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COURT USE ONLY
ERIC BRANDT , Case Number: 18SC35
Respondent.
I certify that this document complies with C.A.R. 32 and C.A.R. 53:
The petition complies with the word limits set forth in C.A.R. 53(a). It contains
3,788 words.
Robert M. Russel
Senior Chief Deputy District Attorney
i
The People request a writ of certiorari to review a published opinion issued by
ISSUES PRESENTED
I. Does the jury tampering statute require proof of an intent to influence a juror’s
II. Does the jury tampering statute implicitly modify the definition of “juror” set
JURISDICTION
The court of appeals issued its opinion on November 30, 2017. See People v.
Iannicelli and Brandt, 2017 COA 150. This petition is filed within the deadline ordered
by this court. This court has jurisdiction under § 13-4-108, C.R.S. (2017).
1. Underlying events
In July 2015, Mark Iannicelli and Eric Brandt came to the Lindsey-Flanigan
courthouse, Iannicelli and Brandt spoke to them and asked why they were there. If a
person was there for jury duty, the two handed that person a leaflet on jury
1
The first was entitled “Fresh Air for Justice.” It informed jurors of the “right”
When you are called for jury duty, you will be one of the
few people in the courtroom who wants justice rather than
to win or to score career points. For you to defend against
corrupt politicians and their corrupt laws, you must get on
the jury.
When you’re questioned during jury selection, just say you
don’t keep track of political issues. Show an impartial
attitude. Don’t let the judge and prosecutor stack the jury
by removing all the thinking, honest people.
Instructions and oaths are designed to bully jurors and
protect political power. Although it all sounds very official,
instructions and oaths are not legally binding.
(CR at 76.)
The second leaflet was entitled “Your Jury Rights: True or False?” This leaflet
2
So, when it’s your turn to serve, be aware: 1. You may, and
should, vote your conscience; 2. You cannot be forced to
obey a “juror’s oath”; 3. You have the right to “hang” the
jury with your vote if you cannot agree with other jurors!
Before a jury reaches a verdict, each member should
consider: 1. Is this a good law? 2. If so, is the law being
justly applied? 3. Was the Bill of Rights honored in the
arrest? 4. Will the punishment fit the crime?
(CR at 79-81.)
The third leaflet was entitled “All You Need to Know About Jury Nullification
(but were prevented from hearing).” It presented the same messages and gave the
same advice:
The jury has the power to nullify any law. It also means the
jury has the power to ignore previous rulings by the
Supreme Court and still find the defendant not guilty if
they judge the law and previous court rulings to be wrong.
We can inform other people about jury nullification. And
once picked for a jury then locked in the deliberation room,
we can inform the other jurors about the important right
and responsibility of jury nullification.
[T]he best answer to give is: “I have heard about jury
nullification, but I’m not a lawyer, so I don’t think I fully
understand it?”
(CR at 148).
violation of §18-8-609(1), C.R.S. (2017). (CR at 7-11.) They filed a motion to dismiss,
claiming that the tampering statute was unconstitutional, both on its face and as
hearing arguments from both sides (R.Tr. 12/16/15 at 21), the trial court granted the
defendants’ motion. The court rejected the claim of facial unconstitutionality. (R.Tr.
12/16/15 at 48.) But it ruled that the jury tampering statute was unconstitutional as
On that basis, the court dismissed all charges. (R.Tr. 12/16/15 at 50.)
3. On appeal
The People appealed the trial court’s ruling. In a published opinion, the court
of appeals affirmed the trial court’s order. People v. Iannicelli and Brandt, 2017 COA 150.
The court of appeals did not decide whether the tampering statute was
Relying on statutory text and the doctrine of constitutional avoidance, the court ruled
that the tampering statute “applies only to attempts to improperly influence jurors or
those selected for a venire from which a jury in a particular case will be chosen.” Slip
op. at ¶ 31. Because the People did not charge Brandt or Iannicelli with attempting to
influence such jurors, held the court, the charges were properly dismissed. Id.
This case presents issues at two levels. On the surface, the question is whether
the court of appeals properly interpreted Colorado’s jury tampering statute. Lurking
below are questions about the constitutionality of the tampering statute itself.
