SUPREME COURT, STATE OF COLORADO

2 East 14th Avenue

Denver, CO 80202
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA211

THE PEOPLE OF THE STATE OF COLORADO,

Petitioner,

v.
COURT USE ONLY
ERIC BRANDT , Case Number: 18SC35
Respondent.

Robert M. Russel, Reg. No. 15218

Senior Chief Deputy District Attorney
Katherine Hansen, Reg. No. 25464
Deputy District Attorney
Beth McCann, Denver District Attorney
201 West Colfax Avenue, Dept. 801
Denver, CO 80202
720-913-9038
bob.russel@denverda.org
katherine.hansen@denverda.org

PETITION FOR WRIT OF CERTIORARI

 CERTIFICATE OF COMPLIANCE

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.

I acknowledge that my document may be stricken if it fails to comply with the

governing rules.

Robert M. Russel
Senior Chief Deputy District Attorney

i
 The People request a writ of certiorari to review a published opinion issued by

the Colorado Court of Appeals.

ISSUES PRESENTED

I. Does the jury tampering statute require proof of an intent to influence a juror’s

vote, opinion, decision, or other action in a specifically identifiable case?

II. Does the jury tampering statute implicitly modify the definition of “juror” set

forth in § 18-8-601(1), C.R.S. 2017?

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).

STATEMENT OF THE CASE

1. Underlying events
In July 2015, Mark Iannicelli and Eric Brandt came to the Lindsey-Flanigan

Courthouse to advance the cause of jury nullification. As people approached the

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

nullification. (CR at 2-4.)

Iannicelli and Brandt handed out three different leaflets.

1
 The first was entitled “Fresh Air for Justice.” It informed jurors of the “right”

to disregard the law:

 Jurors always have the right to refuse to enforce bad laws.

 You must know your rights before you get on a jury,
because no judge will tell you about your power to veto
corrupt laws made by corrupt politicians.
 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.
(CR at 74-75.)

The leaflet also told jurors how to circumvent voir dire:

 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

emphasized the importance of voting one’s conscience:

 [J]udges only rarely “fully inform” jurors of their rights,

especially their right to judge the law itself and vote on the
verdict according to conscience.

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).

2. In the trial court

Brandt and Iannicelli were charged with seven counts of jury tampering in

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

applied. (CR at 51-72.)

3
 After considering the People’s written response (CR at 137-140), and after

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

applied to the defendants’ conduct. (R.Tr. 12/16/15 at 49-50).

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

unconstitutional as applied. Instead, the court affirmed for an alternative reason.

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.

REASONS FOR GRANTING THE WRIT

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

challenges under the First Amendment. Slip op. at 30 (“Were we to construe

Colorado’s jury tampering statute as broadly as the People urge, it would, in all

likelihood, be constitutionally overbroad.”)

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

avoid the underlying constitutional concerns.

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).

1. The statutory text does not support the court’s conclusion.

As noted, the court of appeals 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. That ruling comprises two

related conclusions:

A. The tampering statute is “limited to attempts to influence a person’s vote,

opinion, decision, or other action in a specifically identifiable case.” Slip op. at

¶ 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.

Both conclusions should be reexamined.

A. Specifically identifiable case

Here is the pertinent text of the tampering statute:

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.
§ 18-8-609(1) (emphasis added).

In the court of appeals’s view, that language requires proof of an intent to

influence actions in “a specifically identifiable case.” Slip op at ¶ 8. Although the court

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

intended to limit the statute’s reach to conduct that relates to a trial of a

particular case. Slip op. at ¶¶ 15-16.

 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

will be chosen.” Slip op. at ¶ 17.

The People believe that the court’s interpretation is unnecessarily narrow. In

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

serves the statute’s underlying purpose.

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

case” (but it’s otherwise illegal to try to influence a juror).

In concluding that the statute is limited to attempts to influence a specifically

identifiable case, the court of appeals relied on Turney v. State, 936 P.2d 533 (Alaska

1997). That case addressed an overbreadth challenge to the following statute:

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

phrase tells us little about the scope of prohibited conduct.

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

426, 429 (Colo. 1998).

Here, the legislature defined the term “juror.” Its definition includes anyone

who has been summoned for jury service:

“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.
§ 18-8-601(1), C.R.S. 2017.

