United States v. Theodis Tyler

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No. 95-2379
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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* NOT TO BE PUBLISHED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. *
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Submitted: November 17, 1995
Filed: December 19, 1995
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Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
FAGG, Circuit Judge.
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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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