State v. Marshun Dante Jackson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 17, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2091-CR Cir. Ct. No. 2018CF551

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARSHUN DANTE JACKSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for St. Croix County:
EDWARD F. VLACK III, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Marshun Jackson appeals a St. Croix County judgment
convicting him of, among other crimes, committing fraud against a financial
institution (value exceeds $500 but does not exceed $10,000) as a party to a crime,
and as a repeater. Jackson argues his conviction on this count violates his
No. 2019AP2091-CR

constitutional right against double jeopardy because he was previously convicted
in Dunn County of one count of conspiracy to commit fraud against a financial
institution, as a repeater, for an offense that occurred on the same day as the
St. Croix charge, May 25, 2017. Jackson argues that the Dunn County offense is
identical in law and in fact to the offense at issue in this case. He also contends
that WIS. STAT. § 939.72(2) (2017-18)1 specifically applies in this case and further
invalidates the objected-to conviction. That statute provides that “[a] person shall
not be convicted under both … [s]ection 939.31 for conspiracy and s. 939.05 as a
party to a crime which is the objective of the conspiracy.” Sec. 939.72(2).

¶2 We determine that the St. Croix County charge was neither factually
nor legally identical to the Dunn County conviction and, thus, there was no double
jeopardy violation. Additionally, we conclude that Jackson’s argument premised
on WIS. STAT. § 939.72(2) lacks merit. We therefore reject Jackson’s arguments
and affirm.

BACKGROUND

¶3 On May 31, 2017, Dunn County prosecutors charged Jackson with
three counts of conspiracy, each as a repeater, based on a check-cashing scheme
involving Jackson, Brian Augustus, Robin Santee, Tyler Santee, and
Peyton Heistand. The complaint alleged that on May 25, 2017, those individuals
conspired to cash fraudulent checks totaling in excess of $13,000 at the downtown
Dairy State Bank and east Dairy State Bank locations in the City of Menomonie,
Dunn County, Wisconsin.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶4 On September 8, 2017, Jackson entered a guilty plea to the first
count of the Dunn County complaint—i.e., conspiracy to commit fraud against a
financial institution ($10,000 to $100,000), as a repeater—and the other two
counts were dismissed by the State. Jackson was sentenced to forty months in the
Wisconsin Prison System comprised of fourteen months of initial confinement and
twenty-six months of extended supervision.

¶5 The State filed two prior complaints that were dismissed without
prejudice. On August 31, 2018, the State filed a third complaint in St. Croix
County, alleging four counts of conspiracy based on the May 25, 2017 events.
Namely: Count 1 alleged conspiracy to commit identity theft; Count 2 alleged
conspiracy to commit fraud against a financial institution; Count 3 alleged
conspiracy to commit forgery; and Count 4 alleged conspiracy to commit theft–
movable property. On September 14, 2018, the State filed an amended complaint
containing the same four counts as the August 31 complaint except the amended
complaint removed the conspiracy allegations and charged Jackson with each
count as a party to a crime (PTAC). Only Count 2 is relevant to this appeal.
Count 2 alleged Jackson committed fraud against a financial institution (value
exceeds $500 but does not exceed $10,000), as a PTAC, and as a repeater. The
amended complaint stated that Count 2 was a Class H felony, with a maximum
possible penalty upon conviction of no more than a $10,000 fine, imprisonment
for not more than six years, or both, with exposure to an additional two-to-four
years of imprisonment based on the repeater allegation.

¶6 The amended complaint alleged that Jackson, Augustus, Tyler
Santee, Robin Santee, and Heistand were “involved in a large and elaborate
fraudulent check scheme throughout western Wisconsin and eastern Minnesota.”
Specific to St. Croix County, Count 2 alleged that on or about May 25, 2017—the

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same day as the conduct leading to the Dunn County charges—Jackson committed
fraud against Security Financial Bank, located in River Falls, St. Croix County,
Wisconsin. This fraud was alleged to have occurred when Jackson, either directly
or as a PTAC, cashed two checks at that bank in the amounts of $2,100.22 and
$2,411.66. Both checks were purportedly issued by Construction Install Services.

