Kurzawa v. Jordan

Decision Date29 May 1998
Docket NumberNo. 96-3299,96-3299
Citation146 F.3d 435
PartiesMichael J. KURZAWA, Petitioner-Appellant, v. Eurial K. JORDAN, Administrator, Division of Probation and Parole, and James E. Doyle, Attorney General, State of Wisconsin, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen M. Glynn, Robert R. Henak (argued), Shellow, Shellow & Glynn, Milwaukee, WI, for Petitioner-Appellant.

Sharon Ruhly (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before CUMMINGS, COFFEY and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

The petitioner-appellant, Michael Kurzawa, appeals from the district court's denial of his petition for writ of habeas corpus. He contends that the court erred in concluding that the "same elements" double jeopardy test set forth in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), applies retroactively to allow his Wisconsin prosecution for uttering a forged document, Wis. Stat. § 943.38(2), following acquittal on charges of theft by fraud, Wis. Stat. § 943.20(1)(d). We affirm.


To best understand the nature of this appeal, we shall intermingle the facts underlying it with Supreme Court case law. In 1977, Dr. Robert Beckes, who is a surgeon, and his wife, Dr. Clarice Beckes, a dentist, established separate professional practices in Milwaukee, Wisconsin. In that same year, the Beckeses retained the petitioner-appellant, Michael Kurzawa, to provide accounting and financial management services in connection with their respective practices. Because Kurzawa's position made him responsible for, among other things, paying bills and bookkeeping, he had access to the Beckes' business checking accounts with the Greater Milwaukee Bank, also located in Milwaukee.

Sometime in 1986, Robert Beckes grew concerned over the financial condition of his medical practice, and had an independent audit conducted to ascertain whether there existed a problem, and if so, the source of it. Upon completion of the audit, it was discovered that, from the early 1980's through March of 1986, Kurzawa wrote over one-hundred checks, totaling almost $100,000, to himself and his business on Robert and Clarice Beckes' professional accounts, forging their names as the drawers of the drafts. Following an investigation by the forgery unit of the Milwaukee Police Department, the Milwaukee County district attorney filed a criminal information against Kurzawa on August 2, 1989, charging him with one count of embezzlement, in violation of Wis. Stats. §§ 943.20(1)(b) and (3)(c). The information was amended in February, 1990, so as to charge the petitioner with two counts of embezzlement and eight counts of forgery, Wis. Stat. § 943.38(1)(a), and was amended a second time on September 18, 1990, charging him with two counts of theft by fraud, where the value of property misappropriated exceeds $2,500, contrary to Wis. Stats. §§ 943.20(1)(d) and (3)(c). In the interim, on May 29, 1990, the United States Supreme Court issued its opinion in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), a decision representing a marked change of course in double jeopardy jurisprudence. Prior to that date, constitutional challenges under the Double Jeopardy Clause were analyzed under what was known as the "Blockburger same elements test," named so after the seminal case, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein the Court held:

The applicable [double jeopardy] rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182 (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911)). 1 Grady effectively provided criminal defendants with a second layer of double jeopardy of protection, that is, "even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element on the second crime by proving the conduct for which the defendant was convicted in the first prosecution." Grady, 495 U.S. at 510, 110 S.Ct. at 2087.

On September 24, 1990, the Milwaukee County case against Kurzawa went to trial before a jury on the second amended information charging two counts of theft by fraud. 2 In its case-in-chief, the prosecution sought to establish the "false representation" element of the crime with evidence that Kurzawa had misappropriated funds from the Beckes' accounts by forging their names as the purported makers of the drafts, naming himself or his business as payee, and then cashing the checks. See State v. Kurzawa, 173 Wis.2d 769, 496 N.W.2d 695, 696-97 (Wis.App.1993). The matter was never submitted to the jury, however, as the judge granted Kurzawa's motion for a judgment of acquittal after ruling that the State failed to prove Kurzawa had made a false representation to an agent of the Beckeses, as required by the theft by fraud statute, Wis. Stat. § 943.20(1)(d). 3

