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UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

UNITED STATES OF AMERICA, Case No. 3:15-CR-00238-SI 

v. 

DAN HEINE AND 

DIANA YATES, 

SUPERSEDING INDICTMENT 

18 U .S.C. § 2 (Aiding and Abetting) 

18 U.S.C. § 1005 (False Bank Entries, 

Reports and Transactions) 

Defendants. 

18 U.S.C. § 1349 (Conspiracy to Commit 

Bank Fraud) 

Forfeiture Allegations 

THE GRAND JURY CHARGES: 

COUNT 1 

CONSPIRACY TO COMMIT BANK FRAUD 

(18 u.s.c. § 1349) 

At all times material to this Indictment: 

1. The Bank of Oswego ("the Bank"), headquartered in Lake Oswego, Oregon, was 

engaged in the business of personal and commercial banking and lending. The Bank is a 

"financial institution," as defined by Title 18, United States Code, Section 20, whose deposits are 

insured by the Federal Deposit Insurance Corporation (FDIC). 

2. Defendant DAN HEINE (HEINE) was founder, president, Chief Executive 

Officer (CEO), and member of the Board of Directors for the Bank beginning in September 2004 

through approximately September 2014. As the CEO and member of the Board of Directors, 

HEINE was responsible for overseeing the Bank's affairs, managing the Bank's day-to-day 

operations, ensuring the Bank was operated in a sound and safe manner, and keeping Board of 

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Director members informed about the Bank's financial conditions and the adequacy of its 

policies, procedures and internal controls. 

3. Defendant DIANA YATES (YATES) was a founder, executive vice president, 

Chief Financial Officer (CFO), certified public accountant (CPA), and the Secretary to the Board 

of Directors of the Bank from 2004 through approximately March 2012. As the CFO and an 

officer of the Board of Directors, YA TES was responsible for ensuring that the Bank was 

operated in a sound and safe manner, complied with state and federal regulations and keeping 

Board of Director members informed about the Bank's financial conditions and the adequacy of 

its policies, procedures and internal controls. 

4. Beginning in or about September 2009 and continuing through at least September 

2014, in the District of Oregon and elsewhere, HEINE, YATES (collectively 

"DEFENDANTS") and others known and unknown to the Grand Jury did, unlawfully, 

knowingly, and intentionally combine, conspire, confederate, and agree with each other, and 

with others, to execute or attempt to execute a material scheme and artifice to defraud the Bank 

and the Bank's Board of Directors and to obtain any of the moneys, funds, credits, assets, 

securities, or other property owned by, or under the custody or control of the Bank by means of 

material false and fraudulent pretenses, representations, and promises, and omissions of material 

fact in violation of Title 18, United States Code, Section 1344. 

5. The Bank's elected Board of Directors governed and managed the affairs of the 

Bank. DEFENDANTS met at least monthly with the Bank's Board of Directors and reviewed 

the Bank's financial status through the submission of monthly Board of Directors Reports. 

These reports were prepared and signed by the DEFENDANTS. The Board of Directors relied 

upon the information in these reports regarding the Bank's financial condition and ensured that 

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the Bank was complying with applicable regulations in exercising its oversight of the Bank. 

6. The Bank had policies and procedures which were annually approved by the 

Bank's Board of Directors. These policies and procedures generally followed guidelines and 

regulations prescribed by the FDIC and were intended to ensure the safe and sound operation of 

the Bank. 

7. DEFENDANTS were each voting members of the Bank's Internal Loan 

Committee (ILC). The ILC was instituted to approve loans outside of the authority of individual 

Bank loan officers (which was purposefully low), to ensure the quality of the Bank's loan 

portfolio and monitor and minimize risks in that portfolio. The ILC met approximately once per 

week and conducted the business of the ILC via email. These meetings were memorialized and 

the decisions documented in the ILC Minutes. The ILC Minutes were then part of the monthly 

Board of Directors Reports. 

