                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Fulmer, 2013 IL App (4th) 120747




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ANGELA FULMER, Defendant, and JESSE GILSDORF, Defendant-
                           Appellant.



District & No.             Fourth District
                           Docket No. 4-12-0747


Filed                      February 25, 2013


Held                       The attorney for a person charged with unlawful delivery of a controlled
(Note: This syllabus       substance was properly found to have violated Supreme Court Rule
constitutes no part of     415(c) by placing on YouTube and another website a video he obtained
the opinion of the court   from the prosecution, prior to the preliminary hearing, showing his
but has been prepared      client’s alleged offense, and he was ordered to remove the video from
by the Reporter of         those sites, notwithstanding the provision of Rule 411 stating that Rule
Decisions for the          415(c) is not operative prior to any preliminary hearing, since the record
convenience of the         was unclear as to exactly when the video was posted, the conduct would
reader.)
                           have been no less improper if it occurred prior to the preliminary hearing,
                           and Rules 415(c) and 411 appeared to have been intended to prohibit such
                           distribution, regardless of when it occurred.


Decision Under             Appeal from the Circuit Court of Pike County, No. 11-CF-15; the Hon.
Review                     Michael R. Roseberry, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Walker R. Filbert, of Filbert Law Office, of Pittsfield, for appellant.
Appeal
                            Frank McCartney, State’s Attorney, of Pittsfield (Patrick Delfino, Robert
                            J. Biderman, and James C. Majors, all of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       PRESIDING JUSTICE STEIGMANN delivered the judgment of the
                            court, with opinion.
                            Justices Appleton and Turner concurred in the judgment and opinion.




                                              OPINION

¶1          Appellant, Jesse R. Gilsdorf, was counsel for a defendant charged with unlawful delivery
        of a controlled substance when the State’s Attorney, before the preliminary hearing on that
        charge, gave Gilsdorf a video depicting his client, among others, interacting with undercover
        law enforcement officers at the time of the alleged offense. Gilsdorf later posted the video
        on at least two social media websites. The trial court found that Gilsdorf had violated Illinois
        Supreme Court Rule 415(c) (eff. Oct. 1, 1971) by his actions and, as a sanction, ordered
        Gilsdorf to remove the video from the websites.
¶2          Gilsdorf appeals, arguing that under the particular circumstances of this case, the trial
        court erred by finding he violated Rule 415(c). We disagree and affirm.

¶3                                       I. BACKGROUND
¶4          On February 17, 2011, the State charged defendant, Angela D. Fulmer, by information
        with the Class 2 felony of unlawful delivery of a controlled substance (720 ILCS 570/401(d)
        (West 2010)), alleging that on or about June 14, 2010, she knowingly delivered to a
        confidential source less than 50 grams of a substance containing hydrocodone, a Schedule
        II controlled substance. On February 28, 2011, Gilsdorf entered his appearance on
        defendant’s behalf, and the trial court scheduled a preliminary hearing for March 29, 2011.
¶5          On March 4, 2011, the State served discovery materials to Gilsdorf, which consisted of
        numerous reports and a copy of a video that depicted the alleged delivery of a controlled
        substance by defendant on June 14, 2010, the event that served as the basis for the charge in
        this case.
¶6          On March 29, 2011, defendant appeared with Gilsdorf, waived preliminary hearing, and
        entered a plea of not guilty. The trial court then set the case for jury trial on April 11, 2011,
        but on April 12, 2011, postponed the trial until further notice.
¶7          On April 20, 2011, the State filed a motion for sanctions for noncompliance with Rule

