                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-5-1995

United States v Miller
Precedential or Non-Precedential:

Docket 95-1039




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ____________

                              No. 95-1039
                              ____________

                      UNITED STATES OF AMERICA,
                                          Appellee
                                  v.

              CAROL A. MILLER a/k/a CAROL MILLER SALEMO,
                                          Appellant
                             ____________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                  (D.C. Crim. No. 93-cr-00406)
                          ____________

                        Argued April 20, 1995

    Before:    STAPLETON, HUTCHINSON, and WEIS, Circuit Judges

                      Filed   July 5, l995
                              ____________

Samuel C. Stretton, Esquire (ARGUED)
301 South High Street
P.O. Box 3231
West Chester, PA 19381-3231

Attorney for Appellant


Emily McKillip, Esquire (ARGUED)
Assistant United States Attorney
Michael R. Stiles, Esquire
United States Attorney
Walter S. Batty, Jr., Esquire
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476

Attorneys for Appellee

                              ____________

                         OPINION OF THE COURT
                             ____________
WEIS, Circuit Judge.
          In this criminal case, defendant contends that the

trial court erred when it denied her request for an individual

jury poll and instead conducted a collective inquiry.   In the

circumstances, we conclude that the trial court did not commit

reversible error, but we adopt a prospective supervisory rule

requiring that jurors shall be polled individually rather than

collectively.   We also affirm the trial court's rulings rejecting

a duress defense and permitting the government to call a witness

whom it had impeached in a previous trial.

          Defendant Carol A. Miller was convicted on charges of

bank fraud, 18 U.S.C. § 1344, and interstate transportation of a

stolen vehicle, 18 U.S.C. §§ 2, 2312.   She was sentenced to a

prison term of twenty-seven months concurrent on both counts,

followed by supervised release for three years, and ordered to

pay restitution in the amount of $44,500.00.

          In February 1991, defendant and her husband, George P.

Salemo, engaged in a check-kiting scheme through which they

defrauded the Meridian Bank in Allentown, Pennsylvania.   Using

proceeds from that operation, they purchased an automobile for

$98,024.00.

          On March 27, 1991, the husband was arrested in Florida.

On that same day, defendant, who was also in Florida at the time,

telephoned her home in Allentown, Pennsylvania and directed the

housekeeper to take the automobile from the garage and park it on
a designated side street.   On the following day, defendant

returned to Allentown.

           On March 29, 1991, at the behest of the Meridian Bank,

the Court of Common Pleas of Philadelphia County served an order

on defendant enjoining her and her husband from disposing of any

of their assets.   On the next day, the defendant's brother

arrived in Allentown.    He located the automobile and drove it to

Arizona.   On April 8, 1991, defendant flew to Arizona and, on the

following day, sold the car for $89,000.00 in Las Vegas, Nevada.

           Before trial, the district court granted the

prosecution's motion in limine to bar defendant from presenting

evidence of duress.   After the jury returned guilty verdicts on

each count charged in the indictment, defendant requested an

individual poll of the jurors.   The district judge refused to do

so but inquired of the jurors collectively.

           Defendant has appealed, raising four issues:
           (1) The district court's denial of an individual poll
                of the jurors;

           (2)   Exclusion of the defendant's duress evidence;

           (3) The government's use of a witness in this case
           that it had impeached in a former trial; and

           (4) Failure of the district court to depart downward
           from the Guideline sentence.


                                 I.

           Following the charge of the court, the jury deliberated

for about an hour and then returned to the courtroom to deliver

its verdict.   The record shows that the following occurred:
                "THE COURT: Members of the Jury, I
           understand you have reached a verdict and the
way the verdict is to be taken will be as
follows: First the Clerk of Court will ask
the foreperson as to the results of the
verdict form. Then, of course, you should
listen intently while it's going on and then
the other 11 persons will be asked whether
they agree as a group. You will be asked
whether you agree with the verdict as
announced by the foreperson.