8. The FDIC is a United States government corporation, responsible for insuring 

bank deposits, examining and supervising banks for safety and soundness, and managing failed 

banks in receivership. 

9. As part of its compliance with federal regulations promulgated to ensure financial 

institutions are financially stable, the Bank was required to file, and did file with the FDIC on a 

quarterly basis, "Consolidated Reports of Condition and Income for a Bank with Domestic 

Offices Only- FFIEC 041," commonly known as "Call Reports," which set forth financial data 

about the Bank's financial position as the result of its operations for that quarter. The Call 

Reports were divided into a number of schedules, among them, income statements, balance 

sheets, and schedules of past due and non-accrual loans. Schedule RC-N of the Call Report 

required disclosure of the full value of outstanding loans, the payments on which were past due 

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for between 30 and 90 days, as well as those loans past due for more than 90 days, for the quarter 

period just ended. 

10. The Bank's loan accounting system generated a report of those loans that were 

past due, also referred to as a loan delinquency report and also referred as the "RPT-792" in the 

Bank's accounting system. At the end of each quarter, the loan delinquency report would 

provide the basis for the past-due schedules on the Call Report. 

11. The FDIC collected, stored and relied on the Bank's Call Report data for use by 

federal and state bank regulatory agencies, and the general public. 

PURPOSE OF THE CONSPIRACY 

12. One of the purposes of the conspiracy was to conceal the true financial condition 

of the Bank and to create a better financial picture of the Bank to the Board of Directors, 

shareholders (current and prospective), regulators and the public. To achieve this, and 

throughout the course of the conspiracy, DEFENDANTS reported false and misleading 

information about the performance of loans, concealed information about the status of foreclosed 

properties, made unauthorized transfers of Bank proceeds, and failed to disclose material facts 

about loans to Bank insiders to the Board of Directors, shareholders and regulators. 

MANNER AND MEANS OF THE CONSPIRACY 

13. Payments Made on Delinquent Loans: In furtherance of their conspiracy and 

scheme to defraud, DEFENDANTS made payments on behalf of delinquent borrowers of the 

Bank, sometimes using Bank proceeds obtained through materially false statements or 

omissions. This practice was inconsistent with the Bank's policies and procedures. This was 

done to conceal the true status of those loans and the overall financial condition of the Bank. On 

or about September 2009 and continuing through at least May 2012, DEFENDANTS oversaw 

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and directed the Bank's former Senior Vice President of Lending, Geoff Walsh, to make 

payments from his personal banking account to the accounts of the Bank's customers who were 

on the Bank's loan delinquency report. The payments made were at times without authorization 

or knowledge of the borrower. Walsh made the payments on the past due loans in order to 

prevent the delinquent loans from appearing on the Call Report. Walsh utilized other customers' 

funds from both internal and external bank accounts to make it appear that a borrower was 

bringing sufficient funds to close certain transactions, when in fact the funds had been supplied 

by an undisclosed third-party. On or about March 31, 2011, YA TES made an unauthorized 

transfer from one borrower's restricted business checking to that customer's personal loan to 

cover a delinquent loan payment, which was unknown and unapproved by the customer. 

DEFENDANTS' practice of paying delinquent loans for customers with Bank or other proceeds 

concealed the true extent of the Bank's delinquent loans and hid delinquent loans that would 

have otherwise been included on the monthly Board of Directors Report and Quarterly Call 

Reports to the FDIC. 

14. Wire Transfer and Loan to Bank Customer M.K.: In furtherance of their 

conspiracy and scheme to defraud, beginning in or about July 2010 and continuing through at 

least September 2010, DEFENDANTS and others known and unknown to the Grand Jury 

permitted an unsecured draw for Bank customer M.K. to be made and then approved a $1. 7 

million loan for the benefit of M.K. in order to conceal the unsecured draw and to pay other 

Bank borrowers' delinquent loans. 

