The Honorable Andrew W. Bogue, United States District Judge 1

for the District of South Dakota, sitting by designation.

The Honorable Susan Webber Wright, United States District 2

Judge for the Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3433

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Cynthia E. Wade, *

*

Appellant. *

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 Submitted: February 11, 1997

 Filed: April 16, 1997

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Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. 1

___________

BOWMAN, Circuit Judge.

Cynthia Wade was convicted after a jury trial of two counts of

embezzlement from a bank insured by the FDIC, in violation of 18 U.S.C.

§ 656 (1994). The District Court sentenced her to one day in prison and 2

three years’ supervised release. Wade appeals her conviction, and we

affirm.
The District Court ruled at the close of the government’s 3

case that Wade was an employee for purposes of the embezzlement

statute, and the jury instructions required the jury to find only

that Wade was a “teller” at the bank. Wade does not challenge in

her opening brief the division of labor between judge and jury in

this case, cf. United States v. Gaudin, 115 S. Ct. 2310, 2320

(1995) (holding that materiality is a jury question in a

prosecution under 18 U.S.C. § 1001), and we express no opinion as

to whether the question of Wade’s status as an employee vel non

should have been left for the jury to decide.

In her reply brief, Wade suggests that the question of her

employee status should have been submitted to the jury and that

the jury instruction on this issue unfairly broadened the

indictment. We do not reach these issues, which were not raised

in Wade’s opening brief. See United States v. Darden, 70 F.3d

1507, 1549 n.18 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449,

and cert. denied, 116 S. Ct. 2567 (1996).

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Wade, who worked as a teller at Eagle Bank & Trust Company, was

charged with forging the signature of a bank customer on two counter checks

and keeping the proceeds ($1200) for her own use. At the time, Wade was

considered by the bank a “temporary-to-permanent” employee; the bank had

hired her through a temporary agency, and if her performance was

satisfactory during a probationary period, she would be hired permanently.

Most of Wade’s wages during the period of her employment were paid by the

temporary agency, but the bank did pay some wages directly to her. The

indictment charged her as an “employee” of the bank, and Wade argues on

appeal that, as a matter of law, she was not an employee for purposes of

the embezzlement statute.3

Section 656 provides in relevant part:

Whoever, being an officer, director, agent or employee of, or

connected in any capacity with any . . . insured bank . . .

embezzles, abstracts, purloins or willfully misapplies any of

the moneys, funds or credits of such bank . . . shall be fined

not more than $1,000,000 or imprisoned not more than 30 years,

or both . . . .
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18 U.S.C. § 656 (1994). “Employee,” as used in the statute, is not a

defined term. We note first that the government could have charged Wade

as a person “connected in any capacity” with the bank, for Wade certainly

would appear to fit into this broad category, even as a teller hired

through a temporary agency. See United States v. Coney, 949 F.2d 966, 967

(8th Cir. 1991) (concluding that employee of armored-car company was

“connected with” bank). Nevertheless, we believe Wade may also be

considered an employee of the bank for purposes of § 656: she was under

the control and supervision of bank personnel; the bank provided the

equipment and location for her work; the bank set her hours; the bank paid

at least some of her wages to her directly; the work she performed was part

of the bank’s regular business; and her status as a “temporary-topermanent” worker at least suggested a long-term employment relationship.

See generally Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24

(1992) (outlining multi-factor test for determining employment relationship

when statute does not define “employee”); Community for Creative NonViolence v. Reid, 490 U.S. 730, 751-52 (1989) (same). The District Court

thus did not err in concluding that Wade could be held accountable under

the embezzlement statute as an employee.

Wade also challenges the sufficiency of the evidence to support her

conviction. We consider the evidence in the light most favorable to the

verdict, reversing only if no reasonable jury could have found Wade guilty

beyond a reasonable doubt. See United States v. Stands, 105 F.3d 1565,

1570 (8th Cir. 1997). The evidence adduced at trial showed that Wade

admitted filling out the top portion of both disputed checks; both checks

were processed with her teller number; the customer denied signing either

check; the signatures on the checks were much more similar to a signature

on a Post-it note discovered in Wade’s checkbook than they were to 
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the exemplar on the customer’s signature card; and Wade resigned within an

hour after her manager returned her checkbook to her without the Post-it

note inside. This evidence is more than sufficient to support Wade’s

conviction. Despite Wade’s arguments to the contrary, the elements of the

crime may be proved by circumstantial evidence. See United States v.

Eubanks, 68 F.3d 272, 275 (8th Cir. 1995) (affirming conviction even though

no one saw defendant take money); United States v. Beran, 546 F.2d 1316,

1321 (8th Cir. 1976) (holding that intent to defraud or injure bank may be

inferred from facts and circumstances), cert. denied, 430 U.S. 916 (1977).

Wade’s conviction is affirmed.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT