Petition for Writ of Certiorari — Gibas v. Wisconsin
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94 787 OCT 17 199%
NO.
OFFICE-OFTHE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
RANDALL J. GIBAS,
Petitioner,
Vv.
STATE OF WISCONSIN,
PETITION FOR A WRIT OF CERTIORARI
TO THE WISCONSIN COURT OF APPEALS -
SECOND JUDICIAL DISTRICT
PETITION FOR WRIT OF CERTIORARI
Neal C. Schellinger
333 Bishops Way, Suite 122
Brookfield, Wisconsin 53005
(414) 784-4829
Counsel of Record
Douglas W. Lehrer
333 Bishops Way, Suite 122
Brookfield, Wisconsin 53005
(414) 784-4829
Counsel of Petitioner
i
j
STATEMENT OF QUESTIONS PRESENTED
Were petitioner’s due process rights under
the Fifth and Fourteenth Amendments to the
United States Constitution violated when it
was found by the trial court that the
Wisconsin Department of Justice: (1)
submitted correspondences 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?
Were the defendant’s constitutional due
process rights violated by government
misconduct to such an extent that
dismissal of the case with prejudice was
the proper remedy?
TABLE OF CONTENTS
Page
Questions Presented ......-.--seeeeeeeeees i
Tahlia OF GOFICEMEH 2... ccc ccc creer ccccccns ii
Talla Of Authorities ......ccsccccecersecee iv
Citation to Opinion Below ...........+.--- 1
kee heehee ee een ees ecess 2
Constitutional Provisions Involved ...... 3
Statutes Involved ........- eee cere ceeeces 3
Statement of the Case .......-- ee eee eeees 5
Reasons For Granting of Writ ............ 14
as PETITIONER’S DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION WERE VIOLATED BY
PERSISTENT, SUBTLE, ORGANIZED, AND
DELIBERATE OUTRAGEOUS GOVERNMENTAL
CONDUCT THAT CONTINUED OVER THE
ENTIRE CRIMINAL PROCESS ........-..--+-- 14
A. The Defense Of Outrageous
Governmental Conduct Has Been
Recognized As A Bar From Invoking
Judicial Processes To Obtain A
Conviction Pursuant To Constitutional
Due Process Principles .........- 14
B. Under The Concept Of Due Process Of
Law, Fundamental Fairness Requires That
A Criminal Defendant Be Guaranteed
Certain Rights In Order To Preserve
The Integrity Of The Judicial
EES ae ee ee 17
Py SRR ee - i :
wv Ce er ae en Ce eee oe ee i ae es ee a
Cc. Even If A Defendant Must Establish
That The Government’s Conduct Was
Enmeshed In Criminal Activity Prior
To Asserting The Defense Of Outrageous
Governmental Conduct, The Intimidation
Of Defense Witnesses By The Government
Enmeshes The State In Criminal
ACtivity ...-ccceccccececsrcceces 20
II. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN CHOOSING DISMISSAL WITH
PREJUDICE AS A REMEDY .....---+++-+:: 25
ee ae i i ee a a 27
iii
Case Page
Berger v. United States,
295 U.S. 78 (1935) wcccesccccecers® 19
Chambers v. Mississippi,
410 U.S. 284 6 os) re 18
Polko v. Connecticut,
302 U.S. 319 (1937) .--ccccceeecees yy
Rochin v. California,
342 U.S. 165 PED «pe vesecevessess 18
United States v. Russell, ,
411 U.S. 423 (1973) .cccccccecececes 33; 2k,3*
United States Court of Appeals
Cases Page
Greene v. United States,
454 F.2d 783 (9th Cir. >.) eee 16
Nicholas v. Gagnon,
710 F.2d 1267 (ven Cir. +) 17
United States v. Harris,
997 F.2d 812 (10th Cir. 1993) ...-- 16
Uni is v. Twi
588 F.2d 373 (3rd Cir. 1978) ....-- 16
iv
nt
Wisconsin Statutes
Statute Page
Section 940.21 (1) (Cc) ..----eeeeeeees ,
Section 940.42 .....- cece rece erreres ; ie
Section 940.41 .....---eeeereeererees Ss, 22
Gection 940.43 ....ccceccecceeeerees 4, 24
DSO es RD A
SR ae 2 ON
NO.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
RANDALL J. GIBAS,
Petitioner,
Vv.
STATE OF WISCONSIN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE WISCONSIN COURT OF APPEALS -
SECOND JUDICIAL DISTRICT
PETITION FOR WRIT OF CERTIORARI
Petitioner, Randall Gibas, respectfully
prays that a Writ of Certiorari issue to review
the judgment of the Wisconsin Court of Appeals,
Second Judicial District, entered in the above-
entitled proceeding, on April 27, 1994.
OPINION BELOW
The opinion of the Wisconsin Court of
Appeals, Second Judicial District, appears at
184 Wis. 2d 355 (2nd Dist. 1994). A copy of the
opinion is attached to this Petition as Exhibit
"A".
