The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge
Defendant Rupinder Kaur, a former window clerk for the United States Postal Service (Postal Service), was convicted on December 15, 2008 after a jury trial of one count of embezzlement by failing to account for or turn over more than $1,000 in postal funds which came under her control in the course of her duties, in violation of 18 U.S.C. § 1711, and one count of making false entries in postal records she was obligated to maintain, in violation of 18 U.S.C. § 2073. Defendant now moves for a new trial pursuant to Fed. R. Crim P. 33, or, in the alternative, a judgment of acquittal pursuant to Fed. R. Crim P. 29, based on her claim that the government violated Fed. R. Crim. P. 16(a)(1)(E) by failing timely to disclose a June 2, 2006 video clip which the government never introduced into evidence, but about which the government elicited testimony from the case agent on redirect examination. For reasons provided in full below, the motion is denied.
A. Pretrial Disclosures of Video Surveillance Recordings
Between April and September 2006, the Postal Service Office of the Inspector General investigated losses occurring at the Linden Hill Station of the Flushing, Queens Post Office. During this period, Special Agent Anthony Chironno collected, via a hidden video camera, approximately 800-1,000 hours of digitally-recorded video surveillance of the defendant at her work station, which also included defendant's entries in her work station computerized register.
The defendant was indicted on June 26, 2008 on charges of violating 18 U.S.C. §§ 1711 and 2073. A superseding indictment charging the same violations (but adding an alternative basis for the violation of 18 U.S.C. § 1711 charged in Count One) was filed on November 19, 2008. By letter dated August 8, 2008, the government, inter alia, memorialized that on July 28, 2008, the government provided defense counsel with a DVD containing covert surveillance video, along with an activity log summarizing the contents of the video on the DVD and an "Accountability Examination Record."*fn1 (Doc. No. 74, Def. Mem. at 3, Ex. A at 2.) It is undisputed that by September 26, 2008, the government had offered to provide a complete copy of the four month video surveillance recordings if defendant supplied blank hard drives onto which the videos could be copied, or to produce the video for inspection by defense counsel at either Agent Chironno's office or defense counsel's office. (Def. Mem. at 3-4, Ex. B; Gov't Opp. at 3.) In a letter from the government to defense counsel dated November 13, 2008, the government noted that defense counsel had not responded to its previous offers regarding the viewing and/or production of four months of covert surveillance video. (Def. Mem., Ex. B.) The government's November 13, 2008 letter also noted that it had already produced clips from the video footage on DVD, and stated that "[i]f the government decides to use any additional video clips at trial that have not already been produced, we will turn over those video clips at our earliest opportunity." (Id.) According to the defendant, the government represented that "Agent Chironno viewed all four months of video and did not find any material that would be exculpatory or otherwise helpful to the defense[.]" (Id.)
Defense counsel responded in an undated letter, indicating that on September 26, 2008, he had informed the government that review of the entire video in the office of either Agent Chironno or defense counsel "would be impractical" due to "the amount of video surveillance." (Def. Mem., Ex. C at 3.) Defense counsel's letter also stated that he had noted that the surveillance video should be produced in a format that would not require him to purchase special software in order to view the video, "and that is how we left the matter" as of September 26, 2008. (Id.) Defense counsel's undated letter asked the government to "contact me as soon as possible so that I may provide you with whatever duplication device you need to make a copy of the remaining surveillance video." (Id.)
On November 18, 2008, counsel conferred regarding production of the entire video surveillance recording. Defense counsel agreed to supply hardware onto which the government could copy the video, and the government indicated that copying would take approximately two weeks, so defense counsel "might just have the weekend before trial to review it." (Tr. 678-79, 950.)*fn2
Defense counsel stated that "he could live with that" and would be satisfied if the entire video was produced by December 5, 2008, the Friday before trial, so that he could "do his due diligence even if he ha[d] to fast forward through most of it." (Tr. 949-50: the government read from its contemporaneous notes of counsels' conversations, the substance of which the defendant did not dispute.) On November 20, 2008, the government re-produced the video clips it had previously produced, along with two new ones. (Gov't Opp. at 5; Def. Mem., Ex. D.) The entire four months of surveillance video was thereafter produced to defense counsel by December 3, 2008. (Def. Mem. at 4-5, Ex. G.) In a letter to defense counsel dated December 6, 2008, the government stated, "The production of this [second] hard drive completed the government's production of all of the covert surveillance video relating to the defendant and, per our conversations, satisfied the defense's request to receive this evidence by December 5, 2008." Id. Defense counsel did not seek any adjournment of the December 8, 2008 trial date.