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       415(c). That rule reads as follows:
               “(c) Custody of Materials. Any materials furnished to an attorney pursuant to these
           rules shall remain in his exclusive custody and be used only for the purposes of
           conducting his side of the case, and shall be subject to other such terms and conditions
           as the court may provide.” Ill. S. Ct. R. 415(c) (eff. Oct. 1, 1971).
       The State’s motion alleged that on or about April 11, 2011, the contents of the video
       previously tendered to Gilsdorf appeared for public viewing on the Internet website
       YouTube, as well as on defendant’s Facebook page, under a file headed, “cops and task force
       planting drugs.” The State’s motion also alleged that the only person having custody of a
       copy of the video who could have caused its dissemination was Gilsdorf.
¶8         In May 2011, the trial court conducted a hearing on the State’s motion at which, in
       response to the court’s question asking how the video got on YouTube, Gilsdorf responded,
       “I caused it to be placed there.” Gilsdorf explained that he copied the video to a computer
       and uploaded that computer file to YouTube. He acknowledged that the video also appears
       on his Facebook page, which states the following:
           “Hey, one and all, want to see cops and their snitch planting drugs? This is the cop’s
           video showing how their snitch brings drugs into a room, and after the victim leaves,
           putting [sic] the drugs in the middle of the table. Two parts because of space limits. Cops
           are the West Central Drug Task Force, Zack Orr, as seen in the video. Notice how the
           paperwork is all ready to be signed, even though they haven’t even debriefed their
           snitch.”
¶9         At the hearing, Gilsdorf was hardly apologetic for his actions, claiming that they were
       necessary because of improper conduct by the State’s Attorney and police. He explained that,
       “simply put, [this] acts as a check on possible abuse by the prosecution.”
¶ 10       At the conclusion of the hearing, the trial court found that Gilsdorf intentionally posted
       “the discovered material, the [video] on the Internet[, and his doing so] was a violation of
       [Rule] 415(c), that it was material furnished to the attorney pursuant to supreme court rules
       regarding discovery.” As a sanction for the violation, the court directed Gilsdorf to remove
       the video from the Internet. Gilsdorf indicated that he would comply with the court’s
       directive but would need some time to do so. In response, the court granted his request and
       noted that if he complies, the court would impose no further sanctions.
¶ 11       Even though the record suggests that Gilsdorf complied with the court’s directive to
       remove the video from the Internet, he filed two different pro se motions to reconsider in
       May and June 2011. Then, in March 2012, attorney Walker R. Filbert entered his appearance
       on behalf of Gilsdorf and filed a second amended motion to reconsider the sanction order.
¶ 12       In July 2012, the trial court conducted a hearing on these motions, at which Filbert
       explained that he was essentially asserting two different grounds for why the court should
       reconsider its sanction order. Filbert described the first ground, which was contained in the
       motions filed by Gilsdorf (which Walker was adopting), as essentially asserting that Rule
       415(c) violated various provisions of the first amendment of the United States Constitution.
¶ 13       Filbert described the second ground as the “discovery rule argument,” which was based
       on the claim that Rule 415(c) “was not operative” regarding the video because of the time

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       of its tender. In explanation, Filbert cited Illinois Supreme Court Rule 411 (eff. Dec. 9, 2011)
       to the court, which states, in pertinent part, the following: “These rules shall be applied in
       all criminal cases wherein the accused is charged with a felony” “and shall not be operative
       prior to or in the course of any preliminary hearing.” Filbert contended that because the video
       in question was tendered to Gilsdorf by the State prior to the March 29, 2011, preliminary
       hearing, none of the discovery rules, “particularly [Rule] 415(c), were *** operative in
       relation to the [video] because of the timing of its tender.” The trial court denied the motions
       to reconsider.
¶ 14        This appeal followed.
¶ 15        This court notes that despite the extensive discussions that Gilsdorf, the trial court, and
       the State’s Attorney engaged in during the May 2011 hearing regarding the video that
       Gilsdorf caused to be placed on the Internet, the record contains no information regarding
       when he did so. Further, no information regarding the date Gilsdorf did so came out at the
       July 2012 hearing. (Defendant in this case pleaded guilty in October 2011 to a reduced
       charge pursuant to a plea agreement. Subsequent matters regarding defendant are not before
       us in this appeal.)

¶ 16                                      II. ANALYSIS
¶ 17       Gilsdorf argues that because the video was tendered to him before the preliminary
       hearing in the underlying felony case, Rule 415(c) did not apply. Gilsdorf also purports to
       argue on appeal that the ambiguity of Rule 411 and Rule 415 (as argued by the State)
       “misled” him “into thinking his free speech was safe under the Rule.” He asserts that the
       “State’s ambiguity argument raises first amendment issues.” For the reasons that follow, we
       disagree with Gilsdorf’s first argument and decline to consider his second.

¶ 18         A. Gilsdorf’s Claim That Because the Video Was Tendered to Him
              Before the Preliminary Hearing on the Underlying Felony Case,
                                  Rule 415(c) Did Not Apply
¶ 19      We begin our analysis of Gilsdorf’s argument by quoting the supreme court rules at issue.

