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People v. Iannicelli

Court of Appeals of Colorado, Seventh Division

November 30, 2017

The People of the State of Colorado, Plaintiff-Appellant,
v.
Mark Iannicelli, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant,
v.
Eric Patrick Brandt, Defendant-Appellee.

         City and County of Denver District Court No. 15CR3981, 15CR4214 Honorable Kenneth M. Plotz, Judge.

          Mitchell R. Morrissey, District Attorney, Beth McCann, District Attorney, Katherine A. Hansen, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant.

          Killmer, Lane & Newman, LLP, David A. Lane, Denver, Colorado, for Defendant-Appellee.

          OPINION

          J. JONES JUDGE.

         ¶ 1 The People charged defendants, Mark Iannicelli and Eric Patrick Brandt, with jury tampering.[1] The charges were based on allegations that defendants handed out fliers discussing the concept of "jury nullification" to persons entering a courthouse. The People appeal the district court's dismissal of the charges.

         ¶ 2 We construe the jury tampering statute, section 18-8-609, C.R.S. 2017, to require that the People prove that a defendant attempted to influence a juror's or potential juror's action in a case in which the juror had been chosen to serve on a jury in a particular case or in which the potential juror had been selected as a member of a venire from which a jury in a particular case would be chosen. Because the People didn't charge defendants with such conduct, we affirm the district court's orders.

         I. Background

         ¶ 3 Defendants are members of the "Fully Informed Jury Association, " a group that advocates what is commonly referred to as jury nullification. They believe that jurors aren't obligated to follow a court's jury instructions on the law, but may decide cases based on their own views of whether the laws at issue are just and fair.

         ¶ 4 According to the People, defendants stood by the main entrance to the Lindsey-Flanigan Courthouse in Denver next to a cardboard stand marked "Juror Information." They asked people entering the building if they were reporting for jury duty or if they'd already been chosen to serve as a juror.[2] If a person answered "yes" to either, one of the defendants would give them one of three pamphlets containing information about jury nullification. Those pamphlets included phrases such as the following:

• "Juror nullification is your right to refuse to enforce bad laws and bad prosecutions."
• "Judges say the law is for them to decide. That's not true. When you are a juror, you have the right to decide both law and fact."
• "Once you know your rights and powers, you can veto bad laws and hang 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 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."
• "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."
• If asked about jury nullification, "the 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.'"

         ¶ 5 Based on this alleged conduct, the People charged each defendant with seven counts of jury tampering. Each count alleged that on a particular date the defendant communicated with a named "JURY POOL MEMBER" intending to influence that person's vote, opinion, decision, or other action in "a case" in violation of section 18-8-609.

         ¶ 6 Defendants moved to dismiss the charges, arguing that the jury tampering statute is unconstitutional on its face and as applied to their alleged conduct.

         ¶ 7 The parties briefed the issues and submitted exhibits, which included the three pamphlets. Following a hearing, the district court ruled that the statute isn't unconstitutional on its face. But it also ruled that the statute is unconstitutional as applied to defendants' conduct, which it determined to be speech protected by the First Amendment.[3] The district court therefore dismissed the charges.

         II. Discussion

         ¶ 8 The People's appeals challenge the district court's ruling that the jury tampering statute is unconstitutional as applied to defendants' conduct. After considering the parties' briefs, we asked the parties to brief two other questions: (1) is the prohibition of the jury tampering statute limited to attempts to influence a person's vote, opinion, decision, or other action in a specifically identifiable case; and (2) if so, did the People charge defendants with attempting to so influence a juror in a specifically identifiable case? After considering the parties' supplemental briefs on those questions, we conclude that the answer to the first question is yes, and that the answer to the second question is no. As a result, we affirm the district court's orders dismissing the charges without addressing whether the statute is unconstitutional as applied to defendants' alleged conduct. See People v. Heisler, 2017 COA 58, ¶ 44 (we may affirm a district court's ruling for any reason ...


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