State v. Jerry W. Sample
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SUPREME COURT OF WISCONSIN Case No.: 96-2184-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Jerry W. Sample, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: February 10, 1998 November 6, 1997 Circuit Waukesha Joseph E. Wimmer ABRAHAMSON, C.J., concurs (opinion filed) BABLITCH, J., joins Dissented: Not Participating: ATTORNEYS: For the defendant-appellant there were briefs by Gary Seeling and Seeling Law Offices, Waukesha and oral argument by Gary Seeling. For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general with whom on the brief was James E. Doyle, assistant attorney general. 96-2184-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-2184-CR STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin, Plaintiff-Respondent, FEB 10, 1998 v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Jerry W. Sample, Defendant-Appellant. APPEAL from a judgment of the Circuit Court for Waukesha County, Joseph E. Wimmer, Judge. ¶1 Affirmed. JANINE P. GESKE, J. The question certified to this court is whether Wis. Stat. § 939.311 codifies the "unilateral" or only the conspiracy. "bilateral" approach to the inchoate crime of The amended information alleged that the defendant, Jerry W. Sample, agreed or combined with another for the purpose 1 Wis. Stat. § 939.31 (1993-94) CONSPIRACY . . . [W]hoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime. . . . All other statutory references in this opinion will refer to the 1993-94 volume, unless otherwise indicated. 1 96-2184-CR of committing possessed a crime, cocaine, a and that he controlled knowingly substance, and unlawfully with intent deliver to a prisoner within the precincts of a jail. to The two people with whom Sample was alleged to have conspired were an undercover officer and a police informant. Sample cocaine, was convicted of distribution possession to a with prisoner, After a jury trial, intent and to deliver conspiracy, in violation of Wis. Stat. §§ 161.41(1m)(c)1, 161.465, and 939.31. ¶2 Sample asserts that Wis. Stat. § 939.31 criminalizes only bilateral conspiracy, that is, a conspiracy where two or more persons agree, with criminal intent, to commit a crime. The circuit court denied several motions made by Sample to dismiss the conspiracy charge and held that a person can enter into a conspiracy with an undercover agent and an informant to accomplish some common criminal objective. We conclude that a plain reading of Wis. Stat. § 939.31 embraces both unilateral and bilateral conspiracies, and therefore affirm the circuit court. I. FACTS AND PROCEDURAL HISTORY ¶3 The defendant, Jerry W. Sample, officer at the Waukesha County Jail. offered Sample $50 to get a pack was a correctional In July 1993 an inmate of "cigarettes" from his "grandmother" in Milwaukee, and to bring it to him in the jail. After further conversation, Sample agreed, went to an address the inmate had given him, picked up the package and the $50, and delivered the package to the inmate. 2 96-2184-CR ¶4 Over the next several months, Sample brought similar packages to the inmate on approximately 15 occasions. At some point Sample understood that these packages actually contained marijuana or cocaine, and that the inmate was distributing these controlled substances to other inmates in the jail. Sample was typically paid $50 for picking up and delivering the packages. He was paid $100 when a package contained cocaine. ¶5 At some point in the fall of 1993, the Waukesha County Sheriff's Department received information that a prisoner housed in the federal block of the jail was receiving substances from a Sheriff's Department employee.2 Sheriff's Department prisoners formerly interviews led the traveled housed to at interview the investigators focus Members of the several Waukesha to controlled jail. on a federal Those particular federal prisoner then housed in the Waukesha County Jailthe inmate with whom Sample had been working. ¶6 Before meeting with the inmate, Captain Lentz, the officer in charge of the investigation, met with the Assistant United States Attorney for the Eastern District to learn more about him. On December 2, 1993, Captain Lentz met with the inmate at the United States Attorney's office in Milwaukee, and promised the inmate that the State would not prosecute him for his involvement in distributing drugs in the Waukesha County 2 The Waukesha County Jail, at least at the time of these events in 1993, had a contract to serve as a federal holding center. As such, the jail housed federal prisoners whose cases were pending, or who, for example, were en route from a federal facility to hearings. 