THE STATE OF WASHINGTON, Rеspondent, v. HERBERT LARRY PACHECO, Petitioner.
No. 60864-4
En Banc.
October 20, 1994.
125 Wn.2d 150
Arthur D. Curtis, Prosecuting Attorney, and Richard Melnick, Deputy, for respondent.
JOHNSON, J. — The Defendant, Herbert Pacheco, appeals his convictions for conspiracy to commit first degree murder and conspiracy to deliver a controlled substance. He contends he did not commit conspiracy within the meaning of
FACTS
Herbert Pacheco met Thomas Dillon in 1985, when Pacheco worked about 2 months for Dillon‘s private investigation firm. Pacheco bragged to Dillon about his involvement in illegal activities, including enforcement, collecting debts, procuring weapons, providing protection, and performing “hits“.
The investigation involved the recording of conversations, face-to-face and over the telephone, between Dillon and Pacheco. During these conversations Dillon asked Pacheco to perform vаrious jobs, including collections and information checks on individuals.
On March 26, 1990, according to a plan designed by the sheriff‘s office and the FBI, Dillon called Pacheco and told him he would like to meet to discuss a possible deal. Dillon and Pacheco met at a restaurant. Dillon said he had ties to the “Mafia” and offered Pacheco $500 in exchange for protection during a cocaine deal. Dillon told Pacheco that a buyer (an undercover FBI agent) would arrive shortly, and Paсheco was to protect Dillon during the transaction. Pacheco agreed. The undercover agent arrived and the purported drug transaction took place. Afterward, Dillon paid Pacheco $500.
The same scenario was replayed at a second purported drug transaction on April 2, 1990. Dillon again paid Pacheco $500. Later that night Dillon called Pacheco and pretended he had been shortchanged $40,000 in that afternoon‘s drug transaction. Dillon said he had been given $10,000 by his superiors to take care of the situation. Dillon agreed to meet Pacheco at a convenience store. At the store, Pacheco offered to kill the drug buyer for $10,000. Pacheco indicated if he had to kill anyone else, it would cost more. Pacheco proposed he go get his gun while Dillon located the drug buyer at his motel.
Dillon and Pacheco met at a lounge near the motel. They decided Pacheco would go to the lobby of the motel, cаll the buyer and convince him to come down to the lobby where Pacheco would then shoot him. Pacheco went to the lobby with a loaded gun, but he did not call the buyer‘s room. As Pacheco left the lobby, sheriff‘s deputies arrested him.
Pacheco was charged with conspiracy to commit first degree murder, attempted first degree murder, two counts of unlawful delivery of a controlled substance, two counts of conspiracy to deliver a controlled substance, and official misconduct. The official misconduct charge was dismissed. The jury found Pacheco not guilty of attempted first degree murder, but convicted him on all other counts.
The Court of Appeals affirmed the convictions. We accepted review of the conspiracy convictions, limited to the issue of whether a conspiracy exists when the sole coconspirator is an undercover agent.
ANALYSIS
The Defendant contends he did not commit conspiracy within the meaning of
The Defendant argues the statute retains the common law, bilateral approach to conspiracy, which requires an actual agreement to commit a crime between the defendant and at least one other. Therefore, a government agent feigning agreement with the defendant does not constitute a conspiracy under the common law approach because no genuine agreement is reached. The Defendant asserts Washington is among those states whose statutes are patterned after the Model Penal Code but have been interpreted as adopting only a limited form of the code‘s unilateral approach, and retaining the requirement of a bilateral underlying agreement. E.g., People v. Foster, 99 Ill. 2d 48, 457 N.E.2d 405 (1983);
The State contends
Adopted in 1975, as a part of the overhaul of the criminal code,
(1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.
(2) It shall not be be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired:
(a) Has not been prosecuted or convicted; or
(b) Has been convicted of a different offense; or
(c) Is not amenable to justice; or
(d) Has been acquitted; or
(e) Lacked the capacity to commit an offense.
In construing a statute, our primary objective is to carry out the intent of the Legislature. Anderson v. O‘Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974). When a term is not defined in a statute, the court may look to common law or a dictionary for the definition. State v. Sanchez, 73 Wn. App. 486, 488, 869 P.2d 1133 (1994); Shoreline Comm‘ty College Dist. 7 v. Employment Sec. Dep‘t, 120 Wn.2d 394, 403, 842 P.2d 938 (1992). As a general rule, we presume the Legislature intended undefined words to mean what they did at common law. In re Brazier Forest Prods., Inc., 106 Wn.2d 588, 595, 724 P.2d 970 (1986).
Subsection (1) of
Likewise, the common law definition of the agreement required for a conspiracy is defined not in unilateral terms but rather as a confederation or combination of minds. State v. Casarez-Gastelum, 48 Wn. App. 112, 116, 738 P.2d 303 (1987) (citing Marino v. United States, 91 F.2d 691, 693-98, 113 A.L.R. 975 (9th Cir. 1937), cert. denied, 302 U.S. 764 (1938)). A conspiratorial agreement necessarily requires more than one to agree because it is impossible to conspire with oneself. Morrison v. California, 291 U.S. 82, 92, 78 L. Ed. 664, 54 S. Ct. 281 (1934). We conclude that by requiring an agrеement, the Legislature intended to retain the requirement of a genuine or bilateral agreement.
