                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2000

United States v. Eastern Med Billing
Precedential or Non-Precedential:

Docket 99-5489




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http://digitalcommons.law.villanova.edu/thirdcircuit_2000/221


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Filed October 13, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-5489, 99-5490, 99-5491

UNITED STATES OF AMERICA

v.

EASTERN MEDICAL BILLING, INC.
       (Appellant in 99-5489)

UNITED STATES OF AMERICA

v.

JOSEPH PODLASECK
       (Appellant in 99-5490)

UNITED STATES OF AMERICA

v.

DAVID PODLASECK
       (Appellant in 99-5491)

On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal Nos. 96-cr-00098-4,-5,-6)
District Judge: Honorable Joseph J. Longobardi

Argued March 23, 2000

Before: McKEE and RENDELL, Circuit Judges,
and DEBEVOISE,* Senior District Judge
_________________________________________________________________

* The Honorable Dickinson R. Debevoise, Senior United States District
Judge for the District of New Jersey, sitting by designation.
(Filed: October 13, 2000)

       Luis M. Matos, Esq. [ARGUED]
       Office of United States Attorney
       Federal Building
       1201 Market Street
       P. O. Box 2046, Suite 1100
       Wilmington, DE 19899-2046
       Counsel for Appellee
       United States of America

       Peter Goldberger, Esq. [ARGUED]
       Law Office of Peter Goldberger
       50 Rittenhouse Place
       Ardmore, PA 19003-2276
       Counsel for Appellants
       Eastern Medical Billing, Inc.
       (No. 99-5489)
        and
       David Podlaseck (No. 99-5491)

       Raymond M. Radulski, Esq.
        [ARGUED]
       Suite 301
       1225 North King Street
       Legal Arts Building
       Wilmington, DE 19801
       Counsel for Appellant
       Joseph Podlaseck (No. 99-5490)

OPINION OF THE COURT

RENDELL, Circuit Judge.

In United States v. Fioravanti, 412 F.2d 407 (3d Cir.
1969), we announced a prophylactic rule prohibiting the
use of Allen charges. This appeal requires us to apply our
decision in Fioravanti and its progeny to the supplemental
charge given by the District Court during the jury's
deliberation.1 The trial resulted in guilty verdicts on all
_________________________________________________________________

1. For the sake of clarity, we will only call a charge an Allen charge
when
the court directed the minority jurors to reconsider their views in light

                               2
counts against the three defendants: the Podlasecks, father
Joseph and son David, and Eastern Medical Billing, Inc.
("EMB"). Since we believe that the supplemental charge
contravened our precedent, and had definite potential for
coercive effect on the jury, we will REVERSE and REMAND
for a new trial.2

I.

David Podlaseck was president of EMB, a company the
Podlasecks started in 1992 to provide billing services for
health care providers. David's father, Joseph Podlaseck,
was EMB's primary salesman, and David's mother, Phyllis
Podlaseck, was its treasurer and office manager. In October
1993, EMB entered into a contract with Metro Ambulance
("Metro"), whereby EMB would provide billing services for
Metro, an authorized Medicare and Medicaid provider of
ambulance services, which regularly transported dialysis
patients to renal care centers using ambulances and vans.
Metro, its principal, Jane Pflumm, and employee Jerry
Johnson, were also indicted by the grand jury, and they
pled guilty to the charges.

The defendants were charged with: one count of
conspiracy in violation of 18 U.S.C. S 371; eleven counts of
submitting false claims to the Health Care Financing
_________________________________________________________________

of their disagreement with the majority. Cf. Black's Law Dictionary 74-75
(6th ed. 1990) (defining "Allen charge" to encompass all instructions
given to a deadlocked jury). Otherwise, we will refer to charges as the
"original" or "initial" instruction or charge or as a "supplemental"
charge
if it was the court's second instruction.

2. The 1999 trial was the second trial. The Podlasecks and EMB were
first tried in 1997 and found guilty. However, the District Court granted
their motion for a new trial after the defendants' post-trial motion
raised
concerns that jurors had engaged in pre-deliberation. We affirmed the
District Court's decision in an unpublished opinion. See United States v.
Eastern Medical Billing, Inc., 168 F.3d 480 (3d Cir. 1998) (table) (No.
98-
7101).

Since we dispose of this appeal based solely on the supplemental
charge given during jury deliberations, we need not reach the remaining
issues raised by the defendants. The defendants have been released on
bail pending our decision.

                               3
Administration ("HCFA") of the Department of Health and
Human Services, in violation of 18 U.S.C. S 287; and four
counts of mail fraud, in violation of 18 U.S.C.S 1341. The
factual basis for each count was the government's
contention that the defendants agreed to, and knowingly
did, submit false claims to HCFA for single passenger,
medically necessary ambulance trips. In fact, groups of
patients had been transported together in vans, not
ambulances, and the use of ambulances had not been
medically necessary.

At trial, the government presented witnesses and
documents to demonstrate that the Podlasecks had the
necessary intent and knowledge to violate the law. The
government focused especially on the meaning of certain
coded run sheets that Metro drivers completed for each
patient they transported, the form of which the Podlasecks
had modified during the course of the allegedly illegal
activity. Witnesses also testified about the Podlasecks'
actions and about certain statements they made. Neither
Jane Pflumm nor Jerry Johnson were called to testify.

The Podlasecks argued that they acted as dupes of Metro,
and challenged the honesty and accuracy of the
government's witnesses at trial. One of the principal
witnesses, Angela DeFelice, who testified on behalf of the
government, was attacked as being essentially dishonest
and biased.3 Other witnesses were similarly impeached.4
_________________________________________________________________

3. Angela DeFelice was a data entry person at EMB hired to service the
Metro account. DeFelice testified that when she began working at EMB
she was told not to bill van trips, but that in October or November of
1993 Joseph Podlaseck told her that Metro had been certified by
Medicaid to provide van transport. DeFelice also testified that she was
contacted by client Steve Betze who complained that a van trip he took
had been billed incorrectly as an ambulance trip. DeFelice said she
investigated the incident and told David Podlaseck, but David told her to
either continue billing in the same way or to tell Betze that he could pay
the $75 fee himself. DeFelice said she also raised the matter with Joseph
Podlaseck and Joseph told her to do as David had said. Two months
later, DeFelice contacted the police. At trial, the Podlasecks challenged
her testimony, pointing out that she went to the police after EMB fired
her, and introducing a character witness who testified that DeFelice was
known in her community as being dishonest.

