Palato v. State, 97-76.

• Citation: 988 P.2d 512
• Decision Date: 12 October 1999
• Docket Number: No. 97-76.,97-76.
• Parties: Robert Genaro PALATO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Shellie Jo Cottam, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

988 P.2d 512

Robert Genaro PALATO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Shellie Jo Cottam, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).

No. 97-76.

Supreme Court of Wyoming.

October 12, 1999.

Representing Appellants: For appellant Palato: Sylvia Lee Hackl, State Public Defender and Donna D. Domonkos, Appellate Counsel. For appellant Cottam: Harry G. Bondi of Harry G. Bondi Law Offices, P.C., Casper, WY. Argument presented by Ms. Domonkos and Mr. Bondi.

Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Thomas A. Burley, Converse County Attorney; and Bruce Horton, Deputy Converse County Attorney. Argument presented by Mr. Horton.

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

LEHMAN, Chief Justice.

This case involves a certified question arising out of two criminal actions currently pending in the District Court for the Eighth Judicial District of Wyoming. Both defendants are alleged to have conspired with a government agent to deliver a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1042 (Lexis 1999), raising the issue of whether Wyoming follows a unilateral or bilateral approach with respect to conspiracies involving controlled substances. This court agreed to answer the following certified question of law:

Can a defendant be found guilty under W.S. § 35-7-1042 of conspiring to deliver a controlled substance when the only other member of the alleged conspiracy is a government agent?

We hold that the legislature intended for Wyoming to follow the bilateral approach with respect to drug conspiracies, and thus answer the certified question "no."

FACTS

The relevant facts are undisputed. Appellants Robert Genaro Palato and Shellie Jo Cottam are defendants in separate criminal actions before the Eighth Judicial District Court. Appellant Palato is alleged to have conspired with a special agent of the Wyoming Division of Criminal Investigation to have a third-party deliver to the agent three-quarters of an ounce of marijuana. Appellant Cottam is alleged to have conspired three separate times to deliver methamphetamine to a confidential informant. Palato was charged with one count and Cottam with three counts of conspiracy to deliver a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1042. In each instance, the only members of the alleged conspiracy were the appellants and a government agent. Both appellants filed a motion to dismiss with the district court, which prompted the certified question set out above.

DISCUSSION

The question we must resolve is whether Wyoming's controlled substances conspiracy statute, § 35-7-1042, embraces the unilateral or bilateral theory of conspiracy. "Under a unilateral formulation, the crime 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." Miller v. State, 955 P.2d 892, 896 (Wyo.1998) (quoting State v. Rambousek, 479 N.W.2d 832, 833-34 (N.D.1992)). Therefore, under a unilateral theory, a conspiracy count is viable even when one of the participants is a government agent or is feigning agreement. Miller, at 897; Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4(d) (1986).

This court recently considered the unilateral-bilateral question as it pertains to our general conspiracy statute, Wyo. Stat. Ann. § 6-1-303 (Lexis 1999). Miller. Based on the language and legislative history of the statute, as well as public policy considerations, we held that § 6-1-303 adopts the unilateral approach to conspiracy. Id. Our evaluation of those same considerations, and others, leads us to conclude that the legislature had a different intent when it enacted § 35-7-1042.

This court's primary focus when interpreting a statute is to determine the legislature's intent upon enactment. Tietema v. State, 926 P.2d 952, 953 (Wyo.1996). "The initial step in arriving at a correct interpretation * * * is an inquiry respecting the ordinary and obvious meaning of the words employed, according to their arrangement and connection." Parker Land & Cattle Co. v. Game & Fish Comm'n, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). If the language of the statute is plain and unambiguous, we apply its plain meaning and need not consult rules of statutory construction. "[W]hile a determination that the meaning is not subject to varying interpretations will usually end our inquiry, we may resort to extrinsic aids of interpretation, such as legislative history and rules of construction, to confirm our determination." Houghton v. Franscell, 870 P.2d 1050, 1054 (Wyo.1994) (citing Parker, 845 P.2d at 1045).

[I]n ascertaining the legislative intent in enacting a statute * * * the court * * * must look to the mischief the act was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conditions of the law and all other prior and contemporaneous facts and circumstances that would enable the court intelligently to determine the intention of the lawmaking body.

