Kay Anderson was convicted by a jury of three counts of bank fraud, in violation of 18 U.S.C. § 1344. She was sentenced to 24 months imprisonment and ordered to pay a $200,000 fine, along with $554,500 in restitution. For the reasons set forth below, we reverse her conviction.
I. BACKGROUND
Mendon State Bank (“MSB”) was a small, federally insured bank located in Mendon, Illinois. According to its chairman, Donald Schoch, it was primarily a farm lender. Beginning at some point in the 1980’s, MSB began doing business with a real estate company named Choice 2000 (“Choice”). Athough MSB had a legal lending limit of $100,000 per customer, by July of 1986, it had loaned Choice a total of over $3,000,000. Because of these extensive loans and Choice’s constant over-drafting of its checking account, MSB was in considerable financial difficulty by mid-1986.
It was about this time in 1986 when the president of Choice introduced Anderson to Schoch. Anderson, a representative of AMZ Trust (“AMZ”) in Houston, was to help Choice finance various real estate centers in several major cities within the United States. On July 18, 1986, MSB made four separate loans of $350,000 to Carlyle Buss, Michael Crocker, Aaron Gochman, and Charles Ragland. In addition, Schoch issued four separate money orders, each for $143,500. Three were payable to MSB, and one was payable to Choice. The three money orders made payable to MSB were sent to AMZ to purchase four zero coupon bonds of $350,-000, apparently to act as security for the aforementioned loans. The $143,500 given to Choice was also wired to AMZ two days later.
Anderson opened an Asset Reserve Account at E.F. Hutton in the name of AMZ in Houston in late July of 1986. Between July 25, 1986 and August 1, 1986, three deposits totaling $470,000 were transferred into AMZ’s account at E.F. Hutton, and a few weeks later, three zero coupon bonds of $350,000 each were also credited to the account. According to the government, shortly after the money was deposited, Anderson began personally drawing checks on the account and incurring debits. Throughout the month of August, MSB officials tried to collect repayment of the original loans in the form of the zero coupon bonds from Anderson. By the end of August, MSB was closed, and the FDIC was appointed receiver of the bank. In May of 1987, AMZ opened an account at Merrill Lynch. The FDIC, claiming to have an interest in the zero coupon bonds as MSB’s successor in interest, made repeated (unsuccessful) attempts throughout 1987 to try to retrieve these funds from Anderson and AMZ.
Ten years after the closing of MSB, Schoch, along with his brother Eldon, the president of MSB, pleaded guilty to several improprieties that occurred while MSB was over-lending money to Choice, even though MSB had exceeded its lending limit with Choice and Choice was carrying a negative balance in its checking account. Additionally, Jerry Pardue, chairman of Choice, was convicted of embezzlement and misapplication of bank funds in con *888 nection' with the same activity. No charges were brought against Anderson at that time. It was not until June 19, 1997 that a federal grand jury charged Anderson with three counts of bank fraud. The indictment charged Anderson with devising a scheme to defraud and obtain monies of MSB, and later the FDIC as the bank’s successor in interest. The indictment also charged that this scheme lasted from July of 1986 until at least August 7, 1987. Furthermore, the indictment charged her with taking funds of MSB and purchasing three zero coupon bonds, each with a par value of $350,000 and failing to maintain the bonds for MSB. It also charged her with taking money from MSB and using it for her own purposes. All of this conduct occurred prior to June 19, 1987, ten years before the date of the indictment. The three substantive charges of bank fraud in the indictment, however, are based on transactions in which Anderson transferred funds from AMZ’s account at E.F. Hutton to its account at Merrill Lynch. The first transfer occurred on June 19, 1987, the second on July 1, 1987, and the last on or about August 6,1987.
Anderson’s jury trial began on June 22, 1998. On June 30, 1998, the jury returned a guilty verdict on all three counts. Anderson was sentenced to 24 months imprisonment for counts one and two, to run concurrently. . The sentence on count three was suspended. This appeal followed.
II. DISCUSSION
Anderson raises several issues on this appeal; however, we need only to address her statute of limitations argument to dispose of the case. We review
de novo
a trial court’s decision about whether the statute of limitations has run.
Garrison v. Burke,
Anderson was convicted of three counts of bank fraud, in violation of 18 U.S.C. § 1344. That section states: whoever knowingly executes, or attempts to execute a scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises shall be fined not more than $1,000,000 or imprisoned no more than 30 years, or both.