15. On or about July 26, 2010, a $675,000 wire transfer was requested from the 

Bank's cash account held at Pacific Coast Banker's Bank (PCBB) account. YATES approved 

the wire transfer despite the fact that M.K. did not have sufficient funds to cover the $675,000 

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draw. As such, the $675,000 was not offset by M.K. 's account and the PCBB account was out of 

balance and not reconciled through September 30, 2010. YATES received regular notification 

from July 26, 2010 through September 30, 2010 that the PCBB account was out of balance as a 

result of the $675,000 transfer. 

16. DEFENDANTS made material misrepresentations and omissions to the Board of 

Directors by failing to disclose in the Board of Directors Reports that the $675,000 wire transfer, 

for the benefit ofM.K., was unsecured and that the Bank's books were out of balance and not 

reconciled for July, August and September, 2010. 

17. On September 30, 2010, a credit approval presentation (CAP), also referred to as 

a loan application, was presented to the ILC for a $1, 700,000 loan for the benefit of M.K. 

DEFENDANTS voted to approve the CAP. Pursuant to Bank policy, DEFENDANTS were 

required to obtain approval from the Bank's Board of Directors because the amount of the loan 

exceeded $1,000,000. In presenting the CAP to the Board of Directors and recommending the 

loan for approval, the DEFENDANTS failed to provide material information to the Board of 

Directors that M.K. owed the Bank $675,000 from the unsecured wire transfer. 

18. Once the loan was funded, DEFENDANTS directed that a portion be used to pay 

the $675,000 unsecured wire transfer to reconcile the PCBB account and conceal the fact of the 

unsecured wire transfer. Additionally, approximately $33,327 of the loan was used to cover 

payments for other Bank customers on delinquent loans in Q3-2010. Without the improper use 

of the loan for the benefit of MK to pay other customers' delinquencies, the Bank would have 

had to report approximately $1,392,390 in additional delinquent loans to the Board of Directors 

and on the Quarterly Call Report. 

19. Straw Buyer Purchase (A Avenue Property): On or about October 2010, 

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through at least May 2011, DEFENDANTS and others known and unknown to the Grand Jury, 

recruited D.W., an employee at the Bank, to facilitate a straw buyer purchase of real property 

located at 952 A A venue, Lake Oswego, Oregon 97034 ("the A A venue Property") in order to 

conceal a loss to the Bank. L.B. was the previous owner of the A Avenue Property and had 

obtained a first mortgage with Citimortgage and a second mortgage of approximately $325,000 

with the Bank. On or about October 2010, Citimortgage foreclosed on the A A venue Property 

and reconveyed it to Federal National Mortgage Association (Fannie Mae), who then listed it for 

sale. After Citimortgage foreclosed, pursuant to Bank policy and procedure, L.B. 's loan should 

have been charged off by the Bank. Instead, DEFENDANTS inappropriately recorded the A 

Avenue Property as "other real estate owned" (OREO) in the Bank's records so that the Bank did 

not incur the remaining approximate $99,000 loss and DEFENDANTS could manipulate the 

OREO account. This was inconsistent with the Bank's policies and federal and state regulations 

because the Bank did not have any equity interest in the A A venue Property after the foreclosure. 

20. In January 2011, DEFENDANTS agreed to and did provide Bank employee, 

D.W., two checks in the amount of$26,500 and $241,227.89 from the Bank's own cash account 

to purchase the A Avenue Property from Fannie Mae. YATES falsely represented in the 

transactional documents that D.W. personally funded $267,727.89 for the purchase of the A 

Avenue Property. The A Avenue Property was thereafter titled in the name ofD.W. 

