United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
KESSLER UNITED STATES DISTRICT JUDGE.
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,
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
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].
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.
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).
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)).
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.
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").
Evans Is in Contempt of the Repatriation Order
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 ...