The Order of the Supreme Court of Wisconsin
denying Petition for Review, entered July 19,
1994, is not reported and attached as Exhibit
"BY" P
JURISDICTION
The judgment of the Wisconsin Court of
Appeals, Second Judicial District, was entered
on April 27, 1994 (Appendix "A"). The Wisconsin
Supreme Court denied a timely Petition for
Review on July 19, 1994. This Petition is being
filed within ninety (90) days of the Wisconsin
Supreme Court’s denial of review. The
jurisdiction of this Court is invoked under 28
U.S.C. Section 1257 (3).
Rn lee AM et, IE
Pe BALIN SSS ORG" I ORES REA 1 et
The Fifth Amendment to the United States
Constitution provides in pertinent part:
No person shall...be deprived . of
life, liberty, or property, without
due process of law....
The Sixth Amendment to the United States
Constitution provides in pertinent part:
In all criminal prosecutions, the
accused shall enjoy the right...to
have compulsory process for obtaining
witnesses in his favor....
The Fourteenth Amendment to the United
States Constitution provides in pertinent part:
No state shall make or enforce any
law which shall...deprive any person
of life, liberty, or property,
without due process of law....
STATUTES INVOLVED
Wisconsin statute section 940.21 (1) (c)
provides in pertinent part:
(1) Whoever does any of the
following is guilty of a Class A
Misdemeanor...
(c) Intentionally points a
firearm at or toward another...
Wisconsin statute section 940.42 provides
in pertinent part:
_..Whoever knowingly and maliciously
prevents or dissuades, or attempts to
so prevent or dissuade any witness
from attending or giving testimony at
any trial, proceeding, or inquiry
authorized by law, is guilty of a
Class A Misdemeanor.
Wisconsin statute section 940.41 (1)
provides in pertinent part:
"Maliciously" means an intent to vex,
‘ annoy, or injure in any way another
person or to thwart or interfere in
any manner with the orderly
administration of justice.
Wisconsin statute section 940.42 provides
in pertinent part:
Whoever violates section 940.42 under
any of the following circumstances is
guilty of a Class D Felony:
; (1) the act is accomplished by force
or violence or attempted force or
violence....
(2) where the act is accompanied by
injury or damage to the real or
personal property of any person....
(3) where the act is accompanied by
M any express or implied threat of
force, violence, injury, or
damage....
(4) where the accuser is in
furtherance of any conspiracy....
(5) where the act is committed by any
person who has suffered any prior
4
sabes MENA Gepbhnstaisita Stans a8
conviction for any violation under
this statute under [this
statute]...or
(6) where the act is committed by any
person for monetary gain or for any
other consideration acted on the
request of any other person.
STATEMENT OF THE CASE
Petitioner, Randall J. Gibas, a Special
Agent with the Wisconsin Division of Narcotics
Enforcement, was charged in Calumet County
Circuit Court with intentionally pointing a
firearm at or toward another, contrary to
Wisconsin Statute § 940.21 (2) (¢). The
Petitioner made an initial appearance in Calumet
County Circuit Court on February 10, 1992, and
entered a plea of not guilty.
This incident allegedly occurred when Mr.
Gibas, a Wisconsin Department of Justice ("DOJ")
Narcotics’ Agent, was on a surveillance
operation with a female agent, Lori A. Sasse.
Mr. Gibas allegedly pointed his revolver at Ms.
Sasse while they were both in a vehicle during
a stakeout. Ms. Sasse reported the incident on
5
ES —————
October 1, 1991, when she was interviewed by
Richard Anderson, Director of the Division of
Narcotics Enforcement, Wisconsin Department of
Justice, and Special Agent in Charge, Ronald H.
Ninneman.
On April 28, 1993, counsel for the
petitioner filed a motion to dismiss alleging
that his Due Process Rights under the Fourteenth
Amendment to the United States Constitution had
been violated, based partly upon governmental
misconduct by the Calumet County District
Attorney’s office and the Wisconsin Department
of Justice. Specifically, Mr. Gibas claimed
that the State was guilty of outrageous
governmental conduct in that the (1) Department
of Justice (DOJ) directed the district attorney
to file the Complaint; (2) a DOJ supervisor
threatened Mr. Gibas’s fellow workers with
reprisals if they either helped Mr. Gibas
prepare his case or testify as witnesses on his
behalf; and (3), the DOJ and the district
attorney were in continuous conduct even after
the Complaint was issued. This motion was heard
before the Honorable John W. Mickiewicz, Fond du
Lac Circuit Judge, who had been specifically
assigned to hear the Calumet County criminal
case against Mr. Gibas. The motion hearing was
held on May 18, 1993, at the Fond du Lac County
Courthouse.
The crux of petitioner’s contention that
his constitutional Due Process Rights were
violated resolved around the issue Of the
approach and intimidation of witnesses by the
DOJ. At the motion hearing, the following are
some of the facts that were brought forth
establishing an overall intimidation of defense
witnesses.
On January 29, 1992, Attorney Jacqueline
Schellinger, the petitioner’s first defense
attorney, sent to Donald Poppy, the then
District Attorney of Calumet County, 4 letter
outlining the witnesses who could collaborate
the credibility regarding the government’s
witness, Lori Sasse. Those witnesses included
are. ae res P;
Gary Martine, Byron Paape, Mike Myszewski, Karen
Aspland, and William Lamb.
