Mondello v. State
1992 Wyo. LEXIS 192, 1992 WL 367399, 843 P.2d 1152 (1992)
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Rule of Law:
To sustain a conviction for conspiracy, the prosecution must prove beyond a reasonable doubt that a firm, mutual agreement to commit a crime was formed, as mere discussions, negotiations, or reluctant participation in a government-initiated transaction are insufficient to establish the requisite agreement.
Facts:
- Around Thanksgiving 1988, Giuseppe Mondello gave Ronnie Lee $1,300 to purchase cocaine, but Lee lost the money.
- Mondello subsequently threatened Lee in an effort to have the money repaid.
- Frightened, Lee contacted the police, who arranged for Officer Glick to pose as an associate and promise to repay the debt to Mondello.
- In June 1990, Mondello and Mark Charles Jones met with Chris Bascus, a drug dealer who had secretly become a police informant.
- Bascus testified that at this meeting, Mondello proposed a plan where Mondello would fund the purchase of cocaine, which Bascus would then sell, with Jones assisting in the sales, to generate profit and supply Mondello's personal cocaine use.
- Following this meeting, Bascus and Officer Glick, directed by law enforcement, initiated numerous recorded phone calls with Mondello and Jones to arrange a drug transaction.
- During these calls, Jones repeatedly indicated that Mondello only wanted enough cocaine for his personal use and expressed that any potential deal was contingent on Mondello's approval.
- At a pre-arranged meeting, Officer Glick persuaded a hesitant Mondello to accept two ounces of cocaine, fronting him one ounce, even though Mondello had only brought enough money to purchase one.
Procedural Posture:
- The State filed an Information in the district court charging Jones with one count of conspiracy to deliver marijuana and cocaine.
- The State also filed an Information charging Mondello with one count of conspiracy to deliver marijuana and cocaine and one count of possession of cocaine with intent to deliver.
- The trial court granted the State’s motion to join the defendants' trials.
- Following a trial, the jury found both Jones and Mondello guilty of the conspiracy charge.
- The jury was deadlocked on the possession with intent to deliver charge against Mondello, and the court declared a mistrial on that count.
- The trial court denied the defendants’ motion for a new trial and sentenced them to imprisonment.
- Mondello and Jones (appellants) filed a timely appeal of their convictions to the Supreme Court of Wyoming.
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Issue:
Is the evidence presented by the State sufficient to prove beyond a reasonable doubt that the defendants formed an agreement to deliver controlled substances when the primary evidence consists of an informant's testimony about a tentative plan and subsequent recorded conversations show the defendants' reluctance and a focus on acquiring drugs for personal use?
Opinions:
Majority - Cardine, Justice
No. To convict for conspiracy, the State must prove that an agreement, the actus reus of the crime, was actually formed. The evidence in this case, consisting primarily of an informant's testimony about a tentative plan followed by government-initiated phone calls showing the defendants' reluctance, fails to establish a firm agreement to deliver controlled substances. The conversations demonstrate negotiations and counteroffers, not a concluded agreement, and repeatedly suggest Mondello's intent was to purchase for personal use, not to engage in a distribution scheme. A person who purchases a controlled substance for personal use is guilty of possession, not conspiracy to deliver to himself. Since the State failed to prove the essential element of agreement beyond a reasonable doubt, the convictions must be reversed.
Dissenting - Thomas, Justice
Yes. The majority improperly reweighed the evidence and substituted its own judgment for that of the jury. The informant, Bascus, provided direct testimony that Mondello, Jones, and he had formed an agreement to buy and sell drugs. Viewing this evidence in the light most favorable to the State, as is required on appeal, a reasonable jury could find that a conspiracy was formed. The crime of conspiracy is complete upon the formation of the agreement, and no overt act is necessary; therefore, the defendants' subsequent reluctance is irrelevant. The jury chose to believe the State's evidence, and the appellate court should not disturb that finding.
Concurring - Golden, Justice
No. The State's evidence did not prove the existence of an agreement beyond a reasonable doubt. Since the agreement itself is the criminal act in a conspiracy charge, the failure to prove this essential element is fatal to the prosecution's case.
Analysis:
This decision reinforces the critical importance of the 'agreement' element in conspiracy law, clarifying that it requires more than preliminary discussions or negotiations. By overturning the convictions, the court signals that it will scrutinize evidence in conspiracy cases, particularly those involving government informants and sting operations, to ensure a genuine meeting of the minds occurred. The ruling creates a higher evidentiary bar for prosecutors, requiring them to demonstrate a concrete, concluded agreement rather than just a tentative plan or a defendant's reluctant participation in a government-pushed scheme. This serves to protect individuals from conspiracy charges based on ambiguous conversations or mere association with a criminal enterprise.