     "If you do, of course, you will say
`yes.' If you do not agree with the verdict,
of course, you should say `no.' So listen
carefully. If you agree when you are asked
collectively, you say `yes.' If you do not
agree, please let us know. Thank you.

        "Would the Clerk take the verdict.

        "THE CLERK:   Would the foreperson please
rise?
     "Have the Members of the Jury reached a
verdict by answering the jury verdict form?

        "THE FOREPERSON:   Yes.

     "THE CLERK: How do you find the
defendant as to Count 1, bank fraud?

        "THE FOREPERSON:   Guilty.

     "THE CLERK: As to Count 2, interstate
transportation of [a] stolen vehicle?

        "THE FOREPERSON:   Guilty.

        "THE CLERK:   Thank you.

        "THE COURT:   You may be seated.

     "[DEFENSE COUNSEL]:      Your Honor, I ask
the jury be polled.

     "THE COURT: I am going to do it
collectively. I won't do it individually.

        "[DEFENSE COUNSEL]:   I ask for it individually.

        "THE COURT:   I deny it.
               "THE CLERK: Members of the Jury, harken
          onto your verdict as the Court has recorded
          it in the issue joined this indictment,
          Number 94-406 and Carol A. Miller, also known
          as Carol A. Salemo, you find the defendant
          guilty in the manner and form as she stands
          indicted as to Count I, and so say you all?

               "THE JURY:   Yes.

               "THE COURT: Does any[one] find her not
          guilty as to Count 1?

               (No response).

               "THE CLERK: As to Count 2, your verdict
          is `guilty' and so say you all?

               "THE JURY:   Yes.

               "THE COURT: Does anyone say `not
          guilty' as to Count 2?

               (No response)

               "THE COURT: All right.   Would you take
          the verdict form?"



          Defendant contends that the denial of an individual

poll violated Fed. R. Crim. P. 31 and due process as well.

          Fed. R. Crim. P. 31(d) does not specify any specific

form but provides only that before a verdict is recorded, "the

jury shall be polled at the request of any party or upon the

court's own motion."

          In Humphries v. District of Columbia, 174 U.S. 190, 194

(1899), the Supreme Court characterized polling as "an undoubted

right" and explained that "[i]ts object is to ascertain for a

certainty that each of the jurors approves of the verdict as

returned; that no one has been coerced or induced to sign a
verdict to which he does not fully assent."     Judge Maris, writing

for the Court in Miranda v. United States, 255 F.2d 9, 17 (1st

Cir. 1958), described the right of the defendant to have the jury

polled as being "of ancient origin and of basic importance,"

designed "to give each juror an opportunity, before the verdict

is recorded, to declare in open court his assent to the verdict

. . . ."

           Although not of constitutional dimension, the right to

a poll has its roots in the early common law.    United States v.

Shepherd, 576 F.2d 719, 724 (7th Cir. 1978).     In 2 Sir Matthew

Hale, The History of the Pleas of the Crown 299-300 (1st Am. ed.

1847), the text reads:
               "Now touching the giving up of their
          verdict, if the jury say they are agreed, the
          court may examine them by poll, and if in
          truth they are not agreed, they are fineable.
          29 Assiz. 27. 40 Assiz. 10.

                "If the jurors by mistake or partiality
           give their verdict in court, yet they may
           rectify their verdict before it is recorded,
           or by advice of the court go together again
           and consider better of it, and alter what
           they have delivered. Plow. Com. 211. b.
           Saunder's case.

                "But if the verdict be recorded, they
           cannot retract nor alter it."


           An additional advantage to polling is the likelihood

that it will discourage post-trial efforts to challenge the

verdict on allegations of coercion on the part of some of the

jurors.    See Audette v. Isaksen Fishing Corp., 789 F.2d 956, 961
n.6 (1st Cir. 1986).
          We have acknowledged the importance of the right to

poll the jury, see Government of Virgin Islands v. Hercules, 875

F.2d 414, 418 (3d Cir. 1989), United States v. Grosso, 358 F.2d

154, 160 (3d Cir. 1966), rev'd on other grounds, 390 U.S. 62

(1968), but have not prescribed a specific method of doing so.

