Attempting to influence a public servant is a crime that can include a defendant’s use of a third party to convey false information, the Colorado Supreme Court decided on Monday.

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 “by means of deceit.”

The Supreme Court disagreed.

“The plain and ordinary meaning of the word ‘deceit’ is broad, encompassing any trick, contrivance, or act designed to lead someone to believe something that is not true,” wrote Chief Justice Monica M. Márquez in the May 18 opinion. “Using a third party to convey a lie, especially someone who may appear more trustworthy or believable, is an act designed to lead the recipient of that information to believe something that is not true.”

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. 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, arguing that he was not the one who deceived anyone. Rather, his mom did.

A three-judge 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. 

In challenging that logic 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 during oral arguments. “The friend has committed the assault. And the person who supplied the gun solicited or participated in that crime via complicity.”

However, the Supreme Court concluded that “deceit” is a broad term that can include a person’s direct actions or their use of another person to trick a government official.

“Indeed, in some cases, it may be even more deceptive to use a messenger to convey untrue information — especially a messenger whom the recipient is likely to find more believable or trustworthy,” wrote Márquez.

However, the court stopped short of holding that a person’s deceit to the third party is necessarily a crime. If Hupke had asked his mother to lie, but she did not follow through, Hupke could not have been convicted for attempting to influence a public servant, Márquez explained.

Likewise, she added, it does not matter if the third party is unaware that the information they are being asked to convey is false.

Because the evidence suggested Hupke used his mother to convey a lie to his parole officer to obtain his release from jail, the Supreme Court upheld his conviction.

The case is Hupke v. People.