Marquez v. State, 99-263.

• Decision Date: 31 October 2000
• Docket Number: No. 99-263.,99-263.
• Citation: 12 P.3d 711
• Parties: Jose MARQUEZ, Appellant, (Defendant), v. The STATE of Wyoming, Appellee, (Plaintiff).
• Court: Wyoming Supreme Court

12 P.3d 711

Jose MARQUEZ, Appellant, (Defendant), v. The STATE of Wyoming, Appellee, (Plaintiff).

No. 99-263.

Supreme Court of Wyoming.

October 31, 2000.

Representing Appellant: Tom Sedar, Casper, WY; and Paul J. Kennedy and Adam S. Baker, Albuquerque, NM.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, Cheyenne, WY.

Before LEHMAN, C.J., and THOMAS, MACY,¹ GOLDEN, and HILL, JJ.

THOMAS, Justice.

The major question raised by Jose Marquez (Marquez) is that the trial court lacked the requisite subject matter jurisdiction to try him for conspiracy. Marquez was convicted of conspiracy to deliver a controlled substance; conspiracy to possess a controlled substance with intent to deliver; and conspiracy to possess a controlled substance, all in violation of Wyo. Stat. Ann. § 35-7-1031 (Michie 1997) and Wyo. Stat. Ann. § 35-7-1042 (Lexis 1999). Marquez asserts that, since the conspiracy was not entered into in Wyoming, and he committed no criminal acts in this state, Wyoming could not try him for conspiracy. The plain language of the statute renders an individual member of a drug conspiracy criminally liable, even if that individual commits no overt act, and the participation of one co-conspirator in this state provides a sufficient basis for jurisdiction over all members of a drug conspiracy. Marquez also presents issues regarding the sufficiency of the evidence and prosecutorial misconduct. We cannot discern error in any of his contentions. We affirm the Judgment and Sentence entered in the trial court.

In the Appellant's Brief in Chief, Marquez presents this Statement of Issues:

I. Was the evidence presented at trial sufficient to support defendant's conviction?

II. Did the State of Wyoming have subject matter jurisdiction over the charged conduct?

III. Did the prosecutor commit intentional misconduct without which defendant may have enjoyed a more favorable verdict?

In the Brief of Appellee, filed by the State, the issues are set forth in this way:

I. Was appellant properly convicted in Natrona County of the crime of conspiracy?

II. Was appellant denied a fair trial by the prosecutor's alleged misconduct?

On January 3, 1998, on Interstate Highway 25 south of Pueblo, Colorado, a state trooper encountered a northbound pickup truck bearing New Mexico license plates. The trooper's attention was drawn to the vehicle because it was weaving onto the shoulder of the road, and he stopped the pickup and spoke with Marquez, who was driving. The circumstances aroused suspicion on the part of the trooper that Marquez might be transporting illegal narcotics, and he asked for permission to search the vehicle. Several lengths of PVC pipe, each with one end capped and one end taped shut, were in a toolbox mounted on the truck. The trooper asked Marquez what was in them, and he responded that they contained clothing. The trooper then checked the contents and found about eighty-six pounds of marijuana packed in the pipes. Marquez was arrested and informed of his constitutional rights. A subsequent search of his person, incidental to that arrest, turned up a folded piece of paper with a Casper telephone number written on it.

Upon being questioned, Marquez initially told investigating officers that he was engaged to deliver the drugs to a cantina in Denver, Colorado, but he could provide neither the name nor the location of that establishment. He denied any knowledge of the Casper telephone number, suggesting that his wife had put the paper in his pocket. When confronted with inconsistencies in his story, Marquez then admitted that an individual in New Mexico had offered him $3,000.00 to transport the marijuana to Casper. When he arrived in Casper, he was to call Javier Moreno at the telephone number on the paper to arrange a delivery.

Marquez agreed to assist the Colorado officers in making a controlled delivery of the marijuana. The officers drove Marquez' pickup to Casper, and met with federal agents and local law enforcement officers there. Marquez then called Moreno and arranged to meet him at a particular store. The officers took Marquez to the meeting place in his truck and left him alone in the truck without an ignition key. Moreno arrived in another vehicle and signaled to Marquez to follow him. When Marquez did not follow as directed, Moreno left the scene, but was stopped and arrested a few blocks away. A search of Moreno's person produced a business card with Marquez' name and telephone number written on the back. While searching Moreno's residence, pursuant to a warrant, officers located $3,000.00 in cash.