3 96-2184-CR Jail if he cooperated in the investigation. to cooperate with authorities and The inmate agreed identified Sample as the employee who was bringing in the controlled substances.3 ¶7 On December 8, 1993, Mr. Bernard J. Tesmer, of the Waukesha County Jail, watched a video surveillance monitor and observed the inmate and correctional officer Sample having some contact in one of the jail cell pods. observation. Tesmer testified Tesmer made a note of his that the inmate and Sample exchanged some sort of small package or envelope, but Tesmer did not know the contents contacted the jail of captain the in package. Tesmer charge the of immediately investigation. Later that same day, arrangements were made for an undercover officer to meet with Sample outside a restaurant, so that the undercover officer could give Sample $200. Sample never went to the restaurant that day. ¶8 On the following day, December 9, 1993, Waukesha authorities conducted a controlled "reverse sting" operation in which the inmate asked Sample to get a package of cocaine from the inmate's girlfriend and to bring it to the jail. As he was instructed by the inmate, Sample met the girlfriend, who was actually an undercover cocaine from her. the transaction detective, and received a package of When the undercover detective signaled that had taken moved in to arrest Sample. place, other officers immediately As one of the officers identified 3 Although he agreed to cooperate in the investigation, the inmate never directly admitted that he had distributed controlled substances to other Waukesha County Jail inmates. 4 96-2184-CR himself and ordered Sample not to move, Sample tossed the package of cocaine on the ground beside him. ¶9 Sample admitted in a police interview later that day that he had been bringing marijuana and cocaine to the inmate for several conspiracy months. to Sample possess a was charged controlled with substance one with count of intent to deliver to an inmate during late November and early December 1993.4 ¶10 Sample challenged the conspiracy charge in a motion to dismiss the information and renewed his argument several times before and during the trial, including a request for jury instructions encompassing the bilateral approach to conspiracy. Sample argued to the circuit court, citing State v. (Thomas C.) Smith, 189 Wis. 2d 496, 501, 525 N.W.2d 264 (1995), that a conspiracy must involve at least two people, with each member subject to the same penalty for the conspiracy, or that each person has a stake in the outcome. Sample argued that Wisconsin's conspiracy statute is bilateral and that he could not be convicted of the crime because the other members of the conspiracy never intended that a crime be committed. ¶11 Ruling on Sample's motion to dismiss, the circuit court held that an undercover agent can enter into a conspiracy with another person in a mutual understanding to accomplish a common criminal objective, even 4 though the two parties have Sample was charged with violating Wis. Stat. § § 161.01(4), 161.16(2)(b)(1), 161.41(1m)(c)(1), 161.465 and 939.31 (1993-94). 5 96-2184-CR different reasons in fact for doing so. rejected Sample's proposed jury The circuit court also instruction, ruling that a conspiracy could occur even if the stakes were different for each of the actors. The circuit court then instructed the jury using the standard instruction Wis JICriminal 570.5 5 The circuit court gave the following instruction, based on pattern instruction Wis JICriminal 570: The crime of conspiracy, as defined in Section 939.31 of the criminal code of Wisconsin is committed by one who, with intent that a crime be committed agrees or combines with another for the purpose of committing such crime, if one or more of the parties to the conspiracy does an act to affect it's [sic] object. The defendant in this case is charged with having conspired to commit the crime of possession of cocaine with intent to deliver to a prisoner within the precincts of a jail. Before you may find the defendant guilty, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. The first element requires that the defendant intended that the crime of possession of cocaine with intent to deliver to a prisoner within the precincts of a jail be committed. The second element of the crime of conspiracy requires that the defendant was a member of a conspiracy to commit the crime of possession of cocaine with intent to deliver to a prisoner within the precincts of a jail. A person is a member of a conspiracy if with intent that a crime be committed, the person agrees with or joins with another for the purpose of committing that crime. A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. It is not necessary that the co-conspirators had any express or formal agreement or that they had a meeting or even that they all knew each other. 