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

provision was implicitly narrowed by language in the tampering statute. Id. at ¶ 13

(“But on closer inspection, we conclude that the language of section 18-8-609(1)

limits application of the definition in that section.”).

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

than inclusion. Slip op. at ¶ 16.

10
 That reasoning is not persuasive. As noted, the phrase “in a case” modifies the

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,

a potential juror is not in a position to be influenced on a vote, opinion, decision, or

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

(possibly) be called to a courtroom[.]” Slip op. at ¶ 17.

On that point, the court of appeals reached too far. True, the statute requires

proof of an intent to influence a juror’s vote, opinion, decision, or other action in a

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

defendant delivers an impassioned request for a verdict of acquittal in a particular

11
criminal case, or even in a class of criminal cases.) Although the defendant does not

know which jurors will be selected for the venire, much less who will serve on the

jury, he nevertheless is trying to influence (prospectively) those jurors’ votes,

decisions, opinions, or other actions in a case.

Ultimately, the court’s statutory analysis is unsatisfactory. The textual clues on

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

is susceptible of two reasonable interpretations, one of which is that it applies only in

the limited fashion discussed above.” Slip op. at ¶ 25.

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

of constitutional avoidance so that the tampering statute would not succumb to an

overbreadth attack. Slip op. at ¶¶ 25, 30. The court did not actually explain why a

different interpretation would yield a First Amendment violation. Instead, it simply

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

clear why Colorado’s tampering statute requires such a narrow construction to

survive.

On its face, Colorado’s tampering statute applies to a narrow range of conduct:

 The statute requires proof of an “intent to influence a juror’s vote, opinion,

decision, or other action in a case.” § 18-8-609(1). Within the meaning of the

statute, the term “influence” must be understood to require an intent to

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.

 The statute additionally requires that the defendant “attempt[] directly or

indirectly to communicate with a juror.” § 18-8-609(1). Because that conduct is

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

person he was attempting to communicate with. As a practical matter, that

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

to a juror only if the communication occurs at a courthouse.5)

It is especially hard to see why the court of appeals thought it necessary to

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

limitations would suffice.

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

Attorneys for Petitioner

15
 CERTIFICATE OF SERVICE

I certify that on April 27, 2018 I e-served through CCE a true and complete

copy of the attached brief. The brief was sent to:

David Lane, Esq.

/s/ Dianne L Johnson

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

No. 16CA0210 and 16CA0211, People v. Iannicelli and People v.

Brandt — Crimes — Jury-tampering

A division of the court of appeals considers the scope of Colorado’s

criminal jury tampering statute, section 18-8-609(1), C.R.S. 2017.
The division holds that the 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. Because the
People did not charge either of the defendants with attempting to
improperly influence any such person, the division affirms the
district court’s orders dismissing the charges.
COLORADO COURT OF APPEALS 2017COA150

Court of Appeals No. 16CA0210

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

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Mark Iannicelli,

Defendant-Appellee.

-----------------------AND------------------------

Court of Appeals No. 16CA0211

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

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Eric Patrick Brandt,

Defendant-Appellee.

ORDERS AFFIRMED

Division VII
Opinion by JUDGE J. JONES
Fox and Freyre, JJ., concur

Announced November 30, 2017

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.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

1The People charged defendants in separate cases, and the People

separately appeal orders in both cases. We consolidate the appeals
only for purposes of issuing a single opinion resolving both appeals.

1
 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.”

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

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

3
 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.

3 The court more specifically ruled as follows:

[T]hey engaged in an activity that’s certainly no

different from citizens of this county, this
state, this city, holding up signs in a place
where they knew jurors would see them, signs
such as, you know, free the Chicago Seven or
Eight, don’t convict so and so, and that’s
similar — that’s speech. It’s similar to what
the defendants did in this case. Activities such
as those are protected by the First
[A]mendment, because they are speech, they
are in a public place, and I think that’s all the

4
 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 supported by the

record); see also People v. Valdez, 2017 COA 41, ¶ 6 (a court should

address constitutional issues only if necessary) (citing

Court needs to — that’s as far as the Court

needs to go.

5
 Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008),

and People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985)).

A. Our Jurisdiction

¶9 Section 16-12-102(1), C.R.S. 2017, provides that “[t]he

prosecution may appeal any decision of a court in a criminal case

upon any question of law.” So prosecutorial appeals under that

section are “necessarily limited to questions of law only.” People v.