Subsection (2) provides the conspiratorial agreement may still be found even though the coconspirator cannot be convicted. In this sense, the statute incorporates a limited form of the code‘s unilateral conspiracy in that it is no longer necessary that agreement be proved against both conspirators. Thus, under subsection (2)‘s unilateral approach, the failurе to convict an accused‘s sole coconspirator will not prevent proof of the conspiratorial agreement against the accused. However, this does not indicate the Legislature intended to abandon the traditional requirement of two criminal participants reaching an underlying agreement.
Our case law supports this interpretation of
On appeal, the court held acquittal of Valladares’ only alleged coconspirator mandated reversal of Valladares’ conviction because the two outcomes were logically inconsistent.
RCW 9A.28.040(2)(d) provides that it shall not be a defense tо a charge of criminal conspiracy that the person with whom the accused is alleged to have conspired has been acquitted. In this regard, the Washington Legislature appears to have adopted a unilateral approach to conspiracy by focusing on the culpability of the individual actor. At the same time, however,RCW 9A.28.040(1) makes an agreement with one or more persons a necessary element of the crime of conspiracy.
Valladares, 99 Wn.2d at 670.
Valladares thus makes clear the Legislature adopted the unilateral approach to the limited extent set out in
Additionally, the unilateral approach fails to carry out the primary purpose of the statute. The primary reason for making conspiracy a separate offense from the substantive crime is the increased danger to society posed by group criminal activity. Dent, 123 Wn.2d at 476 (citing Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 27-29 (1989)). However, the increased danger is nonexistent when a person “conspires” with a government agent who pretends agreement. In the feigned conspiracy there is no increased chance the criminal enterprise will succeed, no continuing criminal enterprise, no educating in criminal practices, and no greater difficulty of detection. United States v. Escobar de
Indeed, it is questionable whether the unilateral conspiracy punishes criminal activity or merely criminal intentions. Paul Marcus, Conspiracy: The Criminal Agreement in Theory and in Practice, 65 Geo. L.J. 925, 929-30 (1977). The “agreement” in a unilateral conspiracy is a legal fiction, a technical way of transforming nonconspiratorial conduct into a prohibited conspiracy. Dierdre A. Burgman, Unilateral Conspiracy: Three Critical Perspectives, 29 DePaul L. Rev. 75, 93 (1979). When one party merely pretends to agree, the other party, whatever he or she may believe about the pretender, is in fact not conspiring with anyone. Although the deluded party has the requisite criminal intent, there has been no criminal act. Escobar de Bright, 742 F.2d at 1199 (citing Developments in the Law — Criminal Conspiracy, 72 Harv. L. Rev. 920, 926 (1959)).
The federal courts agree. In Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965), the Court of Appeals established the rule that “as it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy“. Every federal court which has since considered the issue has adopted this approach. United States v. Derrick, 778 F. Supp. 260, 265 (D.S.C. 1991), rev‘d on other grounds, 16 F.3d 412 (4th Cir. 1994), cert. denied, 63 U.S.L.W. 3259 (U.S. Oct. 3, 1994) (No. 93-9228).
Another concern with the unilateral approach is its potential for abuse. In a unilateral conspiracy, the State not only plays an active role in creating the offense, but also becomes the chief witness in proving the crime at trial. Escobar de Bright, 742 F.2d at 1199-1200. We agree with the Ninth Circuit this has the potential to put the State in the improper position of manufacturing crime. At the same time, such reaching is unnecessary because the punishable conduct in a unilateral сonspiracy will almost always satisfy the elements of either solicitation or attempt. The State will
The State argues the Legislature intended to adopt the code‘s purely unilateral approach, discarding the common law requirement of an actual agreement. The State relies on the Washington State Criminal Justice Training Comm‘n, Revised Criminal Code Training and Seminar Manual (Gordon A. Golob & Gerald K. Mooney eds., 1976) in which the editors state:
The new law is unilateral in its aрproach in that it requires the actor agree with one or more persons . . .
Comment—The purpose of the unilateral approach is to make it immaterial to the guilt of a conspirator that one or all the persons he has conspired with have not been or cannot be convicted. Present general law frequently holds otherwise, reasoning that if the definition of a conspiracy reads “agreement by two or more persons” to commit a crime, this means there must be at least two guilty conspirators. This statute avoids this result.
Washington State Criminal Justice Training Comm‘n, ch. 9A.28 RCW Anticipatory Offenses, at 9A.28.040-3.
Contrary to the State‘s argument, the Mooney and Golob commentary is compatible with our interpretation of
Even if the Mooney and Golob commentary can be read as endorsing a purely unilateral approach, the commentary does not necessarily reflect the Legislature‘s intent in pass-
In sum, the State has not persuaded us the Legislature intended to abandon the traditional requirement of an actual agreement. We hold
UTTER, DOLLIVER, SMITH, and MADSEN, JJ., concur.