6 96-2184-CR ¶12 On November 22, 1995, the jury found Sample guilty of conspiracy to possess a controlled substance with intent to deliver to an inmate, and he was sentenced to eight years in prison. Sample appealed, and we accepted certification6 from the court of appeals.7 Sample now asks this court to vacate his The third element of the crime of conspiracy requires that an act to effect the object of the conspiracy was performed by one or more of the coconspirators, such an act must be more than mere planning and agreement. However, it need not by itself be an attempt to commit the crime or an unlawful act. If there was an act which was a step toward accomplishing the criminal objective, that is sufficient. If you're satisfied beyond a reasonable doubt that the defendant intended that the crime of possession of cocaine with intent to deliver to a prisoner within the precincts of a jail be committed, that the defendant was a member of a conspiracy to commit the crime, and that an act toward the commission of that crime was performed by a member of the conspiracy, you should find the defendant guilty. If you're not so satisfied, you must find the defendant not guilty. 6 The court of appeals requested certification pursuant to Wis. Stat. § (Rule) 809.61 (1995-96). 7 The question of whether the Wisconsin legislature adopted a "unilateral" or "bilateral" approach to conspiracy was before the court once before. In 1995 this court accepted certification in State v. (Edgar) Smith, No. 94-1725-CR. After hearing oral arguments, the court determined that the unilateral versus bilateral issue was never raised in the circuit court, and then vacated the order accepting the certification. 7 96-2184-CR conviction and the sentence imposed, claiming that no crime of a one-person conspiracy exists under Wisconsin law.8 II. ¶13 The issue STANDARD OF REVIEW presented is one of statutory interpretation, a question of law which this court reviews de novo. See State v. Sostre, 198 Wis. 2d 409, 414, 542 N.W.2d 774 (1996). We have often expressed the rules by which we interpret statutes: The purpose of statutory interpretation is to discern the intent of the legislature. To do so, we first consider the language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that intent to the case at hand and do not look beyond the statutory language to ascertain its meaning. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997) (citations omitted). By focusing 8 on the intent of the In its memorandum requesting certification, the court of appeals suggested that this case presents an opportunity to give guidance to the Criminal Jury Instructions Committee in drafting pattern instructions that correctly state the law of conspiracy. See Wis. JICriminal 570, 401, 410. The committee uses the same definition of conspiracy in its pattern instruction for the charge of party to a crime under Wis. Stat. § 939.05, and the charge of conspiracy under Wis. Stat. § 939.31. The former statute codifies vicarious liability for a substantive crime under the conspiracy theory, and the latter codifies the inchoate crime of conspiracy. We conclude that a challenge to either the jury instructions for the inchoate crime of conspiracy, Wis. Stat. § 939.31, or to the instructions for Wis. Stat. § 939.05, is not presented in this case and decline to specifically address it. 8 96-2184-CR legislature rather than our own policy views, we preserve principles of separation of powers. ¶14 however. Legislative intent is not always readily discernible, Our rules of interpretation also recognize that [a] statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. However, a statute is not rendered ambiguous merely because the parties disagree as to its meaning. If a statute is ambiguous we look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. However, resort to legislative history is not appropriate in the absence of a finding of ambiguity. Setagord, 211 Wis. 2d at 406 (citations omitted). ¶15 The parties in this case disagree as to the meaning of Wis. Stat. § 939.31.9 a plain reading interpretation of of the Both Mr. Sample and the State contend that Wis. Stat. statute. § 939.31 Under Sample's statute applies only to bilateral conspiracies. the statute conspiracies.10 to encompass The circuit both court supports their reading, the The State reads unilateral and concluded that bilateral the plain meaning of the statute permitted prosecution for a unilateral conspiracy. 9 Wis. Stat. § 939.31 (1993-94) was revised by 1995 Act 448, § 447, effective July 9, 1996, to reflect a renumbering of a referenced statute. The revision did not materially change the statute. 10 The State conceded in its brief to this court that if the statute is interpreted to include only bilateral conspiracies, then Sample could not be found guilty under the statute. 