946.82 Note
NOTE: Sub. (4) is shown as affected by four acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
946.82 History
History: 1981 c. 280;
1983 a. 438;
1985 a. 104;
1985 a. 236 s.
15;
1987 a. 266 s.
5;
1987 a. 332,
348,
349,
403;
1989 a. 121,
303;
1991 a. 32,
39,
189;
1993 a. 50,
92,
94,
112,
280,
441,
491;
1995 a. 133,
249,
336,
448; s. 13.93 (2) (c).
946.82 Annotation
Definition of "pattern of racketeering" is not unconstitutionally vague. Definition of "enterprise" discussed. State v. O'Connell, 179 W (2d) 598, 508 NW (2d) 23 (Ct. App. 1993).
946.82 Annotation
Repeated use of illegally copied computer software did not constitute a pattern of racketeering. Management Computer Services v. Hawkins, 196 W (2d) 578, 539 NW (2d) 111 (Ct. App. 1995).
946.82 Annotation
WOCCA does not require proof of intent or knowledge beyond that required for the underlying predicate offense. State v. Mueller, 201 W (2d) 121, 549 NW (2d) 455 (Ct. App. 1996).
946.82 Annotation
Analysis for a "pattern of racketeering activity" under WOCCA is the same as under RICO. Brunswick Corp. v. E.A. Doyle Mfg. Co. 770 F Supp. 1351 (1991).
946.83
946.83
Prohibited activities. 946.83(1)
(1) No person who has received any proceeds with knowledge that they were derived, directly or indirectly, from a pattern of racketeering activity may use or invest, whether directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.
946.83(2)
(2) No person, through a pattern of racketeering activity, may acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.
946.83(3)
(3) No person employed by, or associated with, any enterprise may conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity.
946.83 History
History: 1981 c. 280.
946.83 Annotation
Sub. (3) requires that person be separate from enterprise; as matter of law, individual is separate from solely-owned enterprise where it is a corporation. State v. Judd, 147 W (2d) 398, 433 NW (2d) 260 (Ct. App. 1988).
946.84(1)(1) Any person convicted of engaging in racketeering activity in violation of
s. 946.83 is guilty of a Class C felony.
946.84(2)
(2) In lieu of a fine under
sub. (1), any person convicted of engaging in conduct in violation of
s. 946.83, through which he or she derived pecuniary value, or by which he or she caused personal injury or property damage or other loss, may be fined not to exceed 2 times the gross value gained or 2 times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. In calculating the amount of fine based on personal injury, any measurement of pain and suffering shall be excluded.
946.84(3)
(3) The court shall hold a hearing to determine the amount of the fine authorized by
sub. (2).
946.84(4)(a)
(a) Anything of value in the form of money, a negotiable instrument, or a commercial interest or anything else the primary significance of which is economic advantage; or
946.84(4)(b)
(b) Any other property or service that has a value in excess of $100.
946.84 History
History: 1981 c. 280,
391.
946.85
946.85
Continuing criminal enterprise. 946.85(1)
(1) Any person who engages in a continuing criminal enterprise shall be imprisoned not less than 10 years nor more than 20 years, and fined not more than $10,000 or as provided in
s. 946.84 (2). If the court imposes a sentence less than the presumptive minimum sentence, it shall place its reasons for doing so on the record.
946.85(2)
(2) In this section a person is considered to be engaged in a continuing criminal enterprise, if he or she engages in a prohibited activity under
s. 946.83, and:
946.85(2)(a)
(a) The activity is undertaken by the person in concert with 5 or more other persons, each of whom acted with intent to commit a crime and with respect to whom the person occupies a supervisory position; and
946.85(2)(b)
(b) The person obtains gross income or resources in excess of $25,000 from the activity.
946.85 History
History: 1981 c. 280.
946.85 Annotation
There are three separate offenses chargeable under sec. 946.85, each requiring proof of a fact the others do not; prosecution of continuing criminal enterprise violations and the predicate offenses does not violate double jeopardy. State v. Evers, 163 W (2d) 725, 472 NW (2d) 828 (Ct. App. 1991).