During late January, 1992, oF early
February, 1992, Richard Larsen, Director of
Division of Narcotics Enforcement (DNE) ,
Wisconsin Department of Justice, approached
witness Myszewski regarding the current criminal
charges against Mr. Gibas. Mr. Myszewski
advised Mr. Larsen that he, along with several
other special agents of the Department of
Justice, would be testifying on Mr. Gibas’s
behalf. At this time, Mr. Larsen attempted to
discourage Mr. Myszewski from testifying on Mr.
Gibas’s behalf and further stated, "management
around here has long memories."
During January, 1992, Gary Hamblin, acting
head of the Wisconsin Division of Narcotics
Enforcement, approached witness Martine while at
the Division of the Narcotics Enforcement
Headquarters, located in Madison, Wisconsin.
During this conversation, Mr. Martine attempted
to advise Mr. Hamblin of Mr. Gibas’s character
while working for the Department of Justice.
Mr. Hamblin advised Mr. Martine that Eugene
Williams, the Director of the DNE, did not like
Mr. Gibas and that there was "no love loss
between Williams and Gibas."
During late January, 1992, Mr. Martine was
again approached, but this time by Richard
Larsen, the Director of the DNE. The
conversation was related to Mr. Gibas’s criminal
charge and potential administrative charges.
Mr. Martine advised Mr. Larsen that Mr. Gibas
said that he was innocent of the criminal
charge, that Mr. Gibas would not plead out, and
that Mr. Gibas wasn’t going to "take this matter
lying down." Director Larsen then stated "Gibas
will eventually run out of money. But the State
never will." Mr. Martine said that he "took
that as food for thought" and further stated:
I knew what Gibas is. I knew what
kind of agent (Gibas was). I guess I
realize that if it could happen to
Randy, it could happen to me, if
that’s the way the Department of
Justice handles matters. If they put
you in a position where guilt or
innocence doesn’t make any
difference, if it was just a matter
of who had the most money, I guess I
was in jeopardy as well.
During March, 1992, Special Agent Byron
Paape, while attempting to assist Mr. Gibas in
obtaining materials in Mr. Gibas’s defense, was
verbally reprimanded by Mr. Hamblin. Mr.
Hamblin informed Mr. Paape that any further
assistance would result in" isciplinary hearing
or. action" . Mr. Paape interpreted that
statement as a warning that if he wished to
continue to advance in the Division, he would
have to cease assisting Gibas. On March 8th or
March 12th, 1992, Mr. Larsen, the Director of
the DNE, approached Mr. Paape at the DNE office.
Mr. Larsen verbally reprimanded Mr. Paape for
assisting Mr. Gibas and swore at him, "if you
want to go work for the fuckin public defender’s
office then go ahead."
At the motion to dismiss hearing, witness
Lamb stated that he was intimidated by Special
Agent in Charge, Richard Ninneman when Mr.
Ninneman interviewed Mr. Lamb in conjunction
10
with Mr. Gibas’s criminal and internal affairs
investigation. Mr. Lamb further stated that Mr.
Ninneman and Richard Anderson, the
Administrative Director of the Division of
Narcotics Enforcement, Wisconsin Department of
Justice, informed him that it was a "no-no" to
contact or assist Mr. Gibas. Asa result, Mr.
Lamb informed Mr. Gibas that he did not wish to
speak with Mr. Gibas’s attorney.
In an affidavit submitted to the court
along with the motion to dismiss, Attorney Eric
Erdmann, then counsel for petitioner, asserted
that on August 25, 1992, at approximately 6:57
p.m@., he telephoned complaining witness Lori
Sasse. At that time, he advised Ms. Sasse that
he was representing Mr. Gibas in the upcoming
criminal matter and that he wished to talk to
her about the situation. Attorney Erdmann
further advised her that she did not have to
talk to him. Ms. Sasse stated, "that she had
been advised not to." Attorney Erdmann then
asked Ms. Sasse who advised her not to, at which
11
rien 32.
ee Be ah 3
time Ms. Sasse stated that she, "was advised
while she worked at MEG (Lake Winnebago
Metropolitan Enforcement Group) Unit not to talk
to you". Attorney Erdmann asked if it was by
her supervisors and Ms. Sasse said, "yes."
At the conclusion of the motion hearing,
Judge John W. Mickiewicz dismissed this case
against the petitioner, Randall J. Gibas, with
prejudice, and entered a written order of
dismissal on June 7, 1993. Judge Mickiewicz
specifically held that during the course of
prosecution of this case, the DOJ had:
an independent problem and agenda of
its own concerning the employment of
Mr. Gibas that there 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 of this
case, subsequent to that independent
charging document generally
influencing the case, it unlawfully
taints the prosecution.
As a result, the trial court held that Mr.
Gibas’s due process rights were violated and
dismissed this case with prejudice.
12
On July 20, 1993, the State of Wisconsin
appealed the order dismissing the criminal
prosecution to the Wisconsin Court of Appeals.
The petitioner filed a timely brief alleging
that his federal Constitutional Due Process
Rights were violated by outrageous governmental
conduct. On April 27, 1994, the Wisconsin Court
of Appeals reversed the trial court’s holding
and remanded the case back to the trial court
with directions. Specifically, the Honorable
Richard S$. Brown in his opinion for the court
held that, “although Gibas had alleged a
specific violation of his due process rights,
his defense fails because the State’s conduct
was not enmeshed in criminal activity."
