State v. Thomas Michael Barrett

2020 WI App 13

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP2324-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS MICHAEL BARRETT,

DEFENDANT-APPELLANT.†

Opinion Filed: February 4, 2020
Submitted on Briefs: November 5, 2019
Oral Argument:

JUDGES: Brash, P.J., Dugan and Donald, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
brief of Adam Welch of Stroud, Willink & Howard, LLC of Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Lisa E.F. Kumfer, assistant attorney general, and Joshua L.
Kaul, attorney general.
2020 WI App 13

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 4, 2020
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. 2018AP2324-CR Cir. Ct. No. 2011CF3855

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS MICHAEL BARRETT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JONATHAN D. WATTS and T. CHRISTOPHER DEE,
Judges. Affirmed.

Before Brash, P.J., Dugan and Donald, JJ.

¶1 DONALD, J. Thomas Michael Barrett appeals a judgment of
conviction, following a jury trial, of one count of possession of a firearm silencer,
No. 2018AP2324-CR

contrary to WIS. STAT. § 941.298(2) (2017-18).1 Barrett also appeals from the order
denying his postconviction motion for relief.

BACKGROUND

¶2 On August 16, 2011, Barrett was charged with one count of
possession of a firearm silencer. According to the criminal complaint, Barrett
purchased a semiautomatic .22 caliber handgun with an attached silencer from M.B.,
a confidential informant working with the Federal Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF). The complaint states that M.B. had a series of
recorded phone conversations with Barrett regarding the sale of two firearms, one
of which had an attached silencer. During the phone conversations, Barrett
acknowledged the illegality of the silencer, but agreed to meet M.B. in the parking
lot of a local shopping mall to look at the firearms. Law enforcement monitored the
meeting by video and audio recording and by surveillance. The complaint states
that Barrett told M.B. that the silencer was “highly, highly, highly, highly illegal,”
calling it a “hit man’s gun,” but told M.B. that if caught with a silencer, he would
simply “say I was going to dispose of it[.]” Barrett purchased two firearms and the
silencer, but removed the silencer from the .22 caliber firearm and placed it in a
separate metal box. Recordings from the meeting show that Barrett, an attorney,
told M.B.:

I ain’t even going to put that in the same box.... That way
they [the police] have to have a warrant to get in there on my
way home…. I put it in a metal box. They can’t x-ray that
fucker without a warrant and then … I can say, well I was
just going to destroy it for a client[.] Then we’re protected
by attorney-client privilege. They can never get the shit out
of me!

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

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No. 2018AP2324-CR

Barrett placed the firearms and silencer in the trunk of his car, and was subsequently
arrested and charged.

I. Pretrial Constitutional Challenges

¶3 Barrett filed a motion to dismiss the charge on the grounds that WIS.
STAT. § 941.298, the statute generally prohibiting the possession of firearm
silencers, was facially unconstitutional. Barrett argued that the statute
“impermissibly infring[es] upon the fundamental right to keep, use and bear arms
under the Federal and Wisconsin Constitutions[.]” Barrett also argued that the
statute was void for vagueness. At a hearing on the motion, the trial court 2 found
“that there is absolutely no basis for this motion to dismiss and that the statute is
perfectly constitutional.” Specifically, the trial court found that silencers do not
constitute firearms and that “the right to keep and bear arms is totally separate from
a silencer[.]”

¶4 Barrett, by new counsel, filed a subsequent motion challenging the
constitutionality of WIS. STAT. § 941.298 on its face and as applied to him, arguing
that the trial court did not address the vagueness argument in his first motion.
Barrett’s motion argued that “[t]he statute does not give fair warning to those
wishing to obey the law. The language of the statute is vague in that it arguably
includes any object that has the effect of muffling the report of the firearm.” The
trial court3 again rejected Barrett’s constitutional challenge. In a written decision,
the trial court stated that Barrett “cannot show that there are no possible applications
or interpretations of the statute which would be constitutional.” As to Barrett’s as-

2
The Honorable Charles F. Kahn presided over Barrett’s motion to dismiss.
3
The Honorable Jonathan D. Watts presided over this motion and Barrett’s trial.

