Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the Clerk of the
Appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
JACALYN BACHLET, )
) Court of Appeals No. A-5823
Appellant, ) Trial Court No. 3PA-S94-833CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1537 - June 13, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Mark C. Rowland, Judge.
Appearances: Rex Lamont Butler and Linda S.
Thomas, Rex Lamont Butler and Associates, Anchorage, for Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Joannides, District Court Judge.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Jacalyn Bachlet was convicted, following a jury trial, of
two counts of receiving a bribe, a class B felony, one count of
misconduct involving a controlled substance in the sixth degree
(possession of less than one half pound of marijuana), a class B
misdemeanor, and three counts of solicitation to engage in the
crime of delivering controlled substances, a class A misdemeanor.
AS 11.56.110(a)(2); AS 11.71.060; AS 11.31.110(a) and AS
11.71.040(a)(2). Superior Court Judge Mark C. Rowland sentenced
Bachlet to a five-year suspended imposition of sentence on the
bribery convictions. Judge Rowland required Bachlet to serve a
term of imprisonment of six months as a condition of probation. He
imposed shorter concurrent sentences on the marijuana offenses.
Bachlet appeals her convictions. We affirm.
In October of 1993, Jacalyn Bachlet, an assistant public
defender in the Public Defender's office in Palmer, was appointed
to represent Phillip Carter. Carter had been charged with several
marijuana offenses and one possession of cocaine offense.
Carter testified that he met with Bachlet at various
times between January and April of 1994 to discuss his case. He
testified that Bachlet told him that the Public Defender Agency did
not allot her enough time to work on individual cases, but she
thought that Carter's case was a special case and she could put
more time into it if Carter did some things for her. Carter
testified that he gave Bachlet small amounts of marijuana, which
Bachlet referred to as "fuel for the case." He further testified
that he took her out for expensive dinners, bought her champagne,
and provided her with other meals. During Bachlet's regularly
scheduled vacation, he paid for an overnight trip to Chena Hot
Springs. Carter contends that the purpose of this trip was for
Bachlet to get away from the office and enable her to work on the
suppression motion that she planned to file in his case. Bachlet's
account of the Chena Hot Springs trip was different. Bachlet
asserts that she was "hooked on Carter," that she "wanted" him,
that she thought that he was in love with her, and that she thought
the trip was so that they could spend time together. Carter and
Bachlet had a consensual sexual relationship during this trip.
Carter testified that Bachlet told him that she thought
that she should get a little "extra compensation" for putting more
time into his case. When Carter asked her what she meant, she
responded that she wanted to have a little cabin next to a river or
a lake. Carter agreed that he would build her a cabin if she was
successful in having the charges against him dismissed, and if she
supplied the land and materials. Carter testified that Bachlet
repeatedly told him that "there's no justice in the court system
unless you have money to pay for it." Carter testified that
Bachlet scared him into giving her whatever she wanted, because he
was willing to give her what she wanted "to get justice."
Bachlet filed a motion to suppress evidence in Carter's
case, which was denied by the trial court. Ultimately, Carter
plead no contest to one felony count of possession of marijuana,
reserving the right to appeal the trial court's denial of the
motion to suppress under Cooksey. [Fn. 1]
In April of 1994 Carter met with a probation officer who
was assigned to write the presentence report in his case. Carter
told the probation officer of his relationship with Bachlet. As a
result of this disclosure, the Public Defender Agency placed
Bachlet on temporary leave in mid-April of 1994 and conducted an
investigation.
Carter testified that after she was placed on leave
Bachlet then began calling him and leaving messages on his
answering machine. Carter stated that Bachlet wanted him to
cooperate with her and also threatened him. Carter contacted the
District Attorney's Office, which referred Carter to the Alaska
State Troopers. Carter gave the troopers the tape from his
answering machine. He agreed to work with the troopers to
corroborate his story, and the troopers agreed to give Carter
immunity from prosecution limited to drug transactions with
Bachlet.
