United States v. Miller

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Precedential or Non-Precedential: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.