United States v. Theodis Tyler ( 1995 )


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  •                                      ___________
    No. 95-2379
    ___________
    United States of America,                 *
    *
    Appellee,                   *
    *   Appeal from the United States
    v.                                   *   District Court for the
    *   Eastern District of Missouri.
    Theodis Tyler,                            *
    *        NOT TO BE PUBLISHED
    Appellant.                  *
    ___________
    Submitted:      November 17, 1995
    Filed:   December 19, 1995
    ___________
    Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
    FAGG, Circuit Judge.
    ___________
    PER CURIAM.
    Theodis Tyler appeals from a judgment of the district court1 entered
    upon a jury verdict finding him guilty of food stamp fraud, in violation
    of 7 U.S.C. § 2024(b).       We affirm.
    During voir dire, the district court asked the venire panel if anyone
    had received food stamps or worked in a business or occupation involving
    food stamps.    Several indicated they had.     The court then asked if anything
    about their experience would affect their ability to be fair and impartial
    jurors.   Richard May responded that he believed some food stamp recipients
    abused the system.        Dona Hendrickson, who worked in a bank and received
    food stamp redemption certificates for deposit, stated she "felt there's
    1
    The Honorable Carol E. Jackson, United States District Judge
    for the Eastern District of Missouri.
    no way [depositors] could do that much business in food stamps.      You know
    not no way."    Tyler then requested that the court dismiss the entire panel.
    The court overruled the motion and asked if anyone had thoughts about the
    food stamp program that would affect his or her ability to be fair and
    impartial.     Kirk Openlander said yes.     The court again asked if anyone
    could not be fair and impartial because of beliefs about the food stamp
    program.   No one responded.   The court also gave counsel an opportunity to
    question the panel.      At the close of voir dire, the court granted the
    government's motion to strike May, Hendrickson and Openlander for cause.
    At trial, the government presented evidence that Tyler was the
    operator of P & T's Market and handled its finances, including food stamp
    redemptions.    Among other things, the government introduced evidence that
    between July 1989 and July 1993 the market redeemed $548,762.00 worth of
    food stamps, but on tax returns reported $188,628.46 in gross sales, of
    which $45,782.42 was attributable to items eligible for food stamps, and
    that Tyler had admitted certain illegal food stamp transactions.     The jury
    acquitted Tyler of one count of food stamp fraud, but convicted him of four
    other counts.
    On appeal Tyler argues that the court abused its discretion by
    denying his motion to dismiss the entire panel.       He asks that this court
    presume that May and Hendrickson's remarks prejudiced the panel.     "This is
    not the law."    United States     v. Williams, 
    935 F.2d 1531
    , 1537 (8th Cir.
    1991), cert. denied, 
    502 U.S. 1101
    (1992).       We do not presume prejudice.
    
    Id. Rather, "[t]he
    district court 'has broad discretion in determining
    whether to strike jurors for cause, and we will reverse only where actual
    prejudice has been demonstrated.'"      United States v. Blum, 
    65 F.3d 1436
    ,
    1442 (8th Cir. 1995) (quoting United States v. Huddleston, 
    810 F.2d 751
    ,
    753 (8th Cir. 1987)).     This standard is the same for dismissing a single
    juror or the entire panel.       
    Williams, 935 F.2d at 1537
    ; United States v.
    Khoury, 
    901 F.2d 948
    , 955 (11th Cir.), modified on
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    other grounds, 
    910 F.2d 713
    (1990).    Tyler has not demonstrated that the
    comments prejudiced the jury, which would be a difficult task given that
    the jury acquitted him of one count of food stamp fraud.   Moreover, we note
    that May and Hendrickson did not express an opinion concerning Tyler's
    guilt or innocence or relate personal knowledge about the case, see 
    id., and after
    the comments the court and counsel questioned the panel about
    possible biases.
    Accordingly, the judgment is affirmed.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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