On April 26, 1994, the troopers obtained a Glass [Fn. 2]
warrant which authorized the troopers to monitor and record person-
to-person and telephone conversations between Carter and Bachlet.
In several recorded conversations which followed, Carter obtained
statements from Bachlet which corroborated his story. During these
conversations Bachlet told Carter that "maybe the fair
thing . . . for you to do is to help me make some money." Carter
suggested that he could help Bachlet set up a marijuana-growing
operation. Bachlet told Carter that she wanted three and one-half
ounces of marijuana. Carter agreed to get the marijuana. After
Carter left Bachlet, he met with the troopers, who suggested
offering Bachlet twelve pounds of marijuana instead of helping her
to start up the marijuana-grow operation. Carter returned and made
this offer to Bachlet. Bachlet answered that she did not want the
twelve pounds of marijuana, but wanted the three and one-half
ounces. They went on to discuss having Carter set her up with a
marijuana-growing business. Bachlet also wanted Carter to
immediately loan her $5,000. Carter agreed to loan her the money
and bring back the three and one-half ounces of marijuana. Carter
then agreed to meet Bachlet later at a different location. Carter
left, and obtained approximately five ounces of marijuana from the
troopers. Carter gave the marijuana to Bachlet telling her that
the bag contained four ounces. After Bachlet drove away from the
meeting, the troopers stopped and arrested her. Bachlet was
convicted based upon this evidence.
Bachlet was convicted of two counts of receiving a bribe
in violation of AS 11.56.110(a)(2) which reads as follows:
Receiving a bribe. A public servant commits
the crime of receiving a bribe if the public servant accepts or
agrees to accept a benefit upon an agreement or understanding that
the public servant's vote, opinion, judgment, action, decision, or
exercise of discretion as a public servant will be influenced.
Bachlet contends that the statute is unconstitutionally
overbroad and vague. In Summers v. Anchorage, 589 P.2d 863, 866-67
(Alaska 1979), the court succinctly summarized the law in this
area:
[W]e isolated three factors which must be
considered when determining whether a statute is unconstitutionally
vague. First, a statute may not be so imprecisely drawn and
overbroad that it "chills" the exercise of first amendment rights.
The second consideration is that in order to be consistent with
notions of fundamental fairness a statute must give adequate notice
of the conduct that is prohibited. The final element in an
analysis of statutory vagueness is whether the statute's imprecise
language encourages arbitrary enforcement by allowing prosecuting
authorities undue discretion to determine the scope of its
prohibitions.
(Footnotes omitted.)
In general, so long as a statute is not specifically
aimed at regulating speech, a court will find a statute
unconstitutionally vague for overbreadth for restricting first
amendment freedoms only when it reaches a "substantial amount of
constitutionally protected conduct," or when it "is impermissibly
vague in all of its applications." United States v. Dischner, 974
F.2d 1502, 1510-11 & n.5 (9th Cir. 1992) (quoting Hoffman Estates
v. Flipside, 455 U.S. 489, 494-95 (1982)); see also Kolender v.
Lawson, 461 U.S. 352, 358 n.8 (1983). "The fact that the statute
might reach first amendment activities is not sufficient; the
statute must reach a substantial amount of constitutionally
protected activity." Dischner, 974 F.2d at 1511-12 & n.7 (quoting
Kolender, 461 U.S. at 358 n.8); see also Chapman v. United States,
500 U.S. 453, 467 (1991) (holding that where first amendment
freedoms are not infringed by the statute, a vagueness claim must
be evaluated as the statute is applied to the facts of the case).
Courts that have reviewed bribery statutes similar to Alaska's have
found that the statutes do not violate the overbreadth doctrine.
See Dischner, 974 F.2d 1502; United States v. Dansker, 537 F.2d 40
(3rd Cir. 1976); State v. O'Neill, 700 P.2d 711 (Wash. 1985).
Bachlet contends that AS 11.56.110(a)(2) is unconstitutionally
overbroad because it does not include the element of "corrupt
intent." She argues that therefore the outermost boundaries of the
statute are indeterminable and that the statute impermissibly
prohibits protected conduct including the exercise of the freedoms
of speech, assembly, and association.
