                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                  ___________

                                  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.                  *
                                  ___________

                    Submitted:    February 11, 1997

                         Filed:   April 16, 1997
                                  ___________

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


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 Court2 sentenced her to one day in prison and
three years’ supervised release.       Wade appeals her conviction, and we
affirm.




     1
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
     2
      The Honorable Susan Webber Wright, United States District
Judge for the Eastern District of Arkansas.
        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 . . . .




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

                                            -2-
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-to-
permanent” 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 Non-
Violence 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




                                     -3-
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




                                     -4-