¶ 20                          1. Supreme Court Rules 411 and 415(c)
¶ 21       At the time of these proceedings, Illinois Supreme Court Rule 411 (eff. Mar. 1, 2001)
       read as follows:
               “Rule 411. Applicability of Discovery Rules
               These rules shall be applied in all criminal cases wherein the accused is charged with
           an offense for which, upon conviction, he might be imprisoned in the penitentiary. ***
           They shall become applicable following indictment or information and shall not be
           operative prior to or in the course of any preliminary hearing.”
       (The supreme court revised Rule 411 in December 2011 (Ill. S. Ct. R. 411 (eff. Dec. 9,
       2011)) but those revisions do not affect our analysis in this case.)


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¶ 22       Rule 415(c) reads as follows:
               “Rule 415. Regulation of Discovery
                                               ***
               (c) Custody of Materials. Any materials furnished to an attorney pursuant to these
           rules shall remain in his exclusive custody and be used only for the purposes of
           conducting his side of the case, and shall be subject to such other terms and conditions
           as the court may provide.” Ill. S. Ct. R. 415(c) (eff. Oct. 1, 1971).

¶ 23                         2. The Committee Comments to Rule 415(c)
¶ 24       In analyzing the issue before us, we found the Committee Comments to Rule 415(c)
       helpful. Those comments, in pertinent part, read as follows:
                “Paragraph (c). If the materials to be provided were to become, in effect, matters of
           public availability once they had been turned over to counsel for the limited purposes
           which pretrial disclosures are designed to serve, the administration of criminal justice
           would likely be prejudiced. Accordingly, this paragraph establishes a mandatory
           requirement in every case that the material which an attorney receives shall remain in
           his exclusive custody. While he will undoubtedly have to show it to, or at least discuss
           it with, others, he is not permitted to furnish them with copies or let them take it from his
           office. It should be noted that this paragraph also applies to the State.” (Emphasis added.)
           Ill. S. Ct. R. 415(c), Committee Comments.

¶ 25                   3. The Timing of the Tender of the Video to Gilsdorf
¶ 26       The parties do not dispute the following: (1) on February 28, 2011, Gilsdorf entered his
       appearance on defendant’s behalf, and the trial court scheduled a preliminary hearing for
       March 29, 2011; (2) on March 4, 2011, the State tendered discovery materials to Gilsdorf,
       including the video in question; (3) on March 29, 2011, defendant appeared with Gilsdorf,
       waived preliminary hearing, and entered a plea of not guilty; (4) on April 20, 2011, the State
       filed a motion for sanctions, alleging that on or about April 11, 2011, the contents of the
       video previously tendered to Gilsdorf appeared for public viewing on at least two social
       media websites; and (5) at the May 2011 hearing on the State’s motion, Gilsdorf admitted
       that he caused the video to be placed on those websites.
¶ 27       What the record does not reveal is when Gilsdorf did so. That is, the record does not
       disclose whether Gilsdorf posted the video on the social media websites before or after
       defendant appeared with him on March 29, 2011, waived preliminary hearing, and entered
       a plea of not guilty.

¶ 28           4. The Prosecutor’s Disclosure of Discovery to Defendant Before
                             Being Required by Supreme Court Rule
¶ 29       One of the odd things about this case is that the State’s Attorney tendered what appears
       to be complete discovery to Gilsdorf, who was then serving as defense counsel, 3 1/2 weeks


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       before the defendant’s scheduled preliminary hearing. Clearly, the State was not required to
       do so under Rule 411, and one might wonder why the State did so.
¶ 30       At the July 2012 hearing at which the trial court denied Gilsdorf’s motions to reconsider
       the sanction the court had imposed, the court provided some insight into this matter by noting
       that in most jurisdictions, discovery is not provided prior to a preliminary hearing and that
       such hearings occur with some frequency. That used to be the situation in Pike County, as
       well. However, it had become a common practice in Pike County for the State’s Attorney to
       provide discovery after the first appearance of a defendant on a felony charge–well before
       the preliminary hearing–in the hope that doing so might lead a defendant to waive that
       hearing. The court noted that the practice had been successful, with the result that out of 100
       preliminary hearings that the court schedules, perhaps only 2 in fact take place. Given that
       “there was very rarely an occasion where probable cause was not found,” the court deemed
       the early delivery of discovery a sound practice, resulting in a considerable savings of time
       for all involved.
¶ 31       The trial court concluded its observations by noting that because the State had voluntarily
       provided discovery prior to preliminary hearing, including the video in question, the court
       determined that Rule 415(c) was placed in effect. The court added the following explanation:
           “It would be unreasonable to have the State provide discovery prior to preliminary
           hearing and then let the defense use that as they may, for whatever purpose, including
           placing it–placing it on the internet, and on YouTube, where it could be reviewed by
           anyone, particularly when you have a buy of a–by a confidential source. That seems to
           be inconsistent with the ends of justice.”