However, the legislative history of Alaska's bribe
receiving statute reveals that the legislature deliberately
excluded the word "corruptly" so that the statute would "prohibit
without qualification the [receiving] of any benefit with intent to
influence official decision making." Commentary to AS 11.56.100
and 110, 1978 Senate Journal Supp. No. 47, at 70 (June 12, 1978).
The commentary explains, "[t]he recipient [of the bribe] must have
either solicited the bribe or have accepted it, or agreed to accept
it, upon an agreement or understanding with the offeror before the
public servant has committed bribe receiving." Id. at 70. The
commentary reveals that the legislature chose not to label the mens
rea element for this offense as "corrupt intent." Rather, the
statute prohibits receiving a benefit upon an agreement or
understanding that the benefit will influence the public servant's
vote, opinion, judgment, action, decision, or exercise of
discretion as a public servant. Therefore the statute does have a
culpable mental state; that is, the statute requires the public
servant to knowingly accept or agree to accept a benefit upon an
"agreement or understanding."
Alaska is not alone in excluding the term "corrupt" from
its bribery statute. The Model Penal Code Commentary explains that
the Code "abandons the usual focus upon 'corrupt' agreements or a
'corrupt' intent and instead spells out with more particularity the
kinds of arrangements that are prohibited [by the bribery
offense]." See Model Penal Code Commentary  240.1 at 1-2 (1980).
The commentary points out that some state statutes which follow the
traditional definition of bribery still include an element of
"corruptness." See id. at 6 & n.2. However, the Model Penal Code
position abandoning the word "corrupt" has been followed in the
great majority of revised and proposed bribery statutes. See id.
at 6-9 & n.10. It therefore appears that there is substantial
authority holding that bribery statutes similar to Alaska's are not
overbroad. Consistent with this authority we conclude that
AS 11.56.110 is not overbroad.
We next turn to Bachlet's argument that AS 11.56.110 is
unconstitutionally vague. However, "it is well settled that a
statute whose application may be uncertain in marginal cases need
not be declared invalid if the offense charged falls squarely
within its prohibitions." Jackson v. State, 890 P.2d 587, 595
(Alaska App. 1995) (quotations and citations omitted); see also
Stock v. State, 526 P.2d 3, 11-12 (Alaska 1974). Bachlet contends
that the statute's unclear culpable mental state, and the terms
"public servant," "benefit," and "agreement or understanding"
render the statute too vague for the ordinary citizen to comprehend
the distinction between criminal and non-criminal conduct.
However, a public defender, who is employed by the State of Alaska,
falls squarely within the statute's definition of "public servant."
[Fn. 3]
The statute defines "benefit" as:
a present or future gain or advantage to the
beneficiary or to a third person pursuant to the desire or consent
of the beneficiary.
AS 11.81.900(b)(2). The legislature's commentary explains that the
term "benefit" is not limited to economic gain. See Commentary to
AS 11.56.130, 1978 Senate Journal Supp. No. 47, at 68-69 (June 12,
1978). The commentary to the statute explains that the term
"benefit" does not cover legitimate campaign contributions, routine
lobbying activities, legislative "log rolling" and election
support. Id. It seems clear that the benefits which Bachlet
agreed to accept the meals, the marijuana, the trip to Chena Hot
Springs, and the promise to build a cabin fall clearly within the
statutory definition of "benefit."
Neither the bribery statutes nor the criminal code
defines "agreement or understanding." Therefore, an inquiry into
the general understanding of these words is useful. "There are
many instances in which the law resorts to the general
understanding of the community as the standard of legal result."
Harris v. State, 457 P.2d 638, 647 (Alaska 1969). "[U]nless
otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning." Perrin v. United States,
444 U.S. 37, 42 (1979) (citation omitted); see also Konrad v.
State, 763 P.2d 1369, 1379 (Alaska App. 1988) (court looked at
ordinary meaning of the term "repeated" to determine whether that
term rendered the statute vague). Black's Law Dictionary defines
the term "agreement" as follows:
Agreement. A coming together of minds; a
coming together in opinion or determination; the coming together in
accord of two minds on a given proposition. . . .