¶7 The amended complaint also stated that Jackson and Brian Augustus
had previously been convicted of conspiracy to commit fraud against a financial
institution in Dunn County and sentenced to prison. When Jackson was released
from prison for his Dunn County conviction, a warrant was issued for his arrest on
the St. Croix County charges.

¶8 Jackson moved to dismiss the amended complaint, arguing that
Count 2 violated his “constitutional protections against Double Jeopardy.” In
particular, Jackson claimed that he “was convicted on September 08, 2017, in
Dunn County” of one count of conspiracy to commit fraud against a financial
institution as a repeater, in violation of WIS. STAT. §§ 939.31, 934.82(1) and
939.62(1)(b) “for an offense that occurred on May 25, 2017.” He argued that
Count 2 of the St. Croix County complaint was a second prosecution for the same
offense as his Dunn County conviction because “each of the Dunn County charges
alleged the Conspiracy of which the current St. Croix County complaint alleges
the completed acts that were the object of the Conspiracy.”

¶9 The State argued that double jeopardy did not apply because in the
St. Croix County case the State was alleging the “uttering of forged checks,” a
crime for which Jackson was not charged in Dunn County. At the plea and
sentencing hearing, the circuit court denied Jackson’s motion to dismiss,
concluding that the charges in each county’s case were not identical either in law

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or in fact. Jackson pled no contest to Count 2 of the amended complaint, and he
now appeals.2

DISCUSSION

¶10 The Fifth Amendment of the United States Constitution and article I,
section 8 of the Wisconsin Constitution guarantee a defendant’s right to be free
from double jeopardy. State v. Steinhardt, 2017 WI 62, ¶13, 375 Wis. 2d 712,
896 N.W.2d 700. Whether a person’s right to be free from double jeopardy has
been violated presents a question of law that we review de novo. State v. Schultz,
2020 WI 24, ¶16, 390 Wis. 2d 570, 939 N.W.2d 519.

¶11 The right to be free from double jeopardy provides three
protections: “protection against a second prosecution for the same offense after
acquittal; protection against a second prosecution for the same offense after
conviction; and protection against multiple punishments for the same offense.”
Steinhardt, 375 Wis. 2d 712, ¶13 (citation omitted). Jackson argues the second
protection was violated by his St. Croix County charge. For a defendant to show
that a second prosecution subjected him or her to double jeopardy, the charges
must be identical both in law and in fact. State v. Van Meter, 72 Wis. 2d 754,
758, 242 N.W.2d 206 (1976).

¶12 We apply the Blockburger3 test to determine whether offenses are
identical in law. Under that test, “[o]ffenses are not identical in law if each
2
Jackson contends that although he pled no contest to Count 2, his plea does not forfeit
his double jeopardy challenge on appeal because we can resolve his challenge based upon the
record as it existed at the time he entered his plea, and the issue was not explicitly waived. See
State v. Kelty, 2006 WI 101, ¶¶19, 38, 294 Wis. 2d 62, 716 N.W.2d 886. The State does not
respond, and we view the issue as conceded.
3
Blockburger v. United States, 284 U.S. 299 (1932).

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requires proof of an element that the other does not.” Schultz, 390 Wis. 2d 570,
¶22. Meanwhile, “[o]ffenses are not identical in fact when ‘a conviction for each
offense requires proof of an additional fact that conviction for the other offenses
does not.’” Id. (quoting State v. Lechner, 217 Wis. 2d 392, 414, 576 N.W.2d 912
(1998)).

I. Jackson’s Convictions are not Identical in Law

¶13 Jackson was convicted in the instant St. Croix County case of fraud
against a financial institution (value exceeds $500 but does not exceed $10,000) as
a PTAC, and as repeater. He had previously been convicted of conspiracy to
commit fraud against a financial institution, as a repeater, in Dunn County. Both
offenses at issue occurred on May 25, 2017. Jackson contends that because a
conviction for conspiracy to commit a crime incorporates the elements of any
underlying criminal offense that is the object of the conspiracy, he was
unconstitutionally subjected to double jeopardy by virtue of his St. Croix County
conviction.

