from the United States District Court for the Southern
District of Texas
JONES, BARKSDALE, and WILLETT, Circuit Judges.
H. JONES, CIRCUIT JUDGE:
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.
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.
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.
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."
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.
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.
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.
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.
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
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 ...