4
The issues are related. In adopting a narrow construction of the tampering
statute, the court of appeals acted, at least in part, to protect the statute from
Colorado’s jury tampering statute as broadly as the People urge, it would, in all
The People appreciate the concerns that motivated the court of appeals. But
they question the court’s resolution. The court’s interpretation does not comport with
the pertinent statutory text. And it is not clear that the interpretation is necessary to
Because the court of appeals’s opinion conflicts with the interpretive principles
announced by the Colorado Supreme Court, a writ of certiorari should issue under
CAR 49(a)(2).
“attempts to improperly influence jurors or those selected for a venire from which a
jury in a particular case will be chosen.” Slip op. at ¶ 31. That ruling comprises two
related conclusions:
¶ 8.
5
B. Within the meaning of the tampering statute, the term “juror” does not
include people who have merely been summoned for jury service. It is limited
to those chosen to serve on a particular case and “those selected for a venire
from which a jury in a particular case will be chosen.” Slip op. at ¶¶ 13, 24, 31.
did not fully explain its reasoning,1 its conclusion appears to rests on two points:
1
The court did not separately analyze each of its subsidiary conclusions. It therefore
is hard to know why the court thought the statute requires proof of an intent to
influence a specifically identifiable case, and why it thought the statute implicitly limits
the definition of “juror.”
That lack of clarity yields confusion about the effect of the court’s rule. Under the
court’s opinion, does the prosecution have to identify the specific case that the
defendant intended to influence? Or is it sufficient to prove that the defendant
communicated with a juror who was impaneled or called into a venire, which
necessarily establishes a connection with an identifiable case?
6
The court first focused on two prepositional phrases: “in a case,” and “in the
trial of the case.” In the court’s view, those phrases suggest that the legislature
The court then noted that the statute requires proof of an intent to “influence a
juror’s vote, opinion, decision, or other action in a case.” Slip op. at ¶ 17. The
court reasoned that that element “necessarily limits the statute’s reach to jurors
or potential jurors selected for a venire from which a jury in a particular case
the People’s view, the tampering statute requires proof of an intent to influence an
extant case — i.e., one that is scheduled for trial and for which a juror has been
impaneled, selected for a venire, or merely summoned for service. The People believe
that this interpretation comports with the text of the tampering statute and better
Let’s first consider the meaning of the phrase “in a case.” In its context, the
phrase modifies the final (catch-all) item in a series of action nouns2 that form the
2
The statute lists three specific nouns (“vote, opinion, decision”) and one catch-all
noun (“other action”). The People acknowledge that the specified nouns represent
7
object of the defendant’s illicit intent. Contrary to the court of appeals’s view, the
phrase does not necessarily limit the defendant’s intent to a particular, specifically
identifiable case. The phrase rather contemplates any case for which the juror has been
impaneled, selected for a venire, or summoned for service (including any case
scheduled for trial on the day that the potential juror reports for service).
The People’s interpretation is consistent with the phrase “in the trial of the
case.” Contrary to the court’s view, that phrase does not limit the statute’s reach to
conduct that relates to a trial of a particular case. Indeed, the phrase does not directly
modify either the mental state or prohibited conduct. Instead, the phrase defines the
scope of the conduct that is excepted from the statute’s reach. The phrase tells us that
it’s permissible to try to influence jurors “as part of the proceedings in the trial of the
identifiable case, the court of appeals relied on Turney v. State, 936 P.2d 533 (Alaska
acts that a person could take only in his or her capacity as a juror. Consequently, those
items would be narrowed little, if at all, by the modifying phrase “in a case.” But it’s
worth noting that, under the last antecedent rule, the phrase modifies only the last
item in the series. There is no reason to depart from the last antecedent rule because
the tampering statute predates, by ten years, the 1981 enactment of § 2-4-214. See Ch.
121, § 40-8-609, 1971 Colo. Sess. Laws p. 466 (enacting the tampering statute); People
v. O'Neal, 228 P.3d 211, 214 (Colo. App. 2009) (construing a 1971 statute under the
then-prevalent last antecedent rule).
8
(a) A person commits the crime of jury tampering if the
person directly or indirectly communicates with a juror other
than as permitted by the rules governing the official
proceeding with intent to
(1) influence the juror’s vote, opinion, decision, or other action
as a juror; or
(2) otherwise affect the outcome of the official proceeding.
Alaska Stat. § 11.56.590(a).