3
No. 2018AP2324-CR

applied argument, the trial court found that Barrett lacked standing to challenge the
statute’s constitutionality because “a defendant who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.” The trial court found that under the facts of the case, Barrett’s
conduct constituted the exact conduct prohibited by the statute.

II. Proceedings Related to M.B.

¶5 Pretrial, the State filed a witness list naming M.B. as one of its
potential witnesses. The State did not provide M.B.’s address, but stated that it “will
assist the defense with personal service of this individual.” Barrett, however,
attempted to subpoena M.B. himself by hiring a private investigator, Gary Wait,
who posed as a gun dealer willing to sell firearms to felons. M.B., unaware that
Wait was actually a private investigator, notified the Milwaukee Police Department
and the ATF, informing them that he was contacted by an individual willing to sell
firearms to prohibited persons. At the law enforcement departments’ instruction,
M.B. recorded his conversations with Wait. Wait met with M.B., identified himself
as a private investigator, and served M.B. with a subpoena.

¶6 Barrett then filed a motion to admit other acts evidence that “M.B.
offered numerous inducements to Wait to purchase firearms, even though Wait had
never mentioned that he was interested in purchasing firearms.” The crux of the
motion was that evidence of M.B.’s “inducements” to Wait supported a defense of
entrapment. Specifically, Barrett argued that “evidence of M.B.’s efforts to induce
Wait to purchase firearms is admissible to establish that it was M.B.’s plan to induce
Barrett to possess the allegedly illegal pistol.” The trial court conditionally granted
the motion, allowing the introduction of other acts evidence if the defense first
introduced some evidence showing that M.B. induced Barrett to buy the silencer so

4
No. 2018AP2324-CR

as to put the entrapment defense at issue. The matter proceeded to trial where
neither party called Wait as a witness.

III. Trial

¶7 Barrett testified in detail about his conversations with M.B., his
meeting with M.B., and his thought process during the meeting. Barrett stated that
a former client, who was aware of Barrett’s affinity for gunsmithing, told Barrett
that he knew of someone with guns for sale (M.B.) and that Barrett would be hearing
from him. Barrett stated that M.B. then began “pestering” him with phone calls.
Barrett stated that he expressed interest in purchasing a Glock from M.B. Barrett
testified that he and M.B. had multiple conversations about the firearms M.B. had
for sale, a result of M.B. “calling and calling,” and that M.B. mentioned having a
silencer. Barrett stated that he was unsure of whether M.B. had a real silencer, but
nonetheless offered to help M.B. dispose of it. Barrett stated that when he actually
met M.B., M.B. did not show him the firearms they had discussed, prompting
Barrett to believe he was “being set up to be robbed[.]” Barrett testified that M.B.
showed him a firearm with a silencer, but was still unsure of whether the silencer
was real, and that he decided to “play along,” so as not to anger M.B. Barrett stated
that M.B. “wouldn’t let [him] go” and essentially forced the sale of the firearm with
the attached silencer. Barrett stated that he made the purchase in hopes of “getting
out of there” and planned to dispose of the silencer. Barrett testified that he was
arrested before he had an opportunity to explain himself.

¶8 The jury found Barrett guilty as charged. Barrett was sentenced to
five months in the House of Correction with Huber release.

5
No. 2018AP2324-CR

IV. Postconviction

¶9 Barrett filed a postconviction motion again raising constitutional
challenges to WIS. STAT. § 941.298. Barrett argued that the statute was
unconstitutional on its face and as applied to him because it infringed on his right to
keep and bear arms and was void for vagueness. Barrett also argued that his
conviction resulted from “outrageous government conduct” because “the
government … induc[ed] Barrett to take possession of the alleged silencer and …
intimidat[ed] one of Barrett’s key trial witnesses.” (Bolding and capitalization
omitted.) Barrett argued that the State intimidated Wait out of testifying by
threatening Wait with potential criminal charges. Barrett attached a letter to Wait
from one of Barrett’s trial attorneys, in which counsel said:

After a brief off-the-record discussion with [the
State], it is my understanding that a number of individuals,
to include the Milwaukee County District Attorney …
contemplated making an arrest for criminal charges against
you with respect to the investigation and service of process
that you undertook of the then confidential informant,
[M.B.] Further, it is my understanding that this same
decision-making process may be reinstigated should you
testify in Mr. Barrett’s case.