Martinez, 22 P.3d 915, 919 (Colo. 2001). The questions before us

are entirely questions of law, and therefore we have jurisdiction.

B. The Merits

1. Standard of Review

¶ 10 The People’s challenge to the district court’s ruling presents

questions of statutory interpretation. We review such questions de

novo. Marsh v. People, 2017 CO 10M, ¶ 19.

2. Applicable Statutes

¶ 11 The jury tampering statute, section 18-8-609(1), provides in

relevant part as follows: “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

6
 case.” Section 18-8-601(1), C.R.S. 2017, defines a “juror” for

purposes of part 6 of article 8 of title 184 as

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.

3. Analysis

¶ 12 We construe a statute to give effect to the General Assembly’s

intent, which we discern by looking first to the statute’s language.

Mosley v. People, 2017 CO 20, ¶ 16. “If the language is clear and

unambiguous, we must interpret the statute according to its plain

meaning.” Marsh, ¶ 20. “To reasonably effectuate the legislature’s

intent, a statute must be read and considered as a whole, and

should be interpreted to give consistent, harmonious, and sensible

effect to all its parts.” Mosley, ¶ 16. “And we consider the words or

phrases at issue in context — both in the context of the statute of

which the words or phrases are a part and in the context of any

4 Title 18, article 8, part 6 currently proscribes witnesses receiving

bribes; bribing, intimidating, or tampering with jurors; jurors
receiving bribes; and various other conduct intended to subvert the
administration of justice. See §§ 18-8-601 to -615, C.R.S. 2017.

7
 comprehensive statutory scheme of which the statute is a part.”

People v. Berry, 2017 COA 65, ¶ 13.

¶ 13 The People argue that the General Assembly’s use of the

phrase “a case” in section 18-8-609(1), coupled with the definition

of “juror” in section 18-8-601(1), shows that the General Assembly

didn’t intend to limit prosecutions under the jury tampering statute

to attempts to influence jurors in specifically identifiable cases —

that is, cases in which the person sought to be influenced had been

selected to serve on a jury or had been selected to be part of a

venire from which a jury in a particular case would be chosen. At

first glance, this argument has some force. After all, the definition

of “juror” in section 18-8-601(1) includes persons who have merely

been summoned for jury duty. But on closer inspection, we

conclude that the language of section 18-8-609(1) limits application

of the definition in that section.

¶ 14 We begin by acknowledging the rule that “when the legislature

defines a term in a statute, that definition governs,” and it governs

“wherever [the term] appears in the statute, except where a contrary

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

appears from the language of section 18-8-609(1).

¶ 15 First of all, by using the phrase “a case,” the General Assembly

plainly demonstrated an intent to limit the statute’s application to

attempts to influence a juror in a case. One who has merely been

summoned for jury duty is not serving in “a case,” and indeed may

ultimately not serve. On the other hand, one serving as a juror

obviously is serving in a case, as is one who has been selected for a

venire from which a jury in a particular case will be chosen.

¶ 16 Additionally, in the same sentence, the General Assembly

limited prohibited communications to those “other than as a part of

the proceedings in the trial of the case.” § 18-8-609(1) (emphasis

added). In twice using the definite article “the,” the General

Assembly intended to limit the statute’s reach to conduct relating to

a trial of a particular case. See Brooks v. Zabka, 168 Colo. 265,

269, 450 P.2d 653, 655 (1969) (“It is a rule of law well established

that the definite article ‘the’ particularizes the subject which it

precedes. It is a word of limitation as opposed to the indefinite or

generalizing force of ‘a’ or ‘an.’”); see also People v. Madden, 111

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

meaning should be given to its language”) (citation omitted).

Coupled with the phrase “other than as part of the proceedings,”

then, the use of the phrase “the trial of the case” indicates that

attempts by counsel or witnesses to influence jurors in a trial aren’t

prohibited, but attempts by anyone else to do so are.

¶ 17 And lastly, the statute requires a specific intent which

necessarily limits the statute’s reach to jurors or potential jurors

selected for a venire from which a jury in a particular case will be

chosen. The defendant must intend “to influence a juror’s vote,

opinion, decision, or other action in a case.” § 18-8-609(1) (emphasis

added). A person who has merely been summoned for jury duty

and sits in a room waiting to (possibly) be called to a courtroom in a

particular case isn’t in any position to take any action in a case.

