### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-10989

THE AMERICAN CANCER SOCIETY, Interested Party - Appellant

v. Receiver, KAREN L. COOK, Receiver - Appellee

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

Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit Judges. EDITH H. JONES, Chief Judge: Karen Cook (“Cook”) was appointed receiver over the assets of a number

o f r elated corporations and individuals, who the Securities and Exchange Commission (“SEC”) alleged violated multiple federal securities laws. Cook discovered that before the SEC filed its civil comp laint, the corporate entities involved had made charitable contributions to the American Cancer Society (“ACS”) totalling $240,000. Cook moved to recover the donations on behalf of the receivership, arguing that they qualified as fraudulent transfers under Texas’s Uniform Fraudulent Transfer Act (“TUFTA” )

. T E X
. B U S

. & C O M
. C O D E § 24.005(a). The district court granted t he motion and entered judgment U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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against ACS for the full $240,000. ACS has appealed. We REVERSE. The Receiver’s attempt to liken the scheme in question to a “Ponzi-like fraud,” and therefore reduce her burden to proving “presumed intent to defraud,” fails f o r lack of evidence. Not all securities frauds are Ponzi schemes. I. On September 28, 2009, the SEC commenced the un d e r l ying action for alleged violations of feder al s e c u riti e s l aw s a g ai n s t Gi a nt Operating, LLC, George Wesley Harris (“ H a r r is”), Stephen Christopher Plunkett (“Plunkett”), Giant Petr o l e u m , I nc., and DSSC Operating, LLC. The corporate entities will sometimes be collectively r e f e r r e d to as “Giant.” In its complaint, the SEC alleged that between December 2007 and September 2009, Giant Operating, by and through Harris, raised approximately $13.4 million from investors through five unregistered securities offerings. The offered securities were interests in oiland-gas drilling programs, which promised c o n siderable returns within twelve months. Investment brochures claimed t hat 80% of the offering proceedings woul d b e spent on operational costs—such as drilling, testing, and completion—while the remaining 20% would be spent on management costs. In reality, according to the SEC, a conside rable portion of investor funds was transferred from Giant Operating to a DSSC account, which Harr is devoted to personal expenses unrelated to oil-and-gas programs. Harris also transfer r e d

m illi o n s of dollars to defendants Plunkett and Giant Petroleu m , a n o th e r c o m p a ny Harris owned and controlled. Based on these allegations, th e S E C c harged multiple violations of federal securities laws. After suit was filed, the district court appointed Cook as receiver over the defendants’ assets (except those of Plunke tt). The court authorized Cook to “immediately take and h a v e complete and exclusive control, possession, and custody of the Receivership Estate and t o a n y a s s ets traceable to assets owned by the Receivership Estate.” Cook was also authorized to “[i]nstitute such a ctions

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or proceedings to impose a constructive trust, obtain possession, and/or recover judgment with respe c t to persons or entities who received assets or records traceable to the Receivership Estate.” Shortly after her app o i n t m e nt, Cook discovered that the corporate defendants had made a number of transfers to ACS from 2007 to 2009 as a sponsor of ACS’s Cattle Baron’s Ball. Giant contributed at least $240,000 to this major fundraising even t o v e r t h e three-year period. Cook filed a series of motions seeking the turnover of these contributions. To s u p p o rt th e r e c e iv e r s hip’s claim to these funds, Co o k a s s e r ted a number of theories. Cook principally argued that the donations were recoverable as fraudulent transfers under TUFTA. See T E X
. B U S

. & C O M
. C O D E § 24.005(a). She also proffered an equitable theory of constructive trust, arguing that actual fraud justified disgorgement of the contributions. The parties agreed that Cook’ s turnover motion would be determined by submission of evidence to the court without the necessity of a trial. Adopting the findings and conclusion of the magistrate judge, the district court concluded that the funds were recoverable as fraudulent transfers. T h e court reasoned t hat because defendants were operating a “Ponzi-like scheme,” their transfers to ACS were presumptively made with fraudulent inte nt. Warfield v. Byron , 436 F

. 3 d 5 5 1 , 558-59 (5th Cir. 2006). The court rejected defenses raised by ACS pursuant to TUFTA, granted Cook’s motion, and entered judgment against ACS for the full $240,000. ACS timely filed it s i n t e r l ocutory appeal. II. To recover the transfers from Giant to ACS, the receivership was required to demonstrate that ACS received transfers from Giant that w e r e made with actual intent to hinder, defraud or delay creditors. SeeT E X
. B U S