Additionally, the Court of Appeals held that
although the actions by the DOJ~ were
"troubling", and "not commendable", "(t]he state
did not create nor was it involved in the
incident which led to the charges against
Gibas." In essence, the Wisconsin Court of
Appeals has held that in order to establish the
13
defense of outrageous governmental conduct, the
defendant must show that the government
instigated the crime which led to the original
charges against the defendant.
On May 24, 1994, petitioner timely filed a
Petition to Review the Court of Appeals’
decision with the Supreme Court of Wisconsin
again alleging that his federal Constitutional
Due Process Rights were violated. On July 19,
1994, the Supreme Court denied review of this
matter.
REASON FOR GRANTING OF WRIT
I. PETITIONER’S DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION WERE VIOLATED BY
PERSISTENT, SUBTLE, ORGANIZED,
AND DELIBERATE OUTRAGEOUS
GOVERNMENTAL CONDUCT THAT CONTINUED
OVER THE ENTIRE CRIMINAL PROCESS
A. The Defense Of Outrageous
Governmental Conduct Has Been
Recognized As A Bar From
Invoking Judicial Processes To
Obtain A Conviction Pursuant To
Constitutional Due Process
Principles.
The issue in this case is of fundamental
importance to the conduct of legitimate
14
Si a ce
investigations into criminal activity. The
defense of outrageous governmental conduct was
first recognized by the Supreme Court in United
tate Vv. Li, 411 U.S. 423 (1973).
Although the specific issue in that ' case
involved entrapment, the court noted that "we
may someday 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....",
Russell, 411 U.S. at 431-432. Although specific
grounds for applying such a defense were not
outlined in Russell, the court did note that the
outrageous governmental conduct defense may
apply when law enforcement conduct is violating
that "fundamental fairness, shocking to the
universal sense of justice, mandated by the due
process clause of the Fifth Amendment", Russell,
411 U.S. at 432.
Federal circuit courts have further
recognized the validity of the outrageous
15
PMT LOL LOAM RE MELEE OE ERE Cy rene
ee ee ee ¥
ne
governmental conduct defense. United States v.
Harris, 997 F.2d 812 (10th Cir. 1993). In some
instances, those courts have even set aside
convictions based upon the improper conduct of
government officials. In United States v.
Twigg, 588 F.2d 373 (3rd Circuit 1978), the
court reversed a defendant’s conviction on
charges stemming from the manufacturer 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 nature and extent of
police involvement in criminal activity was so
overreaching as to bar prosecution of defendants
as a matter of due process.
Likewise, in Greene v. United States, 454
F.2d 783 (9th Cir. 1971), the court reversed the
defendant’s convictions on charges involving
possession of unregistered distilling apparatus,
sale without stamp of distill spirits, and
conspiracy. The court implicitly found the
defense of outrageous governmental conduct
16
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. Clearly,
federal courts have repeatedly recognized and
upheld the defense of outrageous governmental
conduct as a bar from invoking judicial
processes to obtain conviction pursuant to
constitutional due process principles.
B. Under The Concept Of Due Process
Of Law, Fundamental Fairness
Requires That A Criminal Defendant
Be Guaranteed Certain Rights In Order
To Preserve The Integrity Of The
Judicial Process.
Although the concept of due process is
somewhat nebulous and precludes defining, to say
that there are no definite lines that can be
crossed is a fallacy. In a criminal context, a
defendant has "the right to be tried according
to the fundamental, contemporary norms of
civilized procedure"; Ni Vv. non, 710
F.2d 1267, 1275 (7th Cir. 1983) (citing Polko v.
Connecticut, 302 U.S. 319 (1937)). A defendant
17
also has a "fundamental right to a fair
opportunity to defend against the charges
brought against him." Chambers v. Mississippi,
410 U.S. 284, 294 (1973). Encompassed in this
"fair opportunity" which is the very essence of
due process, is the right to call witnesses on
one’s behalf, the right to examine adverse
witnesses and the right to the assistance of
counsel. Id. Due process guarantees the
accused a fair trial, and any violation of
fundamental fairness will constitute denial of
that guarantee. A defendant is denied
fundamental fairness when evidence material to
guilt or innocence is unavailable. In short,
due process of law rests upon the concepts of
fundamental fairness and fair play. Thus,
"convictions cannot be brought about by methods
that offend the sense of justice." Rochin v.
California, 342 U.S. 165, 173 (1952).
Due process guarantees the aforementioned
rights because they are necessary for the
preservation of the integrity of the judicial
18
Pe See eT Oe VO EES oe SRR EL Eee
process. It is not only the responsibility of
the court to remain stalwart in its inherence to
due process requirements, but it is also the
prosecutor’s responsibility to adhere to due
process demands.
