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Stansell v. Republic of Cuba

United States District Court, District of Columbia

November 4, 2016

KEITH STANSELL, et al. Plaintiffs,
v.
REPUBLIC OF CUBA, Defendant.

          MEMORANDUM OPINION

          Amit P. Mehta United States District Judge.

         Three American citizens held hostage by a terrorist group and the family members of a fourth American citizen killed during the hostage-taking filed suit against the Republic of Cuba under the terrorism exception to the Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C. § 1605A. Plaintiffs allege that Cuba provided material support to the Fuerzas Armadas Revolucionarias de Colombia, a designated foreign terrorist organization commonly known as “the FARC, ” which made possible the FARC's shooting down of their aircraft, extrajudicial killing of Tom Janis, and the hostage-taking and torture of Keith Stansell, Marc Gonsalves, and Thomas Howes. Stansell, Gonsalves, and Howes seek money damages for the pain and suffering they endured during their 1, 967 days of captivity. The widow and children of Tom Janis seek solatium damages for the emotional trauma of losing their husband and father.

         Cuba has never entered an appearance in this action. The Clerk of Court entered an order of default against Cuba, and Plaintiffs moved for an entry of default judgment. After thorough consideration of the evidence and briefing presented, the court grants Plaintiffs' motion.

         I. BACKGROUND

         The court begins with a summary of the factual background leading up to the terrorist acts at issue, a description of those acts, and the procedural history of this case. To do so, the court draws upon the allegations in the Complaint, affidavits from Plaintiffs, the sworn testimony of two expert witnesses, and the official Central Intelligence Agency and United States Department of State annual reports on state sponsorship of terrorism worldwide. Additionally, the court takes judicial notice of the Stipulated Statement of Offense entered in United States v. Herrera and incorporates that statement as part of its findings of fact.[1] See Stip. Stmt. of Offense in Supp. of Guilty Plea, United States v. Herrera, No. 10-cr-339-15 (D.D.C. 2014), ECF No. 64 [hereinafter Stmt. of Offense].

         A. Cuba's State Sponsorship of Terrorism

         The FARC is a designated foreign terrorist organization existing and operating primarily in the Republic of Colombia. See 8 U.S.C. § 1189(a)(1); Pls.' Notice of Filing App'x Vol. I, ECF No. 16 [hereinafter Pls.' Ex. List I], U.S. Dep't of State, Patterns of Global Terrorism: 2001 (May 2002), ECF No. 16-20, at 6. The group's predominant goal is to overthrow the Colombian government. Throughout its years of existence, the FARC has sought to destabilize the existing government through acts of violence, including murders, hostage takings, and bombings. See Stmt. of Offense ¶ 2; Pls.' Ex. List I, U.S. Dep't of State, Patterns of Global Terrorism: 1997 (Apr. 1998), ECF No. 16-16, at 4; Decl. of Expert Witness Pedro Roig, ECF No. 15 [hereinafter Roig Decl.], at 12. In 1964, the FARC became inspired by the Cuban Revolution and sought assistance, advice, and support from the Cuban government. Aff. of Expert Witness Luis Miguel Cote Gómez, ECF No. 14 [hereinafter Cote Aff.], ¶ 27.

         Throughout the time period relevant to this lawsuit, Cuba was led by Fidel and Raul Castro. Id. The Castro brothers exercised complete control over all matters of government, which made them, in effect, the Cuban government. Id. Consequently, the brothers' “decisions to provide support and resources to . . . the FARC and to destabilize democracies in Latin America were . . . decisions made . . . [by] the Cuban government and state.” See id.; Roig Decl. at 5.

         Cuba supported the FARC in a number of ways. For example, Cuba provided military, explosives, and weapons training to FARC members in camps organized in Venezuela. Cote Aff. ¶ 31; Roig Decl. at 24. Through their Cuban allies, the FARC also gained communications training and expertise in intelligence gathering techniques. See Cote Aff. ¶ 30. Havana served as a safe haven for FARC members. Id. ¶ 28; Roig Decl. at 14-15. Additionally, through its relationship with the Venezuelan government, Cuba facilitated the FARC's ability to move across the Colombian-Venezuelan border undetected, which made it easier not only for Cuban officials to provide resources and advice to the FARC, but also for FARC members to access international flights, engage in drug trafficking, and evade international efforts to thwart their operations. Cote Aff. ¶¶ 43, 47; Roig Decl. at 16, 19-20, 25.

         B. The Events of February 13, 2003, and Subsequent Years of Captivity and Torture

         On February 13, 2003, an aircraft performing a counter-narcotics surveillance flight over Colombia on behalf of the United States Embassy came under fire from the FARC and experienced engine failure. On board were four American civilian contractors-Tom Janis, Keith Stansell, Marc Gonsalves, and Thomas Howes-and one Colombian citizen, Luis Alcides Cruz. All five passengers survived the crash landing. Shortly thereafter, FARC members surrounded the aircraft and took the men hostage, separating Stansell, Howes, and Gonsalves from Janis and Cruz. The terrorists marched the first group of men into the jungle, where they would be held captive and tortured for more than five years. Janis and Cruz were shot, execution-style, and their bodies left near the crash site. See Stmt. of Offense ¶¶ 6-7, 8-12, 15; Cote Aff. ¶¶ 20, 44, 45(a)-(b); Pls.' Notice of Filing App'x Vol. II, ECF No. 17 [hereinafter Pls.' Ex. List II], Ex. 1, Aff. of Keith Stansell, ECF No. 17-1 [hereinafter Stansell Aff.], ¶¶ 2, 10; Pls.' Ex. List II, Ex. 2, Aff. of Marc Gonsalves, ECF No. 17-2 [hereinafter Gonsalves Aff.], ¶¶ 2, 9; Pls.' Ex. List II, Ex. 3, Aff. of Thomas Howes, ECF No. 17-3 [hereinafter Howes Aff.], ¶¶ 2, 10.

         Members of the FARC informed the hostages that their continued detention would increase international pressure and allow the FARC to leverage concessions from the Colombian government in exchange for their release. Stmt. of Offense ¶ 10. In late July 2003, the FARC sent a videotape of the hostages to media outlets in the United States to prove the hostages were still alive. On the video, the FARC demanded that, in exchange for the release of the American hostages, Colombia release all FARC members held in Colombian prisons and create a demilitarized zone for the FARC. Id. ¶ 11.

         During their time with the FARC, Stansell, Gonsalves, and Howes experienced extraordinarily cruel and dehumanizing treatment. The terrorists forced their hostages to march for miles in the jungle without the benefit of proper equipment or rest, going to great lengths to conceal their location and the hostages' identities. The hostages lost substantial weight and the pads on the balls of their feet were worn to the bone as a result of carrying heavy weight on their back while trekking miles each day in rugged terrain without proper footwear. Stansell Aff. ¶¶ 4(i), 5; Gonsalves Aff. ¶¶ 4(i), 5; Howes Aff. ¶¶ 4(i), 5. To control the hostages, the FARC used “choke harnesses, ropes, chains, padlocks, and wires to bind the [hostages'] necks and wrists.” Stmt. of Offense ¶ 15. The terrorists then chained the hostages to trees or one another for months or even years at a time. Stansell Aff. ¶ 4(vi), (x); Gonsalves Aff. ¶ 4(viii); Howes Aff. ¶ 4(ix). The food the hostages received was rotten, tainted with gasoline, and stored in containers previously used to store agricultural chemicals. Howes Aff. ¶ 11.

         The hostages lived in traumatic and unsanitary conditions. The FARC kept the men in tight enclosures-such as wooden boxes or barbed wire cages-without toilet facilities of any kind. If one of the hostages needed to relieve himself, then he had to ask permission; the FARC members often humiliated him for asking or denied permission altogether. The men regularly were forced to defecate where they were chained, causing the enclosures to become covered in feces. Stansell Aff. ¶ 4(xii); Gonsalves Aff. ¶¶ 4(vii)-(viii); Howes Aff. ¶ 4(iii).