Barrett also attached an affidavit from Wait, in which Wait stated that government
threats intimidated him out of testifying.

¶10 The postconviction court4 rejected Barrett’s constitutional challenges,
stating that the trial court already dealt with those issues. The postconviction court
also stated that Barrett’s motion sought to relitigate his entrapment defense, which
the postconviction court said it would “not entertain[.]” However, the

4
The Honorable T. Christopher Dee denied Barrett’s postconviction motion.

6
No. 2018AP2324-CR

postconviction court ordered the State to respond, in a brief, to Barrett’s claim that
the State threatened Wait.

¶11 The State responded that the record did not support Barrett’s
argument. The State noted that defense counsel’s letter to Wait focused on
counsel’s personal understanding of his off-the-record conversation with the State
and was not based on any definitive information obtained from the State. The State
also noted that Barrett’s other acts motion, in which Barrett argued that Wait should
be allowed to testify, was brought after Wait received the letter from defense
counsel, suggesting that Wait was still willing to testify. The State further noted
that the trial court held multiple evidentiary hearings—after Wait received the
letter—in which the subject of Wait’s potential testimony was addressed. Barrett
did not raise the issue of witness intimidation at any of the hearings. Barrett
informed the postconviction court—again, after Wait received the letter—that Wait
was prepared to testify.

¶12 The postconviction court denied Barrett’s claim of outrageous
government conduct. This appeal follows.

DISCUSSION

¶13 On appeal, Barrett raises the issues that he raised in his postconviction
motion. He contends that: (1) WIS. STAT. § 941.298 is an unconstitutional
infringement upon the right to keep and bear arms, both facially and as applied;
(2) § 941.298 is void for vagueness; and (3) the government engaged in outrageous
conduct by pressuring Barrett to commit a crime and by intimidating Wait.

7
No. 2018AP2324-CR

I. Constitutional Challenges5

¶14 The constitutionality of a statute presents a question of law that we
review de novo. See State v. Hamdan, 2003 WI 113, ¶19, 264 Wis. 2d 433, 665
N.W.2d 785; see also State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665
N.W.2d 328. In construing a statute, we give effect to the legislature’s intent, using
the plain meaning of the words of the statute. See Cole, 264 Wis. 2d 520, ¶10.
Statutes are presumed constitutional and will be sustained unless the challenger
proves, beyond a reasonable doubt, that there is no possible application or
interpretation of the statute which would be constitutional. Id., ¶¶11, 18. “A statute
may be facially unconstitutional, meaning that it operates unconstitutionally under
all circumstances.” State v. Herrmann, 2015 WI App 97, ¶6, 366 Wis. 2d 312, 873
N.W.2d 257. “Alternatively, a statute may be unconstitutional as applied, meaning
that it operates unconstitutionally on the facts of a particular case or with respect to
a particular party.” Id. Barrett raises both facial and as-applied challenges to the
constitutionality of WIS. STAT. § 941.298.

A. WISCONSIN STAT. § 941.298 is constitutional.

¶15 With certain exceptions, WIS. STAT. § 941.298 prohibits the sale,
delivery, and possession of firearm silencers. See id. The statute, as relevant,
provides:

(1) In this section, “firearm silencer” means any device for
silencing, muffling or diminishing the report of a portable
firearm, including any combination of parts, designed or
redesigned, and intended for use in assembling or fabricating

5
Barrett argues that to the extent his defense counsel failed to adequately raise his
constitutional challenges, counsel provided ineffective assistance. We decline to address counsel’s
catch-all, undeveloped argument. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct.
App. 1992) (we do not address undeveloped arguments).

8
No. 2018AP2324-CR

such a device, and any part intended only for use in that
assembly or fabrication.

(2) Whoever sells, delivers or possesses a firearm silencer is
guilty of a Class H felony.

Sec. 941.298(1)-(2).

¶16 Barrett’s first argument is that WIS. STAT. § 941.298, on its face,
violates the Second Amendment to the United States Constitution. The Second
Amendment of the United States Constitution states: “A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” See U.S. CONST. amend. II.