The court of appeals was persuaded, in part, by Turney’s interpretation of the
phrase “the official proceeding.” The Turney court concluded that the phrase limited
the scope of the prohibited communication to one that affects “an actual, specific
proceeding.” Slip op. at ¶ 21 (quoting Turney, 936 P.2d at 540). The court of appeals
apparently endorsed that conclusion, observing that the language of the Alaska statute
“doesn’t differ materially” from the language of Colorado’s statute. Slip op. at ¶ 23.
The People have no reason to quarrel with Turney’s textual analysis. But they
question the court of appeals’s reliance on that opinion because the two statutes are
different. In Alaska’s statute, the phrase “the official proceeding” modifies the mens
rea element and thus directly limits the scope of the prohibited conduct. In
Colorado’s statute, the phrase “in the trial of the case” directly modifies the scope of
conduct that is exempt from prosecution. Apart from defining the exception, the
9
B. Definition of “juror”
What does the term “juror” mean? That question should have been easy to
answer under a rule that this court has long followed: “If the General Assembly has
defined a statutory term, a court must apply that definition.” People v. Swain, 959 P.2d
Here, the legislature defined the term “juror.” Its definition includes anyone
The court of appeals recognized that the statutory definition applied to jury
tampering cases. Slip op. at ¶¶ 13-14. But the court concluded that the definitional
The court reasoned that the phrase “in a case” implicitly excludes any person
“who has merely been summoned for jury duty” because such a person is not “serving
in a case.” Slip op at ¶ 15 (emphasis added). And it reasoned that, by using the phrase
“in the trial of the case,” the legislature intended to reflect a sense of limitation, rather
list of items that form the object of the defendant’s illicit intent. And the phrase “in
the trial of the case” modifies the scope of the conduct that is excepted from the
statute’s reach. Neither phrase purports to address the range of people who would
qualify as jurors.
The court of appeals also concluded that “juror” was implicitly limited by the
statute’s mens rea element. The court reasoned that, until selected as part of a venire,
other action in a case. On the strength of that observation, the court concluded that
the tampering statute implicitly excludes, from the definition of “juror,” any person
who “has merely been summoned for jury duty and sits in a room waiting to
On that point, the court of appeals reached too far. True, the statute requires
case. But that intent element does not necessarily narrow the range of people who
would qualify as jurors. One can form the requisite intent, and then act on that intent,
by communicating with a person who has merely been summoned to jury service.
Consider, for example, a defendant who enters a jury assembly room so that he
can speak to a room full of prospective jurors. (Assume that the defendant does it
early in the day, before anyone has been called to a courtroom. And assume that the
know which jurors will be selected for the venire, much less who will serve on the
which the court relied are too subtle to override an express definitional provision.3
2. The court’s opinion does not satisfactorily apply the doctrine of constitutional
avoidance.
Having concluded that the tampering statute is limited — by its “plain
language” — to a narrow set of circumstances, slip op. at ¶ 24, the court of appeals
then hedged its bet. The court observed: “At the very least, our jury tampering statute
3
In adopting a narrow interpretation of the term “juror,” the court of appeals noted
that the Turney court “apparently didn’t have to grapple with a statutory definition of
the term ‘juror.’” Slip op. at ¶ 23. And it’s true: Turney didn’t grapple with a statutory
definition of “juror.” But that’s not because the Alaska statute has none. As in
Colorado, Alaska’s scheme defines “juror” to include a person “summoned to attend
as a prospective juror.” See Turney, 936 P.2d at 536 (quoting Alaska Stat.
§ 11.56.900(3)).
The Turney court didn’t address the statutory definition of “juror” because it didn’t
need to. Unlike the court of appeals, the Turney court confined its analysis to the
scope of the prohibited conduct.
12
The court then suggested that its interpretation was required under the doctrine
overbreadth attack. Slip op. at ¶¶ 25, 30. The court did not actually explain why a
endorsed the analysis set forth in two federal cases, Turney v. Pugh, 400 F.3d 1197 (9th
Cir. 2005) and United States v. Heicklen, 858 F. Supp. 2d 256 (S.D.N.Y. 2012). Slip op.
¶¶ 28-30.
The People do not believe that the court’s approach is satisfactory. The federal
cases contain only a cursory discussion of the overbreadth concerns. And it is not
survive.
improperly affect the outcome of a case.4 That element thus excludes from
4
See https://www.merriam-webster.com/dictionary/influence (“influence” includes
“the act or power of producing an effect without apparent exertion of force or direct
exercise of command; corrupt interference with authority for personal gain; the power
or capacity of causing an effect in indirect or intangible ways.”).
