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COA rejects constitutional and statutory multiplicity claims in fraud conspiracy

State v. Marshun Dante Jackson, 2019AP2091, 2/17/21, District 3 (not recommended for publication); case activity (including briefs)

Jackson pleaded to being part of a conspiracy to commit fraud (passing bad checks) against a bank in Dunn County. Then he was charged in St. Croix county with committing fraud against a bank there (initially this was also charged as a conspiracy, but ultimately he pleaded to the fraud itself as party to the crime). Both offenses occurred on the same date, and Jackson claims that the dual prosecutions violated both his constitutional right against double jeopardy and a statutory provision forbidding conviction of both conspiracy to commit a crime and the underlying crime itself. The court of appeals rejects both claims, holding that the conspiracy covered by the Dunn County charge didn’t encompass the acts in St. Croix County.

The court rejects the double-jeopardy claim on an additional legal ground: conspiracy to commit a particular crime and the completed crime itself each have at least one element the other lacks, so are not identical in law under the test of Blockburger v. United States, 284 U.S. 299 (1932). Conspiracy, defined in Wis. Stat. § 939.31, requires working in concert with another person toward the commission of a crime (which is not typically an element of the underlying offense). Meanwhile, the underlying offense requires the state to prove, well, the elements of the offense–which it need not prove to show conspiracy to commit the offense. You can be convicted of conspiracy to commit homicide even if the homicide never happens; all that’s required is that you plan the homicide with one or more others and that some member of the conspiracy undertakes some act toward the homicide. (¶¶14-15).

But the court also sees a basic flaw common to both Jackson’s arguments: the two convictions involved different acts. This nixes the double-jeopardy claim because it means the crimes were not “identical in fact.” See State v. Schultz, 2020 WI 24, ¶22, 390 Wis. 2d 570, 939 N.W.2d 519.

It’s also a problem for the statutory claim: Wis. Stat. § 939.72(2) forbids conviction both “for conspiracy” and “as a party to a crime which is the objective of the conspiracy.” Jackson was, the state says, part of a “large and elaborate fraudulent check scheme throughout western Wisconsin and eastern Minnesota.” This scheme and its participants could reasonably be described as a “conspiracy” to commit a large number of crimes over a wide area. But, per the court of appeals, this isn’t the “conspiracy” that was charged in Dunn County: that was specifically described as an effort to defraud a particular bank in that county:

Jackson was prosecuted in St. Croix County for a crime he committed only in that county. He was not prosecuted in St. Croix County for a crime committed in Dunn County. Conspiring to commit fraud upon Dairy State Bank in Dunn County is factually different from actually committing fraud on Security Financial Bank in St. Croix County. The facts alleged under either complaint would not warrant a conviction under the other. See Van Meter, 72 Wis. 2d at 758.

Jackson nonetheless asserts that the Dunn County complaint alleged that he conspired to commit crimes throughout western Wisconsin. The State therefore bound itself, Jackson maintains, by acting through the agency of the Dunn County District Attorney, and it cannot assert any other charges based upon his completion of the crimes for which he was convicted of conspiring to commit in Dunn County. The Dunn County complaint, however, did not refer to or encompass the fraud crimes committed in River Falls that serve as the basis for the
St. Croix County conviction.

(¶¶20-21).

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