B. The Drawer Count Video Clip
In the entire four months of video surveillance produced to defense counsel on December 3, 2008, there are two instances depicted on video of a supervisor conducting a "cash drawer count" to determine how much money was in defendant's drawer. (Gov't Opp. at 5.) In the week before trial, the government reviewed the video recordings of these two cash drawer counts, one of which occurred on June 2, 2006. (Id.) The government describes the June 2, 2006 video, which the court has never seen, as follows: "In the video of the June 2, 2006 count, the defendant's supervisor approaches the defendant with a clipboard, and then walks away. The defendant then begins preparing for a cash drawer count. While counting her drawer, the defendant takes a bundle of cash from her drawer and gives it to another window clerk. This second window clerk then gives the defendant a single bill, which the defendant includes in the money being advanced or counted. The supervisor then returns and completes the cash drawer count. After the drawer is counted, the second window clerk gives the bundle of cash back to the defendant. The defendant is not seen passing any cash back to the second window clerk." (Id. at 5-6, citing Tr. 693-97.) Defense counsel does not dispute this description of the June 2, 2006 Drawer Count video. (Tr. 712-14; Def. Mem. at 13.)
Counsel for the government states that she first became aware of the June 2, 2006 Drawer Count video segment just prior to trial, on December 4, 2008, when Agent Chironno pointed it out to counsel and counsel made a copy of the clip on her computer (the "Drawer Count Clip") (Tr. 953-54). The government concedes that it was aware of the Drawer Count Clip when it produced its trial exhibits on December 5, 2008, but states that it did not include the Drawer Count Clip among those produced to the defense because "as of that date the government had no explanation for the conduct in the video" and therefore "did not intend to use the video in its case-in-chief." (Gov't Opp. at 6.)*fn3
In its opening statement, the government stated that the evidence would show that the defendant put unrecorded money in her drawer while working as a postal teller, making it possible for her to take that money later. (Tr. 82.) The government did not discuss defendant hiding money from her supervisor. (Tr. 79-84.) One of the themes of the defendant's opening statement was the fact that, despite "over 60,000 minutes" of video surveillance, "not one of those minutes shows [defendant] putting any money in her pocket, any money in her [p]urse or anywhere else on her person." (Tr. 85.) Defense counsel asserts that this defense theme was based on conversations with government counsel and the case agent, "in which they confirmed that there were no video clips of Kaur taking any money." (Def. Mem. at 6.)
2. Agent Chironno's Testimony
On December 10, 2008 and continuing into December 11, 2008, the government conducted its direct examinations of Agent Chironno. At no point during Agent Chironno's direct testimony was any testimony about the June 2, 2006 Drawer Count video clip elicited. However, the government states that "[a]t the end of the first day [of Agent Chironno's testimony], the government reexamined the June 2, 2006 video and came to believe that it might be showing the defendant hiding money from her supervisor before that day's cash drawer count." (Gov't Opp. at 7.) The government nonetheless states that it "still did not intend to use the video in its case-in-chief" and therefore did not produce a clip of the June 2, 2006 video to the defense "as a potential trial exhibit." (Id. at 7-8.) The government concluded Agent Chironno's direct examination without eliciting any information about the June 2, 2006 video. (Id.)
The defendant cross-examined Agent Chironno on December 11, 2008, repeatedly focusing on the fact that Agent Chironno, in reviewing the four months of video surveillance footage of the defendant, did not see any instance of defendant putting money in her pocket, her purse, or her personal things, and that Agent Chironno did not find any witnesses who saw defendant "pocket any money." (Def. Mem. at 8-9, citing Tr. 623, 688.) During cross- examination of Agent Chironno, defense counsel addressed the periodic cash drawer counts performed by defendant's supervisors, asking "if [defendant] intentionally made errors, the type of errors that you said she made, and she failed to correct them, you expect that she would have an overage during -- at least in one of these credit checks while her supervisor was right there, wouldn't you?" (Tr. 599.) Agent Chironno replied in the affirmative, and defense counsel then asked, "unless she was able to take the extra money out of the drawer and either hide it or put it in her pocket with her supervisor standing right there, she should have an overage during one of these credit checks, shouldn't she?" (Id.) Agent Chironno responded, "If her supervisor was there, yeah," and, under further questioning, admitted that defendant never had an overage in her drawer during the credit checks. (Tr. 599-600.)
During Agent Chironno's cross examination, the court broke for lunch. After the lunch break and before the jury returned to the courtroom, counsel conferred with the court. Defense counsel began by stating, "Initially, I just want to say . . . that this is . . . on me. I bear a fair share of responsibility here, but AUSA Orenstein gave me two hard drives representing the entire . . . [four months] of video . . . on two hard drives . . . about ten days ago." (Tr. 669:8-16.) Defense counsel continued that, "I am embarrassed to say that I just started looking at it . . . last night and I . . . realized it wasn't playing on my computer," because he needed to install software in order to view the video. The parties then discussed whether Agent Chironno could be recalled for cross examination by the defense after the defense case was completed, and ultimately the parties agreed that Agent Chironno could be recalled before the defense case. (Tr. 669-681.) Defense counsel then concluded cross examining Agent Chironno.
c. Redirect and Re-Cross Examination
On redirect examination of Agent Chironno, without any objection to the line of questioning by defense counsel, the government elicited testimony about the Drawer Count Clip, as follows:
Q: Mr. Bier asked you questions many times about whether you ever saw the defendant pocket money. Did you see her put it in her pocket?
Q: Did you ever see her hide it before a drawer count?