9 96-2184-CR ¶16 Commentators unilateral and have bilateral described the differences conspiracies. "Under a between unilateral formulation, the crime of conspiracy is committed when a person agrees to proceed in a prohibited manner." Note, Conspiracy: Statutory Reform Since the Model Penal Code, 75 Colum. L. Rev. 1122, 1136 (1975)[hereinafter Statutory Reform]. approach assesses defendant in the subjective, determining guilt. individual See The unilateral behavior Dierdre A. of a Burgman, Unilateral Conspiracy: Three Critical Perspectives, 29 DePaul L. Rev. 75, 76 (1979-80). conspiracy will Under the unilateral approach, criminal lie even where one of two alleged "co- conspirators" is, unknown to the defendant, an undercover police agent or a police informant who merely feigns participation in the conspiracy. "[T]he immateriality of co-conspirators' legal status to defendant's criminal liability is implicit in the . . . unilateral approach." Statutory Reform, at 1138. "[U]nder a bilateral formulation, the crime of conspiracy is committed when two or more persons agree to proceed in [a prohibited] manner." Id. at 1136. III. PLAIN LANGUAGE ¶17 conclude Sample that makes Wis. several Stat. arguments § 939.31 applies in urging only to us to bilateral conspiracies. We will first address his argument that the plain language of the statute evinces a legislative intent to cover only bilateral conspiracies. Sample contends that the undefined term "whoever" in the statutory phrase "[W]hoever, with intent that a crime be committed, agrees or combines with another for 10 96-2184-CR the purpose of committing that crime may," necessarily refers to "persons" in the plural. Sample also contends that the undefined verbs "agrees" and "combines" in the statute imply plurality. He relies on Kenosha Unified School Dist. No. 1 v. Kenosha Ed. Ass'n, 70 Wis. 2d 325, 332, 234 N.W.2d 311 (1975) and State v. Richard Knutson, Inc., 196 Wis. 2d 86, 106-07, 537 N.W.2d 420 (Ct. App. 1995), for these grammatical conclusions. ¶18 assert The State counters that "whoever" is with an a indefinite either singular, plural, or both. Dictionary, Usage Note to dictionary definition pronoun to which be may See The American Heritage "everyone" at 470 (2d college ed. 1982); see also Webster's Third New International Dictionary at 2611 (1986 unabridged). verbs "agrees" and Next, the State points out that the "combines", as found statute, are in the singular inflection. in the conspiracy Further, the State asserts that the dictionary definitions do not require that the "agreement" or "combination" must actually exist. Instead, according to the State, the "agreement" or "combination" in the context of a conspiracy statute may be real, apparent, or merely imagined, and still be compatible with the ordinary definition of the terms. ¶19 The authorities offered by Sample to confine "whoever" to the plural form are not persuasive. nor Richard Knutson addresses singular or solely plural. whether Neither Kenosha Unified "whoever" is solely The court in Kenosha interpreted a 11 96-2184-CR statute assessing penalties for striking municipal employees.11 See 70 Wis. 2d at 330-332. The school district argued that the penalty statute applied to the teachers' union as a whole, as well as to contention individual was whether striking teachers. "whoever" applied The only point to of individual human beings, or whether it also applied to collective groups of individuals, such as unincorporated associations. concluded that the plain language of the This court statute evinced a legislative intent only to limit the potential penalty imposed upon individual provision that strikers, any fine based imposed in part could be on the deducted statutory from the striker's salary. ¶20 that the 11 The court of appeals term "whoever" as in used Richard in a Knutson12 concluded homicide statute was That statute read in pertinent part: Wis. Stat. § 111.70(7) PENALTY FOR STRIKER. Whoever violates sub. (4)(l) after an injunction against such a strike has been issued shall be fined $10. After the injunction has been issued, any employee who is absent from work because of purported illness shall be presumed to be on strike unless the illness is verified . . . The court shall order that any fine imposed under this subsection be paid by means of a salary deduction at a rate to be determined by the court. 12 In State v. Richard Knutson, Inc., 191 Wis. 2d 395, 528 N.W.2d 430 (1995), this court vacated its decision to certify the question presented by the court of appeals, because, after oral argument, the court was equally divided on whether to affirm or reverse the judgment of the circuit court. 191 Wis. 2d at 396. This court then remanded the cause back to the court of appeals, whereupon that court issued its decision, published at 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995). 