946.86
946.86
Criminal forfeitures. 946.86(1)
(1) In addition to the penalties under
ss. 946.84 and
946.85, the court shall order forfeiture, according to the procedures set forth in
subs. (2) to
(4), of all real or personal property used in the course of, or intended for use in the course of, derived from or realized through conduct in violation of
s. 946.83 or
946.85. All forfeitures under this section shall be made with due provision for the rights of innocent persons. Property constituting proceeds derived from conduct in violation of
s. 946.83 or
946.85 includes, but is not limited to, any of the following:
946.86(1)(a)
(a) Any position, office, appointment, tenure, commission or employment contract of any kind that the defendant acquired or maintained in violation of
s. 946.83 or
946.85, through which the defendant conducted or participated in the conduct of the affairs of an enterprise in violation of
s. 946.83 or
946.85, or that afforded the defendant a source of influence or control over the affairs of an enterprise that the defendant exercised in violation of
s. 946.83 or
946.85.
946.86(1)(b)
(b) Any compensation, right or benefit derived from a position, office, appointment, tenure, commission or employment contract that accrued to the defendant during the period of conduct in violation of
s. 946.83 or
946.85.
946.86(1)(c)
(c) Any interest in, security of, claim against or property or contractual right affording the defendant a source of influence or control over the affairs of an enterprise in which the defendant participated in violation of
s. 946.83 or
946.85.
946.86(1)(d)
(d) Any amount payable or paid under any contract for goods or services that was awarded or performed in violation of
s. 946.83 or
946.85.
946.86(2)
(2) Any criminal complaint alleging violation of
s. 946.83 or
946.85 shall allege the extent of property subject to forfeiture under this section. At trial, the trier of fact shall return a special verdict determining the extent of property, if any, to be subject to forfeiture under this section. When a special verdict contains a finding of property subject to a forfeiture under this section, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under
s. 972.13.
946.86(3)
(3) If any property included in a special verdict of criminal forfeiture cannot be located, has been sold to a bona fide purchaser for value, has been placed beyond the jurisdiction of the court, has been substantially diminished in value by the conduct of the defendant, has been commingled with other property that cannot be divided without difficulty or undue injury to innocent persons or is otherwise unreachable without undue injury to innocent persons, the court may order forfeiture of any other property of the defendant up to the value of the property that is unreachable.
946.86(4)
(4) Any injured person has a right or claim to forfeited property or the proceeds derived therefrom superior to any right or claim the state has under this section in the same property or proceeds. This subsection does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by
ss. 946.80 to
946.88. All rights, titles and interest in property described in
sub. (1) vest in the state upon the commission of the act giving rise to forfeiture under this section.
946.86 History
History: 1989 a. 121.
946.87(1)(1) After making due provision for the rights of innocent persons, any circuit court may enjoin violations of
s. 946.83 or
946.85 and may issue appropriate orders and judgments related thereto, including, but not limited to:
946.87(1)(a)
(a) Ordering any defendant to divest himself or herself of any interest in any enterprise which is involved in the violation of
s. 946.83 or
946.85, including real property.
946.87(1)(b)
(b) Imposing reasonable restrictions upon the future activities or investments of any defendant related to enjoining violations of
s. 946.83 or
946.85, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he or she was engaged in violation of
s. 946.83 or
946.85.
946.87(1)(c)
(c) Ordering the dissolution or reorganization of any related enterprise.
946.87(1)(d)
(d) Ordering the suspension or revocation of a license, permit or prior approval granted to any related enterprise by any agency of the state, county or municipality.
946.87(1)(e)
(e) Ordering the dissolution of a corporation organized under
ch. 180 or
181, or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of
s. 946.83 or
946.85 and that, for the prevention of future criminal activity, the public interest requires the action under this paragraph.
946.87(2)(a)(a) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct which has resulted in a conviction for violation of
s. 946.83 or
946.85 is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. The proceeds realized from the forfeitures and dispositions shall be deposited in the school fund.
