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.
1 The People charged defendants, Mark Iannicelli and Eric
Patrick Brandt, with jury tampering. 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.
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. 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:
â¢ "Juror nullification is your right to
refuse to enforce bad laws and bad prosecutions."
â¢ "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."
â¢ "Once you know your rights and
powers, you can veto bad laws and hang the jury."
â¢ "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."
â¢ "Instructions and oaths are designed
to bully jurors and protect political power. Although it all
sounds very official, instructions and oaths are not legally
â¢ "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."
â¢ 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
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. The district court therefore dismissed the
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 ...