21. In May 2011, DEFENDANTS identified G.R. as a third-party buyer to purchase 

the A Avenue Property and agreed to give a mortgage to G.R. to make the purchase. On or about 

May 5, 2011, the day before the sale of the A Avenue Property to G.R. was scheduled to close, 

DEFENDANTS directed D.W. to deed the A Avenue Property to the Bank. G.R.'s CAP for the 

loan to purchase the A A venue Property was submitted to the ILC and stated that G .R. was 

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purchasing Bank owned property. DEFENDANTS voted to approve G.R.'s CAP on May 4, 

2011. On or about May 6, 2011, G .R. purchased the A A venue Property from the Bank for 

approximately $355,000. DEFENDANTS made additional materially false statements and 

omissions regarding the A Avenue Property transactions: 

a. From November 2010 until May 2011, DEFENDANTS made materially 

false statements in the Board of Directors Report that the A A venue 

Property was an OREO asset, when in fact it was not; 

b. DEFENDANTS omitted from the February 2011 Board of Directors 

Report and the ILC Minutes that D.W. acted as straw purchaser and 

purchased the A A venue Property; 

c. Related documents for the loan signed by D.W. falsely stated D.W. would 

maintain and reside at the A Avenue Property as an owner-occupant, when 

DEFENDANTS knew D.W. never intended to occupy the residence; 

d. Bank receipts for the amounts of $26,500 and $241,227 .89 authorized by 

YATES omitted that the funds were withdrawn from the Bank and falsely 

showed D.W. as the remitter; 

e. DEFENDANTS omitted in the May 2011 Board of Directors Report that 

D.W. was the previous owner and instead showed the Bank owned the 

property as an OREO asset. 

22. OREO Properties Sold to Bank Customer R.C.: In furtherance of their 

conspiracy and scheme to defraud, on or about March 2010, through at least June 2013, 

DEFENDANTS and others known and unknown to the Grand Jury, removed or caused to be 

removed two properties from the Bank's OREO account following the sales to borrower R.C. 

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even though the sales did not meet the requirements to remove the properties from the account. 

On or about March 22, 2010, R.C. purchased one OREO property owned by the Bank located in 

Ridgefield, Washington for approximately $427,500, and on July 30, 2010, R.C. purchased 

another OREO property owned by the Bank located in Portland, Oregon for approximately 

$385,000. The DEFENDANTS did not require R.C. to make any down payment at the time of 

either of the purchases and provided R.C. 100% financing from the Bank for both properties. As 

a result of the transactions, the DEFENDANTS removed or caused to be removed both 

properties from OREO classification and they were no longer reported on the FDIC Quarterly 

Call Reports as OREO assets. 

23. On or about January 24, 2011, FDIC examiners questioned the validity of the 

accounting ofR.C. purchases and the removal of the properties from the Bank's OREO account. 

Examiners advised DEFENDANTS that because the Bank had sold both properties without 

requiring a down payment, the purchases did not meet the minimum equity requirements needed 

to remove the properties from the OREO account. Examiners instructed DEFENDANTS to 

review the purchase and financing of the R.C. transactions and ensure they complied with proper 

accounting standards and qualified for removal from OREO classification. YATES 

subsequently advised the examiners that R.C. was going to make down payment for the two 

properties, which would then allow the Bank to properly remove the properties from OREO. 

24. On or about February 28, 2011, a senior manager from Moss Adams LLP, the 

Bank's independent auditor, contacted YA TES via e-mail regarding the down payment for the 

R.C. On or about March 17, 2011, DEFENDANTS executed a management representation 

letter, also known as a "management rep" to Moss Adams LLP. The letter signed by 

DEFENDANTS, stated that the Bank received all of the down payments for the properties 

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purchased by R.C., when in truth and fact, no payments had been received from the Bank. 

25. In approximately August 2011, DEFENDANTS misappropriated or caused to be 

misappropriated approximately $37,500 from R.C. 's demand deposit account (DDA) without 

R.C.'s knowledge or permission. On or about December 29, 2011, DEFENDANTS presented a 

CAP to the Bank's ILC for $100,000 on behalf ofR.C., which sought a loan for improvements to 

R.C.'s investment properties that he purchased from the Bank. R.C. was not aware of the CAP 

for $100,000 nor had he authorized DEFENDANTS to submit one on his behalf. 