4. Lori Cubbage, a Metro employee, testified that in October or November

                                4
Joseph Podlaseck also testified, and in its ruling on post-
trial motions, the District Court sustained the verdict based
in part on its view that Podlaseck's testimony lacked
credibility. In light of the predominantly circumstantial
nature of the evidence, the credibility issues on both sides,
and the absence of testimony from the principal Metro
officers directly involved in the offense conduct, we do not
believe that the evidence at trial was "overwhelming."

Following nine days of testimony, the jury commenced
deliberations on a Tuesday. After two days of deliberations,
on Thursday morning, the panel submitted a question:
"Can the jury be `hung' on one defendant of the indictment
and not the others?" One of the prosecutors mentioned the
possibility of giving an Allen charge, but defense counsel
and the Assistant United States Attorney agreed with the
District Court's decision to simply write "yes" on the jury
_________________________________________________________________

of 1993, she overheard a conversation between Pflumm and Joseph
Podlaseck, in which Pflumm gave Joseph Podlaseck old van billing
sheets and he told Pflumm that he would "run them through as units."
The government used this testimony to corroborate DeFelice's testimony,
and as evidence that Joseph knew that he was billing van trips illegally
and reached an agreement with Metro to do so. The Podlasecks
questioned Cubbage's testimony by pointing out that she had been fired
by Metro, ostensibly because Pflumm believed she had stolen money
from a Metro checking account, and by questioning whether her
testimony was consistent with what she had told the FBI four months
after leaving Metro. The Podlasecks also pointed out that the government
presented no evidence showing that the van sheets Cubbage spoke about
were ever taken to EMB or entered into the computer. DeFelice testified
on cross-examination that she did not remember receiving an unusually
large stack of run sheets.

Similarly, Roberta Brooks, another Metro employee, testified that she
asked Joseph Podlaseck how they were getting paid for the van trips and
Podlaseck said that "We just do." Brooks said on cross-examination that
she understood Podlaseck to be saying that he made the vans look like
ambulances. However, she agreed that in her testimony to the grand jury
she had said that she understood Podlaseck to be saying that he made
the destinations look like hospitals rather than dialysis centers. Brooks
also agreed that she had not mentioned this conversation at all in her
initial interview with the FBI. She explained that the actions of Metro
had been the focus of the interview.

                               5
note, which it did. Within one-half hour, the jury
communicated a second question to the Court: "As a follow-
up to the above question, is it also possible for the jury to
be `hung' on one of the counts for a particular defendant
and not on the other counts?"5

The Court asked counsel whether an Allen charge might
be appropriate at this time. After a moment to consult with
each other, defense counsel initially concluded that an
Allen charge should be given, explaining to the Court that
simply answering the question "yes" might be coercive. The
Assistant United States Attorney disagreed, but said he
would not oppose it vigorously. The District Court decided
to give the charge. Defense counsel then asked what charge
the Court would give. The Court answered: "The one I've
been doing for 15 years and the one that has been
approved. Why don't you look at it?" Acknowledging the
Court's view that the charge had been approved, the
government dropped its objection: "Your Honor, if it's the
one you've been giving for 15 years, we're not going to
oppose it." However, after reviewing the charge, defense
counsel changed their position. Counsel for David
Podlaseck and EMB explained the defendants' concern.

       Counsel: Your Honor, I'm reversing my decision
       because there's, of course, in the courthouse various
       Allen charges and I didn't remember the Court's
       specific Allen charge, and I understand it's been
       approved. What I'm worried about is that it's a long
       Allen charge and then I think that it will sound at this
       stage, given the length of it, that it's kind of telling
       them that they have to reach a verdict.

The Court disagreed, noted counsel's objection, and
rejected counsel's subsequent proffer of a different, shorter,
Allen charge.

       The Court: I don't think so. Okay. That's the difference.
       Eventually what I tell them is don't surrender your
       conscientious views.
_________________________________________________________________

5. The parties to the appeal were not privy to the content of the second
instruction when they briefed and argued the case, as its content was
not read into the record. The Court retrieved the question from the
District Court.

                               6
       Counsel: But --

       The Court: Well, that's all right. You're on record, you
       object to it. I'm going to give it and your objection is on
       the record. You are protected.

       Counsel: And you Honor, I in fact had someone run
       back to my office to propose perhaps a possible
       alternative instruction. And I take it that the Court is
       not going to consider it?

       The Court: Yes, I'm going to give this one I have given
       repeatedly.

       Counsel: I do have a shortened version.

       The Court: I'm going to give this one.

       Counsel: Okay.

The Court then brought the jury into the courtroom, and
addressed them. We quote the instruction in its entirety.

        In response to your last question, the answer is yes.
       I want to read you another charge.

        The Court wishes to suggest a few thoughts which
       you may desire to consider in your deliberation along
       with the evidence and the instructions previously given
       to you.

        This is an important case. The trial has been time
       consuming and burdensome both to the Government
       and to the defendants. If you should fail to agree upon
       a verdict, the case is left open and undecided. Like all
       cases, it must be disposed of sometime. There appears
       to be no reason to believe that another trial would not
       be equally time consuming and burdensome to all
       persons involved, nor does there appear to be any
       reason to believe that the case can be tried again better
       or more exhaustively that it has been in this trial. Any
       future jury must be selected in the same manner and
       from the same source as you have been chosen. So
       there appears to be no reason to believe that the case
       could ever be submitted to 12 men and women more
       intelligent, more impartial or more competent to decide
       it or that more or clearer evidence could be produced
       on behalf of either side.

