Question presented: When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges? Lower court decision: United States v. Kaley… Read more
J. Forfeiture of seized property
State v. Robert M. Schmitt, 2012 WI App 121 (recommended for publication); case activity Although “the summons, complaint and the supporting affidavit must each be authenticated as a condition of personal jurisdiction when commencing a forfeiture action,” ¶1, an authentication defect attributable to a clerk’s error is merely technical and doesn’t impair jurisdiction. ¶4 In Schmitt’s case, the… Read more
court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br. Forfeiture Refusal of request to return seized cash upheld, where Morton was convicted of drug offenses: separate forfeiture action was unnecessary (Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), controlling); trial court forfeiture decision is discretionary, and Morton’s… Read more
State v. Lamont D. Powell, 2007 WI App 127 For Powell: Nicholas C. Zales Issue/Holding: ¶3 The sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property “for… Read more
State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06 For Kueny: James R. Lucius Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b). Holding: ¶9 Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the… Read more
State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06 For Kueny: James R. Lucius Issue: Whether the weapon must have been used in the crime of conviction in order to be subject to forfeiture. Holding: ¶11 Kueny misreads the plain language and misses a nuance of the statute. Wisconsin Stat. § 968.20(1m)(b) forbids returning weapons… Read more
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03 For Beck: Adam B. Stephens, Alex Flynn Issue/Holding: Right to seek adjournment of a forfeiture action until after “adjudication” of the underlying criminal proceeding, § 973.076(2), terminates upon trial-level disposition: ¶18. While the term “adjudication” is not itself specifically defined in the statutes… Read more
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03 For Beck: Adam B. Stephens, Alex Flynn Issue/Holding: Although a party must “show strict compliance with the requirements of” § 801.10(4)(a) when service is challenged, it is not necessary to “submit an affidavit in which the process server specifically states that he or she… Read more