12 96-2184-CR ambiguous as to whether it referred only to human beings, or to both natural and artificial persons.13 See 196 Wis. 2d at 96. The Richard Knutson court was not asked to determine the number of human beings included in the term "whoever" as used in Wis. Stat. § 940.10. ¶21 meaning We agree with the State that the common and ordinary of the word "whoever" can individual or more than one person. encompass both a single For purposes of statutory interpretation or construction, the common and approved usage of words may be established by consulting dictionary definitions. See Wis. Stat. § 990.010(1); see also Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995). that courts may resort ambiguous statutes. to a dictionary This is not to say only when construing See Figgs v. City of Milwaukee, 121 Wis. 2d 44, 51, 357 N.W.2d 548 (1984) and State ex rel. Smith v. City of Oak Creek, 139 (concluding Wis. 2d that the 788, 798 necessity dictionary to ascertain the usual n.6, of 407 N.W.2d looking meaning of to 901 (1987) a standard words does not render a word used in a statute ambiguous). ¶22 One dictionary frequently relied upon by courts defines "whoever" as a pronoun with the following meaning: "1. Whatever person or persons: Whoever comes will be welcomed. 2. Who: Whoever could have dreamed of such a thing?" The American 13 Wis. Stat. § 940.10 provided in pertinent part: "[W]hoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class E felony." 13 96-2184-CR Heritage Dictionary of 1992). We conclude that the term "whoever" can be read as singular or plural. the English Language at 2038 (3d ed. Second, we do not read the terms "agrees" or "combines" strictly to require application to a unilateral conspiracy. Instead, we simply conclude that the singular form of "agrees" and "combines" when used with the indefinite pronoun "whoever" represents subject-verb agreement within the language of the statute. ¶23 We disagree with the State's third grammatical argument that an "agreement" or "combination" in the context of a conspiracy charge may be merely apparent or imagined. The State asserts that the dictionary definitions for those terms do not require actual existence, and encompass "imagined" agreements. from a poor choice of words likewise the statute may This third argument may suffer more than anything else. We understand the State's position to be that feigned agreement by another member of the conspiracy unilateral approach. We agree. between charged a defendant is sufficient under the In the context of an agreement under Wis. Stat. § 939.31 and another person, as long as the parties agree or combine by their words or actions, it is not necessary that the other person intend agreement. ¶24 His or her "agreement" may be feigned. The State also argues that Wis. Stat. § 939.31 plainly encompasses unilateral conspiracies because the statutory phrase, "with intent that a crime be committed" modifies only the pronoun "whoever." The relevant portion of the statute reads: "[W]hoever, with intent that a crime be committed, agrees 14 96-2184-CR or combines with another crime may . . . ." for the purpose of committing that Because of the placement of that modifying phrase - following the pronoun "whoever," but preceding "agrees or combines" - the State asserts that the legislature intended to embrace the unilateral conspiracy theory. The statute therefore, according to the State, only requires intent on the part of the individual charged, the "whoever," and not necessarily intent by any of the persons who agree or combine with the defendant for the purpose of committing a crime, or who seemingly do so. ¶25 of the purpose A plain reading of Wis. Stat. § 939.31's codification inchoate14 crime to the defendant. assess of conspiracy subjective evinces behavior legislative the of a individual This purpose is discerned from both the use of the singular form of pronouns and verbs, as well as the absence, within the statute, of a requirement of criminal intent on the part of anyone other than the person charged. To read the statute as only applying to bilateral conspiracies would mean that a person is liable for conspiracy based on the state of mind of singular another. form construction of of 14 Blacks "inchoate": Imperfect; completed; parties. Such the the Law a reading statutory would terms, statute itself. Dictionary 761 be contrary and The (6th the 1990) partial; unfinished; begun, but as a contract not executed by all 15 the grammatical district ed. to attorney defines not the 96-2184-CR succinctly summed up the application of the statute in the case of a unilateral conspiracy: [The inmate], even if he is acting as an agent of the State, can still be a part of the conspiracy if he has an agreement with [the inmate] (sic) to bring the drugs - - with Mr. Sample to bring the drugs into the jail. Mr. Sample is stuck with who he chose to deal with. He chose [the inmate], who turned informant on him and turned essentially state's evidence. That's still part of the conspiracy from the time frame that's charged when this defendant admitted that he was delivering cocaine into the jail between November and December of 1993. Just because the person who he's conspiring with to achieve an objective happens to turn state's evidence on him and he doesn't know about it doesn't mean the