13
prosecution almost all conduct that would normally be regarded as protected
speech.
subject to the mental state element, see § 18-1-503(2), C.R.S. (2017), the statute
implicitly requires proof that the defendant knew the status (as a “juror”) of the
element excludes almost all speech that would occur in a public forum. (Absent
some particularized basis of knowledge, a defendant will know that he’s talking
fashion a rule that limits both (1) the object of the defendant’s illicit intent (to exclude
attempted influence on any case not “specifically identifiable”) and (2) the definition
of “juror” (to exclude those who have merely been summoned for service.) It rather
seems that, in combination with the statute’s other restrictions, one of those
5
In Verlo v. Martinez, 262 F.Supp.3d 1113 (D. Colo. 2017), the federal district court
concluded that the public area outside the Lindsey-Flanigan Courthouse was a
“nonpublic forum” and thus was subject to increased regulation consistent with the
First Amendment.
14
CONCLUSION
The People request a writ of certiorari so that this court can interpret
Colorado’s jury tampering statute in light of its text and the doctrine of constitutional
avoidance. If this court modifies the interpretation adopted by the Colorado Court of
Appeals, the People would ask that the matter be remanded so that the court of
appeals can determine (a) whether the charges should be dismissed in light of the
conduct alleged, and (b) if not, whether the tampering statute violates the First
Amendment as applied.
BETH MCCANN
Denver District Attorney
Robert M. Russel
ROBERT M. RUSSEL
Senior Chief Deputy District Attorney
Appellate Division
Katherine A. Hansen
KATHERINE A. HANSEN
Senior Chief Deputy District Attorney
Appellate Division
15
CERTIFICATE OF SERVICE
I certify that on April 27, 2018 I e-served through CCE a true and complete
16
APPENDIX A
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division butDATE
haveFILED:
been November
prepared30,by
2017
CASE NUMBER: 2016CA210
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 30, 2017
2017COA150
Plaintiff-Appellant,
v.
Mark Iannicelli,
Defendant-Appellee.
-----------------------AND------------------------
Plaintiff-Appellant,
v.
Defendant-Appellee.
ORDERS AFFIRMED
Division VII
Opinion by JUDGE J. JONES
Fox and Freyre, JJ., concur
Killmer, Lane & Newman, LLP, David A. Lane, Denver, Colorado, for Defendant-
Appellee
¶1 The People charged defendants, Mark Iannicelli and Eric
I. Background
follow a court’s jury instructions on the law, but may decide cases
1
based on their own views of whether the laws at issue are just and
fair.
entering the building if they were reporting for jury duty or if they’d
true. When you are a juror, you have the right to decide
“Once you know your rights and powers, you can veto
2Defendants deny that they asked anyone such questions, but for
purposes of these appeals we’ll assume they did.
2
“When you’re questioned during jury selection, just say
‘hang’ the jury with your vote if you cannot agree with
other jurors.”
3
vote, opinion, decision, or other action in “a case” in violation of
section 18-8-609.
court ruled that the statute isn’t unconstitutional on its face. But it
charges.
4
II. Discussion
the parties to brief two other questions: (1) is the prohibition of the
case; and (2) if so, did the People charge defendants with attempting
conclude that the answer to the first question is yes, and that the
alleged conduct. See People v. Heisler, 2017 COA 58, ¶ 44 (we may
record); see also People v. Valdez, 2017 COA 41, ¶ 6 (a court should
5
Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008),
A. Our Jurisdiction
B. The Merits
1. Standard of Review
2. Applicable Statutes
6
case.” Section 18-8-601(1), C.R.S. 2017, defines a “juror” for
3. Analysis
Mosley v. People, 2017 CO 20, ¶ 16. “If the language is clear and
effect to all its parts.” Mosley, ¶ 16. “And we consider the words or
which the words or phrases are a part and in the context of any
7
comprehensive statutory scheme of which the statute is a part.”