¶17 In evaluating challenges to the Second Amendment, we employ “a
two-step approach[.]” See Herrmann, 366 Wis. 2d 312, ¶9. First, we ask “whether
the challenged law imposes a burden on conduct falling within the scope of the
Second Amendment’s guarantee.” See id. (citation omitted). If it does not, the
inquiry is complete; if it does, we must “evaluate the law under some form of means-
end scrutiny.” See id. (citation omitted). In other words, we must inquire into “the
strength of the government’s justification for restricting or regulating the exercise
of Second Amendment rights.” See id. (citation omitted).

¶18 Barrett’s facial unconstitutionality argument is principally based on
District of Columbia v. Heller, 554 U.S. 570 (2008), in which the United States
Supreme Court invalidated a District of Columbia handgun ban under the Second
Amendment, holding that the amendment protected “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Id. at 595, 634-35.
Under Heller, “the Second Amendment extends, prima facie, to all instruments that
constitute bearable arms[.]” Id. at 582. Barrett’s argument centers upon his

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No. 2018AP2324-CR

contention that firearm accessories, including silencers, are “instruments”
constituting bearable arms. Barrett’s reliance on Heller is misplaced.

¶19 Heller stated that the definition of “arms” protected by the Second
Amendment is the same today as it was in the eighteenth century; that is, “[w]eapons
of offence, or armour of defen[se]” or “any thing that a man wears for his defen[se],
or takes into his hands, or use[s] in wrath to cast at or strike another.” Id. at 581
(citations omitted; first set of brackets in Heller). The Court recognized that “the
Second Amendment is not unlimited,” and does not include the “right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Id. at 626. It also recognized that the Second Amendment protects only “the sorts
of weapons ... in common use,” and does not extend to “dangerous and unusual
weapons” “not typically possessed by law-abiding citizens for lawful purposes[.]”
Id. at 625-27 (citations omitted).

¶20 A silencer does not fall within the definition of “arms” contemplated
by Heller—it is not used as a defense nor is it, in and of itself, used to “cast at or
strike another.” See id. at 581 (citation omitted). A silencer does not serve any
intrinsic self-defense purpose nor is it “typically possessed by law-abiding citizens
for lawful purposes[.]” See id. at 625. Silencers, therefore, are not “arms.”

¶21 Relying also on Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011),
Barrett argues that a silencer is nonetheless protected by the Second Amendment
because it is necessary to the effective operation of a firearm. In Ezell, the Court of
Appeals for the Seventh Circuit invalidated a Chicago ordinance banning firing
ranges in the City despite the City’s requirement of firing-range training for lawful
gun ownership. Id. at 691. The Ezell court explained that firing ranges were not
“categorically unprotected by the Second Amendment” because “[t]he right to

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No. 2018AP2324-CR

possess firearms for protection implies a corresponding right to acquire and
maintain proficiency in their use; the core right wouldn’t mean much without the
training and practice that make it effective.” Id. at 704. Barrett contends that a ban
on silencers likewise infringes upon the right of citizens to acquire and maintain
proficiency in the use of firearms, particularly with regard to hunting, where
silencers can be beneficial. Barrett’s reliance on Ezell is also misplaced.

¶22 Barrett points to no evidence suggesting that firearms cannot be
effectively used without silencers. He simply points to activities which would be
enhanced by silencer usage, but that are not dependent upon such usage. Unlike the
facts in Ezell where the use of firing ranges was mandatory for lawful gun ownership
and necessary for maintaining proficiency in firearm usage, nothing about the use
of silencers is mandatory for effective firearm usage.

¶23 Because we conclude that WIS. STAT. § 941.298 does not impose a
burden on conduct falling within the scope of the Second Amendment’s guarantee,
we need not evaluate the legislature’s justification for restricting or regulating
silencers. See Herrmann, 366 Wis. 2d 312, ¶9. Accordingly, we conclude that
§ 941.298 is not unconstitutional either facially or as applied to Barrett.

B. WISCONSIN STAT. § 941.298 is not void for vagueness.

¶24 Barrett next contends that WIS. STAT. § 941.298 is impermissibly
vague because its prohibitions are not clearly defined.