¶ 32                   5. The Application of Rule 415(c) to the Present Case
¶ 33        As noted, Gilsdorf contends that he did not violate Rule 415(c) because the State
       tendered him the video in question before the preliminary hearing was held. Gildorf
       maintains that Rule 411 clearly provides that Rule 415(c) does not become “operative prior
       to or in the course of any preliminary hearing.”
¶ 34        The State responds that under the particular circumstances of this case, reading Rules 411
       and 415(c) together creates an ambiguity because, although Rule 411 would indicate that the
       discovery rules were not applicable at the time Gilsdorf received the video in discovery from
       the State, Rule 415(c) nonetheless contains strong language about “a mandatory requirement
       in every case that the materials which an attorney receives shall remain in his exclusive
       custody.” The State cites this court’s decision in In re Shelby R., 2012 IL App (4th) 110191,
       ¶ 34, 974 N.E.2d 431 (quoting People v. Rinehart, 2012 IL 111719, ¶ 26, 962 N.E.2d 444,
       quoting Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555, 591 N.E.2d 427, 429
       (1992)), for the proposition that under the doctrine of in pari materia, two statutes or two
       court rules concerning the same subject must be considered together in order to produce a
       “ ‘ “harmonious whole.” ’ ” The State then contends that “Rules 411 and 415(c) should be
       construed together to produce a harmonious whole that public materials cannot be publicly
       disseminated on the Internet regardless of when they were received.” We agree with the
       State.

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¶ 35        Further informing our analysis is the rule of law that when construing an Illinois Supreme
       Court rule, courts should employ the same principles that are employed when construing a
       statute. People v. Norris, 214 Ill. 2d 92, 97, 824 N.E.2d 205, 209 (2005). Thus, as the
       supreme court explained in Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 493, 782
       N.E.2d 212, 214 (2002), courts should interpret a supreme court rule in the same manner that
       they use to interpret a statute, “namely, by ascertaining and giving effect to the intent of the
       drafter.” In this case, of course, the drafter is the Supreme Court of Illinois, which makes
       even more compelling the doctrine that court rules should be construed in a manner which
       avoids an absurd result. See People v. Gutman, 2011 IL 110338, ¶ 12, 959 N.E.2d 621. We
       note that the supreme court in Gutman also wrote the following: “The court may consider the
       reason for the law, the problems sought to be remedied, the purposes to be achieved, and the
       consequences of construing the statute one way or another.” Id.
¶ 36        In concluding that Rule 415(c) applies to the circumstances of this case, we agree with
       the State’s contention that “[a]llowing public exposure of discovery materials during an early
       time window, defeats the intent of the rules[,] which is to encourage discovery and make sure
       the materials are properly used.” Gilsdorf’s use of the discovery materials in this case could
       hardly have been more improper or more violative of the purpose of the supreme court in
       promulgating Rule 415(c). Construing Rules 411 and 415(c) as Gilsdorf contends to make
       Rule 415(c) not applicable because of the State’s early delivery of discovery materials in this
       case would, indeed, lead to an absurd result–and one which we do not believe the Supreme
       Court of Illinois would countenance.
¶ 37        We also note a second reason for concluding that Rule 415(c) applies in this case. That
       is, as we noted earlier, although the record shows that Gilsdorf caused the video to appear
       on the Internet, it does not show when he did so. The State delivered the video to Gilsdorf
       3 1/2 weeks before the March 29 preliminary hearing, and the State asserted in its motion for
       sanctions that the video appeared on two separate Internet sites on or about April 11. Under
       these circumstances, Gilsdorf may have placed the video on the Internet prior to the March
       29 preliminary date (which his argument seems to assume), but–on this record–it is also
       possible that he may have done so after his client waived preliminary hearing on March 29
       and entered a plea of not guilty and the trial court set the case for trial. If the latter
       circumstance obtained in this case, as we construe Rule 415(c), there is no ambiguity. That
       is because, whatever uncertainty may exist with regard to discovery materials furnished to
       defense counsel by the State prior to the date of a preliminary hearing, once a preliminary
       hearing has been held (or waived, as in this case), Rule 415(c) applies to the same extent as
       if the discovery materials had been furnished after the preliminary hearing date.
¶ 38        Despite this uncertainty regarding when Gilsdorf caused the video to be placed on the
       Internet, we emphasize that our conclusion is the same. That is, even if Gilsdorf caused the
       video to be placed on the Internet before the preliminary hearing was conducted (or waived),
       we still conclude that Rule 415(c) applies in this case.
¶ 39        We find support for this conclusion in Rule 415(a), which reads as follows:
                “(a) Investigations Not to be Impeded. Except as is otherwise provided as to matters
            not subject to disclosure and protective orders, neither the counsel for the parties nor