                               7
 Of course, these matters suggest themselves, upon
brief reflection, to all of us who have sat through the
trial. The only reason they are mentioned is because
some of them may have escaped your attention which
must be fully occupied up to this time in reviewing the
evidence of the case. They are matters which, along
with other and perhaps more obvious ones, remind us
how important and desirable it is for you to
unanimously agree upon a verdict, if you can do so
without violence to your individual judgment and
conscience.

 It is unnecessary to add that the Court does not wish
any juror to surrender his or her conscientious
convictions. However, it is your duty as jurors to
consult with one another and to deliberate with a view
to reaching an agreement, if you can do so without
violence to your individual judgment. Each of you must
decide the case for yourself but you should do so only
after consideration of the evidence with your fellow
jurors and, in the course of your deliberations, you
should not hesitate to change your opinion when
convinced that it is erroneous.

 In order to bring 12 minds to a unanimous result,
you must examine the questions submitted to you with
candor and frankness and with proper deference to
and regard for the opinions of each other's. That is to
say, in conferring together, each of you should pay due
attention and respect to the views of others and listen
to each other's arguments with a disposition to
reexamine your own views.

 If the greater number of you are for one side, each
dissenting juror ought to consider whether his or her
view is a reasonable one since it makes no effective
impression on the minds of so intelligent fellow jurors
who bear the same responsibility, serve under sanction
of the same oath and have heard the same evidence
with, you may assume, the same attention and an
equal desire to arrive at the truth. Also, the jurors who
constitute the greater number should consider the
reasons of those who take a different position to see
whether there may be persuasive merit in that position.

                        8
        You are not partisans; you are judges -- judges of
       the facts. Your sole purpose is to ascertain the truth
       from the evidence before you. You are the sole and
       exclusive judges of credibility of all the witnesses and
       of the weight and effect of all the evidence. In the
       performance of this high duty, you are at liberty to
       disregard any comments of both the Court and counsel,
       including, of course, the remarks I am now making.
       Remember at all times, no juror is expected to yield his
       conscientious conviction which you may have as to the
       weight and effect of the evidence and remember, also,
       that after full deliberation and consideration of the
       evidence, it is your duty to agree upon a verdict, if you
       can do so without violating your individual judgment
       and conscience.

        You may conduct your deliberations as you choose
       but I suggest that you should now retire and carefully
       reconsider all the evidence bearing upon the questions
       before you and see whether is not possible to arrive at
       an unanimous verdict.

        All right. That you very much, ladies and gentlemen.

(emphasis added). The jury left the courtroom at 12:14 and
returned at 4:10 that afternoon with a verdict of guilty
against all three defendants on all counts. The jury had
deliberated for two days before the supplemental
instruction. The trial had taken nine days.

II.

A.

In United States v. Allen, 164 U.S. 492 (1896), the
Supreme Court found no error in a supplemental charge
given to the jury which told those jurors whose view formed
the minority to reconsider their views in light of the
contrary views held by the majority. See id. at 501-02. The
Court found the charge compatible with the jury's need to
deliberate openly to achieve unanimity, explaining that "[i]t
cannot be the law that each juror should not listen with
deference to the arguments and with a distrust of his own

                                9
judgment, if he finds a large majority of the jury taking a
different view of the case from what he does himself." Id.
Subsequently, in Hyde and Schneider v. United States, 225
U.S. 347, 382-84 (1912), and United States v. Kawakita,
343 U.S. 717, 745 (1952), the Court found no error in two
other supplemental instructions challenged as
unconstitutional.6

However, in United States v. Jenkins, 380 U.S. 445 (1965)
(per curiam), the Supreme Court granted the defendant a
new trial based on the coercive effect of a supplemental
instruction given by the district court. See id. at 446. The
jury had declared itself unable to reach a verdict after
slightly more than two hours of deliberation, and in the
course of speaking to the jury, the district court stated:
"You have got to reach a decision in this case." See id. The
Court held that "[u]pon review of the record, we conclude
that in its context and under all the circumstances the
judge's statement had the coercive effect attributed to it."
Id.; see also United States v. United States Gypsum Co., 438
U.S. 422, 462 (1978) (finding an ex parte conversation
between the district court and the jury foreman to be
grounds for reversal since the jury may have understood
the court to have been requiring it to reach a dispositive
verdict). In Lowenfield v. Phelps, 484 U.S. 231 (1988), the
Court explained that Jenkins relied upon the Court's
supervisory power over the federal courts. See id. at 239 &
n.2, 240 & n.3.

In Lowenfield, the Court considered the appeal of a
habeas petitioner who claimed that the state trial court's
actions had coerced the jury's decision to sentence him to
death in violation of his constitutional rights. During the
_________________________________________________________________

6. In Hyde and Schneider, the Court found nothing in the record to
suggest a coerced verdict. See Hyde and Schneider, 225 U.S. at 382-84.
In Kawakita, the Court affirmed without discussion the ruling of the
Court of Appeals for the Ninth Circuit which had found that given the
context of the case and the particular effect of the instruction, the
instruction did not violate the defendant's rights. See Kawakita, 343
U.S. at 744 (affirming United States v. Kawakita, 190 F.2d 506, 527-28
(9th Cir. 1951)) (explaining that the issues not addressed by the Court
were either "insubstantial" or "so adequately disposed of by the Court of
Appeals that we give them no notice").

                               10
sentencing phase of the murder trial, the jury deadlocked.
The court polled the jury as to whether further deliberation
would be helpful, and, after most of the jurors said that it
would, the court gave a second instruction. Unlike Allen,
the instruction did not refer to the minority jurors. Rather,
the instruction simply reminded the jurors to discuss one
another's views and to consider the evidence with the
objective of reaching a unanimous verdict based upon each
juror's individual views. See id. at 234. The Court denied
the habeas relief requested, holding that "on these facts the
combination of the polling of the jury and the supplemental
instruction was not `coercive' in such a way as to deny
petitioner any constitutional right." Id. at 241. The Court,
however, also explained that: "By so holding we do not
mean to be understood as saying other combinations of
supplemental charges and polling might not require a
different conclusion. Any criminal defendant, and especially
any capital defendant, being tried by a jury is entitled to a
uncoerced verdict of that body." Id.

