State v. Billy Joe Cannon

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.
May 25, 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. 2019AP2296-CR Cir. Ct. No. 2011CF924

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BILLY JOE CANNON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Affirmed.

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

¶1 DONALD, J. Billy Joe Cannon appeals from a judgment convicting
him of conspiracy to deliver cocaine as a second and subsequent offender,
conspiracy to possess with the intent to deliver marijuana as a second and
subsequent offender, and furnishing a firearm to an unauthorized person as a party
No. 2019AP2296-CR

to a crime. Cannon also appeals an order denying his postconviction motion.
Cannon argues that the conspiracy to deliver cocaine charge violates his
constitutional rights against double jeopardy and that the wiretap recordings used
to convict him of furnishing a firearm to an unauthorized person should have been
suppressed. We reject his arguments and affirm.

BACKGROUND

¶2 In 2009, the State charged Cannon with three counts: (1) conspiracy
to deliver cocaine in an amount greater than forty grams on November 10, 2005,
as a party to a crime; (2) possession of a firearm by a convicted felon on
October 16, 2008; and (3) furnishing a firearm to a convicted felon on October 16,
2008, as a party to a crime. The conspiracy charge was severed from the two
firearm charges for the purposes of trial.

¶3 In 2011, Cannon went to trial on the conspiracy charge.1 At trial, the
State alleged that Cannon was part of a conspiracy to deliver cocaine on
November 10, 2005, involving cocaine supplier “Hot Rod” Smith and Cannon’s
customers, Jerald McGhee and Lamont Powell, at Cannon’s rental property on
47th Street in Milwaukee. The jury found Cannon not guilty. Subsequently,
Cannon entered a guilty plea to the possession of a firearm by a convicted felon
charge and the furnishing a firearm to a convicted felon charge was dismissed and
read in.

¶4 Approximately six weeks after the trial on the conspiracy charge, the
State filed new charges against Cannon. The charges were as follows:

1
The Honorable Michael Guolee presided over Cannon’s first trial.

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No. 2019AP2296-CR

(1) conspiracy to deliver cocaine in an amount greater than forty grams “between
on or about March 4, 2008 and on or about March 24, 2008,” as a party to a crime;
(2) one count of conspiracy to possess THC in an amount greater than 10,000
grams “between on or about February 2008 and on or about October 2008,” as a
party to a crime; and (3) one count of knowingly furnishing a firearm to a
convicted felon “on or about Thursday, April 3, 2008,” as a party to a crime.2

¶5 Pre-trial, Cannon filed a number of motions including a motion to
dismiss the new conspiracy charge as a violation of Cannon’s right to be free from
double jeopardy and a motion to suppress wiretap evidence. The circuit court
rejected both challenges.

¶6 In 2014, Cannon went to trial on the new charges.3 Pertinent to this
appeal, at trial, the State argued that beginning on March 4, 2008, and ending
around March 24, 2008, at Cannon’s house on Nash Street in Milwaukee, Cannon
was a member of a conspiracy to deliver cocaine involving cocaine supplier
Eraclio Varala4 and customer Damone Powell.5 The State also argued that Cannon
arranged for the transfer of a firearm to Jimmy Hayes through two convicted
felons, Anthony Turnage and Carl Page. A jury found Cannon guilty as charged.

2
A second and subsequent offender penalty enhancer was later added to counts one and
two. The party to a crime designation on counts one and two were stricken at the conclusion of
the trial.
3
The Honorable Stephanie Rothstein presided over Cannon’s second trial and decided
his postconviction motion.
4
The record contains different spellings of Eraclio’s last name, “Varala.” We use the
spelling Eraclio provided during the trial.
5
Damone Powell is a different person from Lamont Powell, who testified at the first
trial.

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No. 2019AP2296-CR

Cannon was sentenced to a total of sixteen years of initial confinement followed
by fourteen years of extended supervision.

¶7 Postconviction, Cannon moved for a new trial. The circuit court
ordered all postconviction documents to be filed under seal. After briefing, the
circuit court denied Cannon’s motion without an evidentiary hearing. The circuit
court rejected Cannon’s renewed double jeopardy challenge to the 2011
conspiracy charge concluding that “the offenses may have been the same, but they
were not the same in fact[.]” Additionally, the circuit court rejected Cannon’s
argument that trial counsel was ineffective for failing to sufficiently argue for
suppression of the wiretap recordings of the firearm transaction.