¶14 We reject Jackson’s contention for a number of reasons. First, the
State correctly notes that it is well established that “a substantive crime and a
conspiracy to commit that crime are not the ‘same offense’ for double jeopardy
purposes.” See United States v. Felix, 503 U.S. 378, 389 (1992). The Supreme
Court has repeatedly recognized that a “conspiracy poses distinct dangers quite
apart from those of the substantive offense.” Iannelli v. United States, 420 U.S.
770, 778 (1975). In Felix, the Supreme Court upheld the defendant’s conspiracy
conviction against a double jeopardy challenge, even though out of the nine overt
acts supporting the conspiracy charge, two “were based on the conduct for which
he had been previously prosecuted ….” Felix, 503 U.S. at 388. Given the

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holdings in Felix and Iannelli, Jackson’s conspiracy conviction in Dunn County
does not foreclose his fraud conviction in St. Croix County because these two
offenses are not identical in law.

¶15 In the Dunn County case, Jackson was convicted of conspiracy to
commit fraud against a financial institution (value exceeds $10,000 but does not
exceed $100,000), as a repeater. That offense was a Class G felony, based on a
conspiracy to commit a fraud at a bank. The Dunn County crime of conspiracy
under WIS. STAT. § 939.31 had “three elements: (1) an intent by the defendant
that the crime be committed; (2) an agreement between the defendant and at least
one other person to commit the crime; and (3) an act performed by one of the
conspirators in furtherance of the conspiracy.” See State v. Routon, 2007 WI App
178, ¶18, 304 Wis. 2d 480, 736 N.W.2d 530. In contrast, the elements of
Jackson’s St. Croix County conviction for fraud against a financial institution
(value exceeds $500 but does not exceed $10,000), were that he, as a PTAC,
“obtain[ed] money … owned by or under the custody or control of a financial
institution,” and he did so “by use of any fraudulent device, scheme, artifice, or
monetary instrument.” See WIS. STAT. § 943.82(1). This offense was a Class H
felony. Thus, the crimes alleged in the two counties have different elements and
penalties and, therefore, are different in law.

¶16 Second, the two offenses committed in Dunn County and St. Croix
County are not identical in law because one need not commit the actual fraud
offense in order to commit the conspiracy offense. The fraud charged in St. Croix
County under WIS. STAT. § 943.82(1) did not allege or require an agreement
among the offenders, while the conspiracy charge in Dunn County did. And,
unlike the St. Croix County charge, the crime of conspiracy in Dunn County did
not require any member of the conspiracy to actually obtain money or otherwise

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complete the agreed-upon crime. The crime of conspiracy in Dunn County was
completed when there was an agreement as well as an initial overt act in
furtherance of the agreement. See State v. Moffett, 2000 WI App 67, ¶13, 233
Wis. 2d 628, 608 N.W.2d 733, aff’d, 2000 WI 130, ¶16, 239 Wis. 2d 629, 619
N.W.2d 918. By contrast, the crime in St. Croix County was not completed until
the fraudulent checks were cashed.

¶17 Jackson relies on State v. Jackson, 2004 WI App 190, ¶8, 276
Wis. 2d 697, 688 N.W.2d 688, for the proposition that “elements [of conspiracy]
incorporate each criminal offense that is the criminal object of the conspiracy.”
The Jackson decision does not, however, prohibit convictions for both the
conspiracy and the completed substantive offense. Instead, Jackson holds that
when a conspiracy has as its object the commission of multiple crimes, separate
charges and convictions for each intended crime are possible. Id., ¶8. Thus, the
defendant in Jackson could be charged with two counts of conspiracy because he
conspired to commit two separate substantive crimes. Id., ¶9. Jackson’s reliance
on Jackson’s holding is therefore misplaced because, here, he was convicted of
one count of conspiracy and one count of fraud as a PTAC, not two counts of
conspiracy. For all of these reasons, we determine, de novo, that the crimes in
Dunn and St. Croix Counties were different in law.

