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Defenses – “Statutory Double Jeopardy” – Drug Offenses, § 961.45 – “Same Conduct” Test

State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09
For Bautista: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.

¶1        … In this case, Julio C. Bautista, relying on two cases from Pennsylvania, argues that conduct is defined as a “common scheme or plan” such that his conspiracy to sell drugs encompasses all acts under that planned endeavor. We are unwilling to accept that definition. Borrowing from a phrase in Harrell v. State, 88 Wis. 2d 546, 558, 277 N.W.2d 462 (Ct. App. 1979), we hold that when a defendant comes to a “fork in the road” and commits to a separate volitional act, it is different conduct and its prosecution is not subject to § 961.45. We affirm.…

¶14      However, in Bautista’s case, he sold cocaine on one date, August 13, 2005. [3] This act resulted in a federal charge to which he pled guilty. The state charge had nothing to do with delivering cocaine on a certain date. Instead, it had everything to do with a different kind of drug—marijuana—and it alleged a conspiracy with others to sell this particular kind of drug between April 11, 1997, and September 6, 2005, a span of over eight years. Clearly this was different conduct involving different drugs, during a different time frame and with an underlying factual basis that consisted not of the act of delivery itself, but of the conspiracy to sell. The act of conspiring to sell marijuana over a long period of time is different in time, space and manner than one instance of delivering cocaine. Not only do the charges involve different types of acts, the acts are also different in nature—the defendant had sufficient time between the acts to again commit himself. The conduct involved different invasions of interests and different intentions making the defendant subject to multiple punishments. The state charge is therefore not the same conduct as that conduct resulting in the federal convictions by any stretch.

¶15      We must reject Bautista’s attempt to paint his case with a broad brush to say that since the marijuana and cocaine are both controlled substances, it does not matter that two different drugs were involved. And we must also reject the idea that because the conspiracy charge overlapped one of the cocaine delivery charges, this was all part of the same trafficking conspiracy. Rather, we look to the underlying actions, the “thing done” or the “deed” [4] that gave rise to the conspiracy conviction on the one hand and the “thing or deed” done that gave rise to the discrete act of selling which formed the basis of the other conviction. If the two deeds or things involved different conduct, the proverbial “fork in the road,” then they can be prosecuted by dual sovereigns without running afoul of Wis. Stat. § 961.45. We therefore affirm the conviction for conspiring to sell marijuana.

The court doesn’t say who has the burden of (dis)proving a “different volitional act,” with the standard of proof left unsaid as well. It’s a defense to a charge, so you probably shouldn’t facilely assume the State has the burden of proof. The court is also silent on just what factors might inform this determination. The “fork in the road” metaphor comes fromHarrell, but that is a sexual assault case and its seven-factor test isn’t readily applicable to drug prosecutions, 88 Wis. 2d at 572. Is Bautista’s case representative, so that whether the conduct is (or is not) the “same” will always be obvious from the nature of the charges? Doubtful.


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