Id.
The statute of limitations for bringing an action for bank fraud is ten years.
See
18 U.S.C. § 3293. Statutes of limitations are imposed “to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions.”
Toussie v. United States,
The bank fraud statute was enacted in October of 1984 and was modeled after the federal mail and wire fraud statutes. Steven M. Biskupic,
Fine Tuning the Bank Fraud Statute: A Prosecutor’s Perspective,
82 Marq. L.Rev. 381, 382 (Winter 1999). Just as mail fraud is punishable once the material is placed in the mail,
see United States v. Barger,
Anderson claims that any fraud that occurred did so in 1986 when she originally obtained the monies from MSB in relation to the loans that MSB made to Choice, and not when she transferred funds from AMZ’s account at E.F. Hutton to its account at Merrill Lynch (which she claims only occurred because her broker had moved from E.F. Hutton to Merrill Lynch). Therefore, she claims that any fraudulent scheme must have been executed before June 19, 1987, and the statute of limitations had run prior to her indictment. In rejecting this argument, the district court relied heavily on our decision in
Longfellow, supra,
and the Second Circuit’s decision in
United States v. Duncan,
In
Longfellow,
we ruled that the bank fraud statute is meant to punish each “execution” of the scheme to defraud, and not each act in furtherance of the scheme to defraud.
Longfellow,
The other case on which the district court relied, Duncan, involved a challenge of the Ex Post Facto clause because Duncan was charged with conduct that he thought occurred before the passage of the bank fraud statute. Duncan, 42 F.3d at 103-04. That case involved a scheme wherein the defendant, and others, who were directors of Security Savings & Loan Association (“SSLA”), conspired to purchased some real estate with the intention of leasing it to SSLA, but in such a way that the other directors of SSLA had no idea that the defendants had an interest in the property. Id. at 99. However, rather than leasing the properties, the defendants sold them outright to SSLA for a hefty profit. Id. at 100. It was undisputed that the properties were purchased before the bank fraud statute was enacted, but they were sold afterwards. Duncan argued that the real fraud occurred when the conspirators usurped the corporate opportunity from SSLA and personally bought the properties, and that the sale of the properties was not a component of the bank fraud. Id. at 104. The court found differently. The court ruled that the central purpose of the charged scheme was to secretly purchase and then sell the properties to the bank at a premium. Id. (emphasis supplied). The court also held that the government presented ample evidence to show that the defendants’ plan from the outset was to purchase the properties and make a profit at SSLA’s expense. Id. Thus the court was not prepared to separate the initial deception of the bank from “the central purpose of the fraudulent venture,” which was to eventually turn a profit from the scheme. Id. Since the sale of the properties occurred within the statute of limitations, the execution of the entire bank fraud scheme fell within the statute of limitations. Id. at 105.
Recently, although in the context of mail fraud, we held that in order to determine whether the statute of limitations has run, the central question to decide is what the scheme was.
United States v. Bach,
This case, however, is significantly different from these examples. Here, we do not have the same kind of misrepresentation as in Longfellow. The refinancing of the loan in that case put the Credit Union at a separate, distinguishable financial risk from the risk it already undertook in making the original loan. Thus, it was a separate execution. The conduct charging Anderson with bank fraud did not put MSB or the FDIC at any additional risk. Similarly, in Duncan, the purpose of the scheme could not have been completed *891 until the defendants sold the parcels of land to SSLA. Again, this transaction put SSLA at a separate risk. That is not the case here, either. Any scheme Anderson may have conceived was completed upon receipt of the funds. The mere act of transferring money from one bank account to another was not part of the original scheme to defraud, nor did it create a new financial risk. Lastly, in Bach, the defendant actually made fraudulent mailings (the essence of mail fraud) to his victims assuring the security of their investments. Again, Anderson took no step remotely similar to this to complete her scheme when she transferred the funds from E.F. Hutton to Merrill Lynch.
When Anderson received the money to buy the zero coupon bonds, the fraud was complete. The conduct charged in the indictment did not place the bank at any separate, distinguishable risk of financial loss. The mere act of her transferring the money from the AMZ account at E.F. Hutton to the account at Merrill Lynch created no more of a risk than if she had simply kept the money in the E.F. Hutton account or used the money to buy groceries. The execution of the fraudulent scheme is complete upon the movement of money, funds, or other assets from the financial institution.
United States v. Christo,
REVERSED.