                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-4855


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

SHERRY TAYLOR,

                 Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-00049-GBL-1)


Argued:   September 20, 2012                 Decided:   November 26, 2012


Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.      Kosta S. Stojilkovic,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Appellate Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.



Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Sherry Taylor was convicted of four counts of bank

fraud, in violation of 18 U.S.C. § 1344, and one count of access

device       fraud,       in   violation    of       18     U.S.C.   §   1029(a)(2).             On

appeal,          Taylor    challenges      the        sufficiency        of       the       evidence

presented in support of her bank fraud convictions, contending

that the government failed to prove that she had the requisite

intent       to     defraud      a     financial          institution.            We    conclude,

however, that the government’s proof as to Taylor’s intent to

commit bank fraud was more than sufficient to meet its burden.

Accordingly, we affirm.



                                              I.

                 Between March and October 2010, Taylor made a series

of fraudulent purchases of electronics using American Express

cards with false names at Costco and Safeway stores in Virginia. *

Taylor       used    the       credit    cards       to    make   purchases            in   amounts

ranging from $3,035.70 to $19,372.31 and totaling $38,378.55.

The government presented evidence showing that American Express

bore       the    loss    of    both    Safeway      transactions.            A    Costco      loss

prevention regional manager testified regarding how the risk of

       *
       Because the government prevailed at trial, we  view the
facts in the light most favorable to it.      United States v.
Herder, 594 F.3d 352, 358 (4th Cir. 2010).



                                                 2
fraudulent purchases was allocated between Costco and American

Express.         Namely, if the cashier swiped the card through an

electronic reader, American Express would provide an approval

code and consequently bore the risk of any loss due to fraud.

If   the    cashier         keyed    in    the     card   number,    however,    American

Express sent a temporary approval code and the risk of loss was

borne      by   Costco.         Under       this     arrangement,     both     Costco    and

American Express were responsible for losses at various times as

a    result      of    Taylor’s           fraudulent      purchases.         Taylor     also

stipulated that at all times relevant to this case, American

Express was a “financial institution” within the meaning of the

bank fraud statute.            See 18 U.S.C. § 1344.

                At    the    close    of     the     government’s     evidence,       Taylor

moved for a judgment of acquittal, pursuant to Rule 29 of the

Federal Rules of Criminal Procedure, contending that there was

insufficient          evidence       of    her     intent   to   defraud     a   financial

institution.          The district court denied Taylor’s motion, ruling

that “the defendant knew her fraudulent actions would expose at

least some bank, American Express here, to a risk of loss.”

J.A. 305.        After reciting the elements required for a conviction

under the bank fraud statute, the court explained that “[§] 1344

does    not     require       that    the     scheme      be   directed    solely      at   a

particular institution.                   It is sufficient that the defendant

knowingly exposed a bank to a risk of loss.”                        Id. 304.

                                                 3
             Taylor      testified       in       her    own        defense.        On     cross

examination,       Taylor,     who       had       worked        as     a     store      clerk,

acknowledged that she understood “how the process works with [a]

credit card.”       Id. 309-10.          Specifically, she admitted that she

understood “[t]he card is swiped . . . [an] electronic message

of some sort is sent to the bank, and then the bank pays the

retailer.”      Id. 310.

             At the close of all the evidence, Taylor renewed her

Rule 29 motion, which the court again denied.                               The court found

Taylor    guilty        on   all    counts,             concluding          that    by     using

fraudulently obtained credit cards to make large purchases of

electronics, Taylor engaged in “a scheme to defraud that was

knowingly    undertaken.”          Id.    361.           The    court       later   sentenced

Taylor to thirty-six months in prison as to each of the counts,

to run concurrently, and ordered restitution in the amount of

$429,033.08.      This appeal followed.



                                          II.

             We review a district court’s denial of a motion for

judgment of acquittal de novo.                 United States v. Abdelshafi, 592

F.3d 602, 606 (4th Cir. 2010).                     “We review the sufficiency of

the   evidence     to    support    a    conviction            by    determining         whether

there is substantial evidence in the record, when viewed in the

light    most    favorable         to    the       government,          to     support      the

                                              4
conviction.”       United States v. Jaensch, 665 F.3d 83, 93 (4th

Cir. 2011) (internal quotation marks omitted).                      “[S]ubstantial

evidence    is    evidence    that   a   reasonable       finder   of   fact   could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                   United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).