         Stansell, Gonsalves, and Howes each suffered from a plethora of debilitating illnesses. For example, on four different occasions, Howes suffered from fly larva growing under his skin that had to be killed by cigarette nicotine and squeezed from his flesh. Howes Aff. ¶ 4(ii). The water and food the men received were dirty, causing them regular digestive problems. Gonsalves Aff. ¶ 4(ii); cf. Stansell Aff. ¶ 4(i); Howes Aff. ¶ 4(ii). More seriously, Gonsalves and Howes developed a skin rotting disease called leishmaniasis. Despite having the medication with which to treat the infection and seeing the men in great need, the FARC repeatedly denied them the medication. Gonsalves Aff. ¶ 4(v); Howes Aff. ¶ 4(ii), (v).

         The medical attention the hostages did receive sometimes caused more harm than good. For example, Stansell's hip became infected as a result of receiving spoiled medicine, causing a baseball-sized cyst to grow, rot, and burst. The FARC cut the cyst out of Stansell's hip using a scalpel, without any anesthetic or other pain medication. Stansell Aff. ¶ 4(iv). Similarly, although Gonsalves ultimately received the leishmaniasis medication, the FARC re-used needles for his treatments, causing him to contract hepatitis. Gonsalves Aff. ¶ 4(v). In an effort to treat the hepatitis, the FARC injected Gonsalves, against his will, with a variety of unknown drugs that caused him additional pain and suffering. Id.

         FARC members also regularly punished their hostages. Sometimes they added chains or padlocks to the already heavy chains the hostages wore. Howes Aff. ¶ 4(ix). They also starved the hostages while subjecting them to exhausting marches through the jungle. Gonsalves Aff. ¶ 4(iv); Howes Aff. ¶ 4(iv). In one instance in particular, after a fellow hostage escaped, the FARC punished Stansell, Gonsalves, and Howes by requiring them to stand in a small space filled with large drums of gasoline and sealed off by thick gauge black plastic, forcing them to inhale the gasoline fumes. Gonsalves Aff. ¶ 4(viii).

         In addition to harming the hostages physically, the terrorists also inflicted extreme mental pain and suffering. They forced Stansell, Gonsalves, and Howes into solitary confinement and prohibited them from speaking with anyone for months on end, causing the men to grow hoarse from not using their vocal chords. Stansell Aff. ¶ 4(v); Gonsalves Aff. ¶ 4(iii); Howes Aff. ¶ 6. Although the hostages' families tried to contact them by sending messages through the United States Embassy, these messages were never delivered. Stansell Aff. ¶ 6. Additionally, despite having access to radios, the terrorists only permitted some of the men to listen periodically to hear messages from their families. See Stansell Aff. ¶ 6; Howes Aff. ¶ 6; cf. Gonsalves Aff. ¶ 4(iii). The FARC also kept the Americans segregated from others, further isolating them. See Stansell Aff. ¶ 5.

         Furthermore, each of the men can recount specific acts that haunt him. Gonsalves recalls one time being forced to carry a fifty-five pound backpack across a fallen tree “bridge” at gunpoint; the bridge gave way while he was halfway across, causing him to fall more than four meters to the rocky bottom of a gully. Gonsalves Aff. ¶ 4(i). Despite suffering a concussion and being unable to move one arm, the FARC forced Gonsalves to continue to carry the backpack another 15 miles through the jungle the following day and for the next several months. Id. Stansell testified that, one night, while being held in a cage and hearing helicopters overhead, FARC members stood beside the cage and began discussing how to kill the hostages. Hearing this, Stansell approached the terrorists and asked that the FARC members shoot them cleanly, rather than spray them with gunfire and cause painful, non-lethal wounds from which they would suffer while dying. Stansell Aff. ¶ 4(xii). Lastly, Howes remembers the terrorists threatening to kill not only the hostages, but also any civilian with whom they came in contact. Consequently, he testified to the emotional horror of accidentally encountering a family of five in the jungle and then later learning that the FARC murdered them all. See Howes Aff. ¶ 4(vii).

