1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-5-1995

United States v Miller

Precedential or Non-Precedential:

Docket 95-1039

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v Miller" (1995). 1995 Decisions. Paper 180.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/180
 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.