. & C O M
. C O D E § 24.005(a). The district court found th a t C ook satisfied her burden of proving intent to defraud with an affidavit that described Giant’s o perations and

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ultimately concluded that Giant was a “Ponzi-like” scheme. This court has held that tr a n s f

ers from a Ponzi scheme are presumptively made with intent to defraud, because a Ponzi scheme is, “as a matter of law, insolvent from its inception.” Warfield , 436 F.3d at 558. The burden then shifts to the recipient of Ponzi-generated funds to prove an applicable TUFTA defense. On appeal, ACS argues that the evidence before the district court did not sup p o r t the Ponzischeme finding. We agree. A Ponzi scheme is a “fraudulent investment scheme in which m o n e y contributed by later investors generates artificially high dividends or returns for the original investors, whose example attracts even larger investments.” Janvey

v. Alguire , 647 F.3d 585, 597 (5th Cir. 2011) ( quoting B LA C K ’ S LAW D I C T I O NA RY 1198 (8th ed. 2004) )

. In finding that Giant operated “like” a Ponzi scheme, the district court relied upon an affidavit from Cook, who served as the custodian of records for Giant and the receivership. Based on her alleged review of relevant business records, Cook attested that (1) investor funds constituted virtually all of Giant’s revenue; (2) those funds were commingled and used for personal and unauthorized expenses; (3) Giant did not operate a profitable business outside of
money received from new investors; (4) investor funds were used to pay “returns” to some investors; and (5) Giant used some of its funds to procure new investors. Thus, the affidavit concluded, “Giant was a fraudulent Ponzi -type scheme.” Attached to the affidavit w e r e t h r ee exhibits that purported to support her conclusions. ACS argues that neither the record in general, nor the attendant exhibits in particular, provide any evidence to sub s t a nti at e C o o k’ s conclusions. We review the district court’s Ponzi-scheme finding for clear error. See Cadle Co. v. Duncan (In re Duncan), 562 F.3d 688, 694 (5th Cir. 2009) (per curiam). “A finding of fact is clearly erroneous only if on the entire evi d e n c e , t h e c ourt is left with the definite a n d firm conviction that a mistake has been committed.” Id. (quoting

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Robertson v. Dennis (In re Dennis) , 330 F.3d 69 6 , 7 0 1 ( 5th Cir. 2003)). In this case, we are left with such a conviction. The sole evidence relied upon by the district court was Cook’s affidavit and the attending exhibits. The test i m o n y i n the affidavit, however, is highly conclusory and thus depends on the data furnished in the exhibits. The exhibits included the following: a summary o f G iant’s profitability, a list of payments made by Giant Operating to DSSC, and what appears to be a checkbook registry of a n a c c o unt of DSSC at Comerica Bank. Nothing in these documents demon s t rates that investor funds were used to issue “returns” to other investors–a sine qua non of any Ponzi scheme. See Janvey , 647 F.3d at 597. In fact, at oral argument, C o o k ’ s counsel failed to identify in those exhibits any instanc e i n w h i ch a single payment was made to an investor. The absence of

even a singl e i nvestor “payout”–which would be, by its nature, easy to

s h o w–convinces us the district court erred in placing determinative wei gh t o n Cook’s declaration that Giant operated as a P o n z i s c heme. By contrast, in Janvey this court fo u n d c r e d ible a declaration that provided “clear, numerical support for the cr e a t i v e reverse engineering undertaken” by the Ponzi scheme and specifically itemized the assets and returns of the company. 647 F.3d at 597. Because of this critical deficiency, the district cour t e r r e d in applying the presumption of fraudulent intent. Giant may well have operated as a fraudulent

or at least badly mismana g e d drilling investment program, but there was no proof that its perpetuation, unlike that of a traditional Ponzi scheme, was based

on the manu f

a c t uring of “returns” to investors from other investors’ contributions. Cook argues, however, that even if Giant was not technically operating a Ponzi scheme, her f

r a u d u lent transfer theory is supported by circumstantial evidence that the transfers to ACS were made with actual fraudulent intent. See Roland v. United States , 838 F.2d 1400, 1402-03 (5th Cir. 1988) ( “[C]ourts may

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r e ly o n circumstantial evidence to establish the fraudulent intent

. ”)

