*1 PALATO, Appellant Robert Genaro
(Defendant), Wyoming, STATE (Plaintiff).
Appellee Cottam, Appellant (Defendant),
Shellie Jo Wyoming, Appellee
The State of
(Plaintiff).
No. 97-76.
Supreme Wyoming. Court
Oct.
Representing Appellants: appellant For Hackl, Sylvia Palato: Lee State Public De- Domonkos, fender Appellate and Donna D. *2 Harry informant. G. amine a confidential Palato appellant Cottam: Counsel. For P.C., Offices, charged Law was with one count and Cottam with Harry Bondi Bondi of G. presented by three to deliver a con- Casper, Argument Ms. counts of WY. Wyo. trolled in violation of Mr. Bondi. substance Stat. Domonkos and instance, § Ann. In each 35-7-1042. Hill, Representing Appellee: William U. only alleged conspiracy members of the were General; Rehurek, Deputy Paul Attorney S. appellants government agent. a and General; Pauling, Attorney D. Michael Sen- appellants Both a motion to filed dismiss with General; Attorney A. ior Thomas Assistant court, prompted which district the certi- Burley, County Attorney; and Converse question fied set out above. Horton, County At- Deputy Bruce Converse by torney. presented Mr. Horton. Argument DISCUSSION C.J., LEHMAN, THOMAS, and
Before
question we must
resolve is
MACY, GOLDEN,
TAYLOR,*
JJ.
whether
LEHMAN,
Justice.
Chief
statute,
§
embraces
conspira
the unilateral or bilateral
question
This
a certified
aris-
case involves
formulation,
cy.
“Under a unilateral
currently
ing
criminal actions
out of two
person agrees
crime is committed when a
Eighth
for
pending in the District Court
manner;
proceed
prohibited
in a
under a
Wyoming. Both defen-
Judicial District of
formulation,
bilateral
the crime
alleged
conspired
have
a
dants are
with
is committed when
government agent to deliver
controlled sub-
agree
proceed
manner.”
in such
Miller v.
§
Stat. Ann. 35-7-
stance
violation
State,
892,
(Lexis
(Wyo.1998) (quoting
1999),
raising
the issue of wheth-
Rambousek,
State v.
479 N.W.2d
bilateral
er
follows
(N.D.1992)). Therefore,
under
unilateral
approach
respect to
involv-
with
theory,
count is viable even
agreed
ing
substances. This court
participants
is a
when
of the
following
question
certified
answer
agent
feigning agreement.
or is
law:
897;
Scott,
Wayne R. LaFave & Austin W.
found
Can a defendant be
6.4(d)
Jr.,
§
Law
Substantive Criminal
conspiring
§
to deliver a
W.S. 35-7-1042
when
controlled substance
alleged conspiracy
gov-
member of the
recently
This court
considered the unilat-
agent?
ernment
question
pertains
eral-bilateral
to our
We hold that
intended
statute, Stat. Ann.
approach
Wyoming to follow
bilateral
(Lexis
Miller. Based on
6-1-303
conspiracies,
drug
thus
with
history
legislative
question
answer the certified
“no.”
policy
public
well as
consider-
ations,
6-1-303
held that
FACTS
conspiracy.
Id. Our
unilateral
undisputed. Appel-
are
relevant facts
considerations, and
evaluation
those same
Palato
Jo
lants Robert Genaro
and Shellie
others,
legisla-
conclude that the
leads us to
separate
Cottam are defendants
had
intent when
enacted
ture
a different
Eighth Judicial District
actions before the
§ 35-7-1042.
alleged
have
Appellant Palato
Court.
primary focus
in
agent
court’s
conspired
special
This
legis
terpreting
is to determine the
ming
Investigation to
a statute
Division of Criminal
upon enactment. Tietema v.
agent
three-
lature’s intent
third-party
have a
deliver
marijuana.
“The
Appel-
926 P.2d
quarters of an ounce of
step
arriving
interpreta
correct
conspired
initial
at a
alleged to
lant
Cottam
*
respecting
ordi-
methamphet-
inquiry
tion
is an
times to deliver
separate
three
*
argument;
oral
retired
November
Chief Justice at time of
nary
meaning
obvious
words em-
fense the commission of which was the
ployed, according
arrangement
to their
connection.” Parker Land & Cattle Co. v.
(Lexis 1999)
Ann.
35-7-1042
Comm’n,
Game & Fish
845 P.2d
findWe
*3
Baker,
(Wyo.1993) (quoting Rasmussen v.
7
ambiguous
is
to whether
117,
(1897)).
133,
819,
P.