In reaching its decision, the Court first noted that "[t]he
use of a supplemental charge has long been sanctioned," id.
at 237, and reaffirmed the "continuing validity of this
Court's observations in Allen," explaining that "they apply
with even greater force in a case such as this where the
charge given, in contrast to the so-called `traditional Allen
charge,' does not speak specifically to the minority jurors."
Id. at 237-38. The Court also noted that "[a]ll the Federal
Courts of Appeal have upheld some form of supplemental
jury charge," id. at 238 n.1, and cited a number of opinions
of the courts of appeals limiting the content of
supplemental charges, see id.

Addressing the merits, the Court considered both the
content of the instruction and the circumstances relevant
to determining its impact on deliberations. The Court
rejected the petitioners reliance on Jenkins because of the
clear difference in the language used in the two
instructions. See id. at 239. Considering the instruction's
impact, the Court noted that although the jury continued
deliberations for only an additional thirty minutes which
might suggest the possibility of coercion, the fact that
defense counsel voiced no objection to the instruction

                               11
"indicate[d] that the potential for coercion argued now was
not apparent to one on the spot." See id. at 240.
Accordingly, no habeas relief was warranted.

Although the petitioner was challenging his state court
sentence and could not rely upon the Court's supervisory
power over the federal courts, the Supreme Court,
nonetheless, considered Jenkins and Brasfield v. United
States, 272 U.S. 448 (1926), in which the Supreme Court
had reversed a verdict on the basis of its supervisory power
because of the Court's decision to poll the jury. In
Lowenfield, the Court noted that Brasfield, although based
on its supervisory powers, was nonetheless still"instructive
as to the potential dangers of jury polling." See id. at 239-
40 & n.3.

B.

Evolving during the period between Jenkins and
Lowenfield, our precedent has relied upon our supervisory
power over the district courts to develop rules governing the
content of jury instructions which provide guidance to us in
the resolution of this appeal. See United States v.
Fioravanti, 412 F.2d 407 (3d Cir. 1969); see also United
States v. Burley, 460 F.2d 998 (3d Cir. 1972). In Fioravanti,
the district court concluded its instruction to the jury by
explaining that the verdict must be unanimous, telling the
jurors to confer respectfully with each other and to
scrutinize the facts from each other's viewpoint, and
admonishing the jurors not to yield their well-grounded
opinions or violate their oath. See Fioravanti , 412 F.2d at
415. The trial court, however, continued:

       While undoubtedly the verdict of the jury should
       represent the opinion of each individual juror, it by no
       means follows opinions may not be changed by
       conferences in the jury-room. The very object of a jury
       system is to secure unity by comparison of these views.
       The jury should listen with deference to arguments of
       fellow-jurors and distrust of his own judgment if he
       finds a large majority of the jury taking a different view
       of the case from that what he does, himself.

Id. (emphasis in original).

                               12
The defendant objected to the instruction, and appealed
the subsequent guilty verdict. We affirmed the verdict
because the charge was integrated into the body of the
main charge rather than coming as "a supplemental or
dynamite charge to blast a hung jury into a verdict," and
because we recognized that the charge given was similar to
charges "grudgingly" approved by this Court in a previous
opinion. See id. at 420.7 Nevertheless, we prohibited the
future use of Allen charges, and explained that use of such
a charge would, in the absence of extraordinary
circumstances, constitute reversible error.

       Hereafter, in this circuit, trial judges are not to give
       instructions either in the main body of the charge or in
       the form of a supplemental charge that direct a juror to
       distrust his own judgment if he finds a large majority
       of the jurors taking a view different from his. Such an
       instruction will be deemed error, normally reversible
       error. Conceivably, in very extraordinary circumstances
       the error may be found so inconsequential as to avoid
       the necessity of reversal on appeal. But hereafter this
       court will not let a verdict stand which may have been
       influenced in any way by an Allen charge.

Id. at 420.

Fioravanti represented a watershed in our jurisprudence.
Its prohibition on the use of the majority/minority
instruction which was not found to be error in United
States v. Allen, and its warning that the subsequent use of
an Allen charge would constitute reversible error in the
absence of extraordinary circumstances established strict
limits on the content of the jury instructions not
necessarily required by Supreme Court precedent. See
United States v. United States Gypsum Co., 550 F.2d 115,
131 n.4 (3d Cir. 1977) (Adams, J., concurring) (noting that
Fioravanti supersedes the instruction approved in Allen),
aff 'd, 438 U.S. 422 (1978). Our decision did not consider
the issue as a matter of constitutional law; rather, as we
explained in a subsequent opinion, we grounded our rule in
our supervisory authority over the district courts and
_________________________________________________________________

7. See United States v. Meisch, 370 F.2d 768 (3d Cir. 1966); Shaffman v.
United States, 289 F. 370 (3d Cir. 1923).

                               13
justified our use of that power as a response to"the
inherent potential of the charge to coerce" as well as "the
inscrutable problem of determining in each case whether
such coercion actually existed." Gov't of the Virgin Islands
v. Hernandez, 476 F.2d 791, 792 (3d Cir. 1973) (emphasis
added). In Fioravanti, we recognized the practical problems
raised by attempting to determine whether coercion
occurred in each case, and called Allen charges "an
invitation for perennial appellate review." Thus, we
described our rule as "a prophylactic device to eliminate
future vexation." See Fioravanti, 412 F.2d at 420.

Also at play in our ruling was the belief that the
justifications proffered in favor of Allen charges were
outweighed by their potential to distort the workings of the
jury system. Although efficient judicial administration
clearly favors verdicts over hung juries, we pointed out that
the "possibility of a hung jury is as much a part of our jury
unanimity schema as are verdicts of guilty or not guilty."
Id. at 416. We also addressed the claim that Allen charges
were justified by their ability to discourage a minority of
jurors from wantonly impeding deliberations by exploring
its potential negative impact of the charge on the jury's
deliberations. First, we recognized that the charge tends to
endow the majority of jurors with the imprimatur of the
court. See id. at 417. Second, we concluded that the charge
served to replace the give and take of group deliberation
necessary to support the requirement of jury unanimity
with the influence of an early jury poll. Finally, we reasoned
that the charge threatened to undermine the reasonable
doubt standard because a minority vote changed to guilty
by the coercive effect of the instruction would result in a
verdict representing less than the collective view of each
juror separately applying the reasonable doubt standard.
See id. at 418-19 ("Under any standard other than an
individual juror's determination, would not `the doubt of a
single juror in the face of eleven votes for conviction [be]
. . . per se unreasonable.' "). To address these concerns, we
suggested alternative language for a court to use when it
told jurors to continue deliberating and wanted to remind
them to consult with each other during the deliberative
process. Our suggested charge did not reference either the
minority or the majority.

