United States of America v. ALPHONSO MARVIN TINDAL, JR. a/k/a BO Alphonso Tindal

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4703
UNITED STATES OF AMERICA
v.
ALPHONSO MARVIN TINDAL, JR.
a/k/a BO
Alphonso Tindal,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00738-001)
District Judge: Honorable Jan E. Dubois
Submitted Under Third Circuit LAR 34.1(a)
November 16, 2009
Before: AMBRO, ALDISERT, and ROTH, Circuit Judges
(Opinion filed :December 18, 2009 )
OPINION
AMBRO, Circuit Judge
Alphonso Marvin Tindal, Jr. contends that the District Court erred during voir dire
by denying his motion to strike the jury panel based on a comment made by one

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
under 28 U.S.C. § 1291.
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venireperson. We affirm Tindal’s conviction.1
I.
In June 2008, Tindal was convicted after a two-day jury trial of one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). He was sentenced to 180 months’ imprisonment.
During voir dire, the District Court posed the following question to the prospective
jurors: “[H]ave any of you ever served as a juror in a case involving unlawful possession
of a firearm, or any other case involving firearms? Prior jury service in a case involving
unlawful possession of a firearm or any other case involving firearms?” Several
prospective jurors raised their hands in response.
The first venireperson to respond, Prospective Juror 31, stated that she had served
previously as an alternate in a case involving a victim killed by a firearm. The Court next
called on Prospective Juror 52, who stated, “I apologize. I misheard the first part of the
question. I have been involved in gun cases several times. I’m a police officer. I was
injured by a felon with a gun and that’s the reason why I’m a former police officer now.”
This comment is the basis for Tindal’s appeal.
In response to this remark, the Court instructed Prospective Juror 52 to “talk about
jury service” and inquired whether he had ever served as a juror in a case involving

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firearms. Prospective Juror 52 replied that he had not, and explained, “I misunderstood
the question. When I raised my hand, I didn’t hear the jury part. I just heard the case
about — being a case with a weapon. I apologize for that.”
Defense counsel immediately requested a sidebar and moved for a new panel
based on Prospective Juror 52’s remark. Counsel argued that the statement injected a
“very prejudicial fact” in front of the prospective jury panel. The District Court denied
the motion, stating that it would instead consider giving a cautionary or limiting
instruction. In any event, Prospective Juror 52 did not serve on Tindal’s jury.
Following this sidebar, the Court gave an instruction cautioning the venirepersons
to answer the question asked and to ask the Court to repeat a question if necessary. Later
in voir dire, the Court provided the following curative instruction:
At the beginning of this voir dire examination, one of the prospective jurors
made reference to the use of a weapon and an injury resulting from the use of
a weapon. That has absolutely nothing whatsoever to do with this case.
Nothing at all. The statement was made, I’m certain it was inadvertent, but it
was made, and now my question for you: Are there any of you who heard that
statement, and who would not be able to put that statement out of their minds,
if they are selected to serve as a juror in this case?
No venireperson responded yes.
At another time during voir dire, the Court asked, “If you are selected to sit on this
case, are there any of you who will be unable to render a verdict solely on the evidence
presented at trial under the law as I instruct you, disregarding any other ideas, notions, or
beliefs about the law?” No panel member indicated he or she could not. Similarly, no

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venireperson indicated that he or she could not follow the Court’s instruction to treat the
testimony of law enforcement officers the same way as the testimony of other witnesses.
Following the jury verdict, Tindal moved for a new trial, based in part on
Prospective Juror 52’s statement during voir dire. The Court denied the motion.
II.
The Sixth Amendment right to a jury trial “guarantees to the criminally accused a
fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722
(1961). An impartial jury consists of “jurors who will conscientiously apply the law and
find the facts.” Wainwright v. Witt, 469 U.S. 412, 423 (1985).
We review a District Court’s denial of a motion to strike a jury panel for abuse of
discretion. United States v. Jones, 566 F.3d 353, 358–59 (3d Cir. 2009). Cf. United
States v. Salamone, 800 F.2d 1216, 1226 (3d Cir. 1986) (noting that the “factual
determination by the trial court whether a juror can in fact serve impartially is entitled to
‘special deference’”) (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984)). “We will
determine that a district court abused its discretion when a defendant demonstrates clearly
that the jurors possessed such fixed opinions that they could not judge impartially the
guilt of the defendant.” Jones, 566 F.3d at 358–59 (internal quotations marks, citations,
and alteration omitted).
Tindal “does not attempt to suggest that any particular juror was biased,” id. at
360–61, but instead advances only generalized speculation that Prospective Juror 52’s

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remark tainted the entire jury panel. Jurors are presumed to be impartial and to follow the
District Court’s instructions. See Irvin, 366 U.S. at 723 (discussing the “presumption of a
prospective juror’s impartiality”); Penry v. Johnson, 532 U.S. 782, 799 (2001) (noting
that “[w]e generally presume that jurors follow their instructions”). These presumptions
are not rebutted in this case.
The Court asked the panel members if they could render a verdict based solely on
the evidence presented at trial. No venireperson indicated he or she could not. When the
Court asked the panel members whether they could put Prospective Juror 52’s statement
out of their minds, not one venireperson indicated he or she could not.
While Tindal argues the remark was especially inflammatory because his
conviction turned in large part on the jury’s credibility assessment of law enforcement
officials and an informant working with law enforcement, any reasonably astute
prospective juror would realize that police officers can be injured by felons with firearms.
The remark did not involve Tindal’s guilt or innocence or the facts of the case. The Court
conducted further voir dire questioning to ensure that the panel had not been influenced
by the comment, and found the jurors to be impartial. Tindal’s speculation to the contrary
is unavailing, and we therefore hold that the District Court did not abuse its discretion.
As such, we affirm.

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