50
823
If the
adopts
a bilateral or unilateral
of con-
plain
unambig-
of the
is
statute
spiracy.
ambiguity
The
in the statute arises
uous,
apply
plain meaning
we
its
and need
singular “[a]ny
from the
person”
use of the
statutory
rules of
not consult
construction.
language,
which since the
meaning
“[W]hile a determination that the
is Model Penal Code has
been said
be indica-
subject
varying interpretations
not
will
conspiracy,
tive of the unilateral
usually
inquiry,
may
end our
resort
traditional,
and the
common law view
interpretation,
legis-
extrinsic aids of
such as
parties
takes
least
to “con-
history
construction,
lative
rules
See,
State,
spire.”
e.g., Jasch v.
563 P.2d
Houghton
confirm
determination.”
v.
1327,
(Wyo.1977) (quoting
1332
Goldsmith v.
Franscell,
1050,
(Wyo.1994)
870 P.2d
1054
(10th
(“A
Cir.1971))
Cheney,
with reference to it. at 1044. 1981); Woodward v. Haney, 564 P.2d conspira- controlled substances such, 845-46 As we have looked cy provides: interpreting to the case law the federal con conspires attempts who or spiracy provision persuasive authority commit offense under this [the article interpreting § Apodaca, 35-7-1042. Wyoming Controlled Substances with- Act] 1027; 627 P.2d at Dorador v. 768 P.2d the state of conspires or who 1049, 1053-54 (Wyo.1989). beyond to commit an act the state of
ming which if done in this state would be
consistently
The federal courts have
article,
punishable
an offense
rule,
under this
adhered to the Sears
Fifth
Circuit
punished by imprisonment
shall be
Appeals
or fine
holding
Court of
that there can be
may
or both which
conspiratorial
not exceed the
liability imposed
maxi-
no
when the
punishment
mum
prescribed
person
for the of-
involved
ais
provided:
(amended
provision
1. The
federal
substituting
21 U.S.C.
in 1988
Any
subject
person
any
penalties
"shall be
to the same
to com-
as those
subchapter
prescribed
mit
punishable by
defined in this
is
for the offense” for "is
punishable by imprisonment or fine or
imprisonment
both
may
or fine or both which
not
may
which
punish-
not
exceed
maximum
punishment prescribed
exceed the maximum
for
offense,
prescribed
ment
the commis-
offense”).
sion of which was the
provi-
from
those
F.2d
moved
code
agent. Sears United
(5th Cir.1965);
also
States
re-
governing
see
United
sions
enforcement
(2d Cir.1977);
Rosenblatt,
n. 2
554 F.2d
lating
placed
742 F.2d
Bright,
Escobar de
States v.
United
in the Act. Id.
them
Cir.1984).
(9th
addition,
we note that
35-7-
rule,
approach,
a bilateral
which takes
already
has
determined to alter
grounded
the traditional definition
important
general
law of
in an
agreement between two
spiracy as “an
Apodaca,
respect.
sults saw fit to retain the overt on Wyoming, depending whether conspiratorial objectives. for all quirement However, 6-l-303(b). trolled substances are involved. being That Wyo. Stat. Ann. Wyoming Sub- of Controlled case, given the of an overt omission suggests seq., §§ et stances drug conspiracy protection in the drug legislature crimes intended treat legislature the in we cannot ascribe differently. preamble the Act de- of theory adopt unilateral tent cod- “providing comprehensive it as scribes expression of intent. a clear absent of the laws of the State ification revision above, we For the reasons stated Wyoming relating to substances controlled conspira substances hold providing drugs,” the use and abuse of theory of cy the bilateral statute embraces for, things, of- among “crimes and other federal case Laws, conspiracy, in accordance with At ch. 246. fenses.” Sess. enacted, question, de- whether a re- law. certified the time was modify its approved § n. 8 did not Law Institute 5.03 2. The American general conspiracy provision 1982. 1982 until May 1962. Model the Model Penal Code Laws, Code, However, Sess. ch. 75. supra, § n.*. it was 5.03 Penal early expressly that state Although not until and mid-1970s court no decision this incorporate legislatures began Model Pe- question, decided (2) employed "[i]f into their the traditional nal Code recommendations Note, indicating Statutory conspire” language, Conspiracy: persons Since codes. Reform Code, approach. See 75 Colum. L.Rev. bilateral the Model Penal guilty, fendant can be found
§Ann. conspiring to deliver a defined this only controlled substance when the subchapter punishable by n . alleged conspiracy gov- member of the is a U.S.C. Neither agent, ernment is answered “no.” statute, however, offers a definition of the THOMAS, Justice, “conspires.” word dissenting. I would ques- answer “Yes” to the certified Perhaps my position simplistic, is too but I posed
