There was no dispute that Michael Thomas Hupke asked his mother to lie to his parole officer on his behalf. Further, Hupke acknowledged Mesa County prosecutors could have charged him as an accomplice to his mother’s deceit, or for soliciting her to do it.

But Hupke maintained prosecutors could not do what they actually did: Charge Hupke directly with a felony for attempting to influence a public servant.

During oral arguments on Tuesday, some members of the Colorado Supreme Court expressed concern that a person’s request or suggestion to a third party could, under the government’s theory, be deemed criminal in various circumstances.

“What if, in this case, after the defendant spoke to his mom, she had decided, ‘You know what? I’m not gonna do it. I’m not gonna lie. I would get in trouble for doing that,'” said Justice Carlos A. Samour Jr. “Has the defendant still committed the crime of attempting to influence a public official?”

Hupke was on parole when law enforcement arrested him. In jail, Hupke talked to his mother over the phone, asking her to contact his parole officer about getting him released. However, Hupke’s parole terms required him to get permission from his parole officer before changing addresses, and Hupke had recently moved apartments without doing so.

Hupke, on the recorded jail call, asked his mother to tell the parole officer he was in the process of moving or was planning to move. He even suggested she “start crying.” Hupke’s mother proceeded to misrepresent the move to his parole officer.

A jury subsequently convicted Hupke of attempting to influence a public servant, a felony that requires the intent to alter a public official’s actions “by means of deceit.”

On appeal, Hupke challenged his conviction because he was not the one who deceived anybody. Rather, his mom did.

A Court of Appeals panel disagreed, believing the law criminalized the act of using “some sort of plan or method” to deceive.

“Thus, we conclude, contrary to Hupke’s argument, that the statute does not require that the offender commit the deception themself,” wrote Judge Rebecca R. Freyre. 

To the Supreme Court, public defender Rachel Z. Geiman noted by analogy that a person can commit assault “by means of” a deadly weapon.

“A person doesn’t commit assault by means of a deadly weapon by handing a gun to his friend and saying, ‘Hey, go shoot that person,'” she said. “The friend has committed the assault. And the person who supplied the gun solicited or participated in that crime via complicity.”

“It seems to me the mother here was, on some level, an instrumentality of deception,” responded Justice Richard L. Gabriel.

But Hupke’s mother had her own free will to decide whether to convey the known lie, said Geiman. It would be a different scenario if Hupke asked his mother to convey information without also disclosing that it was false.

“If the third person doesn’t know that they are spreading misinformation,” she said, “it’s not the third party’s deceit. It’s the first person’s deceit.”

“Deceit can take lots of different forms,” said Chief Justice Monica M. Márquez. “If ultimately what’s happening here is there’s an attempt to influence a public servant by means of that deceit … it ought not to matter how that is accomplished as a method. Whether it’s in writing, or direct spoken word, or through an intermediary. It’s all deceit.”

However, the justices were also skeptical of the government’s position that even if the third party does not follow through with a known lie, the person who suggested the lie can be guilty of a felony. Samour raised the example of a passenger who suggests an intoxicated driver falsely tell police they only had one glass of wine, but the driver declines to do so.

“It’s not about a third party’s conduct. It’s the defendant’s conduct,” said Senior Assistant Attorney General William G. Kozeliski.

Márquez signaled her discomfort with charging someone directly for a failed attempt to get someone else to deceive a public servant.

“I’m a little concerned about the implications of your argument in situations where the message is never ultimately conveyed, and that’s what bothers me,” she said.

“Can you think of any other statute in which we’ve said a defendant is criminally liable for a third party’s conduct, other than solicitation or complicity?” asked Gabriel. “I couldn’t come up with one.”

Samour asked whether prosecutors could have charged Hupke’s mother with a crime for her own deception.

“I don’t want his mom prosecuted,” said Geiman, but the government could have chosen to construct a case in which Hupke was an accomplice in her crime.

“She is the one who actually committed these acts,” Geiman said.

Justice Melissa Hart was not present for the arguments, but Márquez said it is her “intent to participate in the decision.” The Supreme Court’s clerk did not immediately respond to a question about the reason for Hart’s absence.

The case is Hupke v. People.