                               14
       It is your duty, as jurors, to consult with one another,
       and to deliberate with a view to reaching an agreement
       if you can do so without violence to individual
       judgment. Each of you must decide the case for
       yourself, but do so only after an impartial
       consideration of the evidence in the case with your
       fellow jurors. In the course of your deliberations, do
       not hesitate to re-examine your own views, and change
       your opinion, if convinced it is erroneous. But do not
       surrender your honest conviction as to the weight or
       effect of evidence solely because of the opinion of your
       fellow jurors, or for the mere purpose of returning a
       verdict.

Id. at 420 (quoting in part W. Mathes & E. Devitt, Federal
Jury Practice and Instructions, S 79.01 (1965)).

Two years after Fioravanti, in Burley , we considered a
supplemental instruction in which the district court
referenced the costs and burdens of holding a second trial.
See Burley, 460 F.2d at 998. We concluded that:"[t]o the
dissenting juror the charge must have meant that she
should consider the expense of a new trial to the
government and its imposition on the time of many people
as a significant factor that could and should persuade her to
change her vote." Id. at 999 (emphasis added). Such
concerns, we explained, are simply not relevant to a juror's
duty to evaluate the evidence and the credibility of the
witnesses and to vote for acquittal if reasonable doubt
exists, and reversal was warranted.

Over the last three decades, we have applied our rule in
Fioravanti on a number of occasions. See United States v.
Graham, 758 F.2d 879 (3d Cir. 1985); Gov't of the Virgin
Islands v. Geareau, 502 F.2d 914 (3d Cir. 1974);
Hernandez, 476 F.2d at 791; United States v. Alper, 449
F.2d 1223 (3d Cir. 1971). In two cases we concluded that
the content of the instruction at issue did not warrant
reversal because there was no potential for coercive effect.
See Geareau, 502 F.2d at 935-36; Alper, 449 F.2d at 1233.
In Alper, we upheld a jury verdict rendered after the district
court read a supplemental charge containing the language
we approved in Fioravanti, with an additional sentence
explaining that remaining deadlocked was an acceptable

                                15
result. See Alper, 449 F.2d at 1233. In Geareau, we simply
concluded that the charge -- which was not reproduced in
our opinion, but which we characterized as "simply a
statement that jurors were not required to reach a verdict
but should try to do so" -- was not coercive. See Geareau,
502 F.2d at 935-36.

In 1973, in Hernandez, decided after Alper and before
Geareau, we reversed the convictions of two defendants
because an Allen charge was given as part of the trial
court's original jury instructions. See Hernandez, 476 F.2d
at 793. During the court's opening instruction, it twice told
the jury that if disagreement arose during deliberations, the
jurors in the minority should be willing to reexamine and
reevaluate their ideas and exchange their views with the
thoughts of those jurors who constituted the majority. See
id.8 Finding no "extraordinary circumstances" because the
evidence was not "overwhelming," we reversed on the basis
of Fioravanti. See id. at 793 & n.2. We did so even though
the defendants had not objected to the charge at trial, see
id. at 793 ("[A]lthough no objection was made to the charge
at trial, we find plain error and reverse the convictions on
this ground."), and even though the charge had been part
of the original instruction, not the court's later response to
a deadlocked jury.

Although we have not reversed a jury verdict on the basis
of Fioravanti since Hernandez, we have cited Fioravanti
favorably in several recent opinions. See Graham , 758 F.2d
_________________________________________________________________

8. We quoted the relevant portion of the court's instruction:

       If there is disagreement as to the innocence or guilt of both
       defendants, or either one of them, those in the minority should be
       willing to reexamine and reevaluate their ideas and exchange their
       views with the thoughts of those jurors who constitute the
majority.

        The same can be said for a disagreement as to whether either one
       or both of them are guilty of the lesser included offense or guilty
of
       the offense charged in the information. If there is disagreement as
       to which one it is, again, those in the minority ought to be
willing
       to reexamine and reevaluate their concepts and their ideas with
       those in the majority to the end that unanimity might be obtained
       and a verdict returned.

Hernandez, 476 F.2d at 792.

                                16
at 883; see also United States v. Price, 13 F.3d 711, 724 (3d
Cir. 1994); United States v. Fiorilla, 850 F.2d 172, 173-74
(3d Cir. 1988).9 In Graham , we examined an Allen charge
given as part of a supplemental instruction directing the
minority to reconsider their own views, and, although in
confusing language, also directed the majority, if for
conviction, to seriously and thoughtfully reconsider their
views if a "lesser number . . . are for acquittal."10 Graham,
758 F.2d at 882. We stated that "[i]n principle, if not in
terms, the charge given in this case cannot be
distinguished from the Allen charge which we have rejected.
It thus offends our Fioravanti decision and should not have
_________________________________________________________________

9. In Price, we found no plain error in the district court's failure to
instruct a jury that it might return as a hung jury when it responded to
the questions by the jury. See Price, 13 F.3d at 725. We did not explain
what the jury had asked, but wrote "[t]here may be occasions where
such an instruction might be necessary, such as in conjunction with the
modified Allen instruction prescribed in United States v. Fioravanti." Id.
In Fiorilla, we considered an appeal from a verdict rendered after the
district court required further deliberations because one of the jurors
told the court during a post-verdict jury poll that he or she had not
agreed with the verdict. See Fiorilla, 850 F.2d at 173-74. In passing, we
noted that the Court reread to that juror the "portion of the charge to
the
jury referring to a juror's obligation to deliberate with a view to
reaching
an agreement, consistent with language approved by this Court in United
States v. Fioravanti." See id.

