingly, the Government filed a Motion for Order to Show Cause why Evans should not be held in contempt for violating the Repatriation Order. Mot. for Order to Show Cause [Dkt. No. 41]. The Court granted the Government's Motion, scheduled a contempt hearing, and ordered that Evans' director or another representative with authority to direct the affairs of the corporation attend. Order ("Show Cause Order") [Dkt. No. 47].

         On October 24, 2016, the contempt hearing was held. Pursuant to the Court's Show Cause Order, Eugeny Bespalov, an attorney from Russia with a power of attorney to bind Evans, attended and testified.

         II. Legal Standard

         "The Court has both an inherent and a statutory power to enforce compliance with its orders and may exercise that authority through a civil contempt proceeding." SEC v. Bankers Alliance, Corp., 881 F.Supp. 673, 678 (D.D.C. 1995) (citing inter alia Shillitani v. United States, 384 U.S. 364, 370 (1966); United States v. United Mine Workers of America, 330 U.S. 258, 330-32 (1947); 18 U.S.C. § 401). "A party commits contempt when it violates a definite and specific court order requiring him to perform or refrain from performing a particular act or acts with knowledge of that order." Id. (internal citations and quotations omitted).

         "[T]he moving party has the burden of showing by clear and convincing evidence that (1) a court order was in effect, (2) the order required certain conduct by the respondent, and (3) the respondent failed to comply with the court's order." Id. The respondent "may assert a present inability to comply with the order in question" as an affirmative defense, but in doing so, has the burden of production. U.S. v. Rylander, 460 U.S. 752, 757 (1983); Tinsely v. Mitchell, 804 F.2d 1254, 1256 (D.C. Cir. 1986) ("impossibility of performance constitutes a defense to a charge of contempt"). To meet this burden, the respondent "must demonstrate his inability to comply categorically and in detail." Bankers Alliance, 881 F.Supp. At 678; SEC v. Showalter, 227 F.Supp.2d 110, 120 (D.D.C. 2002) (defendant cannot merely assert inability, but must ''establish that she has made. . .all reasonable efforts" to comply (emphasis added)).

         Even if the respondent cannot demonstrate that she is unable to comply with the court's order, the court is required to consider her "good-faith efforts to comply with [the] order in mitigation of any penalty" the court might impose. Tinsely, 8 04 F.2d at 1256. "To show good faith, the [respondent's] duty includes the obligation to be reasonably diligent and energetic in attempting to comply with [the] court's order, and to pay what he can toward the judgment." Showalter, 227 F.Supp.2d at 120. A respondent attempting to demonstrate that she has acted in good faith to comply must provide "adequate detailed proof." Id.

         Civil contempt is a remedial device, utilized to achieve compliance with a court's order. Id. Therefore, the sanction imposed is designed to secure compliance, not to punish. Bankers Alliance, 881 F.Supp. at 678; United Mine Workers of America, 330 U.S. at 3 04 (the sanction imposed may be employed "to coerce the defendant into compliance with the court's order").

         III. Analysis

         A. Evans Is in Contempt of the Repatriation Order

         Here, there is no question that Evans has failed to comply with the Court's Repatriation Order, as Evans readily conceded that it has not. Response at p. 3-4; Unofficial Transcript of Show Cause Hearing ("Unofficial Transcript") at p. 17 ¶¶ 9-10. Instead, Evans ...


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