II. Jackson’s Convictions are not Identical in Fact

¶18 Jackson also contends that the charges were identical in fact.
Specifically, Jackson argues that he met his burden of showing, based on the entire
record, that a reasonable person familiar with the facts and circumstances of this
case would understand that he conspired to steal, alter, and cash checks not just in
Dunn County, but also in St. Croix County. Jackson claims, and the amended

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St. Croix County complaint alleges, that the investigator’s report was known to
both the Dunn and St. Croix County prosecutors, and it outlined a common
scheme to cash checks at banks throughout western Wisconsin.

¶19 As an initial matter, Jackson’s contention is incorrect insomuch as it
misstates the applicable legal standard. Our supreme court in Schultz expressly
declined to apply the “reasonable person” test that Jackson advocates here. See
Schultz, 390 Wis. 2d 570, ¶¶45-47.

¶20 Additionally, Jackson was prosecuted in St. Croix County for a
crime he committed only in that county. He was not prosecuted in St. Croix
County for a crime committed in Dunn County. Conspiring to commit fraud upon
Dairy State Bank in Dunn County is factually different from actually committing
fraud on Security Financial Bank in St. Croix County. The facts alleged under
either complaint would not warrant a conviction under the other. See Van Meter,
72 Wis. 2d at 758.

¶21 Jackson nonetheless asserts that the Dunn County complaint alleged
that he conspired to commit crimes throughout western Wisconsin. The State
therefore bound itself, Jackson maintains, by acting through the agency of the
Dunn County District Attorney, and it cannot assert any other charges based upon
his completion of the crimes for which he was convicted of conspiring to commit
in Dunn County. The Dunn County complaint, however, did not refer to or
encompass the fraud crimes committed in River Falls that serve as the basis for the
St. Croix County conviction.

¶22 Jackson relies on United States v. Crowder, 346 F.2d 1 (6th Cir.
1964), for the proposition that the scope of double jeopardy protection is based on

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the record as a whole rather than the indictment alone. That proposition was
adopted by our supreme court in Schultz. See Schultz, 390 Wis. 2d 570, ¶25.

¶23 In Crowder, the defendant was charged with conspiracy to transport
stolen and forged money orders in interstate commerce. The indictment
specifically listed only 12 money orders that Crowder allegedly possessed, even
though 235 money orders were recovered and later offered into evidence.
Crowder, 346 F.2d at 2-3. Crowder argued that in failing to list all 235 money
orders in the indictment, he was not protected “against subsequent jeopardy for the
same offense.” Id. at 3. The Sixth Circuit Court disagreed, concluding the record,
which included evidence of all 235 orders, protected Crowder against a subsequent
prosecution related to those 235 money orders, not just the 12 listed in the
indictment. Id. Jackson contends that the State’s choice to mention in the
Dunn County complaint the same investigation report giving rise to both the prior
Dunn County conviction and the subsequent St. Croix County charges shows that
the St. Croix County crimes were “part of the record” in the Dunn County case.
Therefore, Jackson believes that because the Dunn County complaint was based
upon the same report as the St. Croix County complaint, charges arising from the
investigation discussed in that report are part of the record and he has double
jeopardy protection against the St. Croix County charges.

¶24 Jackson’s argument in this regard appears to rely largely on a faulty
premise. Namely, he argues that because none of the individual checks cashed in
Dunn or St. Croix Counties were alleged to have exceeded $10,000, the
conspiracy conviction in Dunn County necessarily incorporated multiple checks of
less than $10,000, including those he was charged with cashing in St. Croix
County. On this factual basis, Jackson argues that his St. Croix County conviction
was for the completed crime that he was convicted of committing in Dunn County

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and that the crimes are identical in fact. He appears to contend that because he
was convicted in Dunn County of conspiring to cash fraudulent checks in Dunn
County that were all individually less than $10,000, he cannot be charged in
St. Croix County for actually cashing two fraudulent checks in St. Croix County
that were also individually less than $10,000 because the Dunn County conspiracy
conviction necessarily considered and incorporated the St. Croix County checks to
reach the Dunn County charge’s monetary threshold.

