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Conspiracy, § 939.31 (to Commit Homicide) – Agreement

State v. Frederick L. Lucht, 2011AP1644-CR, District 4, 9/27/12

court of appeals decision (not recommended for publication); case activity

The record supports the existence of an agreement between Lucht and another to commit the crime of first-degree intentional homicide.

¶28      Lucht refers us to cases standing for propositions that a conspiracy cannot be based on a mere “agreement to negotiate,” see United States v. Podolsky, 798 F.2d 177, 178 (7th Cir. 1986), or on an “exploratory and inconclusive” or “preliminary” discussion, see United States v. Iennaco, 893 F.2d 394, 398 (D.C. Cir. 1990), or on an “apparent or imagined” agreement, see State v. Sample, 215 Wis. 2d 487, 500, 573 N.W.2d 187 (1998).[7]  Here, however, the recordings of the discussions between the agent and Lucht show more than an agreement to negotiate in the future, more than a preliminary or inconclusive discussion, and more than an “imagined” agreement.[8]

¶29      Much of Lucht’s remaining argument wrongly equates an agreement to perform an act at a later time with the failure to reach an agreement.  Obviously, many agreements are for the performance of an act in the future.  We do not agree with Lucht that the recordings show that he was in fact putting off any agreement as to the homicide.  Rather, they show him agreeing to have the assistant district attorney killed, but “later,” after the date that he believed he would be released and would have the money to pay the agent.

¶30      To the extent Lucht is making a related argument that the recordings show there was no agreement because the exact date for the assistant district attorney’s murder was not specified, that argument fails.  See United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001) (“The coconspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan.”); see also Iennaco, 893 F.2d at 398 (“There need not be a specific agreement as to price, quantity, and time, place and manner of delivery.”).

The context: Lucht pleaded guilty and argues that the factual basis was insufficient to support the plea, with respect to the conspiracy element of an agreement to commit the offense. Because the agreement (if there was one) was recorded by an undercover agent acting as a hit man, the court task is to determine whether undisputed facts establish the offense. As seen, the court says they do. Of possible interest: the court notes, but doesn’t need to resolve, dispute as to the nature of review of a factual-basis argument (de novo vs. deferential), ¶16. The court also expresses doubt as to whether a defendant can challenge the factual basis after the fact, if he stipulated to the factual basis when the plea was entered, but again doesn’t need to resolve the matter, ¶17. These are, it should be stressed, potentially recurrent issues.

Of further potential interest, the court indicates that federal conspiracy analysis “is helpful in analyzing the questions of Wisconsin conspiracy law presented here and therefore consider this law for its persuasive value,” ¶28 n. 8, citing State v. Routon, 2007 WI App 178, ¶¶23-38 & n.10, 304 Wis. 2d 480, 736 N.W.2d 530. In addition, Routon is quoted for the elements comprising conspiracy (“(1) an intent by the defendant that the crime be committed; (2) an agreement between the defendant and at least one other person to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy), ¶20, as is State v. Cavallari, 214 Wis. 2d 42, 51-52, 571 N.W.2d 176 (Ct. App. 1997) (“The agreement need not be an express agreement; rather, a mere tacit understanding of a shared goal is sufficient”).

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