State v. Gibas

• Citation: 516 N.W.2d 785,184 Wis.2d 355
• Decision Date: 27 April 1994
• Docket Number: No. 93-1951-CR,93-1951-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Randall J. GIBAS, Defendant-Respondent. d
• Court: Court of Appeals of Wisconsin

Page 785

516 N.W.2d 785

184 Wis.2d 355

STATE of Wisconsin, Plaintiff-Appellant, v. Randall J. GIBAS, Defendant-Respondent. ^d

No. 93-1951-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 8, 1994.

Opinion Released April 27, 1994.

Opinion Filed April 27, 1994.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

BROWN, Judge.

Randall J. Gibas successfully argued before the trial court that charges of aiming and pointing a weapon should be dismissed with prejudice against him because the State was guilty of outrageous governmental conduct. Essentially, Gibas argued that the defense of outrageous governmental conduct recognized in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), applies to this case because the Wisconsin Department of Justice (DOJ) intimidated several defense witnesses. ¹ Because the facts of this case do not fit the paradigm of an outrageous governmental conduct defense as illustrated by case law, we reverse.

Gibas, a DOJ narcotics agent, was on stakeout with a female agent. He allegedly pointed his revolver at her while in the stakeout car and ordered her to remove her clothes. The female agent reported the incident to her superiors and Gibas was suspended.

The DOJ forwarded the information to the Calumet County Sheriff. The sheriff's department did its own investigation and, based upon this information and information supplied by the DOJ, the district attorney decided to charge Gibas with aiming and pointing a weapon.

Before trial, Gibas moved to dismiss on various grounds. All were denied save one. The trial court ruled in favor of Gibas' claim that the State was guilty of outrageous governmental "misconduct."

Gibas contended that: (1) the DOJ "directed" the district attorney to file a complaint-a claim denied by the district attorney; (2) following the issuance of the complaint, the DOJ superiors subtly threatened Gibas' fellow workers with reprisals if they either helped Gibas prepare his case or testified as character witnesses on his behalf; and (3) the DOJ and the district attorney were in continuous contact even after the complaint was issued, whereby the district attorney asked about possible Whitty evidence and other administrative matters pertaining to Gibas.

The trial court conducted an evidentiary hearing and then ruled that: (1) the district attorney made the initial charging decision in a "political vacuum, free of influence" and (2) during the course of prosecution, the DOJ had "an independent problem and agenda" concerning Gibas and its "continued involvement, with respect to submitting correspondence to the [district attorney's] office, conferring with prospective witnesses, handicapping or hindering prospective witnesses and exerting influence on the prosecution subsequent to that independent charging document unlawfully taints the prosecution." The trial court found a due process violation and dismissed the case with prejudice.

The issue in this case requires us to examine the defense of outrageous governmental conduct as set forth in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In dictum, the Court stated that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Id. at 431-32, 93 S.Ct. at 1643. The Court further stated that the conduct must violate that " 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." Id. at 432, 93 S.Ct. at 1643 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (1960)). However, to date, this defense has never been applied successfully in a case before the United States Supreme Court.

In Wisconsin, our supreme court has never considered the validity of the defense of outrageous governmental conduct. However, the court of appeals of Wisconsin has twice recognized the existence of the defense. In State v. Steadman, 152 Wis.2d 293, 448 N.W.2d 267 (Ct.App.1989), the court stated that a due process violation could arise if the government was so enmeshed in a criminal activity that the prosecution of the defendant would be repugnant to the American criminal justice system. Id. at 301, 448 N.W.2d at 271. The court appeared to require that the government instigate a crime in order for the defense to be successful. Id. Additionally, the court stated that the outrageous conduct must violate a specific constitutional right of the defendant. Id. at 302, 448 N.W.2d at 271. Finally, the court stated that the question of whether the government violated due process by its conduct was a legal question. Id. at 300, 448 N.W.2d at 271.

The court in State v. Hyndman, 170 Wis.2d 198, 488 N.W.2d 111 (Ct.App.1992), reaffirmed its decision in Steadman by stating that the question of whether the defense applied to a given situation was a determination of constitutional fact. Hyndman, 170 Wis.2d at 207-08, 488 N.W.2d at 115. The court in Hyndman stated that the appellate court was to review the decision of the trial court, without deference to its determination. Id. Therefore, in Wisconsin, it appears that: (1) the standard of review for the defense is de novo, (2) the defendant must assert that the State violated a specific constitutional right, and (3) the government's conduct must be so enmeshed in a criminal activity that prosecution of the defendant would be repugnant to the American criminal justice system.

There have been only two cases at the federal level where the defendant has successfully used the defense of outrageous governmental conduct. Both of these cases support the proposition that the government's conduct must be enmeshed in criminal activity in order for the defense to apply. In Greene v. United States, 454 F.2d 783 (9th Cir.1971), the court reversed the defendants' convictions on charges involving possession of unregistered distilling apparatus, sale without stamp of distilled spirits, and conspiracy. The court implicitly ² found that the defense of outrageous governmental conduct applied to the defendants because the government involved itself so directly and continuously over a long period of time in the creation and maintenance of criminal operations. Id. at 787.

In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), the court reversed a defendant's conviction on charges stemming from the manufacture of "speed" because the conduct of the government violated "fundamental fairness." Id. at 381-82. The court reasoned that the government's conduct was outrageous because the Drug Enforcement Administration had generated the new crime by the defendant merely for the sake of pressing criminal charges against him. Id. Therefore, the defense of outrageous governmental conduct has only been successful at the federal level when the government was enmeshed in criminal activity.

Although Gibas has alleged a specific violation of his due process rights, his defense fails because the State's conduct here was not enmeshed in criminal activity. The trial court found a violation of due process because the DOJ: (1) submitted correspondence to the district attorney's office, (2) conferred with prospective witnesses, (3) handicapped or hindered prospective witnesses, and (4) exerted influence on the prosecution of the case. None of these reasons involved the government in criminal operations.

The crux of Gibas' defense was the alleged "intimidation" of prospective defense witnesses. A prospective defense witness at the DOJ was cautioned not to get involved in testifying for Gibas because "management [at the DOJ] has long memories." Another prospective defense witness was reprimanded for assisting Gibas during...