In Hercules, we held that a district court erred in refusing to

take a poll and by relying instead upon the fact that all of the

jurors had signed the verdict slip as an indication of agreement.

However, we acknowledged that the prevailing view is that the

method chosen is within the discretion of the trial judge.

Hercules, 875 F.2d at 418; United States v. Aimone, 715 F.2d 822,

832-33 (3d Cir. 1983); see also United States v. Sturman, 49 F.3d

1275, 1282 (7th Cir. 1995); Audette, 789 F.2d at 959; United

States v. O'Bryant, 775 F.2d 1528, 1535 (11th Cir. 1985); United

States v. Carter, 772 F.2d 66, 67 (4th Cir. 1985); United States

v. Mangieri, 694 F.2d 1270, 1282 (D.C. Cir. 1982); accord 3

Charles A. Wright, Federal Practice & Procedure § 517, at 33 (2d

ed. 1982 & Supp. 1995); 8A James W. Moore, Moore's Federal

Practice ¶ 31.07, at 31-67 (2d ed. 1995).

          The general rule of discretion has been applied in a

variety of circumstances.   It has been cited when the question

was whether the poll should be taken on each count of an

indictment or as to each of several defendants; whether polling

should continue after a juror expressed some misgivings about the

verdict; and whether re-polling should be allowed.   These

variations differ, however, from the individual versus collective

issue.
           A number of courts have concluded that in the

particular circumstances presented, a collective poll was

permissible.    United States v. Hiland, 909 F.2d 1114, 1139 n.42

(8th Cir. 1990); Posey v. United States, 416 F.2d 545, 554 (5th

Cir. 1969);    Turner v. Kelly, 262 F.2d 207, 211 (4th Cir. 1958);

see Carter, 772 F.2d at 68 (showing of hands).    Nevertheless, the

preference of the appellate courts, and most district courts, has

been for an individual jury poll.

           In Carter, 772 F.2d at 68, the Court "strongly"

suggested individual polling, stating:    "We find that such a

procedure best fulfills the purpose of a jury poll."    In Turner,

262 F.2d at 211, the Court remarked, "[I]ndividual questioning

would appear to be consonant with the etymological derivation of

the term, and with the apparent trend of authority."    See also

Audette, 789 F.2d at 960; Shepherd, 576 F.2d at 722 n.1; United

States v. Sexton, 456 F.2d 961, 967 (5th Cir. 1972) ("correct"

procedure is to poll individual jurors).

           A respected treatise likewise agrees that individual

polling is preferable.   In IV Charles E. Torcia, Wharton's
Criminal Procedure § 586, at 152 (12th ed. 1976), the author

says:   "There is usually no prescribed mode of polling the jury.

Any clear and concise form of inquiry is sufficient.    The

question put to each juror may be simply, `Is this your

verdict?'"    (emphasis added and footnotes omitted).

           In Hercules, 875 F.2d at 419 n.8, we noted that the ABA

Standards Relating to Trial by Jury called for polling each juror

individually, and we agreed "that this method is the most
desirable."   The ABA Standards for Criminal Justice § 15-4.5

provide that the "poll shall be conducted by the court or clerk

of court asking each juror individually whether the verdict

announced is his or her verdict."   The commentary to that

standard reads:   "The jurors are to be questioned individually,

which is what is generally understood to be contemplated by the

right to have the jury polled."   Although conceding that, in some

jurisdictions, a collective inquiry is sufficient, the commentary

warns that "[t]his procedure is not permitted under the standard,

for it saves very little time while creating a risk that a juror

who has been coerced to go along with the majority will not speak

up."

          Although our preferred method under Hercules has been

individual polling, we are bound by our precedent to review the

procedure followed in the case before us as one that is within

the discretion of the district court.   As such, we look to the

record to determine whether the collective method chosen by the

trial judge here failed to provide a realistic opportunity for a

potential dissenting juror to reveal his or her opposition before

the verdict was recorded.