¶8 This appeal follows. Additional relevant facts will be referenced
below.

DISCUSSION

I. Double Jeopardy Violation

¶9 Cannon argues that his right to be free from double jeopardy was
violated because the 2009 conspiracy charge and the 2011 conspiracy charge were
actually a single “continuous conspiracy” to deliver cocaine. In support, Cannon
emphasizes that both charges stem from a single investigation, which was
completed prior to his first trial. The issue, however, is not whether there was a
single investigation, but whether there was a single conspiracy. We conclude that
there was not a single conspiracy. Rather, we agree with the State that Cannon
was involved in two separate and distinct conspiracies.

¶10 The double jeopardy clause in the United States Constitution states
that no person shall “be subject for the same offence to be twice put in

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No. 2019AP2296-CR

jeopardy[.]” U.S. CONST. amend. V. Likewise, the Wisconsin Constitution
provides that “no person for the same offense may be put twice in jeopardy of
punishment[.]” WIS. CONST. art. I, § 8. The United States and Wisconsin double
jeopardy clauses are identical in scope and purpose. State v. Davison, 2003 WI
89, ¶18, 263 Wis. 2d 145, 666 N.W.2d 1.

¶11 Whether a defendant’s constitutional right to be free from double
jeopardy has been violated is a question of law that we review de novo. State v.
Harris, 190 Wis. 2d 718, 722, 528 N.W.2d 7 (Ct. App. 1994).

¶12 To determine whether a double jeopardy violation has occurred, the
State argues that we should apply Blockburger v. United States, 284 U.S. 299
(1932). Pursuant to the Blockburger test, two prosecutions violate the double
jeopardy clause when the offenses are “identical in the law and in fact.” See State
v. Schultz, 2020 WI 24, ¶22, 390 Wis. 2d 570, 939 N.W.2d 519 (citation omitted).

¶13 The State here concedes that the 2009 conspiracy charge and the
2011 conspiracy charge are identical in law. We agree with the State’s concession
and turn to the second part of the Blockburger test—whether the charges are
identical in fact.

¶14 “Offenses are not identical in fact when ‘a conviction for each
offense requires proof of an additional fact that conviction for the other offense[]
does not.’” Schultz, 390 Wis. 2d 570, ¶22 (citation omitted). Offenses also are
not identical in fact when “they are different in nature or separated in time.” Id.

¶15 To support his argument that his right to be free from double
jeopardy was violated, Cannon argues that a “strict application of the factual
inquiry under Blockburger [is] inappropriate” and we should look at the analysis

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No. 2019AP2296-CR

in double jeopardy cases involving conspiracies, such as United States v. Castro,
629 F.2d 456 (7th Cir. 1980).

¶16 We agree with Cannon that Castro is instructive in this case, but we
conclude that Cannon does not prevail under Castro. In Castro, the Seventh
Circuit stated that to determine whether a conspiracy has been subdivided
arbitrarily, courts should look to “both the indictments and the evidence and
consider such factors as whether the conspiracies involve the same time period,
alleged co-conspirators and places, overt acts, and whether the two conspiracies
depend on each other for success.” Id. at 461. Subsequent Seventh Circuit cases
have also looked at whether two charges “share similar objectives or modus
operandi[,]” and note that when evaluating the factors, a totality of the
circumstances test is used. See e.g., United States v. Sertich, 95 F.3d 520, 524
(7th Cir. 1996). Additionally, in a post-trial double jeopardy review, “the
defendant alone bears the burden[.]” United States v. Dortch, 5 F.3d 1056, 1060
(7th Cir. 1993).

¶17 In United States v. Thornton, the Seventh Circuit also indicated that,

[d]eciphering what constitutes prosecution for the same
offense for purposes of double jeopardy is not an easy task.
And, the Supreme Court and this court have recognized that
this task becomes even more difficult when we move from
single layered crimes such as bank robberies to prosecution
for multilayered crimes such as conspiracies which expand
over time and place. The reason for the added complexity
is that it is difficult to apply double jeopardy’s notions of
finality to crimes which have no easily discernable
boundaries with regard to time, place, persons, and
objectives.

Id., 972 F.2d 764, 765 (7th Cir. 1992) (citations omitted).