Black's Law Dictionary 63 (5th ed. 1979). Webster's New World
Dictionary defines "understanding" as follows:
understanding a specific interpretation or
inference; mutual comprehension, as of ideas, intentions, etc.;
mutual agreement. . . .
Webster's New World Dictionary 1548 (2d ed. 1980). The ordinary
meaning of the phrase "agreement or understanding" seems analogous
to "mutual comprehension," or "mutual understanding," and does not
seem to present any vagueness problems. See, e.g., State v. Greco,
787 P.2d 940, 943 (Wash. App. 1990) (finding that a person of
ordinary intelligence would conclude that "agreement or
understanding," as used in Washington's bribery statutes, means
"mutual agreement"). Once again, Bachlet's conduct in accepting
the meals, marijuana, and trip in return for spending extra time on
Carter's case, and her agreement with Carter that he would build a
cabin for her if she was successful in getting Carter's case
dismissed, falls squarely within the ordinary meaning of the phrase
"agreement or understanding."
We accordingly conclude that Bachlet's conduct, as
charged, fell within the "core conduct" prohibited by the statute.
The statute clearly provided Bachlet with notice that this conduct
was unlawful. Therefore, we conclude that the statute was not
unconstitutionally vague for failure to provide Bachlet notice of
the prohibited conduct.
We now turn to Bachlet's argument that the statute is
unconstitutionally vague because the statute's imprecise language
would encourage arbitrary enforcement by prosecuting authorities.
Bachlet's contentions can be disposed of summarily. A defendant
making such a claim has the burden to establish that a statute has
a history of arbitrary or selective enforcement. See State v.
Weaver, 736 P.2d 781, 783 (Alaska App. 1987); see also Levshakoff
v. State, 565 P.2d 504, 507 (Alaska 1977); Summers, 589 P.2d at
868. Bachlet has not shown that AS 11.56.110 has a history of
arbitrary or selective enforcement. We therefore reject Bachlet's
argument.
Bachlet contends that Judge Rowland erred in failing to
instruct the jury that in order to convict Bachlet of bribery the
jury had to find that Bachlet acted with "corrupt intent."
However, as we have previously stated, the crime of receiving a
bribe under AS 11.56.110(a)(2) does not require the state to prove
that the public servant acted corruptly. Under the court's
instructions the jury had to find that Bachlet knowingly accepted
or agreed to accept a benefit upon the agreement or understanding
that her opinion, judgment, action, decision, or exercise of
discretion as a public servant would be influenced by the benefit.
These instructions were sufficient to explain the elements of the
offense to the jury. [Fn. 4]
Bachlet next contends that the trial court erred in
failing to dismiss the charges against her based on a defense of
entrapment. Alaska has an objective approach for determining
whether entrapment has occurred. Grossman v. State, 457 P.2d 226,
229 (Alaska 1969). The trial court engages in a two-part inquiry:
[Fn. 5] (1) whether the police engaged in activities which were
calculated to seduce or coerce people, who are not otherwise
motivated to commit crimes; and (2) whether the police conduct
"falls below an acceptable standard for the fair and honorable
administration of justice." Pascu v. State, 577 P.2d 1064, 1067
(Alaska 1978). Entrapment is defined in AS 11.81.450:
In any prosecution for an offense, it is
an affirmative defense that, in order to obtain evidence of the
commission of an offense, a public law enforcement official or a
person working in cooperation with the official induced the
defendant to commit the offense by persuasion or inducement as
would be effective to persuade an average person, other than one
who is ready and willing, to commit the offense. Inducement or
persuasion which would induce only a person engaged in an habitual
course of unlawful conduct for gain or profit does not constitute
entrapment.