         All three men lived in constant fear of death. The FARC required at least one of its members to be physically near the hostages at all times, and the hostages were explicitly told that, in the event of a rescue attempt, the guard would shoot them. Stansell, Gonsalves, and Howes often saw helicopters flying overhead and witnessed the guards prepare their guns and position themselves to fire upon the hostages. On other occasions FARC members approached each hostage and directly threatened to kill him, sometimes even dry-firing a weapon to simulate an execution. Stansell Aff. ¶ 4(ix); Gonsalves Aff. ¶ 4(vi); Howes Aff. ¶ 4(vi).

         After 1, 967 days in captivity, the men were rescued on July 2, 2008, by the Colombian military. Pls.' Ex. List I, Ex. 27, U.S. Dep't of State, Patterns of International Terrorism 2008 (Apr. 2009), ECF No. 16-27 [hereinafter Country Reports on Terrorism 2008], at 2.

         C. The Victims and the Claimants

         Keith Stansell, Marc Gonsalves, and Thomas Howes, are all American citizens presently residing in Florida. Stansell is a former United States Marine and served as the mission commander on the February 13, 2003, counter-narcotics surveillance flight. Compl., ECF No. 2 [hereinafter Compl.], ¶ 6. Gonsalves is an electronic surveillance systems specialist and was the chief counter-narcotics analyst and collection officer on board. Id. ¶ 7. Howes is a highly experienced pilot and was second-in-command on the flight. Id. ¶ 8.

         Tom Janis was an American citizen and, at the time of his death, a resident of Alabama. Id. ¶ 9. He was a retired United States Army aviator and spent 11 years as the Fixed Wing Commander of the U.S. Army's Delta Force. Janis was the pilot of the plane on which the FARC opened fire on February 13, 2003. At the time he died, Janis was in peak physical condition and had a routine of daily physical fitness. He left behind a spouse of more than 30 years, Judith Janis, and their four children-Christopher, Greer, Michael, and Jonathan. Pls.' Ex. List II, Ex. 4, Aff. of Judith Janis, ECF No. 17-4 [hereinafter Jud. Janis Aff.], ¶¶ 3, 5-7, 14; Compl. ¶ 10-14.

         Judith Janis is an American citizen and resident of Alabama. Christopher Janis is an American citizen who recently retired from active duty with the United States Army and also resides in Alabama. Michael Janis is an American citizen currently on active duty with the United States Army, serving overseas in Afghanistan. Jonathan Janis, also an American citizen, resides in California. Compl. ¶¶ 10-11, 13-14. At the time this lawsuit was filed, Greer Janis was an American citizen residing in Colorado, but she is now deceased. Her mother, Judith Janis, represents her estate in this lawsuit. Suggest. of Death and Unopp'd Mot. to Subst. Proper Party, ECF No. 22 [hereinafter Mot. to Subst.]; Mot. to Subst., Death Certificate, ECF No. 22-1 [hereinafter G. Janis Death Certificate]; Mot. to Subst., Letters of Admin., ECF 22-2; see Van Beneden v. Al-Sanusi, 709 F.3d 1165, 1166 & n.2 (D.C. Cir. 2013) (permitting legal representative of a deceased petitioner to continue a suit under the FSIA terrorism exception on behalf of a deceased petitioner).

         D. Injuries Sustained by the Victims and the Claimants

         1. The Victims

         Keith Stansell suffers from premature deterioration of the discs in his spine, sensitivity in his feet, and permanent pain in his right torso as a result of the long, forced marches he had to endure, at times with broken ribs. He struggles with ongoing digestive problems, and he had to undergo months-long treatment for the flesh eating virus he contracted in the jungle. His time with the FARC left him permanently disfigured. The flesh eating virus scarred his neck, crotch, and legs, and the heavy chains he was forced to wear scarred his neck and shoulders. He still has a knot under the skin on his right hip where a cyst burst and had to be excised. Stansell's pain and suffering is not limited to physical ailments. He mourns the time and life experiences the FARC stole from him-he missed the birth of his twin sons, many years of family memories and holidays, and time spent with loved ones. Lastly, he continues to struggle emotionally with managing the psychological pain caused by his captivity and isolation. Stansell Aff. ¶¶ 11-13.

