the government's position in the states puts it at odds with numerous or first entree to every other district judge who makes this issue in the in washington that the government asked the court to conclude that and rivers so on this chad just so the set the table here you have your first argument if we have just gone down the decision tree here if we agree with you on the first argument let's say you're right and the russian statute is broader than the and again there's simply nothing in the statute so mr and i have to say looking at this case i was maybe just the irony of the taylor world you're the defense attorney in this case and you are you arguing for a very broad reading of the state conspiracy statute and the prosecution in this case is arguing for a new very narrow interpretation of the conspiracy statute is that correct that we live in and so as a defense lawyer i know about i am always looking for state court decisions that broadly interpret state court law that i would not be looking for if i were practicing in state court but one of the surprises me that since it's been twenty years and it's not like the run prosecutions for drug conspiracies that we don't have more examples to choose from and even that one doesn't seem it's not rock solid in terms of making it clear that what it was because you're dealing with guilty pleas there but is there anything else i've seen you look pretty thoroughly but is there anything else we're going to look to to establish that in fact prosecutes drug conspiracies even though the only other members of the conspiracy are government agents well we know they prosecute them because they didn't put taiko i think the question is whether they can prosecute them and i don't think the court actually needs to find an example because the washington law so clearly allows that type of prosecution but let me try to explain the reason why it's so hard to find the case as well which goes to the next issue in the case washington conspiracy under washington law is  so the statutory max is a one year a defendant cannot get more than one year unless aggravators are proof to a jury so washington prosecutors don't prosecute drug washington drug conspiracies they allow people to plead allowed but it's very difficult to find because you don't you don't appeal a phone count and you don't appeal to washington friends i make sense does the court want me to address the second is may please the court image a cat on behalf of the united states the district court was right here in washington conspiracy to deliver a controlled substance is a controlled substance offense under federal sentencing guidelines the court just asked a question about whether there are other cases out there that demonstrate the realistic possibility which is required by duenas alvarez and there is not that type of a case first of all pacheco was of course not that case because the supreme court in washington decided that that was not a conviction that could stand so that can't count when to as well your honour's i would submit i'm not a conviction that could stand in the premium ended statute version but we have the amended statute and let me start by asking just is is there a logic in thinking that washington would want to amend its general conspiracy statute but not amend the drug conspiracy possibility i mean it just i have trouble understanding why they draw a line there you know i think there is logic in that yes and the logic stems from the fact that this the washington legislature's that's not two totally separate substantive offenses drug conspiracy and criminal conspiracy the prosecutors in washington must charge drug conspiracy if they're looking at a drug conspiracy they cannot charge under the criminal conspiracy statute the punishments differ between those statutes and of course the elements differ as well because delivery requires at least three people which criminal conspiracy does not so at a fundamental point the legislature is setting out two totally separate crimes here and you can see that from the way that the criminal conspiracy statute reads sets out the crime specifically called criminal conspiracy it defines that crime it sets out the elements for that crime it sets out the defense the defenses for that crime and then it sets out the punishment if that statute was repealed tomorrow if title mind itself was repealed tomorrow in section four rows section four zero seven would still be there the dress that you would stand and in fact it predates title mind so it makes sense that these are being treated differently  and of course the statutes are modeled after the laws that are in place in the federal system that being that section eight forty six punishes drug conspiracy totally separately from section three seventy one which punishes the general crime of criminal conspiracy they function differently it's not our argument that you can never look from one to the other to help make a definition which is what the washington courts have done over and over again in their conspiracy statu but they do not automatically apply to the other in the fact that the criminal conspiracy statute was amended does not mean that the drug conspiracy statute was amended i would submit your honour's that you can tell that from the amendment text itself m never mentioned section four zero seven never mention drug conspiracy the legislative history does reference pacheco which tells the court that the legislature had looked at that decision  just reference criminal conspiracy a chose to a man specifically the defense a section of criminal conspiracy so it did not amend the title mind general definition section which does exist and it