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When a jury says that it might be deadlocked, the trial judge must avoid making any remarks about the cost or burden of a second trial or that tend to favor the view of the majority of the jurors over the minority, a federal appeals court has ruled. In United States v. Eastern Medical Billing Inc., a unanimous three-judge panel reaffirmed the strict limits on supplemental jury instructions that the 3rd U.S. Circuit Court of Appeals first handed down in 1969. “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,” U.S. Circuit Judge Marjorie O. Rendell wrote. Rendell found that Senior U.S. District Judge Joseph J. Longobardi of the District of Delaware erred by suggesting that the court believed that the views of the majority were more reasonable and by drawing the jury’s attention to the irrelevant issue of the time and expense of a second trial. The ruling is a victory for defense attorney Peter Goldberger of Ardmore, Pa., who said it marks the first time in more than 25 years that the appellate court has fully addressed the issue of how to instruct a potentially deadlocked jury. The opinion, in which Rendell was joined by U.S. Circuit Judge Theodore A. McKee and visiting Senior U.S. District Judge Dickinson of the District of New Jersey, reaffirms the 3rd Circuit’s 1969 decision in United States v. Fioravanti which announced a prophylactic rule prohibiting the use of so-called Allen charges. The Allen charge takes its name from an 1896 decision of the U.S. Supreme Court in United States v. Allen in which the justices found no error in a supplemental charge which told those jurors whose view formed the minority to reconsider their views in light of the contrary views held by the majority. That 19th-century precedent remains good law to this day, but some lower courts have exercised their supervisory power to limit its use. The 3rd Circuit did exactly that in a pair of cases handed down in 1969 and 1973. In the first, Fioravanti, the 3rd Circuit found that a trial judge had improperly favored the majority view by telling the jury that each one among them “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.” The appellate court upheld the jury’s verdict in Fioravanti because the erroneous charge was part of the judge’s main instructions prior to any deliberation, rather than coming as “a supplemental or dynamite charge to blast a hung jury into a verdict.” But the Fioravanti court 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. 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. … [T]his court will not let a verdict stand which may have been influenced in any way by an Allen charge,” the Fioravanti court wrote. Rendell found that Fioravanti “represented a watershed in our jurisprudence,” because it prohibited the use of the majority/ minority instruction which the Supreme Court had upheld in Allen. The decision was not based on constitutional law, Rendell said, but instead was grounded in the appellate court’s supervisory authority over trial judges to prohibit a practice that had the potential to coerce a juror. “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,’ ” Rendell said. OUTWEIGHING BENEFITS Rendell found there were several reasons that the Fioravanti court found that the possible benefits of Allen charges were outweighed by their potential to distort the workings of the jury system. “First, we recognized that the charge tends to endow the majority of jurors with the imprimatur of the court. 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,” Rendell wrote. As a result, Rendell said, the Fioravanti court suggested an alternative supplemental instruction for deadlocked juries that avoided the problems: “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.” Rendell found that Longobardi’s supplemental instruction violated Fioravanti because it improperly addressed the views of the majority and minority of jurors and “clearly portrayed the minority jurors as holding less intelligent or reasonable views than the majority jurors.” By doing so, Rendell said, the judge “indicated to the jurors that the views held by the minority merited reexamination” but “never instructed the majority jurors to reexamine their views.” Longobardi also erred, she said, “by telling the jury that another trial would be both time-consuming and 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.” Such an instruction, Rendell said, creates the potential that the jury’s deliberation will be “influenced by concerns irrelevant to their task.” The jury had been deliberating for two days when it received the instruction and handed up its verdict of guilty against all three defendants just four hours later, Rendell noted. And since the evidence of guilt was “not overwhelming,” Rendell found that a new trial was the only cure. CASE FACTS According to the opinion, Eastern Medical Billing was started in 1992 to provide billing services for health-care providers. David Podlaseck was the company’s founder and president; his father, Joseph Podlaseck, was the primary salesman; and his mother, Phyllis Podlaseck, was its treasurer and office manager. EMB was hired by Metro Ambulance to provide billing services for its regular transports of dialysis patients. The indictment said EMB, David Podlaseck and Joseph Podlaseck had agreed to submit false claims to Medicare and Medicaid for single-passenger ambulance trips. In fact, the government said, groups of patients had been transported together in vans, not ambulances, and the use of ambulances had not been medically necessary. Following nine days of testimony, the jury started its deliberations on a Tuesday. After two days, 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 U.S. Attorney agreed with the judge’s decision to simply write ‘yes’ on the jury note. Within 30 minutes, the jury had a second 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?” The judge asked counsel whether an Allen charge might be appropriate. The defense lawyer at first agreed but asked Longobardi what charge he would give, to which the judge replied: “The one I’ve been doing for 15 years and the one that has been approved. Why don’t you look at it?” At that point, the prosecution dropped its objection, but the defense lawyer insisted that Longobardi’s supplemental charge was too long and could have a coercive effect on the jury. But when the defense lawyer asked for time to submit a different, shorter version, Longobardi refused, saying: “I’m going to give this one I have given repeatedly.”

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