conspiracy no longer exists. To read the statute as limited to bilateral conspiracies would preclude the State from prosecuting anyone who entered into an agreement to commit a crime, where that second person is cooperating with law enforcement authorities, or otherwise lacks criminal intent.15 Instead, we read the plain language of the statute to focus on the criminal intent of a single defendant. We conclude embraces that both the plain language unilateral of Wis. conspiracies Stat. and § 939.31 bilateral conspiracies. ¶26 statute Defendant to include Sample the next argues unilateral 15 that interpreting conspiracy approach the is We recognize, however, that some jurisdictions have codified only a bilateral formulation of conspiracy. Those jurisdictions include, for example, Cal. Penal Code § 182 (West. 1998); Iowa Code Ann. § 706.1 (West. 1997); Mich. Comp. Laws Ann. § 750.157a (West. 1997); Tenn. Code Ann. § 39-12-103 (West 1997); and 13 Vt. Stat. Ann. tit. § 1404 (West. 1997). 16 96-2184-CR inconsistent with prior case law. We disagree. The cases Sample cites are either factually distinct or concern another statute. ¶27 Sample bases his interpretation of Wis. Stat. § 939.31 in part on State v. (Thomas C.) Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995). He cites Smith for the proposition that a conspiracy must involve at least two people, with each member subject to the same penalty for the conspiracy, or that each person has a stake in the outcome. The true rationale of Smith, however, was that members of the conspiracy must be in agreement to commit the same crime.16 In that case, the defendant seller was convicted of conspiracy to deliver a controlled substance. However, the only evidence presented by the state was that the seller purported to have in his possession and agreed to sell a small amount of controlled substance to the buyer. The amount was consistent with personal use, and there was no claim that the buyer thereafter intended to sell, controlled substance to a third party. deliver or give the See 189 Wis. 2d at 498. Based on the evidence, we determined that at most the buyer could have different charged. to been crime guilty from of that a with misdemeanor which of possession, defendant seller a was We therefore concluded that there was no factual basis sustain a theory of conspiracy 16 to deliver a controlled Indeed, a difference in actual available penalties cannot dictate whether persons are subject to liability for conspiracy under Wis. Stat. § 939.31. For example, one member of the conspiracy could have already had a criminal history and be subject to a penalty enhancer for being a repeater. 17 96-2184-CR substance, plea. and allowed See id. at 504. the defendant to withdraw his guilty The evidence in this case is different, and is not consistent with mere personal use of a controlled substance. Here, the evidence shows that Sample conspired to deliver drugs to someone engaged in delivering drugs to other persons in a jail. ¶28 The "stake in the outcome" language from Smith derives from cases directly or indirectly relying on State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), cert. denied, 380 U.S. 918 (1965), overruled on other grounds, State v. Stevens, 26 Wis. 2d 451, 463, 132 N.W.2d 502 (1965). Nutley concluded that "each member of the conspiracy must individually consciously intend the realization of the particular criminal objective." The Nutley court then went on to say that "[e]ach must have an individual 'stake in the venture.'" 24 Wis. 2d at 556. Nutley gave that explanation of the party to a crime statute by relying upon language from cases written before the conspiracy statute was revised. ¶29 regarding separate Stat. Although the Sample individual element § 939.31, argues stake necessary we to conclude in that the establish otherwise. different statute, Wis. Stat. § 939.05. the Nutley venture statement constitutes liability Nutley under a Wis. concerned a Further, the statement in Nutley did not lay down a new element for proof of that crime, but instead offered a narrative description of the type of proof that could be used to prove the statutory elements for party to a crime liability. As such, Nutley and its progeny do 18 96-2184-CR not compel us to read into the plain language of the inchoate crime of conspiracy statute either an additional element of intent on the part of the other members of the conspiracy, or alternately, an element of a "stake in the venture," or "stake in the outcome."17 Nutley involved the charge of party to a crime under Wis. Stat. § 939.05. basis for criminal liability, inchoate crime of conspiracy. That statute forms a separate distinct from that for the Nutley described the operation of the conspirators' intent in party to a crime liability: the fact of agreement imposes liability for the substantive offense on all conspirators perpetrator. when the crime is See 24 