dissenting.
I would answer “Yes” to the certified question posed in this case. The majority resolution structures an inconsistency in the substantive law of Wyoming for the sake of being consistent with a federal substantive rule that manifests consistency within the federal law. To maintain a unilateral theory of conspiracy for all other crimes, but continue with a bilateral theory of conspiracy for controlled substances crimes injects an unwarranted complexity into the criminal law of Wyoming. I am satisfied that the legislature intended to adopt the unilateral theory of conspiracy as we held in Miller v. State, 955 P.2d 892 (Wyo.1998).
I attach no significance to the proposition that the legislature did not change the set of statutes creating offenses with respect to controlled substances at the same time. Probably the legislature did not believe it necessary to do so. Our reliance on federal authority as persuasive is misplaced here because our statutory scheme relating to the conspiracy offense has been adjusted while the federal statutory scheme is the same as it has been for years. The majority opinion adopts the stance that we are bound by the interpretation given to the federal statute at the time our controlled substances statute was adopted. Indeed we do have authority supporting that position.
The two statutes are remarkably similar:
Any person who attempts or conspires to commit any offense under this article within the state of Wyoming or who conspires to commit an act beyond the state of Wyoming which if done in this state would be an offense punishable under this article, shall be punished by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.
Wyo. Stat. Ann. § 35-7-1042 (Lexis 1999) (emphasis added).
Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by * * ⅜.
21 U.S.C. § 846 (emphasis added). Neither statute, however, offers a definition of the word “conspires.”
Perhaps my position is too simplistic, but I conclude that there is only one definition of a conspiracy in the Wyoming statutes. It is:
(a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
Wyo. Stat. Ann. § 6-1-303 (Lexis 1999) (emphasis added). Similarly, there is only one definition of a conspiracy in the federal statutes. It reads:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose and one or more of such persons do any act to effect the object of the conspiracy * * *.
18 U.S.C. § 371 (emphasis added).
The language of the federal statute tracks the language of the Wyoming statute prior to the amendment of the Wyoming statute in 1988. That statute read:
If two (2) or more persons conspire to (a) commit a felony in the state of Wyoming or to commit an act beyond the state of Wyoming which if done in this state would be a felony, and (b) one (1) or more of such persons do any act, within or without the state of Wyoming, to effect the object of the conspiracy, each, upon conviction, shall be fined not more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years or both. A conspiracy may be prosecuted in the county where the conspiratorial agreement or combination was entered into, or in any county where any act or acts evidencing the conspiracy or in any *517county wherein the furtherance of its purpose took place.
Wyo. Stat. Ann. § 6-1-117 (1977).
In Miller, 955 P.2d at 897, we said:
When we compare the first sentences of the earlier and current statutes in Wyoming, we find that the old statute began “[i]f two (2) or more persons conspire to (a) commit a felony in the state of Wyoming * * ⅜,” while the new statute reads, “[a] person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime ⅜ * ⅜.” (Emphasis added.) Our research discloses that most states that have adopted this second definition of the crime of conspiracy have embraced a unilateral approach to conspiracy, and we hold that is appropriate in Wyoming.
(Emphasis in original.) Given the fact that the revision of the Wyoming conspiracy statute post dates any of our earlier precedent relating to a conspiracy to violate the controlled substances statutes, we must acknowledge a change in Wyoming statutory law that has not occurred in the federal legislation. I would recognize that change as extending to any conspiracy to commit a crime in Wyoming, including a conspiracy to violate the controlled substances statute.
The federal cases simply follow a theory of conspiracy found in the federal statute that has remained unchanged since the adoption of the statutes regulating controlled substances. Under the federal conspiracy rule, all conspiracies must be bilateral. Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965). This is the view that has been applied to all federal conspiracy statutes, including the general conspiracy statute, the Sherman Anti-trust Act, and RICO. The policy justifications for this rule, as summarized in United States v. Escobar de Bright, 742 F.2d 1196, 1198-1200 (9th Cir.1984), are antithetical to those adopted by this court in Miller, 955 P.2d at 897-98. This federal approach maintains consistency within the federal law.
In United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994), the Supreme Court of the United States maintained the bilateral theory of conspiracy, but explained the absence of a requirement for an overt act. It relied upon the common law definition of conspiracy, as recognized in constructions of the Sherman Act, 15 U.S.C. § 1, and the Selective Service Act, and ruled that the language of 21 U.S.C. § 846 was modeled intentionally after those statutes rather than the general conspiracy statute. That rationale has to be suspect in Wyoming because our legislature specifically abolished common law crimes and provided, “[n]o conduct constitutes a crime unless it is described as a crime in this act or in another statute of the state.” Wyo. Stat. Ann. § 6-l~102(a) (Lexis 1999). In light of that language, it seems a far reach to rely upon federal precedent that invokes a common law definition of conspiracy.
I am satisfied that Wyoming no longer should follow federal precedent that invokes a bilateral theory of conspiracy in controlled substances cases. Our legislature has spoken on the issue, while Congress has not. We should serve cohesiveness in Wyoming law by having only the unilateral theory of conspiracy coupled with an over act for all criminal cases. The overt act specifically is required by our conspiracy statute and serves, in an instance such as this, to protect the individual from any overly zealous law enforcement officer.
The certified question in this case should be answered “Yes” so that the sovereign State of Wyoming can maintain the same consistency in its law of conspiracy that the federal courts have maintained in the federal law of conspiracy.