Law School Case Brief
State v. Pacheco - 125 Wash. 2d 150, 882 P.2d 183 (1994)
Wash. Rev. Code § 9A.28.040(1)(1975) expressly requires an agreement, but does not define the term. Agreement is defined as a meeting of two or more minds; a coming together in opinion or determination; and the coming together in accord of two minds on a given proposition. Similarly, agreement is defined as the act of agreeing or coming to a mutual agreement and oneness of opinion. 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. A conspiratorial agreement necessarily requires more than one to agree because it is impossible to conspire with oneself.
Defendant 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.” In 1989, Dillon learned that Pacheco was a Clark County deputy sheriff. Dillon contacted the FBI and volunteered to inform on Pacheco. Thereafter, according to a plan designed by the sheriff’s office and the FBI, Dillon and Pacheco entered into a drug transaction, in the course of which, Pacheco offered to kill the drug buyer for $10,000. Pacheco was then arrested and 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 appellate court affirmed the convictions. On further appeal, Pacheco contended that he did not commit conspiracy within the meaning of RCW 9A.28.040 because his sole coconspirator was an undercover police agent who never "agreed" to commit the crime of murder in the first degree. Pacheco argued that § 9A.28.040 retained the common law, bilateral approach to conspiracy, which required an actual agreement to commit a crime between defendant and at least one other.
When the sole coconspirator was an undercover police agent who never “agreed” to commit the crime, can it be said that conspiracy exists?
The Court held that § 9A.28.040 required an actual agreement between two coconspirators. The Court noted that the term “agreement”, as defined by Black’s Law Dictionary, meant “a meeting of two or more minds; a coming together in opinion or determination.” Following this definition, the Court held that the state failed to establish that the legislature intended to abandon the traditional requirement of an actual agreement for a conspiracy. According to the Court, a government agent feigning agreement with defendant did not constitute a conspiracy.
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