It’s only when a potential juror is selected to be a part of a venire

from which a jury in a particular case will be chosen that a person

is able to take any such action.

10
¶ 18 The Alaska Supreme Court similarly analyzed Alaska’s jury

tampering statute in Turney v. State, 936 P.2d 533 (Alaska 1997).

That statute says,

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) (West 2017).

¶ 19 The Turney court rejected an overbreadth challenge5 to that

statute because it interpreted it to prohibit only “communications

intended to affect how the jury decides a specific case” where the

speaker “intend[ed] to influence the outcome.” Turney, 936 P.2d at

540-41 (emphasis added). The court’s analysis turned on two

aspects of the statute’s language.

5 As the Turney court explained, “[a] statute regulating speech is

overbroad, and thus unconstitutional, ‘when constitutionally
protected conduct as well as conduct which the state can
legitimately regulate are included within the ambit of [a] statute’s
prohibition.’” Turney v. State, 936 P.2d 533, 539 (Alaska 1997)
(quoting Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska
1972)).

11
¶ 20 First, the court reasoned that

[t]he words ‘vote, opinion, decision’ specify

salient components of the principal duty of a
juror — to decide the outcome of the case. The
phrase ‘or other action as a juror,’ must be
read in the context of those specified juror
functions; it connotes juror activities that
carry out the responsibilities entrusted to the
juror.
Id. at 540.

¶ 21 Second, the court construed the phrase “the official

proceeding” as “limit[ing] the scope of the prohibited

communication with jurors to the context of their participation in

an actual, specific proceeding.” Id.

¶ 22 Having construed the statute’s language in this way, the court

concluded that the statute was limited to attempts to influence only

jurors and those summoned jurors selected for a venire from which

a jury in a particular case would be chosen.

¶ 23 The language of Alaska’s jury tampering statute doesn’t differ

materially from that of Colorado’s jury tampering statute. Granted,

the Turney court apparently didn’t have to grapple with a statutory

definition of the term “juror.” But its analysis was based on the

plain language of Alaska’s jury tampering statute, and, as noted,

12
 such plain language may narrow a seemingly applicable, broader

definition of a term.

¶ 24 Based on all this, we conclude that the plain language of

section 18-8-609(1) limits prosecution to attempts to influence

persons who have been chosen as jurors or who have been selected

as part of a venire from which a jury in a particular case will be

chosen.6 Contrary to the People’s suggestion, our interpretation

doesn’t render meaningless the definition of juror in section 18-8-

601(1). That definition plainly applies to other sections of part 6,

such as section 18-8-612, C.R.S. 2017 (concerning failure to obey a

juror summons), and section 18-8-614, C.R.S. 2017 (concerning

harassment of a juror by an employer). And it continues to apply in

large part to section 18-8-609(1).

¶ 25 At the very least, our jury tampering statute is susceptible of

two reasonable interpretations, one of which is that it applies only

in the limited fashion discussed above. When a statute is, for that

reason, ambiguous, we construe statutory terms “in a manner that

avoids constitutional infirmities. Thus, if a statute is capable of

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

constitutional interpretation must be adopted.” People v.

Zapotocky, 869 P.2d 1234, 1240 (Colo. 1994) (citations omitted);

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

tampering statute as applying to communications with summoned

citizens about matters unrelated to a particular case, there is a real

danger the statute could encroach on a substantial amount of

protected speech.

¶ 26 The First Amendment to the United States Constitution

prohibits laws “abridging the freedom of speech.” U.S. Const.

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

Amendment are applicable to the states through the Due Process

Clause of the Fourteenth Amendment . . . .”).7 Under the First

7 Article II, section 10 of the Colorado Constitution, which provides

greater protection of speech than does the First Amendment, see
Lewis v. Colo. Rockies Baseball Club, Ltd., 941 P.2d 266, 271 (Colo.
1997), says, “No law shall be passed impairing the freedom of
speech; every person shall be free to speak, write or publish
whatever he will on any subject.” Our discussion is limited to the
statute’s potential impact on speech protected by the First
Amendment.

14
 Amendment, the government generally can’t regulate speech “based

on its substantive content or the message it conveys.” Rosenberger

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

general matter, “government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content”

(ultimately quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,

65 (1983)). And the Supreme Court recently affirmed that “[n]o

form of speech is entitled to greater constitutional protection” than

leafletting. McCullen v. Coakley, 573 U.S. ___, ___, 134 S. Ct. 2518,

2536 (2014) (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 347 (1995)).