DURHAM, J. (dissenting) — The jury found that Herbert Pacheco, an aspiring hit man, planned a murder fоr money. Moreover, he took a substantial step toward that objective. Yet the majority overturns his conviction for conspiracy to commit murder2 solely because he conspired with a government agent rather than with another hit man. The Washington conspiracy statute does not require a co-conspirator to be a nongovernment actor. In fact, the statute explicitly envisages so-called unilateral conspiracies, as the majority admits. Because neither our case law, the statute, nor the
We accepted review solely to determine whether Washington‘s conspiracy statute countenances unilateral conspiracies. Yet the majority fails to provide even a cursory analysis of the essential differences between the bilateral and unilateral approaches to conspiracy. The bilateral approach asks whether there is an agreement between two or more persons to commit a criminal act. Its focus is on the content of the agreement and whether there is a shared understanding between the conspirators. The unilateral approach is not concerned with the content of the agreement or whether there is a meeting of minds. Its sole concern is whether the agreement, shared or not, objectively manifests the criminal intent of at least one of the conspirators. The majority does not even mention this crucial difference, and instead merely assumes that all conspiracies must be bilateral. In other words, the majority assumes precisely what it is supposed to prove; it begs the question.
The result is a tangle of inaccuracies. First, the majority repeatedly contends that our decision in State v. Valladares, 99 Wn.2d 663, 664 P.2d 508 (1983) either adopted (majority, at 156) or supports (majority, at 155) the bilateral theory of conspiracies. That is not true. In fact, Valladares explicitly reserved the question. Valladares, 99 Wn.2d at 671 (“We need not decide here whаt result might have been reached had” the defendant been charged with conspiring with two government agents.) Valladares decided only that, in a joint trial of coconspirators, the jury verdict is inconsistent if one defendant is convicted of conspiracy while “his alleged coconspirator has been found not to have entered into any alleged agreement and no conspiracy with an unnamed coconspirator has been alleged.” Valladares, 99 Wn.2d at 670. Valladares is about jury verdict consistency. The closest Valladares comes to commenting on the conspiracy statute itself is to note that “the Washington Legislature appears to have adopted a unilateral approach to conspiracy by focusing on the culpability of the individual actor.” Valladares, at 670.
The code embodiеs a significant change in emphasis. In its view, the major basis of conspiratorial liability is not the group nature of the activity but the firm purpose of an individual to commit a crime which is objectively manifested in conspiring. See Model Penal Code § 5.03(1) cmt. at 104-05 (Tentative Draft No. 10, 1960). The Washington conspiracy statute tracks the Model Penal Code‘s language rather than the “two or more persons” language of the general federal conspiracy statute. Compare
A comparison of the revised Washington conspiracy statute with its predecessor is far more revealing of legislative intent than the majority‘s simplistic and premature resort to
Under a unilateral formulation, the crime of conspiracy is committed when a person agrees to proceed in a prohibited manner; under a bilateral formulation, the crime of conspiracy is committed when two or more persons agree to proceed in such manner.
Peter Buscemi, Note, Conspiracy: Statutory Reform Since the Model Penal Code, 75 Colum. L. Rev. 1122, 1136 (1975). The contrast between the prior and the present statute is clear, precise, and determinative.
Next, the majority constructs a straw man by claiming that the primary purpose of conspiracy is “the increased danger to society posed by group criminal activity“. Majority, at 156. Preventing group criminal activity is the rationale behind bilateral conspiracy, but that rationale was decisively
A bilateral theory of conspiracy and the rigid standard of mutuality that it demands . . . are inconsistent with the recognition of an independent rationale for conspiracy law based on a conspirator‘s firm expectation of committing a crime.
Broderick, 94 Yale L.J. at 906 n.64.
The majority compounds its own confusion by contending that unilateral conspiracies are factually impossible and therefore presumptively invalid. Majority at 157 (“When one party merely pretends to agree, the other party, whatever he or she may believe about the pretender, is in fact not conspiring with anyone.“). This argument amounts to the truism that it is factually impossible to have a “meeting of minds” on the commission of a future crime if оne of the minds is a government agent who does not intend to commit the criminal act. However, a “meeting of minds” is not a prerequisite of unilateral conspiracy. In any event, factual impossibility is not a recognized defense. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.3(2), at 42 (1986). The majority does nothing more than restate the discredited assumption that all conspiracies must be bilateral because conspiracy statutes attempt to target only group criminal activity.
Finally, I share the majority‘s concern about the potential for abuse of unilateral conspiracy. However, the majority fails to take into consideration the effect of the entrapment defense. The potential for abuse is further restricted by the statute itself, which requires not only an agreement to engage in criminal conduct but also “a substantial step in pursuance of such agreement“.
ANDERSEN, C.J., and BRACHTENBACH and Guy, JJ., concur with DURHAM, J.