that is, cases in which the person sought to be influenced had been
first glance, this argument has some force. After all, the definition
intention plainly appears.” Farmers Ins. Exch. v. Bill Boom Inc., 961
P.2d 465, 470 (Colo. 1998) (citing R.E.N. v. City of Colorado Springs,
8
823 P.2d 1359, 1364 (Colo. 1992)). We believe a contrary intention
summoned for jury duty is not serving in “a case,” and indeed may
269, 450 P.2d 653, 655 (1969) (“It is a rule of law well established
P.3d 452, 457 (Colo. 2005) (a court must give effect to every word in
9
a statute); Colo. Ground Water Comm’n v. Eagle Peak Farms, 919
P.2d 212, 218 (Colo. 1996) (courts “are not to presume that the
legislative body used the language idly and with no intent that
then, the use of the phrase “the trial of the case” indicates that
added). A person who has merely been summoned for jury duty
10
¶ 18 The Alaska Supreme Court similarly analyzed Alaska’s jury
intended to affect how the jury decides a specific case” where the
11
¶ 20 First, the court reasoned that
jurors and those summoned jurors selected for a venire from which
definition of the term “juror.” But its analysis was based on the
12
such plain language may narrow a seemingly applicable, broader
definition of a term.
persons who have been chosen as jurors or who have been selected
in the limited fashion discussed above. When a statute is, for that
6 The district court also thought the statute was limited to “conduct
that influences a decision in a particular case in an extrajudicial
manner,” or “conduct which is meant to influence a verdict.”
13
alternative constructions, one of which is constitutional, then the
accord, e.g., Fields v. Suthers, 984 P.2d 1167, 1172 (Colo. 1999);
People v. Henley, 2017 COA 76, ¶ 19. Were we to construe the jury
protected speech.
amend. I; see Curious Theatre Co. v. Colo. Dep’t of Pub. Health &
Env’t, 220 P.3d 544, 551 (Colo. 2009) (“The guarantees of the First
14
Amendment, the government generally can’t regulate speech “based
v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995); see
Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 121 (2011) (as a
because of its message, its ideas, its subject matter, or its content”
(ultimately quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
leafletting. McCullen v. Coakley, 573 U.S. ___, ___, 134 S. Ct. 2518,
Louisiana, 379 U.S. 559, 562 (1965) (“A State may adopt safeguards
15
¶ 28 In Turney v. Pugh, 400 F.3d 1197 (9th Cir. 2005), which
cases and concluded that they hold that “the First Amendment,
8In Turney v. Pugh, 400 F.3d 1197 (9th Cir. 2005), the court denied
a petition for habeas corpus filed by the defendant in Turney v.
State, 936 P.2d 533, discussed above.
9In Bridges v. California, 314 U.S. 252 (1941), for example, the
petitioners had been found guilty of contempt for letters they wrote
pertaining to pending litigation that were published in local
newspapers. The Court held that the convictions could be justified
only in reference to a “clear and present danger” to the
administration of justice, and that the facts of the case didn’t show
such a danger. Id. at 260-63, 269-78. And, in Wood v. Georgia,
370 U.S. 375 (1962), the Court held that the First Amendment
16
¶ 29 Similarly, in United States v. Heicklen, 858 F. Supp. 2d 256
17
roles and responsibilities of jurors in general.” Id. at 266. After
overbroad.
influence such a person (as they concede), it follows that the district
18
III. Conclusion
19
STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203
(720) 625-5150
PAULINE BROCK
CLERK OF THE COURT
Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three
days after entry of the judgment. In worker’s compensation and unemployment
insurance cases, the mandate of the Court of Appeals may issue thirty-one days after
entry of the judgment. Pursuant to C.A.R. 3.4(m), the mandate of the Court of Appeals
may issue twenty-nine days after the entry of the judgment in appeals from
proceedings in dependency or neglect.
Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the
mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari
with the Supreme Court, within the time permitted by C.A.R. 52(b), will also stay the
mandate until the Supreme Court has ruled on the Petition.
§ 18-8-609 Jury-tampering
(1) A person commits jury-tampering if, with intent to influence a juror's vote,
opinion, decision, or other action in a case, he attempts directly or indirectly to
communicate with a juror other than as a part of the proceedings in the trial of the
case.
(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony
trial is a class 4 felony.
§ 18-8-601 Definitions
The definitions contained in sections 18-8-101, 18-8-301, and 18-8-501 are applicable
to the provisions of this part 6, and, in addition to those definitions:
(1) “Juror” means any person who is a member of any jury or grand jury impaneled by
any court of this state or by any public servant authorized by law to impanel a jury.
The term “juror” also includes any person who has been drawn or summoned to
attend as a prospective juror.