946.87(2)(am)
(am) Notwithstanding
par. (a), property described in
par. (a) is subject to forfeiture if the person who violated
s. 946.83 or
946.85 has not been convicted, but he or she is a defendant in a criminal proceeding, is released, pending trial, on bail, as defined in
s. 969.001, and fails to appear in court regarding the criminal proceeding. However, before making the final determination of any action under this section, the court must determine that the party bringing the action can prove the person committed the violation of
s. 946.83 or
946.85.
946.87(2)(b)
(b) Any injured person has a right or claim to forfeited property or the proceeds derived therefrom superior to any right or claim the state has under this section in the same property or proceeds. This paragraph does not grant the person priority over state claims or rights by reason of a tax lien or other basis not covered by
ss. 946.80 to
946.88.
946.87(3)
(3) The attorney general or any district attorney may institute civil proceedings under this section. Notwithstanding
s. 59.42 (2) (b) 4., in counties having a population of 500,000 or more, the district attorney or the corporation counsel may proceed under this section. A corporation counsel in a county having a population of 500,000 or more or a district attorney may institute proceedings under this section only with the prior written approval of the attorney general. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination of any action under this section, the circuit court may at any time enter such injunctions, prohibitions or restraining orders or take such actions, including the acceptance of satisfactory performance bonds, as the court deems proper. At any time pending final determination of a forfeiture action under
sub. (2), the circuit court may order the seizure of property subject to forfeiture and may make such orders as it deems necessary to preserve and protect the property.
946.87(4)
(4) Any person who is injured by reason of any violation of
s. 946.83 or
946.85 has a cause of action for 2 times the actual damages sustained and, when appropriate, punitive damages. The person shall also recover attorney fees and costs of the investigation and litigation reasonably incurred. The defendant or any injured person may demand a trial by jury in any civil action brought under this section.
946.87(5)
(5) The burden of proof under this section is that of satisfying or convincing to a reasonable certainty by a greater weight of the credible evidence that the property is subject to forfeiture under this section.
946.87(6)
(6) A final judgment or decree rendered in favor of the state in any criminal proceeding under
ss. 946.80 to
946.88 shall stop the defendant from denying the essential allegations of the criminal offense in any subsequent civil action or proceeding.
946.87 History
History: 1981 c. 280;
1989 a. 121 ss.
108,
110m; Stats. 1989 s. 946.87;
1993 a. 280;
1995 a. 201.
946.87 Annotation
State courts have concurrent jurisdiction over federal civil RICO actions. Tafflin v. Levitt, 493 US 455, 107 LEd 2d 887 (1990).
946.87 Annotation
Reaching deep pocket under RICO. Poker. 72 MLR 511 (1989).
946.88
946.88
Enforcement and jurisdiction. 946.88(1)
(1) A criminal or civil action or proceeding under
ss. 946.80 to
946.88 may be commenced at any time within 6 years after a violation under
ss. 946.80 to
946.88 terminates or the cause of action accrues. If a criminal action or proceeding under
ss. 946.80 to
946.88 is brought, or intervened in, to punish, prevent or restrain any such violation, the running of the period of limitations with respect to any civil action or proceeding, including an action or proceeding under
s. 946.87, which is based in whole or in part upon any matter complained of in the criminal action or proceeding shall be suspended for 2 years following the termination of the criminal action or proceeding.
946.88(2)
(2) The application of one civil or criminal remedy under
ss. 946.80 to
946.88 does not preclude the application of any other remedy, civil or criminal, under
ss. 946.80 to
946.88 or any other provision of law. Civil remedies under
ss. 946.80 to
946.88 are supplemental, and not mutually exclusive, except the state may not proceed under both
ss. 946.84 (2) and
946.87 (4).
946.88(3)
(3) The attorney general and the district attorneys of this state have concurrent authority to institute criminal proceedings under
ss. 946.80 to
946.88, except a district attorney may institute proceedings only with the prior written approval of the attorney general.
946.88 History
History: 1981 c. 280;
1989 a. 121 s.
110; Stats. 1989 s. 946.88.