Wis. 2d at 555. consummated by a single In contrast, under the inchoate crime of conspiracy, by definition no substantive crime 17 We find support for our distinction of Nutley in other cases. See, e.g., State v. Hecht, 116 Wis. 2d 605, 627, 342 N.W.2d 721 (1984). A number of Wisconsin decisions have held that "a stake in the venture" is not an element of the crime of party to a crime codified in Wis. Stat. § 939.05. See, e.g., Krueger v. State, 84 Wis. 2d 272, 286, 267 N.W.2d 602 (1978) cert. denied, 439 U.S. 874; State v. Manson, 76 Wis. 2d 482, 486, 251 N.W.2d 788 (1977); State v. Asfoor, 75 Wis. 2d 411, 427, 249 N.W.2d 529 (1977). One case relied upon by Nutley was Direct Sales Co. v. United States, 319 U.S. 703 (1943), an inchoate conspiracy case. However, the Court in Direct Sales considered proof of a stake in the venture as merely relevant to proof of the transition from knowledge to intent to participate in the commission of a crime. Direct Sales, 319 U.S. at 704, 713. Direct Sales did not elevate proof of a stake in the venture to an element of the inchoate crime of conspiracy. Nor does the language of Wis. Stat. § 939.31 include a "stake in the venture" as an element. We will not judicially insert it. 19 96-2184-CR is ever needed. Wisconsin Stat. § 939.31 focuses on the subjective behavior of the individual defendant.18 IV. OTHER CLAIMS ¶30 Sample also briefly argues that the reverse sting in this case violated his right to protection from ex post facto prosecution and his rights to due process under the law. Because we read Wis. Stat. § 939.31, as presently drafted, to have always encompassed unilateral conspiracy as a criminal act, this is not a retrospective interpretation and Sample's claims of ex post facto prosecution and deprivation of a due process 18 Recently, the court of appeals in State v. West, 214 Wis. 2d 467, 475, 571 N.W.2d 196 (Ct. App. 1997), stated that the elements of a conspiracy under Wis. Stat. § 939.31 are: "(1) an agreement between the defendant and at least one other person to commit a crime; (2) intent on the part of the conspirators to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy," citing Hawpetoss v. State, 52 Wis. 2d 71, 80, 187 N.W.2d 823 (1971). The issue in West was only whether there was any evidence that another person had agreed with West to commit a crime. The West court did not reach the question of whether the other person possessed criminal intent. The Hawpetoss court, upon which the West court relied, in turn relied on Nutley, 24 Wis. 2d 527. Two other court of appeals § 939.31 conspiracy cases recite the need for intent on the part of more than one conspirator, based on the language in Nutley but without relying on that requirement for their holdings. See State v. Copening, 103 Wis. 2d 564, 579, 309 N.W.2d 850 (Ct. App. 1981) (holding that probable cause existed to charge the defendant with conspiracy) and State v. Blalock, 150 Wis. 2d 688, 704, 422 N.W.2d 514 (Ct. App. 1989) (holding that co-conspirator's statements were admissible because his acts were in furtherance of the conspiracy). We do not read either of these decisions as inconsistent with our conclusion that Wis. Stat. § 939.31 encompasses the unilateral approach. 20 96-2184-CR right to advance warning of prohibited conduct are not supported. ¶31 In addition, Sample argues that a unilateral reading of the statute allows law enforcement officers to create crimes. He also claims that he is the victim of a governmental abuse of power, in the form of the reverse sting operation which resulted in his arrest. Sample, while not asserting the affirmative defense of entrapment, states that the investigating officers "created a conspiracy-like Petitioner's brief at 25. ¶32 crime to ensnare Mr. Sample." We disagree with both assertions. The government conduct in this case was to infiltrate an ongoing scheme of bringing drugs into the precincts of a jail. the The complaint against Mr. Sample was not based merely on events provided of December opportunity 9, for 1993. government may have particular a The delivery, but the government did not create the crime here. not instigate the ongoing jail. 267 scheme of The government did bringing drugs into the See State v. Steadman, 152 Wis. 2d 293, 302, 448 N.W.2d (Ct. violated. App. 1989). Sample's due process rights were not Further, the fact that the investigating officers enlisted the aid of a jail inmate and utilized an undercover officer is not the type of police behavior that is "shocking to a universal sense of justice." United States v. Russell, 411 U.S. 423, 432 (1973) (holding that where law enforcement agents provided the defendant with ingredients for illegal manufacture of drugs, the agents' participation was not unfair or shocking 21 96-2184-CR to any sense of justice because it related to criminal activity already in progress). ¶33 Because the plain language of Wis. Stat. § 939.31 evinces a legislative intent to criminalize both unilateral and bilateral conspiracies, we affirm the judgment of the circuit court. By the Court. The decision affirmed. 