. C o o k a s s e rt s t h a t the purpose of the ACS donations was to lure new investors into Giant’ s fraudulent scheme, and that the donations were not an authorize d use of the investors’ money. The only support for these assertions, however, is a citation to Cook’s affidavit, the relevant portions of which are too conclusory and factually bar e t o s upport the district court’s holding. See N.W. Enters. Inc. v. City of Houston , 352 F.3d 162, 182-83 (5th Cir. 2003). The affidavit baldly asserts that based on her investigations, “it is clear that the donations to ACS were made with the purpose of luring new in v e stors and to keep the fraudulent scheme going.” Cook provides no explanation for this conclusion, nor any supportin g f a c t s to bolster this claim. Moreover, while the SEC complaint contained allegat i o ns relevant to the issue of authorized uses of investment proceeds, a complaint “is not evidence of th e c h a r g e s contained in it.” Scholes v. Lehmann , 56 F.3d 750, 762 (7th Cir. 1995). The dearth of evidence corroborating Cook’s testimony is, in short, dispositive. Accordingly, the district court clearly erred in finding that the donations to the Cattle Baron’s B a l l were fraudulent transfers according to TUFTA. 1 III. Nevertheless, Cook urges the court to affirm the judgment below based on alt ernative arguments not addressed by the district court. See LLEH, Inc. v. W ichita Cnty. , 289 F.3d 358, 364 (5th Cir. 2002) ( “‘[W]e may affirm f o r r e a s o n s other than thos e r e l i e d upon by the district court.’” (alteration in original) (quoting Joslyn Mfg. Co. v. Koppers Co. , 40 F.3d 750, 753 (5th Cir. 1994))). We address each in turn.

This conc lus ion mak es it unnec es sar y for us to cons ide r ACS’s def ens es that it 1
rec eived Gi ant’ s cont ribut ions in good fai th and for value rec eived

. See T E X

. B U S

. & C OM

. C ODE § 2 4.00 9(a)

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First, Cook argues that the receivership order–w h i c h authorized Cook to take possession of “any assets traceable to assets owned by the Receivership” and to institute actions necessary to achievi n g this end–provides an independent justification for the $240,000 judgment against ACS. This argument is meritless. Giant’s transfers to ACS occ u r r e d b e tween January 10, 2007, and August 13, 2009, before the SEC filed its c o mplaint or the court entered the receivership order. To convey title , t h e o n l y requirements were that Giant intend to make gifts and deliver the funds, and that ACS accept. See, e.g. , Hayes v. Rinehart , 65 S.W.3d 286, 289 (Tex. App. 2001) (enumerating three elements of a valid gift). Cook does not argue that the Giant defendants lacked capacity to convey title to the funds when the transfers occurred

. W e do not construe this boilerplate enabling order to do anything other than authorize Cook to pursue the recovery of assets that may have b e e n transferred by the defendants in violation of governing law. Thus, it became incumbent on Cook to establish an independent legal basis to jus tify their recovery. If the court’s enabling order purported to divest ACS of $240,000—based solely on litigation t o w h i c h A CS was not then

a party, of which it had not received notic e , a n d a g a i n st which it had no opportunity to defend—would raise serious due process concerns. See Dusenbery

v. United States , 534 U.S

. 161, 167, 122 S. Ct. 694, 699 (2002) (noting that individuals whose property int erests are at stake are entitled to notice and an opportunity to be heard). Cook’s argumen t s i m p l y cannot support the district court’s judgment. Second, Coo k urges the court to impose a constructive trust on ACS’s assets, a rguing that the funds at issue rightfully belong to the defrauded investors of Giant. Under Texas law, a constructive trust is an equitable remedy that may be imposed if the followin g e l e m e n t s are present: (1) actual or constructive fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing of the property o v e r which the trust is placed to some identifiable res in which the

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plaintiff has an interest. Burkhart Grob Luft und Raumfahrt GmbH & Co. KG

v. E-Sys., Inc. , 257 F.3d 46 1 , 4 69 (5th Cir. 2001). The decision to resort to this remedy, however, is entrusted to the discretion of the court. Id. In this case, the equities militate against a constructive trust on Giant’s charitable contributions to ACS. As noted above, there is no evidence that Giant’s contributions furthered
any fraudulent scheme or were otherwise made with intent to defraud investors. ACS relied upon Giant’s contributions in hosting the Cattle B aron’s Ball and incurred considerable expense in connection with receipt of those funds. These circumstances, combined with ACS’s status as a charitable organization, tilt the equities in its favor. Consequently, the remedy of constructive trus t is not appropriate to disgorge Giant’s charitable donations to ACS. IV. For these reasons, the judgment of the district court is REVERSED.

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