¶18 In Thornton, the court then stated that,

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No. 2019AP2296-CR

[i]n Castro we held that the double jeopardy clause
prohibits the government from arbitrarily subdividing one
conspiracy into several and then prosecuting a person
multiple times for what essentially constitutes one
conspiracy. The rationale underlying this proposition is
simple: the double jeopardy clause prohibits multiple
prosecutions for the same offense, and because the
agreement is the sine qua non of conspiracy, if the
government twice prosecutes an individual under the same
statute for what essentially constitutes one agreement, this
must constitute prosecution for the same offense in
violation of double jeopardy.

Id. at 766 (citation omitted).

¶19 Here, an examination of the totality of the circumstances does not
support the existence of a single continuous conspiracy. While the 2009
conspiracy charge and the 2011 conspiracy involved a similar overt act (a cocaine
transaction),6 the remainder of the factors do not support the existence of a single
continuous conspiracy.

¶20 First, there is not an overlap in dates between the two conspiracy
charges. The 2009 charge alleged that a conspiracy took place on November 10,
2005, whereas the 2011 charge alleged that a conspiracy took place from
approximately March 4, 2008, to March 24, 2008. See Dortch, 5 F.3d at 1062

6
At Cannon’s second trial, evidence was also elicited that Cannon was involved in
selling marijuana. For example, Varala testified that he supplied Cannon with both marijuana and
cocaine. However, because Cannon was charged separately for conspiracy to deliver marijuana
and because the conspiracy charge at issue here focused on cocaine, we give Cannon the benefit
on this factor.

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No. 2019AP2296-CR

(observing that the court has “found a single conspiracy only when the dates
charged in the indictments actually overlapped”).7

¶21 Second, the charges involved different co-conspirators. The 2009
conspiracy charge allegedly involved cocaine supplier “Hot Rod” Smith and
customers Jerald McGhee and Lamont Powell. The 2011 conspiracy charge
involved supplier Eraclio Varala and customer Damone Powell. Moreover, at the
second trial, Varala testified that he started selling drugs to Cannon in 2008, which
supports the existence of a second and separate conspiracy.

¶22 Cannon asserts that “McGhee was a common member fully
implicated in both alleged conspiracies,” but “the prosecutor left him out of both
(out of the first conspiracy, presumably because he cooperated, and out of the
second conspiracy, presumably to avoid the double jeopardy problem).” Cannon,
however, does not present any evidence that McGhee was involved in the
transaction with Damone Powell. Further, even if McGhee was implicated in both
conspiracies, minimal overlap among defendants is insufficient to establish a
single conspiracy. See id.

¶23 Third, the location of the charges does not persuade us that a single
conspiracy took place. The 2009 conspiracy charge was alleged to have occurred
at Cannon’s rental property on North 47th Street in the City of Milwaukee. The
2011 conspiracy charge, however, took place at Cannon’s residence on Nash

7
Cannon observes that the 2009 conspiracy charge was accompanied by two firearm
charges relating to conduct on October 16, 2008. This however is irrelevant. Cannon did not go
to trial on the firearm charges. He entered a guilty plea to the possession of a firearm by a
convicted felon charge and the furnishing a firearm to a convicted felon charge was dismissed
and read in.

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No. 2019AP2296-CR

Street in the City of Milwaukee. Although both charges took place in Milwaukee,
Milwaukee is large enough for more than one conspiracy to distribute cocaine to
exist. See id. at 1062-63 (concluding “[t]he greater St. Louis area is certainly large
enough to be home to more than one conspiracy to distribute cocaine”).

¶24 Finally, and most significantly, Cannon does not establish that the
two conspiracies shared similar modus operandi or depended on each other for
success. See id. at 1063 (observing that courts have “paid the most attention …
[to] whether the two conspiracies depended on each other for success”).

¶25 To support his argument that there was a single conspiracy, Cannon
refers to an October 2008 statement he made to the police that the last time he
dealt drugs with Hot Rod was in 2005 or 2006. Cannon argues that this statement
“projected the conspiracy forward into 2006.” This statement, however, does not
support the existence of a single conspiracy. Rather, Cannon’s statement supports
that the first conspiracy ended in 2005 or 2006. Thus, based on the totality of the
circumstances, we are not persuaded this was a single continuous conspiracy.