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           other prosecution or defense personnel shall advise persons having relevant material or
           information (except the accused) to refrain from discussing the case with opposing
           counsel or showing opposing counsel any relevant material, nor shall they otherwise
           impede opposing counsel’s investigation of the case.” Ill. S. Ct. R. 415(a) (eff. Oct. 1,
           1971).
       Essentially, this rule prohibits prosecutors, defense attorneys, and their agents from advising
       potential witnesses in a criminal case not to discuss the case with opposing counsel. The
       Committee Comments to Rule 415(a) make this point clear, by stating the following:
               “Paragraph (a). One barrier to pretrial investigation and meaningful discovery
           procedures is the practice of some attorneys of advising witnesses not to cooperate with
           opposing counsel. This paragraph is included to provide that discovery shall not be
           frustrated by improper conduct of counsel or the various agents of counsel.” Ill. S. Ct. R.
           415(a), Committee Comments.
¶ 40       Surely, the “improper conduct” (as described by the Committee Comments) would be no
       less improper if it occurred before a preliminary hearing were held in a felony case. For
       instance, in the very case now before us, Gilsdorf entered his appearance on behalf of
       defendant 3 1/2 weeks before the preliminary hearing was scheduled to be held. It would be
       absurd to think that either the State’s Attorney or Gilsdorf could counsel possible witnesses
       in this case not to speak to the attorney or his agents for the other side just because a
       preliminary hearing had not yet been held. Again, the Supreme Court of Illinois would not
       countenance such a conclusion.

¶ 41                B. Gilsdorf’s Claim That the “State’s Ambiguity Argument
                                   Raises First Amendment Issues”
¶ 42       Last, Gilsdorf purports to raise a second argument presenting first amendment claims.
       We say “purports” because this argument appears for the first time in his reply brief, in
       violation of Illinois Supreme Court Rule 341(j) (eff. July 1, 2008), which reads as follows:
       “The reply brief, if any, shall be confined strictly to replying to arguments presented in the
       brief of the appellee and need contain only Argument.”
¶ 43       Gilsdorf acknowledges Rule 341(j) in his reply brief but argues that he is not precluded
       from raising his first amendment argument because he is doing so in response to arguments
       raised by the State in its brief. We earlier referred to the State’s contention that an ambiguity
       existed between Rules 411 and 415(c) (which argument we found persuasive), and Gilsdorf
       contends that “the State’s ambiguity argument raises first amendment issues.” We
       emphatically disagree.
¶ 44       The State’s “ambiguity argument,” as defendant describes it, has nothing to do with the
       vagueness or ambiguity of state rules limiting attorney pretrial speech, as discussed in the
       decision of the United States Supreme Court that Gilsdorf cites, namely, Gentile v. State Bar
       of Nevada, 501 U.S. 1030 (1991). Thus, no exception to the requirement governing reply
       briefs contained in Rule 341(j) applies to this case.
¶ 45       We are particularly disinclined to apply any exception here, given that attorney Filbert,


                                                 -8-
       who wrote the briefs to this court, argued the motion to reconsider at the trial level and made
       there what he termed his “first amendment” argument. The situation before us suggests that
       attorney Filbert, in his initial brief to this court, decided not to pursue the “first amendment”
       claim but later simply changed his mind, and now seeks to somehow justify making this
       argument in the reply brief.

¶ 46                                   III. CONCLUSION
¶ 47       For the reasons stated, we affirm the trial court’s judgment.

¶ 48       Affirmed.




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