Because this statute defines entrapment as an affirmative defense,
Bachlet bore the burden of establishing entrapment by a
preponderance of the evidence. AS 11.81.900(b)(1). Put another
way:
In order to prevail on [the entrapment]
defense, [the defendant is] required to prove that the police
employed fundamentally unfair or dishonorable practices calculated
to induce someone to commit the crime in question so that he might
be arrested and prosecuted for the offense. And, while [the
defendant] did not need to negate a predisposition to engage in
similar conduct, [the defendant must show] that the dishonorable
police practices were a substantial factor in inducing him to
commit the charged offenses--that his commission of the offenses
was "the direct result of inducement by law enforcement officials."
Washington v. State, 755 P.2d 401 (Alaska App. 1988) (citations
omitted) (quoting Anchorage v. Flanagan, 649 P.2d 957, 961-62
(Alaska App. 1982)). Because entrapment has an objective test, the
court looks beyond the immediate parties to the transaction and
asks whether the police conduct would be likely to seduce others or
coerce others ("average people") into criminal behavior that they
would not otherwise commit. Id. In judging what effect the
officer's conduct would have on an average person, the court should
consider the transactions leading up to the offense, the
interaction between the officer and the defendant, and the
defendant's response to the inducements of the officer. Grossman,
457 P.2d at 230. Establishing entrapment entitles the defendant to
a dismissal of the charge. See Greiner v. State, 741 P.2d 662, 665
(Alaska App. 1987).
Turning to the present case, to establish an entrapment
defense, Bachlet was required to establish by a preponderance of
the evidence that in order to obtain evidence of Bachlet's
offenses, Carter, working in cooperation with the police, induced
Bachlet to commit the offenses by persuasion or inducement as would
be effective to persuade an average person who was not ready and
willing to commit the offense. AS 11.81.450; see also Folsom v.
State, 734 P.2d 1015 (Alaska App. 1987). However, Bachlet cannot
show entrapment if the inducement or persuasion would have induced
only a person engaged in an habitual course of unlawful conduct for
gain or profit. Id.
Neither the police conduct, nor Carter's conduct, nor the
state's decision to prosecute Bachlet appears to be the type of
"fundamentally unfair or dishonorable" conduct that courts require
to prove an entrapment defense. Bachlet did not offer any evidence
that Carter played on her sympathies or their friendship to
persuade her to commit offenses she was otherwise unwilling to
engage in. With respect to Count IV, the marijuana possession
count, as the state points out, Bachlet asked for the marijuana,
and stated that she wanted the marijuana "today." With respect to
the charges relating to setting up the marijuana-grow operation,
Carter initiated the idea of a grow operation, but it was Bachlet
who brought up the idea of Carter helping her make money, and it
was Bachlet who insisted that Carter sell the marijuana for her.
Carter discussed the idea of setting up a grow operation, but he
did not appear to "induce" Bachlet to do anything that she wasn't
already prepared to do. Considering that the defendant has the
burden of establishing entrapment by a preponderance of the
evidence, it does not appear that the government's conduct in this
case "falls below an acceptable standard for the fair and honorable
administration of justice." See Pascu, 577 P.2d at 1067. We
accordingly conclude that the trial court did not err in rejecting
Bachlet's entrapment defense.
Bachlet next contends that the trial court erred in
denying her motion to suppress evidence which the police obtained
pursuant to a Glass warrant. On April 26, 1994, the state troopers
applied for and obtained a Glass warrant, which authorized the
police to record face-to-face and telephonic conversations between
Bachlet and Carter. Before trial, Bachlet filed a motion to
suppress all recordings obtained pursuant to the Glass warrant,
arguing that the state failed to comply with AS 12.37, Alaska's
wiretapping statute, when obtaining the warrant. [Fn. 6] In an
Order dated October 23, 1994, Superior Court Judge Donald D.