¶25 The “void for vagueness” doctrine is grounded in procedural due
process. See State v. Driscoll, 53 Wis. 2d 699, 701-02, 193 N.W.2d 851 (1972).
“[A] statute is void for vagueness if it does not provide ‘fair notice’ of the prohibited
conduct and also provide an objective standard for enforcement of violations.” State

11
No. 2018AP2324-CR

v. Smith, 215 Wis. 2d 84, 91, 572 N.W.2d 496 (Ct. App. 1997). “Stated another
way, ‘[t]he first prong of the vagueness test is concerned with whether the statute
sufficiently warns persons wishing to obey the law that [their] … conduct comes
near the proscribed area.’” Id. (alteration in Smith; citations and one set of quotation
marks omitted). However, a statute “need not define with absolute clarity and
precision what is and what is not unlawful conduct.” State v. Nelson, 2006 WI App
124, ¶36, 294 Wis. 2d 578, 718 N.W.2d 168 (citations omitted). A statute is not
void for vagueness merely because its applicability may be uncertain in some
situations. Id.

¶26 Furthermore, “if the alleged conduct of a defendant plainly falls
within the prohibition of the statute, the defendant may not base a constitutional
vagueness challenge on hypothetical facts, unless a First Amendment right is at
issue.” Smith, 215 Wis. 2d at 91. In other words, “a defendant who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law
as applied to the conduct of others, absent an impact on a First Amendment right….
[I]f an actor’s conduct plainly falls within the proscription of the law, he cannot
make a vagueness challenge.” Id.

¶27 Barrett contends that WIS. STAT. § 941.298 fails to “give citizens fair
notice of what types of items are prohibited[.]” We reject Barrett’s arguments for
two reasons. First, Barrett injects ambiguity into the statute where none exists.
Second, Barrett’s conduct clearly fell within the parameters of § 941.298.

¶28 WISCONSIN STAT. § 941.298 defines “firearm silencer” as “any device
for silencing, muffling or diminishing the report of a portable firearm, including any
combination of parts, designed or redesigned, and intended for use in assembling or
fabricating such a device, and any part intended only for use in that assembly or

12
No. 2018AP2324-CR

fabrication.” See id. The word “device” has the commonly accepted meaning of “a
piece of equipment or a mechanism designed to serve a special purpose or perform
a special function.”6 See Meyers v. Bayer AG, 2007 WI 99, ¶23, 303 Wis. 2d 295,
735 N.W.2d 448 (“We apply the language of the statute as written, giving the words
their commonly accepted meanings.”). Barrett’s argument is centered on the fact
that the statute does not identify who must intend that the device is for silencing.
The statute is not concerned with who possesses a silencer or why; the statute deals
with silencers in and of themselves. The statute clearly states that any device used
for silencing—whether it was manufactured as a silencer or not—is prohibited by
the statute unless a party is registered to own such a device. We agree with the
State’s succinct explanation:

A person wanting to conform to the law knows that he or she
may not possess any piece of equipment designed for the
purpose of silencing, muffling, or diminishing the report of
a firearm. The statute also alerts persons that it is illegal to
possess any combination of parts intended to create a piece
of equipment designed for the purpose of silencing,
muffling, or diminishing the sound of a firearm, or to possess
any single part intended only for use in creating a piece of
equipment for that purpose. Finally, the statute clearly
provides that a person may legally possess any of these
things if he or she complies with the licensing and
registration requirements for owning silencers, and directs
the person who wants to possess such things to those
licensing and registration requirements[.]

The statute plainly sets forth the conduct it proscribes.

¶29 Moreover, Barrett cannot contend that the statute is unconstitutionally
vague because his conduct plainly fell within the scope of the statute. Barrett does
not assert a First Amendment right to possess a silencer, therefore, we only review

6
Device, Merriam-Webster Online Dictionary, https://merriam-
webster.com/dictionary/device (last visited Jan. 31, 2020).

13
No. 2018AP2324-CR

whether the statute gave Barrett notice that the item he was purchasing from M.B.
was prohibited. The record establishes that Barrett recognized the illegality of the
silencer. Recorded phone conversations between Barrett and M.B. reveal that
Barrett called silencers “highly, highly, highly, highly illegal” and “a hit man’s
gun.” Barrett testified that he recognized the device M.B. showed him as a silencer.
Barrett came to the meeting with M.B. with a metal lockbox for storing the silencer,
telling M.B. that law enforcement would need a warrant to search the box. Barrett
also told M.B. that he was an attorney and would be able to concoct a story about
disposing of the device if need be. Accordingly, Barrett’s argument that WIS. STAT.
§ 941.298 is unconstitutionally vague fails.