DEFENDANTS approved the loan. Once the loan funded, DEFENDANTS directed that 

approximately $92,500 be applied, in combination with the $37,500 improperly removed from 

R.C. 's DDA, as a down payment for the two properties, in order to keep the properties off of the 

Bank's OREO list. DEFENDANTS made additional materially false statements regarding the 

purchase of OREO properties by R.C. and his loans from the Bank: 

a. DEFENDANTS falsely stated in the monthly Board of Directors Report, 

signed and prepared by the DEFENDANTS, from March 2010 until 

December 2011 that both of the OREO properties purchased by R.C. were 

properly removed from the Bank OREO account, when in fact they were 

improperly removed; 

b. DEFENDANTS falsely reported the removal of OREO of approximately 

$760,000 from 2010 through 2013, until the FDIC uncovered accounting 

problems with the R.C. loans; 

c. On or about January 31, 2011, YATES prepared two memos to each of 

the R.C. loan files that falsely stated R.C. was willing to make a 15% 

down payment toward both properties; 

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d. In December 2011, the Bank's ILC Minutes omitted and concealed the 

true purpose of the $100,000 loan to R.C. and thereafter the ILC Minutes 

were presented to the Board of Directors as part of the monthly Board of 

Directors Report, prepared and signed by the DEFENDANTS. 

26. Misrepresentations to Shareholders: DEFENDANTS regularly issued Investor 

Updates to shareholders regarding, among other things, the Bank's Texas Ratio. The Texas Ratio 

is considered a warning indicator of potential trouble at a bank and is determined by dividing the 

bank's nonperforming assets (nonperforming loans and the real estate owned by the bank) by its 

tangible common equity and loan loss reserves. The Texas Ratio takes into account two 

important factors in a bank's health: the number of bad loans it has made and the cushion the 

bank's owners have available to cover those bad loans. If too many of the bank's loans are 

nonperforming, the bad loans will erode the bank's equity cushion, which could cause the bank to 

fail. Likewise, if there is not enough equity in a bank, the bank will not be able to absorb very 

many bad loans and the bank may fail. The Texas Ratio is sometimes expressed as a 

percentage-as the percentage increases, the bank's risk of failure rises. And relatively speaking, 

the higher the percentage, the more precarious the bank's financial situation. The defendants 

purported that the overall average for banks in the State of Oregon in 2009 was approximately 

61.4% and in 2010 it was 53.7%. During the relevant time period, DEFENDANTS caused the 

Bank to misrepresent the Texas Ratio to investors as follows: Q4 - 2009: 21.19%; Q2 -

2010: 4.36%; Q3-2010: 3.76%; Q4-2010: 6.8%; Q3-2011: 4.0%; Q4-2011: 4.0%. 

These statements misrepresented the true extent of delinquent loans for the relevant time period. 

All in violation of Title 18, United States Code, Section 1349. 

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COUNTS2THROUGH19 

FALSE BANK ENTRIES, REPORTS AND TRANSACTIONS 

(18 u.s.c. §§ 1005, 2) 

1. The Grand Jury realleges each and every allegation contained in each of the 

paragraphs 1 through 26 of Count 1 of this Indictment, and incorporates them by reference as if 

set forth herein. 

2. On or about the dates listed below, in the District of Oregon and elsewhere, 

DEFENDANTS DAN HEINE AND DIANA YATES, with others known and unknown to 

grand jury, with the intent to injure and defraud the Bank, a financial institution that was insured 

by the FDIC, and to deceive any officer of the Bank, the FDIC, any agent or examiner appointed 

to examine the affairs of the Bank and the Board of Directors, knowingly made and caused to be 

made false entries in the books, reports, statements of the Bank, in that DEFENDANTS 

concealed and omitted from Call Reports and Board of Directors' Reports material information 

about loans, the status of foreclosed properties and represented in Call Reports and Board 

Reports, material information about the true status of loans and assets. Each false entry 

constitutes a separate count of this Indictment as indicated below: 

Count Date of False False Entry on Call Report FDIC Call Report 

Entry Quarter 

2 Feb. 5, 2010 Omitted delinquency of payment on Q4-2009 

M.S. loan account x45000 

3 April 28, 2010 Omitted an OREO asset of Ql -2010 

approximately $427,500. 

