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United States v. Perez-Ceballos

United States Court of Appeals, Fifth Circuit

October 30, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
SILVIA BEATRIZ PEREZ-CEBALLOS, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before JONES, BARKSDALE, and WILLETT, Circuit Judges.

          EDITH H. JONES, CIRCUIT JUDGE:

         Following a jury trial, appellant Perez-Ceballos was exonerated of money laundering but convicted for bank fraud perpetrated upon a branch of J.P. Morgan Chase Bank under 18 U.S.C. § 1344(1). After carefully reviewing the record, we conclude there was insufficient evidence to sustain the conviction and therefore REVERSE.

         BACKGROUND

         Silvia Beatriz Perez-Ceballos moved to the United States in May 2013 after her husband, Jose Manuel Saiz-Pineda, lost his position as Secretary of Finance and Administration for the State of Tabasco, Mexico, in the 2012 elections. She testified that she has not returned to Mexico since. Shortly after her arrival in Texas, in June 2013, Perez-Ceballos opened a bank account in her name at J.P. Morgan Chase Bank ("Chase Bank") at its Richmond Sage branch in Houston. No false statements were alleged to have been made in connection with opening this account. Nevertheless, in 2017, Perez-Ceballos was convicted of defrauding Chase Bank based on her transfer of certain funds to and through this account.

         To properly trace Perez-Ceballos's transfers of funds, it is necessary to backtrack several years. In 2010, while living in Mexico, Perez-Ceballos and her husband opened a securities account at HSBC U.S. Bank ("HSBC"). The couple represented to HSBC that the source of funds for the account was their accumulated savings and savings/employment. Perez-Ceballos acknowledged to the HSBC financial advisor, Sonia Fernandez, that she was a "politically exposed person" ("PEP"), a designation reserved for individuals who hold office in a foreign government and for their families. In 2012, after Fernandez transferred to UBS Financial Services ("UBS") and HSBC decided to close its PEP accounts, Perez-Ceballos and Saiz-Pineda contacted Fernandez and transferred their assets from HSBC to UBS. The PEP designation followed Perez-Ceballos and Saiz-Pineda when they transferred their assets to UBS because once someone is designated a PEP, she is always a PEP-even if she or her family member leaves office.

         Perez-Ceballos and Saiz-Pineda maintained their account with UBS until the political upheaval in Mexico. After he was ousted from office, Saiz-Pineda was apprehended while trying to enter the United States in June 2013, after which he was arrested by the Mexican authorities and charged with illegal enrichment. Upon learning of his arrest, Fernandez notified Perez-Ceballos that UBS could no longer service the account and that she would need to transfer the assets elsewhere. Fernandez advised Perez-Ceballos of her options: she could transfer the assets in kind, which would require "a brokerage relationship in the same name," or she could liquidate the account and "then send the money wherever it was that she had a relationship."

         Around that same time, Perez-Ceballos was referred to Paul Arnold, an international financial advisor with Chase Investment Services Corporation ("Chase Investment"), to discuss potential investment strategies for the assets held at UBS. Arnold met exclusively with clients whose primary residence was outside the United States, because only non-resident aliens were eligible for the tax-exempt investments that he oversaw. During their consultation, Perez-Ceballos falsely told Arnold that her primary residence was in Mexico. Based on this misrepresentation and after discussing her investment aims, Arnold recommended that she apply for a brokerage account with Sun Life Financial, an insurance company registered in Bermuda that operates like a trust. Perez-Ceballos would not have been deemed eligible for this account if she had honestly informed Arnold that her primary residence was in Texas. Notably for jurisdictional purposes, neither Arnold's employer (Chase Investment) nor Sun Life Financial is FDIC-insured.

         In the course of opening her Sun Life Financial account, Perez-Ceballos made several additional misrepresentations to Arnold and Sun Life Financial: she represented that she was separated from her husband; that she was not a PEP; and that she signed the requisite documents in Mexico where they had been mailed to her (as required) when in fact she signed them in Houston after she sent her brother to retrieve the documents and bring them back to the United States. Perez-Ceballos also gave Arnold a UBS statement from August 2013, from which she had removed Saiz-Pineda's name as a joint account holder.

         In October 2013, having secured an account at Sun Life Financial, Perez-Ceballos liquidated her account at UBS, transferring over $1.9 million to her Chase Bank savings account. At Perez-Ceballos's direction, Chase Bank wired that $1.9 million to Sun Life Financial. The funds did not return to Chase Bank after that point. However, in May 2017, Perez-Ceballos attempted to withdraw funds from Sun Life Financial and again falsely affirmed that she lived in Mexico. Had her withdrawal been successful, the $1.9 million would have most likely been transferred back to Perez-Ceballos's Chase Bank savings account.

         This last series of transactions-the transfer of $1.9 million from UBS to Chase Bank to Sun Life Financial in 2013 and the attempted transfer of $1.9 million from Sun Life Financial back to Chase Bank in 2017-formed the heart of Perez-Ceballos's bank fraud conviction. Because the account at Sun Life Financial was procured by false misrepresentation, the government contends that the October 2013 transfer through Chase Bank and the May 2017 attempted transfer to Chase Bank exposed Chase Bank to a risk of loss.

         In April 2017, Perez-Ceballos was indicted-along with Saiz-Pineda and another co-conspirator-on one count of conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956, and one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344, 1349. The original indictment alleged that Perez-Ceballos had executed or attempted to execute "a scheme and artifice to defraud Morgan Stanley Smith Barney, Royal Bank of Canada, and J.P. Morgan Chase Bank." The case went to trial. After the government rested, Perez-Ceballos moved for judgment of acquittal under Fed. Rule Crim. Pro. 29, based in part on the government's failure to prove FDIC-insured status for the banks listed in the indictment. The government conceded lack of federal criminal jurisdiction as to Morgan Stanley and the Royal Bank of Canada, but not as to Chase Bank. The district court accepted this concession and denied the motion as to Chase Bank. Following another unsuccessful attempt by Perez-Ceballos to dismiss pursuant to Rule 29, the jury acquitted Perez-Ceballos of money laundering but found her guilty of bank fraud under 18 U.S.C. § 1344(1). The jury rejected all forfeiture contentions, apparently for lack of sufficient evidence to hold that the property in question was derived from proceeds obtained through the alleged bank fraud conspiracy. Perez-Ceballos was sentenced to ten months' imprisonment.

         Perez-Ceballos appeals her conviction, contending that (1) the government failed to establish federal criminal jurisdiction; (2) there was insufficient evidence to support her conviction; and (3) prosecutorial misconduct occurred at several points during trial. Because this court reverses Perez-Ceballos's bank fraud conviction, the prosecutorial misconduct claim is ...


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