¶25 Jackson is wrong on his facts. The Dunn County complaint reflects
that a total of over $13,000 in checks were cashed at the downtown Dairy State
Bank and east Dairy State Bank locations in Dunn County. Thus, contrary to
Jackson’s assertion, one does not need to include the sums alleged in the St. Croix
County frauds to reach the “over $10,000” threshold for the conspiracy charge in
Dunn County. Jackson’s only reply to the foregoing was stated in a footnote in his
reply brief. There, he asserts that while the banks named in the Dunn County
complaint were only ones located in that county, “[i]n the complaint, at least,
neither of these banks were specifically identified as located in Dunn County.”
This response is insufficient to overcome the reality of Jackson’s false premise.
See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (we
need not address undeveloped arguments).

¶26 Additionally, we once again point out that Jackson was not
convicted in Dunn County for any fraudulent conduct or conspiracy that occurred
in St. Croix County. The Dunn County complaint alleged that Jackson conspired
to cash fraudulent checks at Dairy State Banks in Menomonie. The St. Croix
County complaint alleged that Jackson committed fraud against a financial
institution where he, either directly or as a PTAC, cashed fraudulent checks at a
financial institution located in St. Croix County.

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¶27 Finally, in Jackson’s reply brief, he argues for the first time a
continuing crime theory, which to Jackson means that “if one prosecution charges
a continuing crime, ‘a conviction or acquittal for a crime based on a portion of that
period will bar a prosecution covering the whole period.’” For factual support,
Jackson notes only that the same investigator’s report mentioned in the
Dunn County complaint was relied upon for the St. Croix County complaint, and
that report detailed the cashed and uncashed checks underlying the Dunn County
conspiracy, which he again contends included the two checks cashed in St. Croix
County.

¶28 Ordinarily, we need not address arguments raised for the first time in
a reply brief. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492,
588 N.W.2d 285 (Ct. App. 1998). Nonetheless, we conclude that there was no
continuing crime prohibiting the subsequent St. Croix County prosecution because
the allegations in Dunn County were only for Jackson’s conspiring to commit
crimes in Dunn County. We must review the entire record to ascertain the scope
of the prior proceeding. See Schultz, 390 Wis. 2d 570, ¶32. The allegations at
issue in this appeal are for substantive crimes committed separately and only in
St. Croix County. Such a context does not implicate the continuing crime theory
that Jackson attempts to invoke. Furthermore, we do not put nearly the same
weight Jackson does to the fact that a single investigative report was used in the
course of investigating and prosecuting multiple different crimes committed in
different counties. The existence of that report does not, in and of itself, alter the
application of the double jeopardy principles addressed in the body of this opinion,
which principles are what ultimately matter.

¶29 For all of those reasons, we determine the convictions in Dunn and
St. Croix Counties were not identical in fact.

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III. There was no WIS. STAT. § 939.72(2) Violation

¶30 Finally, Jackson argues an additional claim of error, relying upon
WIS. STAT. § 939.72(2). That statute provides that “[a] person shall not be
convicted under both … [s]ection 939.31 for conspiracy and s. 939.05 as a party to
a crime which is the objective of the conspiracy.” Jackson’s reliance on
§ 939.72(2) is misplaced. It fails because, as explained above, he was not
convicted in Dunn County of conspiring to commit the same fraud offense for
which he was convicted of committing as a PTAC in St. Croix County.

¶31 Jackson also contends that the “State has already chosen to act
through the agency of the Dunn County District Attorney, and by so doing, has
bound itself under WIS. STAT. § 939.72(2) to not pursue further conviction under
WIS. STAT. § 939.05 as a party to a crime ‘which is the objective of the
conspiracy.’” As discussed above, Jackson’s St. Croix County conviction was not
the object of the Dunn County conspiracy. And, as the State notes, Jackson makes
no attempt to address the presumption that the legislature did not intend to prohibit
multiple convictions here. See, e.g., State v. Lock, 2013 WI App 80, ¶38, 348
Wis. 2d 334, 833 N.W.2d 189. We will not develop arguments for a party.
Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25,
318 Wis. 2d 148, 769 N.W.2d 82. For those reasons, we reject Jackson’s
§ 939.72(2) argument.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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