amended  defenses to the crime the separate substantive crime of criminal conspiracy with no mention whatsoever to drug conspiracy so still stands on that issue your honor i wanted to make a point about twenty decision which we don't think demonstrates a realistic possibility that the law could be applied in the way that appellate posits specifically that case involved a plea to conspiracy to deliver controlled substances in washington so it was not a jury conviction as the other three counts were and that's significant because of state versus out which is cited at one fifty seven washed two d one eighty eight two thousand and six case which sanctions compromise played such a this in the court there specifically said that a defendant can plead guilty to charges with no factual basis as long as the record shows a factual basis for the underlying charge and so what that means is that the defendant in went as could well have pled guilty to a conspiracy charge with no factual basis and that would have been fine under washington law as long as the original delivery charge had the factual basis so when tis is not a case that demonstrates a realistic possibility that this court would be in conflict with all the district courts that have held on this issue one thing i would note with respect to all of those decisions is that none of them appear to have considered whether there's a realistic possibility that the law could be applied in this matter and that is of course both essential and detrimental to the argument in this case the court has no questions on the other remaining issues particularly i'd be happy to address the punishment question but if there are no questions well i'd like for you to go back and perhaps elaborate or make clear to me the answer to the question i posed at the beginning which was the logic behind but he between drawing the line where the legislature did why why treat drug conspiracies differently from criminal conspiracy generally i mean you told me there are separate statutes you told me they could but i didn't absorb and maybe i just missed it why the legislature would have freed of the differently particularly in the wake of the chaco which explicitly lumped the two statutes together and talked about conspiracies under both the statutory provisions so why i treat it differently and is there any indication of the legislative history that the legislature intended to do something with regard to one but not the other you know i think that that indication is clear from the legislative history yes the drug conspiracy statute in washington was designed to be uniform with the uniform controlled substances act which of course was modeled on the federal drug control act and we know that because section six zero three in that same statutory provision states exactly that that it is intended to be interpreted consistently and uniformly with that act and the case law also mirrors that in federally as well as in the uniform controlled substances act the drug conspiracy is treated differently from general conspiracy so there's that and you also have your honor the fact that in the one thousand nine hundred seven amendment to criminal conspiracy the legislature referenced the model penal code as the basis for that amendment the model penal code suggested that you know unilateral conspiracies should not be a defense and that is what the legislature in washington adopted the model not the basis for the uniform controlled substances act that was applied here or adopted here in washington or elsewhere so you have that to look at your honor in addition to that the title mine  itself provides a conflict clause which we believe applies in this case that title provides that unless otherwise expressly provided or unless the context otherwise requires that the definitions and provisions of title min apply to other statutes in our position of course is that the washington supreme court has already held on this issue and they have held that a bilateral agreement is required for drug conspiracy and that stands and i would note your honor that that is consistent with how washington courts continue to apply bilateral agreements for drug conspiracies there are multiple cases that we set forth in our brief that are posted checco and after the  seven amendment that indicate that a bilateral agreement is still required for drug conspiracy in a bat's the way the washington courts are interpreting this and they are not considering pacheco to have protected have been repealed they are not considering the one thousand nine hundred seven amendment change that then we submit that that is the proper interpretation of this question of washington i haven't heard yet why that there would be any logic in the washington legislature amending just the general conspiracy statute and not the drug conspiracy statute and it's true that washington can drop conspiracy was modeled after the some washington cases that continue to cite to check over the bilateral requirement and i don't just agree that there continues to be a biological requirement but none of the cases that the government cites talk about the exception in fact all of the cases the government cites cite legislature which doesn't require an act of legal imagination that the washington state prosecution would enforce its statute the way it is written but the government's argument with a with regard to  its face what the government is telling us is in the state of washington you don't need a factual basis at all and if you don't need a factual basis at all it can't match exactly the elements of the federal offense ok thank you very much for your argument to both counsel just never submitted