10. In Graham, the district court told the jury:

       If much the greater number of you are for a conviction, each
       discenting [sic] juror ought to consider whether a doubt in his or
her
       mind is a reasonable one, since it makes no effective impression
       upon the minds of so many equally honest, equally conscientious
       fellow jurors who bear the same responsibility, serve under the
same
       oath, and have heard the same evidence with, we may assume, the
       same attention, and an equal desire to arrive at the truth.

        On the other hand, if a majority or even a lesser number of you
       are for acquittal, other jurors ought to seriously ask themselves
       again, and most thoughtfully, whether they do not have reason to
       doubt the correctness of a judgment which is not incurred [sic] in
by
       so many of their fellow jurors, and whether they should not
distrust
       the weight and sufficiency of evidence which fails to convince the
       minds of several of their jurors beyond a reasonable doubt.
Graham, 758 F.2d at 882.

                           17
been given." Id. at 883. We did not reverse, however,
because neither defendant had raised this objection at trial
and we did not view the record as warranting reversal as
plain error for manifest injustice. We recognized that in
Hernandez we found an instruction violating Fioravanti to
constitute plain error. However, we concluded that
subsequent Supreme Court precedent required us to use
the plain error standard, and noted that the Hernandez
decision had not analyzed the issue under the plain error
standard or decided whether manifest injustice would have
resulted without appellate review. See id. (citing United
States v. Young, 470 U.S. 1 (1985)).11

We note that neither the Podlasecks nor the United
States has focused on the precise nature of the power we
exercise in reviewing charges of this nature. In Fioravanti
we exercised our supervisory power, whereas in Lowenfield
v. Phelps, the Court was reviewing the constitutionality of
the use of the instruction at issue. Some discussion of
these two distinct approaches is warranted.

We are convinced that the particular limits on the
content of jury instructions created by Fioravanti and
Burley and their progeny, which relied upon application of
our supervisory power over the district courts, remain good
law after Lowenfield, which considered whether the
challenged instruction violated the state defendant's
constitutional rights and reaffirmed the reasoning of Allen.12
_________________________________________________________________

11. We are not concerned that Graham found that the "record reveals
that no manifest injustice resulted from the court's instruction."
Graham, 758 F.2d at 883. In Fioravanti, we affirmed the ruling on its
facts. See Fioravanti, 412 F.2d at 419. Our rule simply responded to the
potential for coercion an Allen charge presents, and our belief that
appellate review of its impact is both imprecise and inefficient. The
plain
error standard also supports Fioravanti's efficiency goal by providing
defendants a strong incentive to apprise the district court of our rule
when the use of the instruction can be avoided. In Graham, we explained
"[h]ad any defendant here timely objected to the charge . . . the district
court judge could have given a corrective instruction. Indeed, had any
defendant called the court's attention to this Court's opinion in
[Fioravanti], there can be no question but that the district court judge
would have revamped his supplementary charge and given the proper
Fioravanti instruction." Graham, 758 F.2d at 883.
12. The use of supervisory power in areas that are not clearly procedural
has come under some criticism, see generally Sara Sun Beale,

                               18
Cf. United States v. Payner, 447 U.S. 727, 735-36 (1980)
(rejecting use of supervisory powers in the context of the
Fourth Amendment jurisprudence that ran contrary to
Supreme Court precedent). Although the Court in
Lowenfield reaffirmed its reasoning in Allen, the Court also
explained that its reasoning about the deliberative process
"applied with greater force" in cases where the instruction
did not speak to minority jurors, see Lowenfield, 454 U.S.
at 237-38, and affirmed the possibility that a coercive
instruction could violate a defendant's constitutional rights,
see id. at 241. Furthermore, in Lowenfield , the Supreme
Court referenced rulings from each of the courts of appeals,
including Fioravanti, and explained that"[a]ll of the Federal
Courts of Appeal have upheld some form of a supplemental
jury charge." See Lowenfield, 484 U.S. at 238 n.1
(emphasis added).13 Also cited were the decisions of the
_________________________________________________________________

Reconsidering Supervisory Power in Criminal Cases , 84 Colum. L. Rev.
1433 (1984); Honorable Murray M. Schwartz, The Exercise of Supervisory
Power by the Third Circuit Court of Appeals, 27 Vill. L. Rev. 506 (1981),
and at least one judge has questioned its use in this area. See United
States v. Strothers, 77 F.3d 1389, 1394-99 (D.C. Cir. 1996) (Sentelle, J.,
concurring). However, as Lowenfield explains, the Supreme Court relied
upon its supervisory power in reversing the conviction in Jenkins. See
Lowenfield, 484 U.S. at 551 n.2.

13. Other courts of appeal have taken different stances on the
appropriate content of supplemental charges, and the correct form of
appellate analysis. For example, in opinions also cited in Lowenfield, the
Courts of Appeals for the First and Eighth Circuits established rules
requiring deadlock instructions to direct both the minority and the
majority to reconsider their views, to include an explanation that the
jury may remain deadlocked and to remind the jury to apply the
reasonable doubt standard. See Potter v. United States, 691 F.2d 1275,
1283 (8th Cir. 1982) (establishing these requirements and two others,
and reversing); United States v. Anguilo, 485 F.2d 37, 39-40 (1st Cir.
1973) (citing United States v. Flannery, 451 F.2d 880, 883 (1st Cir 1971)
(describing the elements of an appropriate charge"in the exercise of our
supervisory powers")). Since Lowenfield, both of these courts have
reversed convictions because the district court failed to address each of
the required points. See United States v. Manning, 79 F.3d 212, 222 (1st
Cir. 1996); United States v. Robinson, 953 F.2d 433, 436 (8th Cir. 1992)
(considering both the content of the instruction and its probable effect);

