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Conspiracy, § 939.31 – Unit of Prosecution (Multiple Counts for Multiple Acts)

State v. Edward Leon Jackson, 2004 WI App 190, PFR filed 10/15/04
For Jackson: Meredith J. Ross, LAIP, UW Law School

Issue/Holding:

¶2 In 1996, Jackson admitted to his role in a plan to fire bomb a Milwaukee police officer’s home. Jackson and two other men conspired to fire bomb the house, enabling two others to shoot people fleeing from the building. A jury found Jackson guilty in 1997 of two counts of conspiracy and one count of possession of a firebomb. Though Jackson was part of one conspiracy, he conspired to participate in two acts, arson and intentional homicide, and was charged with two counts of conspiracy under WIS. STAT. § 939.31.¶6 Jackson, citing Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99 (1942), contends that a conspiracy statute punishes the criminal agreement or combination with another to commit a crime, not the criminal goals of the agreement. … Braverman is inapplicable here because the underlying conspiracy statute differs from the federal conspiracy statute. Unlike the federal conspiracy statute, WIS. STAT. § 939.31 permits the charging of multiple offenses.

¶8 … There are three elements to § 939.31 …. These elements incorporate each criminal offense that is the criminal object of the conspiracy. This means that when a conspiracy has as its object the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. Thus, § 939.31 expresses the Wisconsin Legislature’s intent to permit multiple punishments.

¶9 Jackson conspired to commit two crimes, arson and murder. Accordingly, under WIS. STAT. § 939.31, he may be charged with two counts of conspiracy, one incorporating the crime of arson, another incorporating murder. Each charge requires proof of facts that the other does not; they are different in fact and in law. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). Even though both offenses may have arisen from the same agreement, “[i]t is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Albernaz v. United States, 450 U.S. 333, 344, n.3, 101 S. Ct. 1137 (1981).

Our conspiracy statute is addressed to “intent that a crime be committed.” The federal conspiracy statute, 18 USC § 371, is addressed to conspiring “to commit any offense.”Braverman construed the statute to mean that, “(w)hether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.” You might think that the federal and Wisconsin statutes are similarly worded, and Braverman therefore very pertinent – but you would be wrong. The court of appeals distinguishes the federal statute on the basis that it doesn’t incorporate the underlying criminal objective, but instead provides a static penalty of five years for conspiring to commit “any” offense; contrastingly, § 939.31 ties the penalty for conspiracy to the underlying crime. Maybe. But still: “The primary definition of the word ‘any’ is ‘one or some indiscriminately of whatever kind’ or ‘one or another.’” U.S. v. Misc. Firearms, 376 F.3d 709 (7th Cir. 2004). Also: United States v. Gonzales, 520 U. S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind,'” quoting Webster’s Third New International Dictionary 97 (1976)). And, under Wisconsin law, “a” may be either singular or plural, § 990.001(1). In other words, the use of “any” or “a” in the statutes doesn’t really tell you much.

 

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