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COA finds no double jeopardy violation in continuing conspiracy case

State v. Billy Joe Cannon, 2019AP2296-CR, District 1, 5/25/21 (not recommended for publication; case activity (including briefs)

In 2009, the State charged Cannon with conspiracy to deliver cocaine on Nov. 10, 2005. In 2011, a jury acquitted him. Six weeks later, the State filed new charges alleging that Cannon conspired to deliver cocaine on March 4, 2008 through March 24, 2008. This time, a jury found him guilty. On appeal, Cannon argued that the 2009 and 2011 conspiracy charges concerned a single, continuous conspiracy so the second prosecution violated his to be free from double jeopardy. He also argued that the circuit court erred in denying his motion to suppress wiretap recordings. The court of appeals rejected both claims.

Two prosecutions violate the double jeopardy clause when they involve offenses that are identical in law and fact.  Blockburger v. United States, 284 U.S. 299 (1932). In Cannon’s case, the sole issue was whether the offenses were identical in fact. Normally, a court decides this point by determining whether one of the offenses requires proof of a fact that the other does not or whether the offenses are different in nature or separated by time.  Opinion, ¶14.

Applying this test to conspiracy offenses is especially challenging. Conspiracies often “have no easily discernable boundaries with regard to time, place, persons, and objectives.” United States v. Thornton, 972 F.2d 764, 765 (7th Cir. 1992).” [T]he double jeopardy clause prohibits the government from arbitrarily subdividing one conspiracy into several and then prosecuting a person multiple times for what essentially constitutes one conspiracy. United States v. Castro, 629 F.2d 456 (7th Cir. 1980).

Applying Castro, the court of appeals held that the two conspiracies at issue were not a single, continuous conspiracy. They did not overlap in time. Opinion, ¶¶20-22. The charges involved different co-conspirators. And while both conspiracies occurred in Milwaukee, “Milwaukee is large enough for more than one conspiracy to distribute cocaine to exist.” Opinion, ¶23. Finally, the two conspiracies did not share a similar modus operandi or depend on each other for success. Opinion, ¶24.

The State used wiretap recordings to convict Cannon of furnishing a firearm to an unauthorized person. On appeal, Cannon presented 4 arguments as to why the circuit court should have suppressed these recordings. The court of appeals rejected all of them.

Contrary to §968.29(5), it did not matter that Chief judge Brennan issued the original wiretap warrant, whereas Judge Sankowitz issued the amended warrant. SCR 70.23(2) allows the chief judge to assign an active judge to substitute for her. Opinion, ¶32.

While the State may have failed to produce an order authorizing the use of calls intercepted on two particular dates, the error was harmless. The evidence that the State presented at trial was sufficient to convict Cannon without those calls. Opinion, ¶¶33-34.

Furthermore, while the affidavit accompanying the supplemental warrant may have lacked probable cause, police nevertheless acted in good faith and in objectively reasonable reliance on the warrant. The original wiretap application was approved by the Attorney General, the D.A., and Chief Judge Brennan. The supplemental application was approved by the D.A. and Judge Sankovitz. Police cannot not reasonably be expected to question these probable cause determinations. Opinion, ¶38. 

Finally, while the wiretap order at issue did not explicitly mention firearms, §968.29(5) provides that when an officer intercepts communications relating to offenses other than those specified in the wiretap order, the evidence may be disclosed or used with judicial approval. Opinion, ¶39.

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