Hopwood denied Bachlet's suppression motion:
The 1993 Alaska wiretapping statute,
AS 12.37.010-900, does not create a general
rule applicable to all warrants for the interception of
communications. Instead, the statute provides an exception to the
general statutory prohibition on eavesdropping under AS
42.20.300(b).[ [Fn. 7]]
In this case, Phillip Carter, a
participant to the conversation, consented to the interception of
the communication by the Alaska State Troopers. Eavesdropping that
is authorized by a party to the communication falls outside the
scope of AS 42.20.300(b). Thus, the intercepted communication is
not controlled by the newly enacted AS 12.37.
Furthermore, the longstanding rule in
Alaska that the police may lawfully intercept private
communications with the consent of a participant if they first
obtain judicial authorization (a Glass warrant) has not been
modified by the statute.
Judge Hopwood's ruling appears to us to be correct. The
legislative history of AS 12.37 establishes that this chapter was
enacted to parallel 18 U.S.C.  2510-21, which provides for
exceptions to the general prohibition against the interception of
communications unless at least one party consents. In fact,
Governor Hickel's transmittal letter to the legislature points out
that federal legislation authorizes state legislatures to adopt
procedures, similar to federal procedures, which permit obtaining
authorization to intercept communications that would otherwise be
prohibited by 18 U.S.C.  2510-21. See 1993 House Journal at 488-
89. The state points out that the federal law, after which
AS 12.37 appears to be modeled, does not apply to participant
monitoring situations. See 18 U.S.C.  2511(2)(c) ("It shall not
be unlawful under this chapter for a person acting under color of
law to intercept a wire, oral, or electronic communication, where
such person is a party to the communication or one of the parties
to the communication has given prior consent to such
interception."). It seems clear to us from the legislative history
that in passing AS 12.37 the legislature intended to expand
authorization for the interception of communications and to provide
procedures similar to those provided in federal law, rather than to
eliminate the interception of communications where a participant to
the conversation has consented to the interception when the police
have obtained a Glass warrant. We accordingly conclude that the
trial court did not err in denying Bachlet's motion to suppress.
Bachlet claims that the trial court erred in refusing to
dismiss the indictment against her because the prosecutor did not
present exculpatory evidence to the grand jury. See Alaska Rule of
Criminal Procedure 6(q); Frink v. State, 597 P.2d 154, 164-66
(Alaska 1979). Bachlet argues that the tape recordings of her
conversations with Carter and the transcripts which were based upon
the tape recordings were exculpatory in nature and that the state
should have been required to present this evidence to the grand
jury rather than having a state trooper summarize the
conversations. The trial court rejected Bachlet's contention. We
do also. The tapes and transcripts were not "substantially
favorable" to Bachlet such that the prosecutor would have been
required to present this evidence to the grand jury. See Tookak v.
State, 648 P.2d 1018, 1021 (Alaska App. 1982).
Bachlet next contends that the trial court erred in
denying her motions for judgment of acquittal. When determining
whether the state presented sufficient evidence to support a
conviction, this court must view the evidence and all inferences
therefrom in the light most favorable to the state. This court is
to find the evidence insufficient to support the conviction only if
fair-minded jurors could not find the defendant guilty beyond a
reasonable doubt based on the evidence before it. Dorman v. State,
622 P.2d 448, 453 (Alaska 1981).
However, as we have previously stated, the evidence
against Bachlet, if believed, would establish the elements of the
offense of receiving a bribe. We similarly find sufficient
evidence to uphold Bachlet's conviction for misconduct involving a
controlled substance in the sixth-degree for possession of the
marijuana which was in her possession when she was arrested.
Bachlet was convicted of three counts of solicitation
under AS 11.31.110(a) and AS 11.71.040(a)(2), (a)(3)(F), and
(a)(5), which provide, respectively:
Solicitation. A person commits the crime of
solicitation if, with intent to cause another to engage in conduct
constituting a crime, the person solicits the other to engage in
that conduct.
Misconduct involving a controlled substance in
the fourth degree. (a) Except as authorized in AS 17.30, a person
commits the crime of misconduct involving a controlled substance in
the fourth degree if the person
. . . .
(2) manufactures or delivers, or possesses
with the intent to manufacture or deliver, one or more
preparations, compounds, mixtures, or substances of an aggregate
weight of one ounce or more containing a schedule VIA controlled
substance;
(3) possesses
. . . .
