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U.S. v. Miller

filed: July 5, 1995.

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).

Before: Stapleton, Hutchinson, and Weis, Circuit Judges.

Author: Weis

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] ...


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