Marquez was charged in Wyoming with one count each of conspiracy to deliver a controlled substance, conspiracy to possess a controlled substance with intent to deliver, and conspiracy to possess a controlled substance. He pled not guilty to all counts. His trial took place on September 21 and 22, 1998, and the jury found him guilty on all three counts. The trial court, in its Judgment and Sentence, imposed concurrent terms of not less than forty-two months and not more than 120 months on each count of which Marquez was convicted. Marquez filed a timely notice of appeal to this Court.

The most significant question in this case is argued by Marquez as his second issue. Marquez contends that his conviction cannot stand because Wyoming did not have subject matter jurisdiction for the offenses with which he was charged. The theory driving this contention is that no actual crime took place in Wyoming because the conspiracy was entered into in New Mexico and Marquez was arrested in Colorado. He argues that absent any activity by him in Wyoming in furtherance of the conspiracy, Wyoming cannot exercise jurisdiction.

The Wyoming drug conspiracy statute is derived from the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, which is codified at 21 U.S.C. § 846. Federal decisions interpreting the federal statute are persuasive authority in our decisions interpreting the state statute. Palato v. State, 988 P.2d 512, 514 (Wyo.1999). Federal courts have determined that the United States has jurisdiction over drug conspiracies with an intended effect in this country, even if no action in furtherance of the conspiracy took place in the United States. The federal judiciary has reasoned that because no overt act is needed to complete the crime, the federal statute is violated as soon as individuals agree to bring drugs into this country. Therefore, federal prosecutors must prove the intent of the conspirators to consummate their conspiracy in the United States, but need not prove that the conspirators took any action within United States territory. United States v. Loalza-Vasquez, 735 F.2d 153, 156 (5th Cir.1984) ("jurisdictional requisites with regard to the controlled-substance conspiracy counts may be satisfied merely by proof of intended territorial effects within the sovereign territory of the United States."); United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981) ("[w]here a conspiracy statute does not require proof of overt acts, the jurisdictional requirement that the proscribed acts have an effect within United States territory may be satisfied by evidence that the conspirators intended their conspiracy to be consummated within United States territory."). Persuaded by these federal precedents, we hold that the trial courts of Wyoming have subject matter jurisdiction over drug conspiracies when the conspirators intend for the conspiracy to have an effect within the state of Wyoming.

We can also confirm the state's jurisdiction without result to federal authority. In an analogous situation, we held that Wyoming courts have subject matter jurisdiction to try an individual for failure to return a minor to the custody of the person entitled thereto, even though neither the defendant nor the child had ever been in Wyoming. Rios v. State, 733 P.2d 242, 249-50 (Wyo.), cert. denied, 484 U.S. 833, 108 S.Ct. 108, 98 L.Ed.2d 68 (1987). The basic premise for that decision was the fact that the conduct with which Rios was charged had its effect within the state of Wyoming. Clearly, the conduct with which Marquez was charged would have had its effect in the state of Wyoming.

An important premise here, as elsewhere in this opinion, is that the agreement is the crime because no overt act is required. Palato, 988 P.2d at 515. The evidence demonstrated that both Marquez and Moreno were part of a conspiracy to possess and deliver drugs in Wyoming. Moreno continued to be a member of the conspiracy while he was in Wyoming. That fact is established because he did not communicate a withdrawal to the authorities or to his co-conspirators. In addition, his continued participation in the conspiracy is evidenced by his possession of Marquez' name and telephone number on his person and his accumulation of $3,000.00 in cash, the precise amount Marquez was to be paid for delivering the drugs. It is well established that each member of a conspiracy is criminally accountable for the acts of every other member. 16 Am.Jur.2d Conspiracy § 19 (1988). Therefore, another justification for jurisdiction over Marquez for conspiracy is Moreno's participation in the conspiracy while in Wyoming.

Turning to Marquez' first assignment of error, he contends that the evidence presented at trial was not sufficient to support his conviction. Our standard for reviewing the sufficiency of the evidence in a criminal matter is:

"[W]hether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State."

Wentworth v. State, 975 P.2d 22, 25 (Wyo. 1999) (quoting Bloomquist v. State, 914 P.2d 812, 823 (Wyo.1996...