22 of the circuit court is 96-2184-CR.ssa ¶34 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). join the court in its mandate. I I write separately to express my disagreement with the majority opinion's reliance on the plain meaning canon to interpret Wis. Stat. § 939.31. ¶35 In determining the legislative intent, the opinion looks solely to the text of the statute. majority Discussing whether the word "whoever" is singular or plural, the majority bases its decision that the statute embraces the unilateral approach to conspiracy on the statute's use of pronouns and verb conjugations. statutory Pronouns are a natural source of uncertainty in interpretation because they have little inherent meaning and do not contain enough information on their own to name the person(s) to whom they are intended to refer. See Lawrence M. Solan, The Language of Judges 38, 121 (1993). ¶36 In using dictionary meanings and rules of grammar, the majority dons thick grammarian spectacles and fails to see other available evidence bearing on the meaning of the statute.19 this case reports the 1950 provide conspiracy a statute, and rich a 1953 Wisconsin discussion discussion on Legislative the which is In Council revisions to the omitted by the majority opinion. 19 West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 113 (1991) (Stevens, J., dissenting) (criticizing the majority opinion for putting on "its thick grammarian's spectacles and ignor[ing] the available evidence of congressional purpose and the teaching of prior cases construing a statute"). 1 96-2184-CR.ssa ¶37 The majority's approach has been criticized by scholars and courts, including the United States Supreme Court in Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976). The Train Court refused to rely exclusively on the plain language of a statute: "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clean examination.'" the words may appear on 'superficial Id. at 10 (quoting United States v. American Trucking Ass'ns., 310 U.S. 534, 543-44 (1940)). ¶38 Furthermore, in resolving the meaning of the statute, the court should consider the public policy reasons that support either a unilateral or a bilateral approach to conspiracy. Justification for the unilateral approach is explained in the Model Penal Code as follows: "Under the unilateral approach of the [Model Penal] Code, the culpable party's guilt would not be affected by feigned. the . . . fact [H]is that the other culpability is party's not agreement decreased by was the other's secret intention."20 ¶39 Public policy also supports the bilateral approach to conspiracy. One court explained the rationale for the bilateral rule as follows: The rationale behind making conspiracy a crime also supports [the bilateral] rule. Criminal conspiracy is an offense separate from the actual criminal act 20 Model Penal Code and Commentaries, Part I § 5.03, at 400 (1985). 2 96-2184-CR.ssa because of the perception "that collective action toward an antisocial end involves a greater risk to society than individual action toward the same end." In part, this view is based on the perception that group activity increases the likelihood of success of the criminal act and of future criminal activity by members of the group, and is difficult for law enforcement officers to detect . . . . Such dangers, however, are nonexistent when a person "conspires" only with a government agent. United States v. Escobar De Bright, 742 F.2d 1196, 1199 (9th Cir. 1984)(emphasis added) (citations omitted). ¶40 the I would interpret Wis. Stat. § 939.31 by considering statutory language, the legislative history, the prior cases, the legislative purpose and the conspiracy statute in the context of the criminal code. Several scholars have proposed methods of statutory interpretation that take into account the text and various extrinsic aids.21 By using this approach to statutory interpretation, judges can acknowledge and deal with interpretive problems that arise from the inherent ambiguity of language as well as the limits of our linguistic capabilities. See Solan at 117. ¶41 For the foregoing reasons, I join the court's mandate and write separately. 21 See, e.g., Ronald Dworkin, Law's Empire (1986) (focusing on the entire history of a statute and how it fits into the current legislative scheme); Richard A. Posner, The Problems of Jurisprudence (1990) (placing weight on the pre-enactment history of a statute); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990) (urging consideration of a broad range of textual, historical and evolutive evidence in interpreting statutes). 3 96-2184-CR.ssa ¶42 I am authorized to state Bablitch joins this concurrence. 4 that Justice William A.
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