                               19
District of Columbia Court of Appeals, United States v.
Thomas, 449 F.2d 1177, 1183-86 (D.C. Cir. 1971) (en
banc), and the Seventh Circuit Court of Appeals, United
States v. Silvern, 484 F.2d 879, 882-83 (7th Cir. 1973) (en
banc), in which those courts relied upon their supervisory
power as we did in Fioravanti to prohibit the use of Allen
charges and to avoid the concerns posed by case-by-case
appellate review. See Lowenfield, 484 U.S. at 238 n.1; see
also Thomas, 449 F.2d at 1186 ("We believe that appellate
courts should no longer be burdened with the necessities
and niceties -- and the concomitant uncertainties-- of
gauging various Allen-type renditions in terms of the
coerciveness of their impact."). Since Lowenfield, the
District of Columbia Circuit has reversed convictions twice
because the district court used an incorrect instruction.
See United States v. Strothers, 77 F.3d 1389, 1391 (D.C.
Cir. 1996); United States v. Berroa, 46 F.3d 1195, 1197
(D.C. Cir. 1995) (rejecting the invitation to reconsider
Thomas because the court did not wish to engage again in
case-by-case review).

We also believe that the Supreme Court's decision in
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988),
while imposing limits on a court's ability to dismiss an
indictment in the exercise of its supervisory power, does not
require that we depart from our previous rulings. In Bank
of Nova Scotia, the Supreme Court held that a court should
_________________________________________________________________

see also United States v. Paniagua-Ramos, 135 F.3d 193, 197-98 (1st
Cir. 1998) (stating three elements that must be present in supplemental
charge and affirming district court's order granting defendant a new trial
because the court failed to convey adequately the second element of the
charge, i.e., that "a jury has the right to fail to agree").

More recently, in United States v. Burgos, 55 F.3d 933 (4th Cir. 1995),
also decided after Lowenfield, the Court of Appeals for the Fourth Circuit
reversed a jury verdict rendered after finding that the jury instruction
suggested that the views held by the minority were less valuable, and
adopted a rule requiring district courts to give balanced instructions,
warning that an insufficiently balanced instruction would result in
reversal. See id. at 941; see also Tucker v. Catoe, 221 F.3d 600, 611-13
(4th Cir. 2000) (finding instruction coercive but denying state habeas
relief on other grounds).

                               20
not dismiss an indictment prior to trial as an exercise of its
supervisory power based on prosecutorial misconduct in
connection with grand jury proceedings unless it
determined that the violation substantially influenced the
grand jury's decision to indict. Id. at 256. At the heart of
this ruling was the Supreme Court's concern that courts
should not run roughshod over Rule 52's requirement that
substantial rights be implicated in exercising "supervisory"
power over the conduct of proceedings. In Bank of Nova
Scotia, the Court was careful to distinguish the case before
it from classes of cases in which "structural protections
have been so compromised as to render the proceedings
fundamentally unfair, allowing the presumption of
prejudice." Id. at 257. For instance, in cases of racial or
sexual discrimination in the selection of grand jurors, it
could be presumed that a discriminatorially selected grand
jury would treat defendants unfairly. Id. Here, we view the
coercive nature of the instruction to give rise to such a
presumption of coercion and unfairness. Actually,
Fioravanti does include a de facto harmless error
requirement, or a way of rebutting the presumption. In
both Fioravanti and Burley, we presumed that an
instruction containing certain content is coercive, but noted
that we still should consider whether "extraordinary
circumstances" cause us to conclude that reversal is not
warranted because the coercive instruction did not affect
the outcome. We conclude that Fioravanti is consistent with
the principles set forth in Bank of Nova Scotia , and remains
good law.

C.

Accordingly, our task is to consider whether the
instruction given by the District Court contravened the
teachings of our case law, and if so whether this case
presents the type of situation that warrants reversal. Before
doing so, however, we must address the government's
contention that the defendants failed to preserve the
objection they raise because their challenge before the
District Court was directed at the instruction's length
rather than its content. Our review, the government
therefore argues, must be for plain error.

                               21
We disagree. When the District Court decided to give the
instruction, it told counsel that the instruction was
"approved." Defense counsel objected to the instruction
because they found its length to be coercive, and sought
the opportunity to present an alternative instruction. In
response, the District Court curtly advised counsel that:
"You're on record, you object to it. I'm going to give it and
your objection is on the record. You are protected." The
Court also denied the defense counsel's request for the
opportunity to retrieve an alternative charge. Given the
Court's assurance that the charge was approved and the
objection was on the record, as well as the Court's brusque
refusal to entertain further discussion, which by its tenor
foreclosed further exchange and possibly further grounds
for objection, we believe that defense counsel satisfactorily
preserved the defendants' appeal on this issue.

The District Court's instruction addressed the views of
the majority and minority of jurors despite our clear
precedent indicating we should avoid a majority/minority
instruction. See Fioravanti, 412 F.2d at 416-19; see also
Graham, 758 F.2d at 883; Hernandez, 476 F.2d at 792-93.
Furthermore, although the Court mentioned both the
majority and minority jurors, the instruction clearly
portrayed the minority jurors as holding less intelligent or
reasonable views than the majority jurors and therefore
indicated to the jurors that the views held by the minority
merited reexamination. In fact, in the pivotal paragraph,
the Court never instructed the majority jurors to reexamine
their views. While the jurors in the majority were told
simply to consider whether the minority view had
"persuasive merit," the minority jurors were told to consider
whether their own view was "reasonable" given that "it
makes no effective impression on the minds of so intelligent
fellow jurors who bear the same responsibility, serve under
sanction of the same oath and have heard the same
evidence with, you may assume, the same attention and an
equal desire to arrive at the truth." We see no principled
way to distinguish this instruction from the one we
prohibited in Fioravanti, and which resulted in reversal in
Hernandez.