II. Outrageous Government Conduct

¶30 Finally, Barrett argues that his conviction resulted from outrageous
government conduct. Specifically, Barrett contends that: (1) he was targeted by
M.B. and induced to commit a crime; and (2) the State intimidated a key witness,
Wait.7

¶31 The defense of outrageous governmental conduct requires an
assertion by the defendant that the State violated a specific constitutional right and
that the government’s conduct was “so enmeshed in a criminal activity that the
prosecution of the defendant would be repugnant to the American criminal justice
system.” See State v. Gibas, 184 Wis. 2d 355, 360, 516 N.W.2d 785 (Ct. App.
1994). Unlike the defense of entrapment, which requires that the defendant not be
predisposed to commit the crime, the defense of outrageous government conduct,

7
The State argues that Barrett has forfeited this argument by not raising it with the trial
court. Because the postconviction court addressed Barrett’s arguments on the merits, we do the
same.

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No. 2018AP2324-CR

or government abuse, focuses on whether the government instigated the crime.
State v. Steadman, 152 Wis. 2d 293, 301, 448 N.W.2d 267 (Ct. App. 1989).

¶32 With regard to Barrett’s first claim, we conclude that Barrett’s
arguments reflect the defense of entrapment, not outrageous government conduct.
Throughout his brief, Barrett discusses his lack of interest in a silencer, a
government sting operation, and what he perceives to be the government’s efforts
to turn him into a felon. In essence, Barrett argues that he was not predisposed to
commit the crime—the heart of an entrapment defense. On the contrary, the
outrageous government conduct defense requires a defendant to demonstrate that
the State violated a specific constitutional right and was embroiled in criminal
activity. See Gibas, 184 Wis. 2d at 360. Because Barrett has neither asserted a
specific constitutional right violated by the sting operation, nor demonstrated that
the State was involved in criminal activity, he has not met his burden of establishing
outrageous government conduct.

¶33 As to Barrett’s second claim, Barrett contends that the State violated
his Sixth Amendment right to compulsory process by intimidating one of his
witnesses and preventing the witness from testifying. Barrett relies on two exhibits
from the record to support his claim—a letter from his then-defense counsel to Wait,
and an affidavit from Wait stating his apprehension to testify because of “threats
from the government.” Neither exhibit supports Barrett’s assertion.

¶34 The letter from Barrett’s counsel to Wait does not describe any
activity suggesting that the State was “enmeshed in criminal activity” or violated
any of Barrett’s constitutional rights. See id. Rather, the letter describes counsel’s
personal understanding of a brief, off-the-record, conversation with the State.
Counsel’s interpretation of a discussion with the State is not proof of outrageous

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No. 2018AP2324-CR

government conduct; indeed, the letter does not even describe any definitive State
conduct. It simply states that the State “contemplated” arresting Wait for his role in
attempting to serve M.B. with a subpoena. The State did not take any action against
Wait to prevent him from testifying—no arrest was made, no charges were issued.
A vague letter based on an off-the-record conversation that does not describe an
actual threat is insufficient to establish outrageous government conduct.

¶35 Wait’s affidavit is also insufficient to support Barrett’s claim. Wait’s
four paragraph affidavit does not describe any threatening State conduct, nor does
it describe any personal interaction between Wait and the State. It simply states that
defense counsel alerted Wait to the possibility of a criminal investigation or criminal
charges. Moreover, after defense counsel sent the letter to Wait, the trial court held
multiple hearings in which the subject of Wait’s potential testimony was addressed.
Barrett did not raise concerns about witness intimidation at any of those hearings,
nor did the State address the possibility of pressing charges against Wait. Indeed
Wait appeared at two of the hearings prepared to testify. The State did not issue
charges against Wait after any of those hearings, despite being aware of Barrett’s
plan to call Wait as a witness. In short, Wait’s affidavit belies the record. Barrett
has not met his burden of establishing outrageous government conduct.

¶36 For the foregoing reasons, we affirm.

By the Court.—Judgment and order affirmed.

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