Carter v. Thompson Realty Co., 58 Wyo. 279, 291, 131 P.2d 297, 299 (1942); see also Parker, 845 P.2d at 1044

. We presume that the legislature enacts statutes with full knowledge of the existing condition of the law and with reference to it. Parker, at 1044.

Wyoming's controlled substances conspiracy statute provides:

Any person who attempts or conspires to commit any offense under this article [the Wyoming Controlled Substances Act] within the state of Wyoming or who conspires to commit an act beyond the state of Wyoming which if done in this state would be an offense punishable under this article, shall be punished by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.

Wyo. Stat. Ann. § 35-7-1042 (Lexis 1999) (emphasis added). We find that § 35-7-1042 is ambiguous with respect to whether it adopts a bilateral or unilateral theory of conspiracy. The ambiguity in the statute arises from the use of the singular "[a]ny person" language, which since the adoption of the Model Penal Code has been said to be indicative of the unilateral approach to conspiracy, and the traditional, common law view that it takes at least two guilty parties to "conspire." See, e.g., Jasch v. State, 563 P.2d 1327, 1332 (Wyo.1977)

(quoting Goldsmith v. Cheney, 447 F.2d 624 (10th Cir.1971)) ("A conspiracy is an agreement between two or more persons to do an unlawful act.").

The history of Wyoming's drug conspiracy statute provides some insight into the legislature's intent at the time of its enactment. Section 35-7-1042 was derived, not from the general conspiracy statute or the Model Penal Code, but from the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, codified at 21 U.S.C. § 846.² When the Wyoming legislature adopts a statute from another jurisdiction, that jurisdiction's case law construing the statute is considered persuasive authority and an aid to determine legislative intent. Apodaca v. State, 627 P.2d 1023, 1027 (Wyo. 1981); Woodward v. Haney, 564 P.2d 844, 845-46 (Wyo.1977). As such, we have looked to the case law interpreting the federal conspiracy provision as persuasive authority when interpreting § 35-7-1042. Apodaca, 627 P.2d at 1027; Dorador v. State, 768 P.2d 1049, 1053-54 (Wyo.1989).

The federal courts have consistently adhered to the Sears rule, a Fifth Circuit Court of Appeals holding that there can be no conspiratorial liability imposed when the only other person involved is a government agent. Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965); see also United States v. Rosenblatt, 554 F.2d 36, 38 n. 2 (2d Cir.1977)

; United States v. Escobar de Bright, 742 F.2d 1196, 1198-99 (9th Cir.1984). The federal rule, which takes a bilateral approach, is grounded in the traditional definition of conspiracy as "an agreement between two or more people to commit an unlawful act." Escobar de Bright,

742 F.2d at 1199. The reasoning behind the federal approach is that the act of agreeing is a group act requiring at least two people, and when one of two persons merely pretends to agree, there is neither a true agreement nor a meeting of the minds. Id. This was the conventional view of conspiracy law, and the view espoused by a majority of states, including Wyoming when § 35-7-1042 was enacted in 1971.³ In Miller, we determined the modification of the language in Wyoming's general conspiracy statute from the traditional "[i]f two (2) or more persons conspire" to the Model Penal Code formulation of "[a] person is guilty of conspiracy to commit a crime if" evidenced the legislature's intent to move to the unilateral approach. In contrast, § 35-7-1042 has not been amended since its enactment, and we find no similar evidence of legislative intent to depart from the federal bilateral position.

We acknowledge that this construction results in divergent treatment of conspiracies in Wyoming, depending on whether controlled substances are involved. However, the adoption of the Wyoming Controlled Substances Act, §§ 35-7-1001 et seq., suggests the legislature intended to treat drug crimes differently. The preamble of the Act describes it as "providing a comprehensive codification and revision of the laws of the State of Wyoming relating to controlled substances and the use and abuse of drugs," providing for, among other things, "crimes and offenses." 1971 Wyo. Sess. Laws, ch. 246. At the time it was enacted, the legislature removed from the criminal code those provisions governing crimes and enforcement relating to controlled substances and placed them in the Act. Id.

In addition, we...