concurring in part and dissenting in part:
I concur in the opinion of the majority except for part VI. On that part, I dissent.
I do not believe that diverting the proceeds of a check made payable to Day Dream Publishing in which the Bank of Montecito had a general security interest, defrauded the bank when the bank did not know of the existence of the check and did not act either in extending or maintaining credit in reliance on Day Dream Publishing’s receiving the check. The defendants could just as well have cashed the Big B cheek and deposited its proceeds into a Day Dream Publishing account and then written a check in the same amount to themselves. The bank is not defrauded by the day-to-day checking activities of a generally secured borrower unless a particular condition of those activities forms the basis of the security and the bank relied on it. If cashing the cheek defrauded the bank, then .we must conclude that all of the defendants’ fraudulent activities did so. Accordingly, I would reverse the conviction on count lli
HAMILTON, Circuit Judge,writing separately with respect to Part VI:
Conk’s conviction for bank fraud must be sustained if there is substantial evidence to support it when the evidence and reasonable inferences from it are viewed in the .light most favorable to the government. See Glasses 315 U.S. at 80, 62 S.Ct. at 469-70; Bur-gos, 94 F.3d at 862. As previously stated, “in the context of a criminal action, substantial 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.” Burgos, 94 F.3d at 862.
Title 18 U.S.C. § 1344 provides that:
Whoever knowingly executes, or attempts to execute, a scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any pf the monies, 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 im- . prisoned not more than 30 years, or both.
18 U.S.C. § 1344. Count 11 of the indictment charged Conk under § 1344(1) and § 1344(2). Specifically, Count 11 charged:
On or about the 18th day of November, 1989, in Richmond, Virginia, in the Eastern District of Virginia and in Montecito, California, in the Central District of California, the defendant EDWARD M. CONK knowingly and willfully executed and attempted to execute a scheme and artifice to defraud the Bank of Montecito, and to obtain money and funds under the custody and control of the Bank of Montecito by means of false and fraudulent pretenses, representa*232tions, and promises in that defendant CONK, in order to repay the loans described in paragraph 3 of this count, caused customer check 255421 from Big B Discount Drugs payable to Day Dream Publishing Inc. in the amount of $410,-425.56 to be endorsed directly over to MedPay and to be deposited into Mod-Pay’s account at Sovran in Richmond Virginia, thus impairing the Bank of Monteei-to’s security interest in the above cheek from Big B.
(J.A. 57). The district court similarly charged the jury under both subsections. Where the indictment and instructions to the jury charged both subsections of § 1344, as was done in this case, Conk’s bank fraud conviction may be sustained under either subsection. See United States v. Goldsmith, 109 F.3d 714, 716 (11th Cir.1997) (sustaining bank fraud conviction only under first subsection of § 1344, even though indictment and instructions charged that the defendant’s conduct violated both subsections).
In order to convict Conk of bank fraud pursuant to § 1344(1), the government in this case was required to prove that: (1) Conk knowingly executed or attempted to execute a scheme or artifice to defraud the Bank of Montecito of “any property interest,” United States v. Mancuso, 42 F.3d 836, 845 (4th Cir.1994), (2) which put the Bank of Montecito at an actual or potential risk of loss; and (3) that the Bank of Montecito was a federally insured financial institution, see United States v. Jacobs, 117 F.3d 82, 93 (2d Cir.1997); United States v. Sapp, 53 F.3d 1100, 1102 (10th Cir.1995). In order to convict Conk of bank fraud pursuant to § 1344(2), the government in this ease was required to prove that: (1) Conk knowingly executed or attempted to execute a scheme or artifice to defraud the Bank of Montecito of monies or funds under the custody, or control of the Bank of Montecito; (2) that the Bank of Montecito was a federally insured financial institution; and (3) that Conk participated in the scheme by means of false or fraudulent pretenses, representations, or promises, which were material. See 18 U.S.C. § 1344(2).
Conk contends that his bank fraud conviction cannot be sustained under either subsection, because there is insufficient evidence to support a finding that he knowingly caused the Big B check to be endorsed in favor of MPS. In addition, with respect to the first subsection, he contends that his bank fraud conviction cannot be sustained, because the scheme did not attempt to deprive the Bank of Montecito of any property interest, and the Bank of Montecito was not put at any potential risk of loss as a result of the Big B cheek being endorsed in favor of MPS. With respect to the second subsection, he contends that his bank fraud conviction cannot be sustained, because the Big B check was not in the custody or control of the Bank of Mon-teeito nor was a false or fraudulent pretense, representation, or promise involved.