         Marc Gonsalves also experiences ongoing physical and emotional scars as a result of being held hostage. He has physical pain in his knees, legs, back, and shoulders, as well as frequent migraines. Gonsalves's short-term memory has been dramatically reduced, which affects his ability to perform day-to-day tasks. In addition to insomnia and nightmares, Gonsalves suffers from various “triggers”-often sounds or smells-that induce extreme anxiety and nervousness, as though he is once again being held captive. Helicopters, in particular, incite panic and make Gonsalves feel as though he is about to be killed. He cannot be in small spaces or amongst even moderate-sized groups of people indoors. Gonsalves's marriage failed as a result of his emotional instability, and he no longer lives with his children. He laments the time he could have spent with his children as they grew up and the active role he wishes he could have played in raising them. Gonsalves Aff. ¶¶ 10-12.

         Thomas Howes, too, suffers physically and emotionally as a result of his time in captivity. He has lived for years with intestinal parasites, deteriorated eyesight, constant sore throat, esophageal erosion, leg cramps, and constant pain in his knees, ankles, and neck. Further, he finds himself consumed with stress, unable to stop worrying about how his experience in South America with the FARC will affect his relationships and professional career. The emotional trauma he suffered caused his marriage to fail, and he grieves the lost time with his family. Particularly painful for Howes was the passing of his father while he was being held by the FARC. Howes was very close with his father, and in addition to losing the opportunity to say goodbye to him, Howes is emotionally scarred by the fact that his father suffered in his last days from knowing his son was kidnapped. Howes Aff. ¶ 11-13.

         2. The Claimants

         Tom and Judith Janis were married for more than 30 years, and Tom was “the love of [Judith's] life.” Jud. Janis Aff. ¶ 8. The couple raised four children together, and Judith was proud to be Tom's wife, “knowing that no matter what life would bring [they] would get through it together.” Id. ¶ 11. Although Tom traveled frequently for work in Colombia, the couple never spent more than 10 days apart. Judith frequently traveled to Colombia to visit Tom. On the day Tom was murdered, Judith had been visiting; the couple kissed goodbye in the morning at the Colombian airport, and Judith boarded a commercial flight home to Alabama. Id. ¶ 10. Judith remembers his smile, their kiss, and Tom saying: “See you in 10 days honey girl.” Id. Judith learned Tom's plane had crashed from two voicemails left on her answering machine while she was traveling that day. Thirty-six hours later, the president of Tom's company flew to Alabama to tell Judith in person that her husband had been killed. Id. ¶ 16. Judith spent years investigating the details of Tom's death. Only upon Stansell, Gonsalves, and Howes returning to the United States did Judith learn that the FARC had ordered Tom killed. Id. ¶ 17. Judith thinks of her late husband every day and continues to grieve his death, 13 years later. When she learned of Tom's passing, she “really didn't believe that life could go on, ” and today still feels “the other part of [her] is missing.” Id. ¶ 16. Tom's absence is particularly pronounced on holidays, birthdays, and family gatherings. Id. ¶ 19. Judith has not remarried. Id. ¶¶ 3, 16.

         Christopher Janis was 30 years old when his father was murdered. Pls.' Ex. List II, Ex. 5, Aff. of Christopher Janis, ECF No. 17-5 [hereinafter C. Janis Aff.], ¶¶ 2-3. He had a “close and loving relationship” with his father while growing up, and followed in Tom's footsteps by enlisting in the Army. Id. ¶¶ 4, 9. In addition to teaching Christopher to drive and to water ski, Tom shared a special relationship with his son over their parallel military service. Id. ¶¶ 4-6. Christopher's last memory of his father is from early 2003, when Tom drove Christopher to the assembly point for Christopher's deployment to Kuwait. Christopher remembers his father waving to him through the window of the truck, smiling. Id. ¶ 7. Christopher learned of his father's plane crash while in Kuwait, on February 14, 2003. While in the Atlanta International Airport, Christopher's wife told him his father had died. See Id. ¶ 11. The news caused Christopher to immediately lose his breath, become weak in the knees, and break down crying. He still hates the Atlanta airport today because of that memory. Id. Christopher's grief is continuous, particularly now that he has retired from the ...


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