Preventing Money Laundering and Terrorist Financing
Whereas the inspection reports and responses submitted by the institution reveal that the ships’ financial transactions were structured in a complex manner that did not disclose a direct legal link to the true beneficiary of the transaction; whereas, therefore, the institution should have obtained the necessary documentary proof to identify the real beneficiary in order to fulfill its vigilance obligations; whereas, had such steps been taken and it had proven impossible to obtain probative documents, written documentation external to the institution establishing with reasonable certainty the identity of the real beneficiary could have been considered for at least two of the eight ship financing files examined in the July 19, 2001, report [companies A and B]; whereas at the time of the investigation, Crédit Agricole Indosuez (CAI) did not have any information that would have identified the real beneficiaries of the transaction, the persons entitled to the financial benefits derived from the activities of the ad hoc entities used; whereas the documents furnished by the institution in its submission as information on the real beneficiaries of these transactions were done so after the date of the report; whereas an offense has therefore been committed; Whereas the CAI is the agent for a loan granted to company [C] to purchase an airplane operated by [company D], and the inspection report of March 31, 2004 and the documents submitted on September 2, 2004 indicate that CAI did not ascertain the identity of the shareholders of company [E], the holder of 100 percent of the shares of [C]; whereas [C] and [E], both being companies registered in Delaware, having a share capital of US$1.00, domiciled with a “Corporation Service Company,” or a “Corporation Trust Company,” with their only known activity being that of holding assets, do not appear to be the real beneficiaries of the transaction; whereas, consequently, even though CAI has identified the company operating the aircraft that was financed, the institution did not ascertain the real beneficiaries of the transaction, who in this case are the persons having the right to benefit from the profits realized by these entities; whereas an offense has been committed; Whereas at the time of the investigation CAI did not appear to have information on the real beneficiaries of the nine investment funds set up at [bank F] domiciled in country Z, whose assets have been deposited at CAI in France; whereas the fact that this country belongs to the Gulf Cooperation Council, and is also a member of the international coordination and cooperation entity established to combat money laundering (FATF), is not sufficient to establish that the financial institutions had at that time implemented any anti-money laundering mechanism similar to that to which French financial institutions are subject; whereas, therefore, the documents produced by the defense, especially the FATF 2003-2004 annual report, show that a comprehensive mechanism to combat money laundering consistent with the FATF recommendations was implemented in 2003; whereas, under these circumstances, the institution, where the practice of having subaccounts bearing the name of the various investment funds demonstrates that it was aware that [bank F] was not acting on its own behalf but on behalf of those funds, cannot therefore invoke the 238