Appeal from a November 6, 2009 judgment entered in the United States District Court for the Eastern District of New York (Frederic Block, Judge).
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 9th day of November, two thousand and ten.
PRESENT: JOHN M. WALKER, JR., JOSE A. CABRANES, Circuit Judges, JOHN G. KOELTL, District Judge.*fn1
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment be AFFIRMED.
A jury found defendant-appellant Ivanise Daniel guilty of one count of misappropriation of postal funds in violation of 18 U.S.C. § 1711, and one count of making false entries and reports of moneys in violation of 18 U.S.C. § 2073. On appeal Daniel contends that her convictions must be set aside on account of allegedly inappropriate comments that the District Court made to the jury.
Ivanise Daniel was employed as a window clerk at the Linden Hill Station of the United States Post Office in Flushing, New York. Window clerks are tasked with facilitating the sale of postal products (stamps, envelopes, etc.) to the general public. To accomplish this task, they are trained to use "point of sale" (POS) cash register computers to conduct and record all sales. Window clerks begin each day by retrieving roughly $100 from their respective cash drawers, which are housed in the station's safe overnight. This $100 is to be kept on hand so that proper change will always be available. During the day sales are rung up on the POS computer, and at the close of business, the POS computer prints out a report of the total amount of sales made that day. Before heading home, the clerks tally their daily take and turn the money over to a supervisor or "closeout clerk," who then compares these proceeds with the daily report generated by the POS computer to ensure that there are no discrepancies. If all goes according to plan, the window clerk should have $100 remaining after turning over the daily revenues to the supervisor. This $100 is placed back in the safe, and the whole process starts over again the following day. The window clerk puts the $100 of retained money in the station's safe overnight.
From October 2001 to March 2008, the Linden Hill Station lost between $200 and $5000 each month in missing inventory. In March 2006, the Postal Service began an investigation of these chronic losses. A review of transaction data taken from Linden Hill's POS computers cast suspicion on three window clerks, including Daniel. The Postal Service's Office of Inspector General then set up hidden video cameras to monitor these three clerks. The video surveillance captured Daniel engaging in all sorts of inappropriate conduct. For instance, she frequently made a sale without scanning it into the computer; instead, she would press the machine's "no sale" button in order to access the cash drawer. Daniel also made a habit of entering a transaction into the computer for less than the actual sale that took place. Finally, Daniel often left her cash drawer open after making sales so she could deposit and remove cash when making a subsequent sale without recording it. All told, the 14 weeks of video footage documented suspect transactions involving over $1100 in merchandise. Daniel and the two other window clerks under suspicion were suspended in May 2008.
At trial, the government relied primarily, but not exclusively, on the video evidence the Postal Service collected against Daniel. Following many of the improper transactions, Daniel made handwritten notes on a notepad. Daniel's supervisor testified that there was no business purpose for these notes, and that Daniel provided no explanation when asked to account for this practice. The government also called witnesses to testify that (1) Daniel was properly trained to use the POS computers, and (2) the persistent losses at the Linden Hill Station were dramatically reduced after Daniel and the two other employees were suspended from duty in May 2008.
Daniel took the stand on her own behalf. She acknowledged making the errors recorded in the surveillance footage, but denied stealing any money. Instead she explained that she had failed to follow proper protocols merely because she had been "tired and frustrated." Daniel's primary defense was that there was no direct evidence that she stole any money. There was no direct video evidence that Daniel pocketed money from her cash drawer--although there were no cameras placed in the vault where the cash ...