¶ 27 But the right to speak isn’t absolute. It may be limited, for

example, to protect the administration of justice. See Cox v.

Louisiana, 379 U.S. 559, 562 (1965) (“A State may adopt safeguards

necessary and appropriate to assure that the administration of

justice at all stages is free from outside control and influence.”).

Such limits are delineated in a series of Supreme Court cases.

15
¶ 28 In Turney v. Pugh, 400 F.3d 1197 (9th Cir. 2005), which

addressed the constitutionality of Alaska’s jury tampering statute,8

the Ninth Circuit Court of Appeals surveyed those Supreme Court

cases and concluded that they hold that “the First Amendment,

while generally quite protective of speech concerning judicial

proceedings, does not shield the narrow but significant category of

communications to jurors made outside of the auspices of the

official proceeding and aimed at improperly influencing the outcome

of a particular case.” Id. at 1203 (emphasis added). The court

noted that “[e]ven in the strongly speech-protective decisions of the

[Supreme Court], the Court was careful to distinguish the

publications it deemed protected under the First Amendment from

speech aimed at improperly influencing jurors.” Id. at 1202.9

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

(S.D.N.Y. 2012), the court, relying in part on the principle that a

court should, if possible, construe a statute in a way to avoid

constitutional problems, interpreted the federal jury tampering

statute10 as “squarely criminaliz[ing] efforts to influence the

outcome of a case, but exempt[ing] the broad categories of

journalistic, academic, political, and other writings that discuss the

protected a sheriff’s public criticism of a pending grand jury

investigation because it did “not represent a situation where an
individual is on trial; there was no ‘judicial proceeding pending’ in
the sense that prejudice might result to one litigant or the other by
ill-considered misconduct aimed at influencing the outcome of a
trial.” Id. at 389.

10 That statute says,

Whoever attempts to influence the action or

decision of any grand or petit juror of any
court of the United States upon any issue or
matter pending before such juror, or before the
jury of which he is a member, or pertaining to
his duties, by writing or sending to him any
written communication, in relation to such
issue or matter, shall be fined under this title
or imprisoned not more than six months, or
both.

18 U.S.C. § 1504 (2012).

17
 roles and responsibilities of jurors in general.” Id. at 266. After

reviewing relevant case law, the court observed that

[a] broad construction of [the federal jury

tampering statute] that encompassed speech
to a juror on any subject that could be
considered by a juror would arguably chill
protected speech because it could sweep
within its prohibitions speech that was not
made with the intent of influencing the outcome
of a particular case and that did not pose a
clear and present danger to the administration
of justice.

Id. at 274-75 (emphasis added).

¶ 30 We agree with the analysis in Turney and Heicklen. Were we

to construe Colorado’s jury tampering statute as broadly as the

People urge, it would, in all likelihood, be constitutionally

overbroad.

¶ 31 In sum, we hold that section 18-8-609(1) 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.

Because the People didn’t charge defendants with attempting to

influence such a person (as they concede), it follows that the district

court didn’t err in dismissing the charges.

18
 III. Conclusion

¶ 32 The orders are affirmed.

JUDGE FOX and JUDGE FREYRE concur.

19
 STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203
(720) 625-5150

PAULINE BROCK
CLERK OF THE COURT

NOTICE CONCERNING ISSUANCE OF THE MANDATE

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.

BY THE COURT: Alan M. Loeb

Chief Judge

DATED: October 19, 2017

Notice to self-represented parties: The Colorado Bar Association

provides free volunteer attorneys in a small number of appellate cases. If
you are representing yourself and meet the CBA low income
qualifications, you may apply to the CBA to see if your case may be
chosen for a free lawyer. Self-represented parties who are interested
should visit the Appellate Pro Bono Program page at
http://www.cba.cobar.org/repository/Access%20to%20Justice/AppelatePr
oBono/CBAAppProBonoProg_PublicInfoApp.pdf
APPENDIX B
 RELEVANT STATUTORY LANGUAGE

§ 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.

(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent

processing or selection of jurors or prospective jurors.

(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.

(2) “Testimony” includes oral or written statements, documents, or any other

evidence that may be offered by or through a witness in an official proceeding.