The District Court also erred by telling the jury that
another trial would be both time-consuming and

                               22
burdensome to all persons involved, because this portion of
the instruction may have been interpreted by the jurors as
complaining that if they did not agree upon a dispositive
verdict, they would have wasted the Court's time and
energy, and imposed upon the Court and the parties by
making them endure another trial. Thus, the instruction
created the potential that the jurors' deliberation was
influenced by concerns irrelevant to their task in the same
manner we found impermissible in Burley. See Burley, 460
F.2d at 999. The government attempts to distinguish this
case from Burley because the instruction did not allude to
the economic costs associated with a new trial. However, in
Burley we found that the instruction referenced both the
burdens and economic costs associated with another trial,
and our opinion did not suggest that the combination was
the pivotal factor. See id. ("To the dissenting juror the
charge must have meant that she should consider the
expense of a new trial to the government and its imposition
on the time of many people as a significant factor that could
and should persuade her to change her vote.") (emphasis
added). Rather, our concern focused on the possibility that
the jury reached its subsequent verdict for reasons other
than the evidence presented to it. See id. ("[A] juror's
responsibility is to evaluate the evidence and the credibility
of witnesses and, if a reasonable doubt as to proven guilt
persists, to vote for acquittal. The possibility of a hung jury
and a retrial is not relevant to that determination. The
jurors should not be told that this circumstance should
influence them.").

We also believe it necessary to comment on the District
Court's cryptic statement included at the end of the charge
to the jurors that "[i]n the performance of this high duty,
you are at liberty to disregard any comments of both the
Court and counsel, including, of course, the remarks I am
now making." This comment could be interpreted in many
ways. Read in the narrow context of the preceding
sentences, the Court may simply have meant that the jury
was not to consider the comments of the Court and counsel
as facts impacting upon the determination of guilt or
innocence. Alternatively, however, the jury could have
interpreted the statement as an invitation to ignore
previous instructions, or even the reasonable doubt

                               23
standard, in pursuit of a verdict. We have not addressed a
charge containing such a comment, although we have seen
it elsewhere.14 Since we reverse on the basis of Fioravanti
and Burley, we need not address the point further;
nonetheless, we would expect that trial courts will take care
in the future to avoid comments that are not clear and that
could be interpreted to alter the instructions previously
given to the jury.

Both parties contend that there is a striking similarity
between the instruction given by the Court in this case and
the model instruction provided in many editions of the
Mathes and Devitt/Devitt and Blackmar, Federal Jury
Practice and Instructions, treatise. See, e.g., W. Mathes & E.
Devitt, Federal Jury Practice and Instructions , S 79.08
(1965).15 The defendants hypothesize that the District Court
thought the charge was "approved" because it appeared in
the treatise. The government argues that we "preferred" the
charge in Fioravanti and Hernandez. We take this
opportunity to clarify the apparent confusion. In Fioravanti,
we suggested that a district court wishing to instruct jurors
to consult with each other should use the language we
quoted from S 79.01 of the 1965 edition of the Mathes and
Devitt treatise, sandwiched between two shorter paragraphs
telling the jury that the verdict must be unanimous and
that their role is to act as judges of the facts. See
Fioravanti, 412 F.2d at 420 n.32. In Hernandez, we
reiterated this suggestion, and noted that the same
language now appeared in S 17.05 of the 1970 edition. See
Hernandez, 476 F.2d at 793 & n.3. In both editions, the
language appeared in identical sections titled,"Verdict-
Unanimous-Duty to Deliberate." See 1 E. Devitt & C.
Blackmar, Federal Jury Practice and Instructions , S 17.05
(2d. ed. 1970); W. Mathes & E. Devitt, Federal Jury Practice
and Instructions, S 79.01 (1965). In contrast, the instruction
the parties allude to appears in a different section titled
"Supplemental Instruction -- When Jurors Fail Seasonably
_________________________________________________________________

14. See, e.g., W. Mathes & E. Devitt, Federal Jury Practice and
Instructions, S 79.08 (1965); see also Kawakita, 190 F.2d at 551 n.1.

15. The only substantial difference between it and the instruction given
by the District Court was the additional instruction to the majority
jurors to see whether the minority view had "persuasive merit."

                               24
to Agree," which also appeared in both editions. See W.
Mathes & E. Devitt, Federal Jury Practice and Instructions,
S 79.08 (1965). Since 1977, every edition of the treatise has
explained that the instruction provided in this section
should not be given in the courts of the Third Circuit
because of our decision in Fioravanti. See, e.g., 1 E. Devitt
& C. Blackmar, Federal Jury Practice and Instructions,
S 18.14 (3d ed. 1977) (explaining that "[t]his form of the
charge should not be used in circuits where the court of
appeals has shown express disapproval" and citing
Fioravanti).

Lastly, we have examined the instruction given, in
context, and conclude that there are no circumstances that
would rebut the presumption of coercion so as to render
the charge harmless. As we noted at the outset, the
evidence presented at trial was not "overwhelming." See
Hernandez, 476 F.2d at 793 & n.2 (explaining that
"overwhelming" evidence of guilt might create the type of
circumstance where affirmance would be appropriate in a
case where the Allen charge appeared in the original
instruction). Nor does the fact that the jury deliberated for
an additional four hours after the instruction was given
dispel the coercive effect or establish the "very
extraordinary circumstances" by which Fioravanti explained
"the error may be found so inconsequential as to avoid the
necessity of reversal." See Fioravanti, 412 F.2d at 420.
Rather, the coercive content of the instruction, the nature
of the evidence presented, and the time at which the
instruction was given, considered together, lead us to
conclude that the error was not harmless.

We recognize that when faced with a deadlocked jury, a
district court may, in its discretion, provide further
instruction to the jurors. In doing so, however, the court
should do no more than encourage the jurors to fulfill their
duty, and possibly draw their attention again to the same
rules governing their task that were explained to them
during the original instruction. In this case, the District
Court's instruction, given after two days of deliberation,
drew the jurors' attention to issues irrelevant to their task
and returned them to the jury room with the thought that
the Court believed that the views held by the majority of the

                               25
jurors were more reasonable, and the knowledge that
continued deadlock would unnecessarily burden the Court
and the parties. We conclude that, in this context, such an
instruction is impermissible under our precedent.

Accordingly, we hold that the instruction was an abuse of
discretion requiring the reversal of the guilty verdicts
rendered against all three defendants on all the counts.

In light of the foregoing, we will REVERSE and REMAND
for a new trial.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26