After reviewing the sufficiency of the evidence with respect to § 1344(1), I conclude that sufficient evidence exists to sustain Conk’s bank fraud conviction under § 1344(1). The record contains the following evidence on the issue of whether Conk knowingly caused the Big B check to be endorsed in favor of MPS: (1) the testimony of Day Dream Publishing’s comptroller that although she did not specifically remember endorsing the Big B check issued on November 15, 1989 in favor of MPS, she knew that she would not have done so unless she had been ordered to do so; (2) evidence that Conk was a substantial owner of Day Dream Publishing, who controlled the company directly and through his son, Chip Conk; (3) a memorandum from Chip Conk dated October 11, 1989 to Wilkinson that lists a $497,250 account receivable of Day Dream Publishing from Big B with an expected receipt date of November 1, 1989 as collateral for expected loans from MPS totaling $330,000; (4) evidence that Conk and Wilkinson started MPS in order to financially aid their non medical businesses; (5) evidence that Conk and Wilkinson caused their non-medical businesses to partially repay MPS for any funds advanced to them from MPS; and (6) evidence that Conk was the only meaningful link between Day Dream Publishing and MPS. Looking at this evidence in the light most favorable to the government and drawing all reasonable inferences in its favor, I conclude *233that a reasonable finder of fact could accept this evidence as adequate and sufficient to support the conclusion beyond a reasonable doubt that Conk knowingly caused the Big B cheek to be endorsed in favor of MPS. See Glosser, 315 U.S. at 80, 62 S.Ct. at 469-70.
I now turn to consider whether Conk’s causing the Big B cheek to be endorsed in favor of MPS, without the Bank of Monteci-to’s knowledge, defrauded the Bank of Mon-teeito of any property interest as is required to sustain a bank fraud conviction under § 1844(1). See Mancuso, 42 F.3d at 845. At trial, the government contended that Conk’s endorsement of the Big B check deprived the Bank of Montecito of its security interest in the Big B account receivable and the proceeds thereof. Thus, it must be decided whether a security interest in an account receivable and the proceeds thereof constitute a property interest that will support a bank fraud conviction under § 1344(1).
It is well settled that the scope of a bank’s property interests to be protected under the bank fraud statute “is to be construed fairly widely.” Id. In keeping with this well-settled rule, in Mancuso, we held that a debt- or’s assignment of its rights to the proceeds of job contracts to a bank in exchange for the advancement of funds “f[e]ll within the universe of property that will support” a bank fraud conviction under § 1344(1). Id. In so holding, we relied on the fact that the rights to the proceeds of the contracts could be assigned, traded, bought or otherwise disposed. See id. The revolving security interest at issue in the case before us is one step removed from a straightforward assignment of rights to the proceeds of a contract or an account receivable, but not a step that makes a difference for purposes of § 1344(1). Rather than holding an absolute right to the proceeds of the Big B account receivable, the Bank of Montecito held a right to acquire the proceeds in the event Day Dream Publishing defaulted on the Note. Like the absolute right to acquire the proceeds of an account receivable, the right to acquire the proceeds of an account receivable upon default of a note can be assigned, traded, bought, or otherwise disposed. The contingent nature of the latter right simply affects the value of the right, not its ability to constitute a property interest. In sum, I am constrained to conclude that the Bank of Montecito’s revolving security interest in the Big B account receivable and thé proceeds thereof constitute a property interest protected by § 1344(1).
Turning to the risk of loss issue, I note that the government’s theory at trial on this issue was that Conk’s causing the Big B check to be endorsed in favor of MPS alienated a significant portion of the Bank of Monteeito’s collateral, thus creating a potential risk that the collateral would not be available to satisfy the Note if necessary. Conk argues that the Bank of Montecito was never put at a risk of loss by endorsement of the Big B check in favor of MPS, because the Note was over collateralized and Mr. Tobes shared half of the risk of loss on the Note. In support, Conk points to an unaudited financial statement of Day Dream Publishing, dated September 30, 1989 showing six million dollars in current assets and eight million dollars in total assets.
I accept the .government’s theory. The government did not need to prove that Conk’s causing the Big B check to be endorsed in favor of MPS created an actual risk of loss for the Bank of Montecito. See Jacobs, 117 F.3d at 93; Sapp, 53 F.3d at 1102. Rather, the government only needed to prove that Conk put the Bank of Montecito at a potential risk of loss. See id. After reviewing the evidence, I conclude the government met its burden. Specifically, the evidence established that the absence of the proceeds of the Big B account receivable from the assets of Day Dream Publishing meant a financial loss to the Bank of Montecito if Day Dream Publishing defaulted on the Note and the other collateral available at the time of default was insufficient to satisfy the Note. The fact that the Note may have been overcollateralized at the time of the Big B endorsement and that the Bank of Montecito shared fifty percent of its ownership in the Note with Mr. Tobes did not change this fact. Thus, by definition, Conk’s actions with respect to the Big B check put the Bank of Montecito at a potential risk of loss. For these reasons, I vote to affirm Conk’s bank *234fraud conviction as supported by sufficient evidence.