The United States Attorney is the
representative not of an ordinary
party to a controversy, but of a
sovereignty whose obligation to
govern impartially is as compelling
as obligation to govern at all; and
whose interest, therefore, in a
criminal prosecution, is not that it
shall win a case, but that justice
shall be done. As such, he is ina
peculiar and very definite sense the
servant of the law. The two-fold aim
of which is that guilt shall not
escape or innocence suffer. He may
prosecute with earnestness and vigor
- indeed, he shall do so. But, while
he may strike hard blows, he is not
at liberty to strike foul ones. It
as much his duty to refrain from
improper methods calculated produce a
wrongful conviction as it is to use
every legitimate means to bring about
a just one. Berger v. United States,
295 U.S. 78 (1935).
Though in the instant case, we are dealing
with a state district attorney, the demands
under the due process clause of the fourteenth
amendment are no different.
19
From its very inception, the prosecution in
this case has been so tainted and pervasive as
to violate Mr. Gibas’s due process rights.
There have been delays in discovery, delays in
prosecution, and witness intimidation. Indeed,
the whole integrity of the judicial process has
been called into question. In dismissing this
case at the trial court level, Judge Mickiewicz
specifically held that the district attorney’s
office conferred with prospective witnesses,
handicapped or hindered prospective witnesses
and exerted influence on the prosecution of the
case which unlawfully tainted the prosecution.
Clearly, the prosecution of Mr. Gibas has been
shown to violate fundamental fairness, which is
shocking to the universal sense of justice
mandated by the due process clause of the fifth
and Fourteenth amendment.
Cc. Even If A Defendant Must Establish
That The Government’s Conduct Was
Enmeshed In Criminal Activity Prior
To Asserting The Defense Of Outrageous
Governmental Conduct, The Intimidation
Of Defense Witnesses By The Government
Enmeshes The State In Criminal
Activity.
The Wisconsin Court of Appeals, in
overturning the trial court’s decision to
dismiss this case with prejudice, has held that
in order to establish the defense of outrageous
governmental conduct, the defendant must show
that the government’s conduct was "enmeshed" in
criminal activity. The court has determined
that criminality on the part of the government
is a condition precedent to use of this defense.
This criminality requirement, however, has never
been set forth by any federal court. As stated,
an outrageous governmental conduct defense
simply requires that the prosecution of a
defendant violate "fundamental fairness,
shocking to the universal sense of justice,
mandated by the due process clause of the fifth
amendment." Russell, 411 U.S. at 432.
Questions regarding the application of the
outrageous governmental conduct defense must be
settled by the United States Supreme Court. The
genesis of the concept of outrageous
governmental conduct is found in the Due Process
21
ee
Clause of the Fifth Amendment of the United
States Constitution and the Wisconsin Court of
Appeals’ decision on this fundamental question
of federal constitutional law runs counter to
federal circuit court and United States Supreme
Court decisions.
Even if a defendant must establish that the
government’s conduct was enmeshed in criminal
activity prior to asserting the defense of
outrageous governmental conduct, the
intimidation of defense witnesses by the
government enmeshes the State in criminal
activity. The Wisconsin Court of Appeals has
conceded that the defendant has alleged specific
violations of his Due Process Rights. In
overturning the dismissal, however, the court
erroneously held that although 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
22
of these constitutional violations involved the
government in criminal operations.
Specifically, the court held that although the
actions by the DOJ were "troubling and not
commendable", they did not "enmesh the state in
criminal activity". Wisconsin statutes,
however, specifically provide that, whoever
knowingly and maliciously prevents or dissuades
or who attempts to so prevent and dissuade any
witness from attending or giving testimony in
any trial, proceeding, or inquiry authorized by
law is guilty of a Class A Misdemeanor; §
940.42, Wis. Stats. "Maliciously" has been
defined as an intent to vex, annoy, or injure in
any way another person or to thwart or interfere
in any manner with the ordinary administration
of justice; § 940.41 cl, Wis. Stats.
Furthermore, Wisconsin Statute § 940.43,
punishes the same offense as a Class D Felony
where:
(1) the act is accomplished by force
or violence or attempted force or
violence....
23
(2) where the act is accompanied by
injury or damage to the real or
personal property of any person....
(3) where the act is accompanied by
any express or implied threat of
force, violence, injury, or
damage....
(4) where the accuser is in
furtherance of any conspiracy...
(5) where the act is committed by any
person who has suffered any prior
conviction for any violation under
this statute under [this
statute]...or
(6) where the act is committed by any
person for monetary gain or for any
other consideration acted on the
request of any other person.
Included in the outrageous governmental
conduct alleged by the defense in this case is
the intimidation of prospective defense
witnesses. Specifically, a prospective defense
witness at the DOJ was cautioned not to testify
for Mr. Gibas because "management [at the DOJ]
has long memories." Another prospective defense
witness was reprimanded for assisting Mr. Gibas
during company time. Additionally, another
prospective defense witness indicated that he
24
:
;
4
felt intimidated by a DOJ employee.
Since the DOJ knowingly and maliciously
prevented or dissuaded, or attempted to prevent
or dissuade witnesses from attending or giving
testimony at the trial, such governmental
conduct enmeshes the state in criminal activity.
As such, the prosecution of the defendant is
repugnant to the American criminal justice
system and in violation of the defendant’s
constitutional due process rights.
II. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN CHOOSING DISMISSAL WITH
PREJUDICE AS A REMEDY
The remedy chosen by the trial court in
this case was dismissal with prejudice. Since
the defense of outrageous governmental conduct
has rarely been applied, the available remedies
have never been specifically established.
