State v. Pacheco
125 Wash. 2d 150, 882 P.2d 183 (1994)
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Rule of Law:
Under Washington's criminal conspiracy statute, RCW 9A.28.040, a conviction requires a genuine, bilateral agreement between at least two individuals. A defendant cannot be guilty of conspiracy if their sole coconspirator is a government agent who merely feigns agreement.
Facts:
- Herbert Pacheco, a Clark County deputy sheriff, met Thomas Dillon and bragged about his involvement in illegal activities, including performing 'hits'.
- Dillon later learned Pacheco was a deputy and volunteered to act as an informant for the FBI and the Clark County Sheriff's office to investigate him.
- As part of an undercover operation, Dillon offered Pacheco $500 to provide protection during a staged cocaine deal, which Pacheco accepted and for which he was paid.
- After a second, similar staged transaction, Dillon pretended he had been shortchanged and told Pacheco he had $10,000 from his superiors to 'take care of the situation.'
- Pacheco offered to kill the supposed drug buyer (an undercover agent) for the $10,000.
- Pacheco and Dillon formed a plan for Pacheco to lure the buyer to his motel lobby and shoot him.
- Pacheco went to the designated motel with a loaded gun, but was arrested by sheriff's deputies as he left the lobby without having carried out the plan.
Procedural Posture:
- Herbert Pacheco was charged in a Washington trial court with multiple offenses, including conspiracy to commit first degree murder and conspiracy to deliver a controlled substance.
- A jury found Pacheco guilty on the conspiracy counts, among others.
- Pacheco appealed his convictions to the Washington Court of Appeals.
- The Court of Appeals affirmed the trial court's judgment.
- The Supreme Court of Washington granted Pacheco's petition for review, limited to the issue of whether a conspiracy can exist with an undercover agent as the sole coconspirator.
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Issue:
Does a criminal conspiracy exist under Washington statute RCW 9A.28.040 when the defendant's sole alleged coconspirator is a government agent who only feigns agreement?
Opinions:
Majority - Johnson, J.
No. A criminal conspiracy does not exist under Washington statute RCW 9A.28.040 when the defendant's sole coconspirator is a government agent because the statute requires a genuine, bilateral agreement. The court reasoned that the statute's use of the term 'agrees' retains the common law definition, which requires a 'meeting of two or more minds.' While the statute incorporates some unilateral aspects by providing that acquittal of a coconspirator is not a defense, it does not eliminate the core requirement of a 'requisite corrupt agreement.' The primary purpose of conspiracy law is to punish the increased danger posed by group criminality, a danger which is non-existent when one party is a government agent feigning agreement. Adopting a unilateral approach in this context would punish mere criminal intent rather than a criminal act and create a potential for abuse by allowing the state to manufacture crime.
Dissenting - Durham, J.
Yes. A criminal conspiracy can exist even if the sole coconspirator is a government agent because the Washington legislature adopted the unilateral approach to conspiracy. The dissent argues that the majority misinterprets precedent and ignores the legislative history of the statute. The legislature purposefully changed the statutory language from the bilateral 'two or more persons shall conspire' to the unilateral 'a person...agrees with one or more persons,' tracking the Model Penal Code. The modern, unilateral approach focuses on the individual defendant's culpability and firm purpose to commit a crime, which is objectively manifested by entering into the agreement, regardless of the other party's secret intent. Concerns about potential abuse are sufficiently addressed by the entrapment defense and the statute's requirement that the defendant take a 'substantial step' in furtherance of the plan.
Analysis:
This decision solidifies Washington's position as a 'bilateral' conspiracy jurisdiction, requiring a true 'meeting of the minds' for a criminal agreement. It aligns Washington with the federal approach and rejects the purely unilateral theory of the Model Penal Code. The ruling limits law enforcement's ability to secure conspiracy convictions in sting operations where only one true criminal actor is involved with a government agent. For future cases, this means prosecutors in such scenarios must rely on charges of attempt or solicitation rather than conspiracy, as the element of a genuine agreement with a coconspirator cannot be met.
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