Mossie, In re, 84-2170

• Citation: 768 F.2d 985
• Decision Date: 26 July 1985
• Docket Number: No. 84-2170,84-2170
• Parties: In re: Linda L. MOSSIE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 985

768 F.2d 985

In re: Linda L. MOSSIE, Appellant.

No. 84-2170.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1985.

Decided July 26, 1985.

Philip F. Cardarella, Kansas City, Mo., for appellant.

Lynda Sybrant, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Linda L. Mossie appeals from a citation for contempt stemming from her responses to the district court's voir dire questions when she served as a juror in a federal criminal trial, 589 F.Supp. 1397. For reversal, she argues that, on voir dire, she was not obliged to disclose certain municipal ordinance violations, that the district court's voir dire questions were not clear and certain, and that she was selectively prosecuted. We reverse.

Mossie served on a jury in a trial of two defendants on cocaine charges. In screening the venire panel on voir dire, the court made a series of statements regarding the venirepersons' qualifications as jurors; if the statements did not describe the prospective jurors, the court directed them to make that clear, and a colloquy would follow. At issue in this case is the court's statement:

I am assuming that none of you have a charge pending or been [sic] convicted of any crime in any State or Federal Court of record punishable by imprisonment for more than one year.

Subsequently, the court asked the venire panel, "Is there anyone on this jury panel, either you or a member of your immediate family that has ever been accused of a crime * * *?" Mossie remained silent, and although other members of the venire panel responded by mentioning offenses by other family members, only one of the venire panel disclosed an ordinance violation. In that incident, the venireperson had been charged with careless driving and found not guilty in traffic court before a municipal judge.

Mossie was selected to serve on the jury, and the case ended in a mistrial. After the result of the case was announced, several jurors approached an FBI agent in the courtroom and reported that Mossie had been the lone holdout in an eleven-to-one decision. Moreover, witnesses reported that Mossie had been seen embracing and shaking hands with the defendants after the trial.

Acting on this information, the FBI agent investigated Mossie's background and learned that she had had eight traffic offenses in the previous several years and that, two years before, she had pled guilty to charges of marijuana possession and disturbing the peace in Lee's Summit, Missouri. Based on this information, the United States sought a contempt citation against Mossie. After a contempt hearing, the district court cited Mossie for contempt and sentenced her to six months in prison, with sentence suspended on the condition of her successful completion of a two-year probation period.

The voir dire process must be exercised fully and fairly to apprise the parties and the court of the qualifications of jurors to serve on a given case. Its function "is to implement the constitutional guarantee of an impartial jury, a fundamental right of our system of justice. To this end, every juror has the duty to answer questions affecting his qualifications honestly." United States v. Moss, 591 F.2d 428, 438 (8th Cir.1979). Yet honest answers hinge on fair interpretations of the voir dire questions, and when lay people and lawyers use legal language together, the resulting ambiguity can create great interpretive problems.

The First Circuit has held that "jurors, ignorant of voir dire procedure, are to be held to the question asked, and not to some other question that should have been asked." United States v. Rhodes, 556 F.2d 599, 601 (1st Cir.1977). Under the circumstances, we see no alternative but to read the voir dire question literally and to construe its terms strictly. Although we recognize the burden this places on the courts and on parties in formulating voir dire questions, any other result shifts the burden of precision and legal interpretation away from the court and onto lay jurors, who might then be held accountable for their misunderstandings. This result would be neither just nor prudent.

In the case at bar, the venire panel was asked whether they had been "accused of a crime" or whether they had "a charge pending or been convicted of a crime * * * punishable by imprisonment for more than one year." Although Mossie had been accused of marijuana possession and disturbing the peace, which might be "crimes" in some jurisdictions or under some statutes, she was formally charged with these offenses under municipal ordinances and pled guilty to them as municipal ordinance violations.