Common sense, however, seems to indicate that
the suppression of evidence is not an
appropriate remedy in that the mere admonishment
to the DOJ and the district attorney’s office to
refrain from "inappropriate" behavior would not
25
“ . iP EDI Nahe hs cae»
é
;
4
P
bs
remedy the situation. The trial court,
therefore, had two choices. Either dismissal of
the case or continuance of the prosecution. A
continuance would only delay a tainted process
still suffering the effects of the misconduct.
To suppress the testimony of the defense witness
would be to suppress vital evidence to the
defense. Moreover, the harm done cannot be
rectified by simply stating that such outrageous
conduct should seize and desist and that the
prosecution should proceed from this point on.
Continuing the trial is an end which the
outrageous governmental conduct was meant to
obtain: prosecution and conviction of the
defendant. In light of these circumstances, the
trial court chose the only possible solution
when it dismissed the case with prejudice.
The Court of Appeals in overturning this
dismissal has, in essence, held that a defendant
has no recourse when the government intimidates
witnesses to the point that the defendant’s
right to present a defense is compromised.
26
Review by the United States Supreme Court is,
therefore, necessary so as to establish a policy
regarding the appropriate remedies when the
government intimidates witnesses to a point that
the defendant’s rights to present a defense is
compromised.
CONCLUSION
The important question raised by this case
is whether the Wisconsin Court of Appeals is
properly reading the Russell decision. The
court’s decision in this case is in direct
conflict with Russell in establishing that
criminality on the part of the government is a
condition precedent to using the defense of
outrageous governmental conduct. The effect of
this holding by the Court of Appeals establishes
that anything is permissible in law enforcement
as long as the State is not "enmeshed" in
criminal activity. This holding clearly goes
beyond anything the court intended in Russell,
is not consistent with the rational behind
Russell, is in direct conflict with recent
27
ye pes hee en
k yee
federal circuit court decisions and for those
reasons should be reviewed by this court.
Mr. Gibas’s constitutional due process
rights were violated by outrageous governmental
conduct that was persistent, subtle, organized,
and deliberate and which continued over the
entire criminal investigatory process. Because
this case deals with a decision by the Wisconsin
Court of Appeals on an important question of
federal law which has not been, but should be
settled by this Court, review by the United
States Supreme Court is appropriate. For these
reasons, a Writ of Certiorari should be issued
to review the judgment and opinion of the
Wisconsin Court of Appeals, Second Judicial
District.
Dated this ye ae day of October, 1994.
Respect fully/sybm Al,
TILA» we
fez
C. Achellingex
otnsed of Record
| /
Y 28 af Ww.
Douglas W. Lehrer,
Counsel of Petitioner
28
APPENDIX "A"
OFFICIAL WISCONSIN REPORTS
State v. Gibas, 184 Wis. 2d 355
STATE of Wisconsin, Plaintiff-Appellant,
v.
Randall J. Gipas, Defendant-Respondent.t
Court of Appeals
No. 93-1951-CR. Submitted on briefs March 8,
1994.—Decided April 27, 1994.
(Also reported in — N.W.2d —.)
Criminal Law and Procedure § 769°—defenses—out-
rageous governmental conduct—review.
In Wisconsin, it appears that standard of review for defense
of outrageous governmental conduct is de novo.
Criminal Law and Procedure § 30.50*—defenses—
outrageous governmental conduct—standard.
In Wisconsin, in order to establish defense of outrageous
governmental conduct it appears that defendant must
assert that state violated specific constitutional right, and
government's conduct must be so enmeshed in criminal
activity that prosecution of defendant would be repugnant
to American Criminal Justice System.
Criminal Law and Procedure § 30.50*—defenses—
outrageous governmental conduct—prosecution.
In prosecution for charges of aiming and pointing weapon,
where defendant was Wisconsin Department of Justice
(DOJ) agent on stakeout with female agent, and allegedly
pointed revolver at female agent while in stakeout car and
ordered female agent to remove her clothes, and DOJ for-
warded information to county sheriff's department, which
t Petition to review filed.
*See Callagban's Wisconsin Digest, same topic and section number.
355
OFFICIAL WISCONSIN REPORTS
State v. Gibas, 184 Wis. 2d 355
did its own investigation and, based upon that information
and information supplied by DOJ, district attorney decided
to charge defendant with aiming and pointing weapon,
court of appeals found that although defendant had alleged
specific violation of due process rights, defendant's defense
failed because state's conduct was not enmeshed in crimi-
nal activity, as it appears that outrageous governmental
conduct defense in Wisconsin requires defendant assert
state violated specific constitutional right and govern-
ment's conduct must be so enmeshed in criminal activity
prosecution of defendant would be repugnant to American
Criminal Justice System, and while trial court found viola-
tion of due process because DOJ submitted correspondence
to district attorney's office, conferred with prospective wit-
nesses, handicapped or hindered prospective witnesses,
and exerted influence on prosecution of case, none of those
reasons involved government in criminal operations, and
court noted state did not create nor was it involved in inci-
dent which led to charges against defendant.