Then, on October 4, 1991, Kurzawa was charged by criminal information in Walworth County (Wisconsin) with 54 counts of uttering a forged instrument, in violation of Wis. Stat. § 943.38(2). Each count arose from separate checks Kurzawa had written on the Beckes' accounts and thereafter deposited in his own account at the Walworth State Bank in Walworth, Wisconsin, between April 16, 1985 and March 24, 1986. These fifty-four checks were among the more than one-hundred checks which provided the basis for the previous Milwaukee County theft by fraud prosecution. On October 18, 1991, Kurzawa filed a motion with the Walworth County Circuit Court to dismiss the "uttering a forged instrument" charges against him on double jeopardy grounds. Relying on the then-recent Grady decision, he argued that "[b]ecause ... [he] previously was acquitted in Milwaukee County Circuit Court for the same criminal conduct alleged in the present information, further prosecution of this case would subject him to double jeopardy...." The trial judge denied this motion due to the absence of an overlapping or concurrent "necessary element between theft by fraud and uttering [a forged instrument]," and ordered the Walworth County prosecution to proceed. Kurzawa subsequently appealed that determination to the Wisconsin Court of Appeals, which, following an unsuccessful attempt to certify the issue to the Wisconsin Supreme Court, reversed the order of the Walworth County Circuit Court and remanded the case back to that court with instructions to dismiss the criminal complaint. In so doing, it followed Grady's "same conduct" double jeopardy test:

Comparing Kurzawa's conduct in the Milwaukee County theft by fraud prosecution--particularly that concerning the element of false representation-with Kurzawa's conduct which the state alleges in this case, it is clear that the state relies on the same core conduct--Kurzawa's forging the Beckes' checks and naming himself or his business as payee. This is precisely what Grady forbids.

Kurzawa, 496 N.W.2d at 699.

In April of 1993, the Wisconsin Supreme Court granted the State's appeal from the court of appeals' decision dismissing the uttering a forged document charges against Kurzawa. Before oral argument was held in the case, the United States Supreme Court, in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), overturned Grady. "[W]e think it time to acknowledge what is now, three years after Grady, compellingly clear: the [Grady] case was a mistake," id. at 711, 113 S.Ct. at 2864, the High Court explained. "We do not lightly reconsider a precedent," it went on to state, "but, because Grady contradicted an 'unbroken line of decisions,' contained 'less than accurate' historical analysis, and has produced 'confusion,' we do so here." Id., 113 S.Ct. at 2864 (citations and footnote omitted). The new double jeopardy standard espoused in Dixon was not really new at all, but rather only a reiteration of the old Blockburger "same elements" test that had been in effect prior to Grady. Thus, double jeopardy analysis returned to inquiring into whether each of the two offenses for which a defendant is tried or punished contains an element not set forth in the other. Grady's additional requirement to avoid the double jeopardy bar--that the conduct used to prove an element of the second offense not constitute an offense for which the defendant has previously been prosecuted--was cast aside.

The Wisconsin Supreme Court ordered supplemental briefing addressing the impact of Dixon on the State's appeal. Kurzawa argued that retroactive application of Dixon would operate similarly to an impermissible ex post facto law, denying him his right to due process. He also contended that Dixon should be rejected as a matter of Wisconsin constitutional law. The Wisconsin Supreme Court rejected both of these arguments outright, explaining:

[W]e believe that at the time Kurzawa engaged in the conduct for which he stands accused, Blockburger's "same elements" test was the standard by which his double jeopardy claim would have been analyzed. [Because Dixon's double jeopardy test is the same as Blockburger's,] ... applying such an analysis does not violate his due process rights.

* * * * * *

Blockburger is not a perfect test, but it is better than Grady's "same conduct" approach. We hereby follow the United States Supreme Court and adopt the analysis of Dixon and Blockburger in double jeopardy cases involving successive prosecutions.

State v. Kurzawa, 180 Wis.2d 502, 509 N.W.2d 712, 720, 722 (1994). The court then analyzed Kurzawa's double jeopardy claim under the Blockburger-Dixon formulation. It...

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