Facts
- Herbert Larry Pacheco, a Clark County deputy sheriff, had earlier worked briefly for Thomas Dillon’s private investigation firm and discussed alleged criminal “enforcement” and “hits.”
- After learning Pacheco was a deputy sheriff, Dillon contacted federal authorities and agreed to act as an informant; law enforcement recorded Dillon’s in-person and telephone conversations with Pacheco.
- Under a law-enforcement plan, Dillon arranged staged cocaine transactions in which Dillon offered Pacheco money for “protection” during purported drug deals; Pacheco accepted payments after two staged deals.
- Dillon later claimed a drug buyer had shorted him and said he had money to “take care of” the problem; Pacheco proposed killing the buyer for a fee and discussed a plan to lure the buyer from a motel and shoot him.
- Pacheco went to the motel lobby with a loaded gun but did not contact the purported buyer; he was arrested as he left.
- At trial, Pacheco argued he was only pretending to cooperate to gather evidence against Dillon; the jury rejected that account and convicted him of conspiracy to commit first-degree murder and conspiracy to deliver a controlled substance (among other offenses), while acquitting him of attempted murder.
Issues
- Whether Washington’s conspiracy statutes require a bilateral “actual agreement” between at least two genuine conspirators or allow conviction under a unilateral theory when the only other participant is an undercover agent or informant who feigns agreement.
- Whether evidence of planning and steps toward completion can satisfy conspiracy when the State cannot prove a genuine meeting of the minds with another person who shared criminal intent.
Decision
- The Supreme Court of Washington reversed Pacheco’s convictions for conspiracy to commit first-degree murder and conspiracy to deliver a controlled substance.
- The court held that Washington conspiracy law requires an actual agreement between at least two conspirators; a government agent or informant who never truly intends to commit the crime cannot serve as the sole co-conspirator.
- Because Dillon acted as an undercover agent and did not share criminal intent, there was no meeting of the minds and therefore no conspiracy under the relevant statutes.
Legal Principles
- Under RCW 9A.28.040 and RCW 69.50.407, “agreement” requires a genuine concurrence of intent between at least two persons; conspiracy is not established by a defendant’s unilateral belief that an agreement exists.
- When the only alleged co-conspirator is an undercover government agent or informant who merely pretends to assent, the State cannot prove the agreement element of conspiracy.
- Acts in furtherance (including substantial steps) do not cure the absence of a bilateral agreement where no other participant possessed the requisite criminal intent.
Conclusion
Washington recognizes a bilateral theory of conspiracy: a defendant cannot be convicted of conspiracy when the only purported partner is an undercover agent or informant who feigns assent and lacks criminal intent, even if the defendant planned the crime and took steps toward carrying it out.