(F) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of one pound or more
containing a schedule VIA controlled substance; or
. . . .
(5) knowingly keeps or maintains any store,
shop, warehouse, dwelling, building, vehicle, boat, aircraft, or
other structure or place that is used for keeping or distributing
controlled substances in violation of a felony offense under this
chapter or AS 17.30[.]
At trial, the state presented the taped conversations
between Bachlet and Carter to the jury. These conversations, taken
in the light most favorable to the state, would permit the jury to
infer that Bachlet solicited Carter to help her establish a
marijuana-growing operation. However, at argument the state
conceded that the three counts of solicitation should constitute a
single offense, and thus merge pursuant to Whitton v. State, 479
P.2d 302 (Alaska 1970). We conclude that the state's concession is
sound and that Bachlet's three solicitation convictions should
merge into a single offense.
The conviction is AFFIRMED with the exception of the
merger of Counts IV, V and VI.
MANNHEIMER, J., concurring.
I am writing separately to explain my views on three
details of our decision.
The offense of receiving a bribe defined in AS 11.56.-
110(a)(2) requires proof that a public servant knowingly accepted
or agreed to accept a benefit "upon an understanding or agreement"
that the public servant's official conduct would be influenced by
the benefit. The majority opinion suggests that, through this
language, the statute requires proof of a mutual agreement between
the benefit-provider and the public servant. While the facts of
Bachlet's case firmly support a finding of mutual agreement between
Bachlet and Carter, I do not believe that the statute necessarily
requires a "meeting of the minds" between the benefit-provider and
the public servant.
The corresponding Model Penal Code bribery provision,
 240.1, uses similar language to define the offense. Under Model
Penal Code  240.1(1), a person commits bribery if he or she
"offers, confers[,] or agrees to confer ... any pecuniary benefit
[upon a public servant] as consideration for the recipient's ...
exercise of discretion". Likewise, a public servant commits
bribery if he or she "solicits, accepts[,] or agrees to accept ...
any pecuniary benefit as consideration for the recipient's ...
exercise of discretion". Explaining this language, the drafters of
the Model Penal Code stated:
[O]ne who agrees to confer a benefit upon
another as consideration for official action by the other party,
both as a matter of the common sense of these terms and by analogy
to the law of conspiracy, is one who knows that he is committing
himself to confer a benefit and who desires that the benefit be in
exchange for official action. The same is true of [a public
servant] who agrees to accept a benefit as consideration for his
official action. ... Thus, the term "agrees" should be construed
as expressing a unilateral concept, much as the words "agrees with
such other person" are construed in [the Model Penal Code provision
defining "criminal conspiracy",] Section 5.03. The result is that
"agrees" does not necessarily mean a bilateral agreement signifying
an actual meeting of the minds. It is sufficient if the actor
believes that he has agreed to confer or agreed to accept a benefit
for the proscribed purpose, regardless of whether the other person
actually accepts the bargain in any contract sense.
American Law Institute, Model Penal Code and Commentaries (Official
Draft & Revised Comments 1980), Comment to  240.1 (footnotes
omitted), found in the volume labeled "Part II,  240.0 to 251.4"
at page 20.
This commentary indicates that a public servant violates
AS 11.56.110(a)(2) regardless of whether the intended benefit-
provider ever "agrees" to provide the benefit in the sense required
to establish a contract. The commentary also indicates that the
public official's bad faith is no defense that the offense is
committed regardless of whether the public servant really intends
to follow through on the promised official action. The facts of
Bachlet's case do not raise these issues, and so there is no need
to decide them now. However, the majority opinion's broad language
about "mutual agreement" must be understood in this context.
On the collateral issue of what the statute means by
"agreement or understanding", I interpret the legislature's
inclusion of the word "understanding" as an attempt to reach not
only express agreements but also the informal type of agreement
that is communicated in an indirect way but still manifests a
"mutual comprehension ... of ... intentions". See Webster's New
World Dictionary of American English (Third College Edition, 1988),
page 1455.