4 Aug. 1, 2010 Omitted delinquency of payment on Q2-2010 

H.A. loan account x85000 

5 Nov. 10, 2010 Omitted delinquency of payment on Q3 - 2010 

E.C. loan account x2400 

6 Nov. 10, 2010 Omitted delinquency of payment on Q3-2010 

J.H. loan account x3000 

7 Nov. 10, 2010 Omitted delinquency of payment on Q3-2010 

H.A. loan account x85000 

8 Nov. 10, 2010 Omitted delinquency of payment on Q3 -2010 

E.D. loan account xl 189 

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Count Date of False False Entry on Call Report FDIC Call Report 

Entry Quarter 

9 Nov. 10, 2010 Omitted delinquency of payment on Q3-2010 

R.G. loan account x1270 

10 March 21, 2011 Omitted delinquency of payment on Q4-2010 

E.D. loan account xl 189 

11 April 25, 2011 Omitted an OREO asset of Ql -2011 

approximately $360,800. 

12 April 25, 2011 Misrepresented the A A venue Ql -2011 

Property as an OREO asset 

13 April 25, 2011 Omitted delinquency of payment on Ql -2011 

C.D. personal loan account x53000 

14 April 25, 2011 Omitted delinquency of payment on Ql -2011 

J .H. loan account x3000 

15 Jan. 30, 2012 Omitted delinquency of payment on Q4-2011 

C.G. loan account x6000 

16 Jan.30,2012 Omitted an OREO asset of Q4-2011 

approximately $360,800. 

17 Jan. 30, 2012 Omitted an OREO asset of Q4-2011 

approximately $427 ,500 

Count Date of False False Entry in Board of Directors' Date Accepted by 

Entry Reports Board of Directors 

18 Feb. 15, 2011 Falsely reported A Avenue as bank March 15, 2011 

owned property (OREO) 

19 June 21, 2011 Falsely reported sale of A Avenue as July 19, 2011 

bank owned property (OREO) 

All in violation of Title 18, United States Code, Sections 1005 and 2. 

FORFEITURE ALLEGATIONS 

(ALL COUNTS) 

Upon conviction of one or more of the offenses alleged in this Indictment, 

DEFENDANTS shall forfeit to the United States pursuant to 18 U.S.C. § 982(a)(2)(A) any 

property constituting or derived from proceeds obtained directly or indirectly as a result of the 

violations, including but not limited to the following: 

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Money Judgment: A sum of money equal to the amount of proceeds obtained as a result 

of DEFENDANTS' conspiracy to commit bank fraud and making false entries, reports and 

transactions. 

If any of the above-described forfeitable property, as a result of any act or omission of the 

defendant: 

(a) cannot be located upon the exercise of due diligence; 

(b) has been transferred or sold to, or deposited with, a third party; 

( c) has been placed beyond the jurisdiction of the court; 

( d) has been substantially diminished in value; or 

( e) has been commingled with other property which cannot be divided without difficulty; 

it is the intent of the United States, pursuant to 21 U.S.C. § 853(p) as incorporated by 18 U.S.C. 

I I I 

I I I 

Ill 

I II 

I II 

II I 

I I I 

I II 

II I 

I I I 

II I 

II I 

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§ 982(b ), to seek forfeiture of any other property of DEFENDANTS up to the value of the 

forfeitable property described above. 

~~ Dated this_· day of March, 2017. 

Presented by: 

BILLY J. WILLIAMS, OSB No. 901366 

United States Attorney 

District of Oregon 

Assistant United States Attorney 

A TRUE BILL. 

~-.............. -- INN P. HARRINGTON, OSB No. 083544 

Assistant United States Attorney 

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