We review the district court's findings of fact under the clearly erroneous standard set forth in Fed.R.Civ.P. 52(a). See United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We recognize that, as the Supreme Court has recently declared,

the court of appeals may not reverse [the district court] even though convinced that it had been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's link between them cannot be clearly erroneous.

Anderson v. Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) (citations omitted).

Reviewing the evidence under this standard, we find that the district court clearly erred.

The Missouri Supreme Court has recognized that violations of municipal ordinances are not to be regarded as "crimes" in the fullest sense, with all of the attendant legal disabilities of a criminal conviction. In City of Ferguson v. Nelson, 438 S.W.2d 249, 255 (Mo.1969), the Missouri court noted that "[a]n action for the violation of a city or town ordinance is to be regarded as a civil action for the recovery of a penalty and that it is not a prosecution for a crime." Accord Kansas City v. Stricklin, 428 S.W.2d 721, 724 (Mo.1968) (en banc). ("Proceedings in municipal courts against persons for violations of city ordinances are civil actions to recover debt due the city or to impose a penalty for infractions of such ordinances, and are not prosecutions for crime in a constitutional sense.")

The reasonableness of Mossie's conduct is bolstered by her reliance on the advice of the counsel who represented her on her guilty plea to the ordinance violations. Based on his reading of Missouri statutes, he testified at the contempt hearing that he told her that because her sentence was suspended, "she could always deny that she had ever been convicted of a drug-related offense." He also noted that he told her that under that statute, "a person could not be charged with perjury or anything if they did not admit that they'd ever been charged with an offense." See Mo.Ann.Stat. Secs. 610.105 ("If * * * imposition of sentence is suspended in the court in which the action is prosecuted, official records pertaining to the case shall thereafter be closed") and 610.110 ("No person as to whom such records have become closed records shall thereafter, for any provision of law, be held to be guilty of perjury or otherwise of giving a false statement by reason of his failure to recite or acknowledge such arrest or trial in response to any inquiry made of him for any purpose.") (Vernon 1984). When Mossie's attorney was asked the hypothetical question whether a person charged with a municipal ordinance violation had been accused of a crime, he responded that he would advise his clients that "they were not accused of a crime since I do not consider a municipal court violation to be a crime."

Based on our review of the record, we believe that Mossie's answers to the district court's questions were literally true and demonstrate that the contempt finding was clearly erroneous. The district court asked three questions on voir dire: had any of the jurors been "convicted of any crime," had they been "accused of a crime," or were they the subject of "a charge pending?" On the first of these questions, we note that Missouri law seals the criminal records of some offenders (including Mossie) and relieves them of the duty to disclose the fact of their conviction. Therefore, because Mossie received a suspended sentence, she need not have disclosed her conviction.

Resolution of the second question requires careful parsing of the record. Although Mossie's counsel agreed with the district court that he had not used the phrase "accused of a crime" in advising Mossie, he testified that he had advised her she would not perjure herself if she did not disclose that she had been "charged with an offense." ¹ We believe it is clear error to erect a fine distinction between these two words, particularly where the district court was responsible for framing clear questions and where Mossie was relying on advice of counsel. Our conclusion on this point is also supported by the fact that Mo.Ann.Stat. Sec. 610.110 protects from disclosure the defendant's "arrest or trial" on the previous offense, which a reasonable person might well interpret as including accusation of a crime. ² The third question, that of a pending charge, was not at issue in this appeal.

Without interpreting this statute beyond Mossie's reliance, and without deciding for this case more than the Missouri courts decided in the two cases we cite above, we hold that the district court clearly erred in its contempt finding. Although the better practice would have been for Mossie to resolve her doubts in favor of disclosure, we cannot say that, in light of the voir dire question, the relevant Missouri case law, and the advice of her attorney, she should have been held in contempt.

Because we decide the case on this issue, we need not reach the other issues Mossie raises. Accordingly, the judgment of the district court is reversed.

FAGG, Circuit Judge, dissenting.

This court today reverses the conviction of ...