¶26 Lastly, Cannon argues that the State was barred from prosecuting
him a second time “under the principles of issue preclusion[.]” “Issue preclusion,
formerly known as collateral estoppel, limits the relitigation of issues that have
been actually decided in a previous case.” State v. Miller, 2004 WI App 117, ¶19,
274 Wis. 2d 471, 683 N.W.2d 485. Cannon bears the burden to establish that
issue preclusion applies. Id. This defense “is not often available to an accused,
for it is difficult to determine, especially in a general verdict of acquittal, how the
fact finder in the first trial decided any particular issue.” State v. Vassos, 218 Wis.
2d 330, 344, 579 N.W.2d 35 (1998).

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No. 2019AP2296-CR

¶27 We conclude that issue preclusion does not apply under the facts of
this case. As discussed above, we do not find that there was a single conspiracy,
but two separate and distinct conspiracies. At the first trial, the jury acquitted
Cannon of the November 10, 2005 conspiracy. The jury did not decide whether
Cannon was guilty of the conspiracy beginning on March 4, 2008, and ending
around March 24, 2008. See Currier v. Virginia, 585 U.S. ___, 138 S. Ct. 2144,
2150 (2018) (stating that a second prosecution is barred “only if to secure a
conviction the prosecution must prevail on an issue the jury necessarily resolved in
the defendant’s favor in the first trial”). Thus, we find that Cannon has failed to
meet his burden that the State was precluded from charging him with conspiracy
to deliver cocaine beginning on March 4, 2008, and ending around March 24,
2008.

II. Suppression of the Wiretap Recordings

¶28 WISCONSIN STAT. § 968.28 (2019-20)8 allows law enforcement to
apply for a court order authorizing the interception of wire, electronic, or oral
communications for certain enumerated offenses, including “dealing in controlled
substances or controlled substance analogs[.]” If while executing a wiretap, police
discover evidence relating to another crime not enumerated in the warrant,
pursuant to WIS. STAT. § 968.29(5), they must obtain approval to use that evidence
in later proceedings.

¶29 Police obtained a warrant to wiretap Cannon’s phone. The warrant,
signed by Chief Judge Kitty Brennan, authorized police to intercept calls on the

8
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP2296-CR

grounds that probable cause existed to believe Cannon was engaged in drug
dealing. On April 3, 2008, police intercepted calls in which Cannon arranged for
the transfer of a firearm through a known felon, Carl Page, to Jimmy Hayes.
Pursuant to WIS. STAT. § 968.29(5), police obtained a supplemental warrant from
Judge Richard Sankovitz, authorizing the use of evidence of the firearm
transaction in later proceedings.

¶30 Cannon makes four arguments as to why the wiretap recordings
should have been suppressed. We disagree and address each of his arguments in
turn.9

¶31 First, Cannon challenges the supplemental warrant authorizing the
use of the firearm transaction evidence in later proceedings because it was issued
by Acting Chief Judge Richard Sankovitz,10 not Chief Judge Kitty Brennan, who
issued the original warrant.

¶32 WISCONSIN STAT. § 968.29(5) provides that “the contents thereof,
and evidence derived therefrom,” may be used “when authorized or approved by
the judge who acted on the original application ….” While the statute refers to the

9
The State argues that Cannon’s wiretap claims were forfeited and should be analyzed
under the ineffective assistance of counsel rubric. See Strickland v. Washington, 466 U.S. 668
(1984). In his reply brief, Cannon responds that his claims should not be deemed forfeited
because his failure to object was due to the State’s failure to disclose all the wiretap
documentation until the postconviction proceedings in violation of Brady v. Maryland, 373 U.S.
83 (1963). As discussed below, we conclude that Cannon’s claims do not have merit.
Accordingly, as both the State and Cannon observe, any ineffective assistance of counsel
argument would also fail. State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769
N.W.2d 110 (holding that counsel cannot be ineffective for not pursuing what would have been a
meritless suppression motion).
10
The supplemental warrant contains hand writing that crossed off “the Honorable
Kitty K. Brennan” and inserts the word “Acting” in front of “Chief Judge, First District.”

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No. 2019AP2296-CR

“judge who acted on the original application,” Cannon overlooks that the
Wisconsin Supreme Court Rules authorize the chief judge to “assign an active
judge” of the district “to substitute for the absenting judge.” SCR 70.23(2). This
rule does not prohibit the chief judge from assigning another judge to take over his
or her place. Thus, Cannon’s argument that Judge Sankovitz lacked authority to
sign the supplemental warrant fails.