                                         III.

             Taylor   first     argues     that    the    government    failed     to

present     sufficient   evidence        to     support   the   conclusion       that

victimizing a bank was a part of her scheme--in other words,

Taylor argues that her scheme to defraud was complete once she

obtained the goods.          In a related argument, Taylor contends that

her intended victims were the merchants, rather than the bank.

Finally, Taylor argues that allowing the government to obtain a

conviction under the bank fraud statute by simply showing a risk

of   loss    to    the   bank     renders        the   access      device   statute

superfluous.      We address these arguments in turn.



                                         A.

             The federal bank fraud statute at issue in this appeal

provides as follows:

          Whoever   knowingly  executes,   or  attempts                     to
     execute, a scheme or artifice—
          (1) to defraud a financial institution; or

                                          5
             (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
       not more than 30 years, or both.

18   U.S.C.    §    1344.       Although    the    two   subsections        of    §   1344

criminalize slightly different conduct, both require that the

defendant act knowingly.              United States v. Brandon, 298 F.3d

307, 311 (4th Cir. 2002).              We have explained that “[b]ecause

§ 1344 focuses on the bank . . . a conviction under § 1344 is

not supportable by evidence merely that some person other than a

federally insured financial institution was defrauded in a way

that happened to involve banking, without evidence that such

institution was an intended victim.”                Id. at 311 (quoting United

States v. Laljie, 184 F.3d 180, 189-90 (2d Cir. 1999)).                                We

clarified, however, that “the bank need not be the immediate

victim of the fraudulent scheme” and that the “bank need not

have   suffered      an     actual   loss.”        Id.   at   312    (citations       and

internal      quotation      marks   omitted).           Rather,     the    government

satisfies     the    intent     element     with    proof     that    the    defendant

knowingly      exposed      a   financial       institution    to    an     actual     or

potential risk of loss through the scheme to defraud.                       Id.

              Taylor argues that she lacked this intent because her

scheme to defraud was complete once she obtained the goods from

the merchants.        In support of this contention, Taylor relies on

                                            6
United   States       v.   Maze,    414    U.S.      395    (1974).         In    Maze,     the

defendant stole his roommate’s bank credit card and used it to

obtain food and lodging at motels in three states.                               Id. at 396-

97.    The motels, in turn, mailed the invoices to the bank, which

then mailed them to the roommate for payment.                         Id. at 397.           The

government charged Maze with mail fraud, contending that Maze

knew that each merchant would eventually mail the credit card

invoices to the banks.            Id. at 396-97.

            The Supreme Court, however, concluded that the mailing

of    invoices    was      not    “sufficiently           closely    related          to   [the

defendant’s] scheme to bring his conduct within the statute.”

Id. at 399.           The Court explained that Maze’s “scheme reached

fruition when he checked out of the motel, and there is no

indication that the success of his scheme depended in any way on

which of his victims ultimately bore the loss.”                       Id. at 402.

            Although Maze was charged with mail fraud, Taylor asks

this   court     to    read      into    the       bank   fraud     statute       a    similar

limiting    principle.           Taylor’s      reliance      on     Maze,     however,       is

misplaced   because        the    bank    fraud      statute      does   not      require    a

proof of mailing, or other means of transmission, in furtherance

of the scheme.         As we explained in Brandon, it is sufficient for

a conviction under the bank fraud statute that the defendant

knowingly exposed the financial institution to a risk of loss,



                                               7
see   Brandon,     298   F.3d     at   312,        which      is     precisely     what   the

government proved here.



                                             B.

            Taylor next argues that her intent in executing her

fraudulent scheme was to defraud the merchants, not the bank.

Citing the Third Circuit's decision in United States v. Thomas,

315 F.3d 190 (3d Cir. 2002), Taylor contends that the government

failed to produce sufficient evidence to prove that the bank was

anything more than an incidental victim.                      Appellant’s Br. 24.