Criminal Law and Procedure § 467*—witness testi-
mony—right to obtain—prosecutorial
interference.
If government arbitrarily prevents defendant from
presenting witness’ testimony, defendant's Sixth Amend-
ment right to have compulsory process for obtaining
witnesses in his or her favor may be violated.
Criminal Law and Procedure § 437*—suppression of
evidence—prosecution—defendant's due process
rights.
Suppression by prosecution of evidence favorable to
accused violates due process where evidence is material
either to guilt or to punishment, regardless of good faith or
bad faith of prosecution.
Criminal Law and Procedure § 437*—suppression of
evidence—prosecution—defendant's due process
rights—prejudice.
*See Callaghan's Wisconsin Digest, same topic and section number.
356
OFFICIAL WISCONSIN REPORTS
Court of Appeals
In appeal by Wisconsin Department of Justice (DOJ) agent
for charges of aiming and pointing weapon at female agent
and ordering female agent to remove’ clothes while on
stakeout, and where prospective defense witness at DOJ
was cautioned not to get involved in testifying for defen-
dant, another prospective defense witness was
- reprimanded for assisting defendant during company time,
and another prospective defense witness indicated he felt
intimidated by DOJ employee, court concluded that defen-
dant's right to put on defense was not violated because
there was no prejudice established against him, as court
acknowledged that although defendant had never raised
argument of suppression by prosecution of evidence
favorable to accused either in trial court or court of appeals,
court could affirm for reasons other than those announced
by trial court, and court of appeals found there was no
showing by defendant that any prospective defense wit-
nesses would have been prevented from testifying at trial
and that tactics used by DOJ did not prejudice defendant,
and thus, court noted that remedy was new trial, not dis-
missal of charges with prejudice.
APPEAL from an order of the circuit court for
Calumet County: JOHN W. MICKIEWICZ, Judge.
Reversed and cause remanded with directions.
On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Kenneth R. Kratz, district
attorney.
On behalf of the defendant-respondent, the cause
was submitted on the brief of Eric S. Erdmann and
Roxanne F. Felizmena of Schellinger & Associates of
Brookfield.
Before Anderson, P.J., Brown and Nettesheim, JJ.
BROWN, J. Randall J. Gibas successfully argued
before the trial court that charges of aiming and point-
ing’ a weapon should be dismissed with prejudice
357
OFFICIAL WISCONSIN REPORTS
State v. Gibas, 184 Wis. 2d 355
against him because the State was guilty of outrageous
governmental conduct. Essentially, Gibas argued that
the defense of outrageous governmental conduct recog-
nized in United States v. Russell, 411 U.S. 423 (1973),
applies to this case because the Wisconsin Department
of Justice (DOJ) intimidated several defense wit-
nesses.' 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 inci-
dent 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
somplaint, the DOJ superiors subtly threatened Gibas'
‘ellow workers with reprisals if they either helped
xibas prepare his case or testified as character wit-
‘esses on his behalf; and (3) the DOJ and the district
{torney were in continuous contact even after the
omplaint was issued, whereby the district attorney
‘Following our certification of this issue, the Wisconsin
jupreme Court declined to take jurisdiction over this appeal.
358
OFFICIAL WISCONSIN REPORTS
Court of Appeals
asked about possible Whitty evidence and other admin-
istrative 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" con-
cerning Gibas and its "continued involvement, with
respect to submitting correspondence to the [district
attorney's} office, conferring with prospective wit-
nesses, 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 (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." Jd.
at 431-32. 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
(quoting Kinsella v. United States ex rel. Singleton, 361
U.S. 234, 246 (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 consid-
ered the validity of the defense of outrageous
governmental conduct. However, the court of appeals
359
OFFICIAL WISCONSIN REPORTS
State v. Gibas, 184 Wis. 2d 355
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. Jd. 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 success-
ful. Jd. Additionally, the court stated that the
outrageous conduct must violate a specific constitu-
tional right of the defendant. Jd. 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. Jd. at 300, 448 N.W.2d at
271.
(1, 2]
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 determi-
nation 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 deci-
sion of the trial court, without deference to its
determination. Jd. 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 vio-
lated a specific constitutional right, and (3) the
government's conduct must be so enmeshed in a crimi-
nal 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
360
OFFICIAL WISCONSIN REPORTS
,
Court of Appeals
‘cases support the proposition that the government's
conduct must be enmeshed in criminal activity in order
for the defense to apply. In Greene us United States,
454 F.2d 783 (9th Cir. 1971), the court reversed the
defendants’ convictions on charges involving posses-
sion of unregistered distilling apparatus, sale without
stamp of distilled spirits, and conspiracy. The court
implicitly? found that the defense of outrageous gov-
ernmental conduct applied to the defendants because
the government involved itself so directly and continu-
ously over a long period of time in the creation and
maintenance of criminal operations. Jd. 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 "funda-
mental 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 gov-
ernment was enmeshed in criminal activity.
2 The defense of outrageous governmental conduct is differ-
ent from entrapment. A defense of entrapment requires that the
defendant not be predisposed to commit the crime in question.
Greene v. United States, 454 F.2d 783, 786 (9th Cir. 1971).