tion majority this case. The resolu- conclude that there is one of a definition inconsistency tion structures an in the sub- conspiracy in Wyoming statutes. It is: stantive law of for the sake of (a) person A being consistent with a federal substantive (1) agrees commit a crime if he with one consistency rule that manifests within the (1) they or more federal law. To maintain or one crimes, for all other but contin- more of them will commit a crime and ue with a (1) bilateral or more themof does an overt act injects an un- objective agreement. to effect the complexity warranted into the criminal law of *5 (Lexis 1999) (em- §Ann. Stat. 6-1-303 Wyoming. I am legislature satisfied that the added). phasis Similarly, there is one adopt intended to the unilateral of conspiracy definition of a in the federal stat- conspiracy as we held in Miller utes. It reads: P.2d 892 I significance attach no proposition to the persons If conspire two or more either legislature change did not the set of any against to commit offense the Unit- creating statutes offenses with States, ed or to defraud the United controlled substances at the same time. any agency or any thereof in manner or for Probably legislature the did not it believe any purpose and one or more of such necessary to do so. Our reliance on federal persons any object do act to effect the of authority persuasive misplaced here * * the *. statutory because our relating scheme added). (emphasis § U.S.C. adjusted offense has been while statutory the federal scheme is the same as it language of the federal statute tracks years. has been majority opinion language the Wyoming statute by the stance that we are bound the Wyoming amendment of the statute interpretation given to the federal statute at 1988. That statute read: the time our controlled substances statute adopted. (2) was authority Indeed we do persons If conspire or more supporting position. (a) that felony commit a in the state of ming beyond or to commit an act The two remarkably statutes are similar: Wyoming state of which if done in this or (b) (1) felony, state would be a or one any offense under this article act, persons any more of such do within or Wyoming within the state of or who con- Wyoming, without the state of spires to effect the beyond to commit an act the state object each, conspiracy, Wyoming upon of convic- which if done in this state tion, punishable would be an shall be fined not more than one under this article, punished by ($1,000.00) shall imprisonment be thousand imprisoned dollars or or fine may or both which (10) not exceed penitentiary not more than ten punishment maximum prescribed for years conspiracy may or both. A pros- be offense the commission of which was the county ecuted in the conspirato- where the conspiracy. rial or combination was entered (Lexis 1999) into, § any county Stat. Ann. any 35-7-1042 where act or evidencing any acts or in theory of pur- conspiracy, the bilateral county furtherance of its maintained wherein place. explained requirement of pose took but absence upon for an overt act. It relied the common Wyo. Stat. Ann. recognized of conspiracy, law definition said: In Act, of 15 U.S.C. constructions Sherman of compare the first sentences When we ruled and the Selective Service Wyo and current statutes the earlier was that of U.S.C. began ming, that statute we find the old intentionally after those statutes modeled (2) persons conspire to or more “[i]f two rather than the statute. (a) felony Wyo in the state of commit a n ,” suspect Wyoming That rationale has to be reads, ming while the new legislature specifically our because abolished com person is “[a] provided, (1) “[n]o common law con agrees if he mit crime (1) duct constitutes crime unless is described they or one or more that n * n .” (Em as a in this or in another them commit crime crime will added.) 6-l~102(a) discloses that Ann. phasis Our research the state.” (Lexis 1999). adopted this most states that have second light language, that conspiracy have definition of the crime of rely upon prece reach seems a far conspir embraced dent that invokes a law common definition appropriate acy, hold and we Wyoming. longer I no am satisfied that original.) (Emphasis in Given fact precedent should follow federal that invokes stat- the revision of conspiracy in a bilateral precedent post earlier ute dates spo- has substances cases. Our relating violate issue, Congress has not. ken on the while statutes, we must ac- trolled substances *6 should serve cohesiveness We knowledge change Wyoming statutory by having law the unilateral in the law that has not occurred federal coupled all conspiracy an over act for legislation. recognize change I would specifically is criminal cases. The overt act any extending conspiracy to commit required by conspiracy Wyoming, including crime serves, this, protect in an such instance statute. violate the controlled substances overly law from zealous individual simply follow a federal cases officer. enforcement federal statute that found unchanged since has remained question in this case should The certified regulating sub of the statutes sovereign “Yes” be so answered rule, the federal stances. Under maintain the same can State all must be bilateral. Sears consistency its law (5th 139, 142 Cir. United F.2d in the federal federal courts maintained applied is the view that has This law of statutes, including to all federal general the Sherman policy justifi Anti-trust RICO. rule, this as summarized Unit
cations for Bright, F.2d Escobar
ed States v. de (9th Cir.1984), anti are adopted by this those court
thetical This P.2d at 897-98. consistency within the
approach maintains
federal law. Shabani, States U.S. United (1994), L.Ed.2d 225
115 S.Ct. Supreme of the United States Court