Regarding the merger of the three solicitation charges
under Whitton v. State, 479 P.2d 302 (Alaska 1970), the State
conceded at oral argument that these charges were all based upon
Bachlet's solicitation of Carter to help her establish a marijuana
growing operation. Because Bachlet intended to engage in large-
scale marijuana cultivation, Bachlet's proposal necessarily
envisioned that she and Carter would possess more than one pound of
marijuana (Count V of the indictment), that she and Carter would
deliver or sell one ounce or more of marijuana (Count VI of the
indictment), and that she and Carter would maintain a building or
other structure to be used for keeping or distributing marijuana
(Count VII of the indictment).
While these three counts are all valid theories as to why
Bachlet's proposal to Carter amounted to criminal solicitation,
these counts do not "involve[] differences in intent or conduct ...
substantial or significant enough to warrant multiple punishments"
when evaluated "in light of the basic interests of society to be
vindicated or protected". Whitton, 479 P.2d at 312. The State
forthrightly conceded this at oral argument, and the concession is
well-founded. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
FOOTNOTES
Footnote 1:
Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Carter's
convictions were ultimately reversed on appeal based on the ground
that the state obtained the evidence against him during an illegal
search. Carter v. State, 910 P.2d 619 (Alaska App. 1996).
Footnote 2:
State v. Glass, 583 P.2d 872 (Alaska 1978).
Footnote 3:
The statutory definition of "public servant," former AS
11.81.900(b)(48), [Fn. 8] provides:
"public servant" means each of the following,
whether compensated or not, but does not include jurors or
witnesses:
(A) an officer or employee of the state, a
municipality or other political subdivision of the state, or a
governmental instrumentality of the state, including legislators,
members of the judiciary, and peace officers[.]
The legislative history accompanying this term reveals that:
The term "public servant" is defined broadly
to include not only every category of government or public officer,
but every employee of every such office or agency, [and] every
person retained to perform some government service. . . . The
definition has been drafted to make it clear that those serving
"political subdivisions" and "governmental instrumentalities"
within the state are public servants. . . . The gist of the
[bribery offenses] is the intent to influence the course of public
administration.
Commentary to AS 11.81.900(b)(47), 1978 Senate Journal Supp. No.
47, at 69-70 (June 12, 1978).
Footnote 4:
Based upon the previous contentions, Bachlet argues that the
evidence against her was insufficent to support the indictment. We
reject this argument.
Footnote 5:
Unless the first prong of the test is satisfied, the second
step is never reached. Anchorage v. Flanagan, 649 P.2d 957 (Alaska
App. 1982).
Footnote 6:
AS 12.37.010 provides:
Authorization to intercept communications.
The attorney general, or a person designated in writing or by law
to act for the attorney general, may authorize, in writing, an ex
parte application to a court of competent jurisdiction for an order
authorizing the interception of a private communication if the
interception may provide evidence of, or may assist in the
apprehension of persons who have committed, are committing, or are
planning to commit, the following offenses:
(1) murder in the first or second degree under
11.41.100 - 11.41.110;
(2) kidnapping under AS 11.41.300; or
(3) a class A or unclassified felony drug
offense under AS 11.71 ( 1 ch 61 SLA 1993).
Footnote 7:
AS 42.20.300 provides, in relevant part:
Unauthorized publication or use of communi-
cations.
(a) Except for a party to a private conver-
sation, a person who receives or assists in
receiving, or who transmits or assists in transmitting a private
communication may not divulge or publish the existence, contents,
substance, purport, effect, or meaning of the communication, except
through authorized channels of transmission or reception. . . .
(b) Except as provided in AS 12.37, a person
not authorized by a party to the communication may not
intentionally intercept a private communication or divulge or
publish the existence, contents, substance, purport, effect, or
meaning of the intercepted communi-cation to any person.
(Emphasis supplied.)
Footnote 8:
Now AS 11.81.900(b)(50).