However, the disposition of the defendant is irrelevant under
the defense of outrageous governmental conduct. The conduct of
the government and not that of the defendant is the issue. The
court in Greene implicitly recognized the defense of outrageous
governmental conduct because it stated that the defendants
had a predisposition to commit the crime in question, and there-
fore, entrapment was not available. Jd.
361
OFFICIAL WISCONSIN REPORTS
State v. Gibas, 184 Wis. 2d 355
(3)
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 govern-
ment in criminal operations.
The crux of Gibas' defense was the alleged “intimi-
dation" 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 company time. Additionally, another prospec-
tive defense witness indicated that he felt intimidated
by a DOJ employee. Although these actions by the DOJ
are troubling, they certainly do not enmesh the State in
criminal activity. The State dic not create nor was it
involved in the incident which led to the charges
against Gibas. Thus, Gibas does not meet the require-
ment set out in Steadman, nor are the facts of his case
similar to those of Greene and Twigg, the only cases
where the defense of outrageous governmental conduct
has been successfully applied.®
3 Another panel of this court released State v. Albrecht, 184
Wis. 2d —, — N.W.2d — (Ct. App. 1894), on the day before this
decision was released. That case alsoconcerns a claim of outra-
geous governmental conduct. The rationale expressed in that
case does not conflict with this decisicn, but rather compliments
it. }
362
OFFICIAL WISCONSIN REPORTS
Court of Appeals
(4, 5] ,
We do not imply here that a defendant has no
recourse when the government intimidates witnesses
to the point that the defendant's right to present a
defense is compromised. The United States Supreme
Court has recognized that if the government arbitrarily
prevents a defendant from presenting a witness’ testi-
mony, the defendant's Sixth Amendment right to have
compulsory process for obtaining witnesses in his or
her favor may be violated. See, e.g., Washington v.
Texas, 388 U.S. 14, 23 (1967). Additionally, suppres-
sion by the prosecution of evidence favorable to an
accused violates due process where the evidence is
material either to guilt or to punishment, regardless of
the good faith or bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963); State v. Amundson,
69 Wis. 2d 554, 577, 230 N.W.2d 775, 787 (1975); and
Bray v. Peyton, 429 F.2d 500, 501 (4th Cir. 1970), illus-
trate these principles.
In Bray, four witnesses were going to testify on
behalf of the defendant. However, before the trial, the
prosecutor deliberately had one of the witnesses
arrested on another charge. Two of the remaining wit-
nesses were intimidated by this arrest and did not
testify. Bray, 429 F.2d at 501. The court held that the
prosecuting official obstructed the defendant's offer of
exculpating proof and it was inherently prejudicial,
violating the defendant's due process. Jd. The court
ordered a new trial for the defendant. Jd. at 502.
We acknowledge that although Gibas has never
raised a Bray-type argument either in the trial court or
this court, we may affirm for reasons other than those
announced by the trial court. State v. Holt, 128 Wis. 2d
110, 124-25, 382 N.W.2d 679, 687 (Ct. App. 1985). Still,
there are two reasons why we decline to use Bray here.
363
OFFICIAL WISCONSIN REPORTS
State v. Gibas, 184 Wis. 2d 355
First, there has been no showing by Gibas that any
prospective defense witnesses would have been pre-
vented from testifying at trial. The fact that his
prospective witnesses testified at the pretrial motion
hearing indicates that any. "intimidation" by the DOJ
was unsuccessful and that the prospective witnesses
would have been available to testify at trial. Therefore,
the tactics used by the DOJ have not prejudiced
Gibas—at least up to this point. Second, the remedy in
Bray was a new trial, not dismissal of the charges with
prejudice. Gibas has not yet had his trial. We will not
use Bray to affirm the trial court.
[6]
We conclude that the defense of outrageous gov-
ernmental conduct should not apply in Gibas' case
because the government has not enmeshed itself in
criminal activity. Additionally, although the DOJ's
conduct was not commendable, it did not rise to the
level that "shocks our conscience." Finally, Gibas' right
to put on a defense was not violated because there was
no prejudice established against him. We reverse and
remand for further proceedings not inconsistent with
this opinion.
By the Court.—Order reversed and cause
remanded with directions.
364
APP IX _ "B"
ae aes a eee 6 a
Office of the Clerk
SUPREME COURT
231 E. STATE CAPITOL
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
TELEPHONE 608-266-1880
To: July 19, 1994
| Hon. John W. Mickiewicz
Fond du Lac County Cir. Ct.
P.O. Bost i355
Fond du Lac, WI 54936-1355
Kenneth R. Kratz
District Attorney
Calumet Co. Courthouse
Chilton, WI 53014
; Sally L. Wellman
Asst. Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Eric S. Erdmann
Neal C. Schellinger
Douglas W. Lehrer
Schellinger & Associates
333 Bishops Way, Ste. 122
Brookfield, WI 53005
You are hereby notified that the Court has
entered the following order:
No. 93-1951-CR State v. Gibas L.C. #92CM1
A petition for review pursuant to sec.
808.10, Stats., having been filed on behalf of
defendant -respondent-petitioner, Randall J.
Gibas, and considered by the court.
IT IS ORDERED that the petition for review
is denied, without costs.
Marilyn L. Graves
Clerk of Supreme Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.