¶33 Second, Cannon argues the State failed to produce any order
authorizing the use of the calls intercepted on two dates, April 4th or April 5th.
Assuming for the sake of argument that the calls on those dates were not
authorized, any error was harmless. See State v. Harris, 2008 WI 15, ¶85, 307
Wis. 2d 555, 745 N.W.2d 397 (stating that erroneously admitted evidence is
subject to the harmless error rule).

¶34 At trial, both Page and Turnage testified regarding the details of the
firearm transfer to Hayes. In addition, the jury also heard the April 3, 2008 calls
setting up the firearm transaction, and Cannon’s statements to the police and at
trial admitting that he knew Page and Turnage were convicted felons when he
arranged the transfer of the firearm through them to Hayes. Thus, we conclude,
beyond a reasonable doubt, that a jury would have found Cannon guilty absent any
error. See State v. Harvey, 2002 WI 93, ¶48 n.14, 254 Wis. 2d 442, 647 N.W.2d
189 (“[I]n order to conclude that an error ‘did not contribute to the verdict’ … a
court must be able to conclude ‘beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.’” (citation omitted)).

¶35 Third, Cannon argues that the affidavit accompanying the
supplemental warrant authorizing the use of the firearm transaction evidence in
later proceedings lacked probable cause. However, even if probable cause did not

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No. 2019AP2296-CR

exist, we agree with the State that suppression is not warranted due to the good
faith exception.

¶36 Generally, evidence obtained in violation of the Fourth Amendment
is excluded. State v. Scull, 2015 WI 22, ¶20, 361 Wis. 2d 288, 862 N.W.2d 562.
However, there are exceptions to the exclusionary rule, such as when police act in
good faith or in objectively reasonable reliance on a warrant that is later found to
be invalid. See United States v. Leon, 468 U.S. 897, 922-23 (1984).

¶37 When a warrant is not supported by probable cause, police act in
good faith reliance on the warrant if there is sufficient “indicia” of probable cause.
State v. Marquardt, 2005 WI 157, ¶¶24-29, 286 Wis. 2d 204, 705 N.W.2d 878.
The standard for “indicia” is less demanding and “requires sufficient signs of
probable cause, not probable cause per se.” Id., ¶37. Any competing inferences
are to be resolved in favor of the State. Id., ¶44.

¶38 In this case, the original wiretap application was approved by the
attorney general and the district attorney and then by Chief Judge Brennan. The
supplemental application was reviewed and signed by the district attorney and
then submitted to Judge Sankovitz for approval. The affidavit at issue averred that
a person named “Jimmy” asked Cannon for a gun, Cannon was a convicted felon,
convicted felon Page agreed to assist Cannon’s request for a gun, and that Page
had two guns. Judge Sankovitz found that there was sufficient information to
authorize the use of the firearm transaction evidence. Under these circumstances,
the officers who received the authorization to use the firearm evidence could not
be expected to question the probable cause determination. Based on the facts in

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No. 2019AP2296-CR

the affidavit, we conclude that there was a sufficient indicia of probable cause and
that the good faith exception applies.11

¶39 Finally, Cannon argues that WIS. STAT. § 968.29(5) does not
authorize the interception of any communications regarding firearms. Again, we
disagree. As the State asserts, police may use information about other criminal
activity that they inadvertently intercept while lawfully conducting an authorized
wiretap. See State v. Gil, 208 Wis. 2d 531, 544-46, 561 N.W.2d 760 (Ct. App.
1997). Additionally, as stated above, the plain language of § 968.29(5) provides
that when an officer intercepts communications “relating to offenses other than
those specified in the order of authorization or approval, the contents thereof, and
evidence derived therefrom, may be disclosed or used” with judicial approval.
Accordingly, here, the police, who were conducting a lawfully authorized wiretap,
were not barred from intercepting and using the firearm communications.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

11
In Wisconsin, to apply the good faith exception, the State must also show that the
process used for obtaining the search warrant included significant investigation and “a review by
a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and
reasonable suspicion, or a knowledgeable government attorney.” State v. Eason, 2001 WI 98,
¶63, 245 Wis. 2d 206, 629 N.W.2d 625. The State observes in its response brief that in this case
there was a “lengthy investigation involving many actors” and both the initial application and
supplemental application were reviewed by a government attorney. Cannon does not contest the
satisfaction of these requirements in his reply brief, and thus, we deem them conceded. See
United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578
(finding that the failure to refute a proposition in a response brief may be taken as a concession).

14