          In this connection, it is significant that before the

verdict was announced, the district judge told the jurors that

they should listen attentively because they would soon be asked

as a group whether they agreed with the verdict as announced by

the foreperson.   As noted earlier, after responding collectively

in the affirmative to the clerk's inquiry, "So say you all?," the
jurors were then asked by the judge, "Does anyone say `not

guilty.'"    No juror responded to that question.

            When that proceeding is considered against the backdrop

of a relatively simple case, a short period of deliberation by

the jury, and no indication in the record that any of the jurors

displayed reluctance or disagreement with the verdict, we cannot

say that the district court abused its discretion.    Accordingly,

in this instance, we conclude that the collective poll did not

constitute reversible error.

            However, we are concerned that in other circumstances

collective polling may not have the desired effect and may lead

to unnecessary challenges to the finality of jury verdicts.

Although we have previously expressed our strong preference for

individual juror inquiries (the practice that apparently is

generally followed in the district courts), uniformity has not

been achieved.    Accordingly, we consider it necessary to adopt a

supervisory rule for the district courts within this circuit.

            In the future, whenever a party timely requests that

the jury be polled, the procedure shall be conducted by inquiry

of each juror individually, rather than collectively.

Recognizing that circumstances in each case may vary widely, we

leave to the discretion of the district courts -- keeping in mind

the purposes of the polling rule -- whether a separate inquiry

should be conducted for each count of an indictment or complaint,

for each of a number of defendants, or for a variety of issues.
                               II.

          Before the trial began, the district court conducted a

hearing on the government's motion in limine to bar the defendant

from producing evidence of alleged duress.1   Defendant testified

to a history of physical and psychological abuse by her husband,

George Salemo.   In addition, she asserted that he had threatened

her, her brother, and her mother.    Because Salemo had purported

ties with organized crime, she believed that he had the ability

to carry out his threats, even while incarcerated.

          Defendant testified that she signed the checks and sold

the car at Salemo's direction, as a result of his threats to

injure her.   She did not complain to the police, fearing it would

be ineffectual because of Salemo's work for the Pennsylvania

Crime Commission.

          A witness who had previously served with the Crime

Commission testified that prior to the check-kiting scheme,

Salemo had been an informant for the Commission and had been

released from prison in return for his cooperation.   However, the

arrest in Florida in 1991 was at the instigation of the Crime

Commission.

          The district court refused to allow the evidence of

duress to be introduced.   Ruling from the bench, the district


1
 . A court may rule pretrial on a motion to preclude a defendant
from presenting a duress defense where the government contends
that the evidence in support of that position would be legally
insufficient. E.g., United States v. Sarno, 24 F.3d 618, 621
(4th Cir. 1994); United States v. Villegas, 899 F.2d 1324, 1343
(2d Cir. 1990).
judge found that because Salemo was in prison in another part of

the country, there was no immediate threat of death or serious

injury, no evidence of immediate retaliation tied to the sale of

the car, nor a lack of reasonable opportunity to escape the

threatened harm.    Moreover, the court concluded that defendant

produced no legally significant evidence that she lacked the

opportunity to contact law enforcement officers.

           As the Supreme Court observed in United States v.

Bailey, 444 U.S. 394, 409 (1980), at common law, duress excused

criminal conduct when the actor was "under an unlawful threat of

imminent death or serious bodily injury."   The defense is not

often successful.   "[I]f there was a reasonable, legal

alternative to violating the law, a chance both to refuse to do

the criminal act and also to avoid the threatened harm, the

defense[] will fail."    Id. at 410 (internal quotation omitted).

