State v. Evers

• Decision Date: 06 May 1991
• Docket Number: No. 90-1881-CR,90-1881-CR
• Citation: 472 N.W.2d 828,163 Wis.2d 725
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William J. EVERS, Defendant-Appellant. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 828

472 N.W.2d 828

163 Wis.2d 725

STATE of Wisconsin, Plaintiff-Respondent, v. William J. EVERS, Defendant-Appellant. ^d

No. 90-1881-CR.

Court of Appeals of Wisconsin.

Oral Argument May 6, 1991.

Opinion Released June 11, 1991.

Opinion Filed June 11, 1991.

[163 Wis.2d 727] Robert J. Lerner, Perry, Lerner & Quindel, S.C., Milwaukee, for defendant-appellant.

James E. Doyle, Atty. Gen., and William L. Gansner, argued, Asst. Atty. Gen., for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

William Evers appeals his conviction on prostitution-related charges stemming from his control and operation of "massage parlors" in Outagamie, Brown and Winnebago Counties over a period of eight years, and an order denying postconviction relief. He claims three errors on appeal: First, that the three charges of engaging in a continuing criminal enterprise in violation of sec. 946.85, Stats., are multiplicitous; second, that imposition of consecutive sentences for continuing criminal enterprise offenses and predicate substantive offenses violates protections against double jeopardy; and third, that the trial court erred by denying his request for immunity We conclude first that sec. 946.85, Stats., by its reference to three activities prohibited under sec. 946.83 describes three distinct offenses under the Wisconsin Organized Crime Control Act (WOCCA) and that charging an individual with each of the three offenses is not multiplicitous. Second, we determine that double jeopardy does not preclude the imposition of consecutive sentences for violation of sec. 946.85 and the underlying predicate offenses. Finally, we conclude that the trial court did not err by refusing Evers' request to grant immunity to certain defense witnesses. The trial court's judgment and order are affirmed.

for fewer than ten defense witnesses, while granting the prosecution's request for immunity for more than fifty state's witnesses.

Count one of the information charged Evers with engaging in a continuing criminal enterprise by conducting or participating in an enterprise through a pattern of racketeering activity, in violation of secs. 946.85 [163 Wis.2d 729] and 946.83(3), Stats. In support of this charge, the jury was asked to consider seventy-two predicate offenses. It found that Evers committed fifty-seven of those offenses. Count two charged Evers with engaging in a continuing criminal enterprise by acquiring or maintaining an interest in or control of an enterprise or real property, in violation of secs. 946.85 and 946.83(2). The jury was asked to consider sixty-eight predicate offenses and found that he committed fifty. Count three charged Evers with engaging in a continuing criminal enterprise by using or investing the proceeds of an enterprise, in violation of secs. 946.85 and 946.83(1). The jury was asked to consider forty-one predicate offenses and found that he committed twenty-four. Many of the same predicate offenses were used to support each charge.

WISCONSIN ORGANIZED CRIME CONTROL ACT

Section 946.85, Stats., provides:

Continuing criminal enterprise. (1) Any person who engages in a continuing criminal enterprise shall be imprisoned not less than 10 years nor more than 20 years, and fined not more than $10,000 or as provided in s. 946.84(2). If the court imposes a sentence less than the presumptive minimum sentence, it shall place its reasons for doing so on the record.

(2) In this section a person is considered to be engaged in a continuing criminal enterprise, if he or she engages in a prohibited activity under s. 946.83, and:

(a) The activity is undertaken by the person in concert with 5 or more other persons, each of whom acted with intent to commit a crime and with respect to whom the person occupies a supervisory position; and

(b) The person obtains gross income or resources in excess of $25,000 from the activity.

Section 946.83 delineates three prohibited activities:

(1) No person who has received any proceeds with knowledge that they were derived, directly or indirectly, from a pattern of racketeering activity ¹ may use or invest, whether directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.

(2) No person, through a pattern of racketeering activity, may acquire or maintain, directly or indirectly, any interest (3) No person employed by, or associated with, any enterprise may conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity.

in or control of any enterprise or real property.

WOCCA is patterned on the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. RICO prohibits three activities in 18 U.S.C. § 1962(a) through (c) that are similar to the prohibitions in sec. 946.83, Stats. ² The federal RICO prohibitions read as follows:

Prohibited activities.

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more of the directors of the issuer.

(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

Because WOCCA was patterned after RICO, we have held that federal case law interpreting RICO is persuasive authority in our interpretation of WOCCA. State v. Judd, 147 Wis.2d 398, 403, 433 N.W.2d 260, 262-63 (Ct.App.1988).

MULTIPLICITY OF CHARGES

Evers first contends that the state is barred from charging him with three separate offenses under secs. 946.85 and 946.83, Stats. Whether sec. 946.85 and the three subsections of sec. 946.83 actually describe different offenses is a question of law that we review de novo. See generally State v. Gordon, 111 Wis.2d 133, 330 N.W.2d 564 (1983). Statutory offenses must be examined to ascertain "whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); see also Gordon, 111 Wis.2d at 138-39, 330 N.W.2d at 566 (Wisconsin applies Blockburger as the "additional element" or "additional fact" test).

The language of sec. 946.85, Stats., is clear and unambiguous. A person engages in a continuing criminal enterprise when the conditions described in subsecs. (2)(a) and (2)(b) are present and the individual engages in an activity prohibited under sec. 946.83. Section 946.83 describes three distinct prohibited activities: Using or investing proceeds of the racketeering activity, acquiring an interest in property or an enterprise and conducting or participating in the enterprise. We conclude that there are three separate and distinct offenses chargeable under sec. 946.85, each requiring proof of a fact the others do not.

Our ruling is consonant with all of the federal circuits interpreting RICO. The ninth circuit has described the prohibitions of 18 U.S.C. § 1962 as barring "the investment of racketeering moneys, the acquisition of property through a pattern of racketeering activity [and] the conduct of an enterprise through a pattern of racketeering." United States v. Rone, 598 F.2d 564, 568 (9th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Because each of the four subsections of 18 U.S.C. § 1962 defines separate offenses, the federal courts have invoked the presumption that the legislature intended cumulative punishments for them. See United States v. Pungitore, 910 F.2d 1084, 1117 (3d Cir.1990) (permitting convictions of both substantive and conspiracy violations under § 1962(c) and (d)); United States v. West, 877 F.2d 281, 292 (4th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 377, 107 L.Ed.2d 362 (1989) (permitting convictions of both substantive and conspiracy violations under § 1962(c) and (d)); United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988) (permitting convictions of both substantive and conspiracy violations under § 1962(c) and (d)); United States v. Biasucci, 786 F.2d 504, 515-16 (7th Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 107, 93 L.Ed.2d 54, 56 (1986) (permitting conviction on two counts of substantive violations, § 1962(b) and (c), even where "convictions arise from the same acts or transactions"); ...