            In Thomas, the defendant was a home health care aide

employed by an 88-year-old stroke victim.                          315 F.3d at 194.       The

defendant induced her employer to sign checks made out to cash,

providing    a     pretext      that        she       was     transferring        money   or

purchasing       groceries   as    part          of    her        position.       Id.     The

defendant    would    then   cash      the        checks      at    the   bank,    at   times

bringing her employer to authorize the transactions in front of

the teller.        Id.    The Third Circuit reversed the defendant’s

bank fraud conviction, reasoning that the deception of the bank

was   an   incidental    aspect        of    a     scheme         primarily    designed   to

defraud    the    defendant’s      employer.                Id.    at   200.      The   court

concluded that cases in which the cashed checks are facially

valid do not implicate the federal interest that the statute was

created to protect–-that is, those cases do not expose the bank

                                             8
to liability or undermine the integrity of the bank in a way

that constitutes bank fraud.                    Id.

               Thomas, however, is inapposite given the bank's role

in Taylor's scheme, which we find more akin to that assumed by

the    bank    in    Brandon.             See   298    F.3d   307.      In       Brandon,   the

defendant was charged with bank fraud for engaging in a scheme

in which she stole checks from others, forged their signatures,

and used the checks to make purchases from various merchants.

Id.    at     309-10.           On   appeal,          the   defendant     challenged        the

sufficiency         of    the     indictment,          contending    that         her    scheme

involved presenting the forged checks to retail merchants and

that the merchants–-rather than the bank-–were the victims of

her fraud.          Id. at 310.            We rejected that argument, concluding

that    “[a]    defendant’s           knowing         negotiation    of      a    bank   check

bearing a forged endorsement satisfies the requirement that a

bank be an actual or intended victim of the defendant’s scheme,

even if the forged instrument is presented to a third party and

not directly to a bank.”                   Id. at 312 (quoting United States v.

Crisci, 273 F.3d 235, 240 (2d Cir. 2001)) (internal quotation

marks omitted).

               We see no material distinction between the defendant's

use    of   stolen       checks      in    Brandon      and   Taylor’s    similar        scheme

involving stolen bank credit cards.                           Accord United States v.

Ayewoh, 627 F.3d 914 (1st Cir. 2010) (rejecting a defendant's

                                                  9
argument that he intended to defraud credit card holders, whose

account numbers he fraudulently used, rather than the bank).

And   unlike      in    Thomas,    the    payment   presented--here,      a    credit

card--was    falsified,          and   the   bank   was   exposed   to   liability.

Accordingly, the district court correctly determined that the

government’s evidence alone was sufficient to meet its burden as

to Taylor’s intent.          Taylor also admitted, however, that she had

previously handled credit cards as a store clerk and that she

understood that when a credit card is swiped, the issuing entity

is contacted and pays the retailer.                  Thus, the record contains

ample evidence that Taylor knowingly exposed American Express to

a risk of loss.



                                             C.

            Finally, we turn to Taylor's contention that affirming

her bank fraud convictions based on her fraudulent use of credit

cards would render the access device fraud statute superfluous.

            This argument fails on several fronts.                  To begin with,

the access device fraud statute criminalizes the fraudulent use

of a variety of financial instruments other than credit cards,

including    electronic          serial   numbers   and   mobile    identification

numbers.    See 18 U.S.C. § 1029(e)(1) (defining “access device”).

Second,     the        statute    criminalizes      conduct   beyond     the    mere

unauthorized use of an access device, encompassing, inter alia,

                                             10
the trafficking and possession of access devices as well.                          See

id.   §    1029(a)(1),     (3)-(4).            Finally,    not   all   credit     card

companies are “financial institutions” as defined in the bank

fraud     statute,   see     id.    §    20,      and   thus   the   government    may

properly     look    to    the     access      device    fraud   statute    in    such

instances.     In sum, we have no concern that affirming Taylor’s

conviction     for    bank       fraud    on      the    facts   before    us    risks

obliterating the utility of the access device fraud statute.



                                            IV.

             For the foregoing reasons, we affirm the judgment of

the district court.



                                                                            AFFIRMED




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