           In United States v. One 107.9 Acre Parcel of Land

Located in Warren Township, Bradford County, Pa., 898 F.2d 396,

399 (3d Cir. 1990), we determined that "[i]n a criminal law

context, . . . duress contains three elements:
          (1) an immediate threat of death or serious
               bodily injury;

           (2)   a well-grounded fear that the threat
                 will be carried out; and,

           (3)   no reasonable opportunity to escape the
                 threatened harm."



See also United States v. Santos, 932 F.2d 244, 249 (3d Cir.
1991).   To the same effect, see United States v. Paolello, 951
F.2d 537, 541 (3d Cir. 1991), which added an additional factor --

that a defendant should not recklessly place herself in a

situation in which she would be forced to engage in criminal

conduct.

            Our review of the record persuades us that the factors

of time and distance are fatal to the defendant's claim of

duress.    Her husband was in jail, many miles removed, when he

threatened to kill her and her family.    Shortly thereafter,

defendant talked to an FBI agent and to a representative of the

Crime Commission, but to neither did she disclose the threats.

            There was ample opportunity for defendant to

communicate her claims of duress to law enforcement officials.

She thus failed in her obligation to notify the authorities

rather than to violate a criminal law.    The district court did

not err in barring the defense of duress.

                                III.

            Defendant further contends that the government acted

improperly in calling Debra Moser, the defendant's housekeeper,

to testify.   Defendant argues that because the prosecution had

impeached that witness in the earlier trial of George Salemo, it

should not take an inconsistent position at her trial.

            In 1992, Moser told Thomas Fry, an FBI agent, that she

knew nothing about how the car was moved from the defendant's

garage and out of the Allentown area.    However, during Salemo's

trial in October 1993, Moser, called as a witness by the defense,

admitted that she had moved the car out of the garage and had
hidden it.   The government then impeached the witness with the

statement she had given to agent Fry.

          During the defendant's trial, Moser testified -- this

time on behalf of the government -- to the same version of events

that she had given in Salemo's case.    She said that defendant had

instructed her to move the car from the garage.    Although at odds

with the statement previously given to the FBI agent, the

testimony of the witness at both trials was consistent.

          Relying on Mesarosh v. United States, 352 U.S. 1

(1956), defendant contends that the government's use of Moser to

support its case poisoned the trial.    The circumstances presently

before us, however, are a far cry from Mesarosh where the

government conceded after the trial in that case that it had

substantial doubts about the credibility of its principal

witness, a paid informant.   Here, by contrast, there is no

allegation that Moser committed perjury.    Her testimony under

oath at the Salemo trial differed from the unsworn statement that

she had given to the FBI agent, but it does not follow that the

government could not believe that her in-court version was the

truthful one.

          Moreover, unlike Mesarosh, the government made its FBI
statement available during the defendant's trial so that she was

free to use it on cross-examination.    As the Court of Appeals for

the Eighth Circuit said in a somewhat similar situation, "Here,

the poison of perjury by [the witness] . . . was admitted at

trial and the antidote of cross-examination was available and
used by the defendant."   United States v. Wiebold, 507 F.2d 932,

935 (8th Cir. 1974).

          In United States v. Hozian, 622 F.2d 439, 442 (9th Cir.

1980), the Court found no impropriety in the government's use of

a witness whom it had sought to impeach in a previous trial.    The

Court pointed out that the defendant had ample opportunity to

develop the matter on cross-examination.   To the same effect, see

United States v. Tamez, 941 F.2d 770, 776 (9th Cir. 1991); United

States v. Cervantes, 542 F.2d 773, 776 (9th Cir. 1976).

          We are persuaded that the district court did not err in

permitting Moser to testify.



                               IV.

          The defendant's final point is that the district court

erred in refusing to depart downward after being advised of her

claims of duress, ill health, and diminished capacity.    The

record demonstrates that the district court was aware of its

power to depart downward, but in the exercise of discretion,
chose not to do so.    In such circumstances, we do not have

appellate jurisdiction over this issue.    United States v.

Denardi, 892 F.2d 269, 272 (3d Cir. 1989).

            Accordingly, the judgment of the district court will be

affirmed.
