Chapter 946

946.82 Annotation The analysis for a “pattern of racketeering activity” under the Wisconsin Organized Crime Control Act is the same as under the federal Racketeer Influenced and Corrupt Organizations Act. Brunswick Corp. v. E.A. Doyle Manufacturing 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 the person be separate from the enterprise; as matter of law, an individual is separate from a solely-owned enterprise if it is a corporation. State v. Judd, 147 Wis. 2d 398, 433 N.W.2d 260 (Ct. App. 1988).

946.84 946.84 Penalties.

946.84(1) (1) Any person convicted of engaging in racketeering activity in violation of s. 946.83 is guilty of a Class E 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) (4) In sub. (2), “pecuniary value” means:

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; 2001 a. 109.

946.85 946.85 Continuing criminal enterprise.

946.85(1) (1) Any person who engages in a continuing criminal enterprise is guilty of a Class E felony.

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; 1997 a. 283; 2001 a. 109.

946.85 Annotation There are three separate offenses chargeable under this section, 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 Wis. 2d 725, 472 N.W.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.

946.87 946.87 Civil remedies.

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) (2) 

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 750,000 or more, the district attorney or the corporation counsel may proceed under this section. A corporation counsel in a county having a population of 750,000 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; 2017 a. 207 s. 5.

946.87 Annotation State courts have concurrent jurisdiction over federal civil Racketeer Influenced and Corrupt Organizations Act actions. Tafflin v. Levitt, 493 U.S. 455, 110 S. Ct. 792, 107 L. Ed. 2d 887 (1990).

946.87 Annotation A Wisconsin Organized Crime Control Act double damage civil action is penal in nature and does not survive the death of a defendant, but a claim against the deceased defendant’s employee does survive. Schimpf v. Gerald, Inc., 2 F. Supp. 2d 1150 (1998).

946.87 Annotation Reaching a Deep Pocket Under the Racketeer Influenced and Corrupt Organizations Act. 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.

946.90 946.90 Wisconsin Works fraud.

946.90(1) (1) In this section:

946.90(1)(a) (a) “Provider” means a Wisconsin Works agency, a person that contracts with a Wisconsin Works agency to provide services to a participant in Wisconsin Works, or a person that provides child care for reimbursement under s. 49.155.

946.90(1)(b) (b) “Wisconsin Works” means the assistance program for families with dependent children administered under ss. 49.141 to 49.161.

946.90(1)(c) (c) “Wisconsin Works agency” has the meaning given in s. 49.001 (9).

946.90(2) (2) Whoever does any of the following is guilty of a Class A misdemeanor:

946.90(2)(a) (a) Intentionally makes or causes to be made any false statement or representation of a material fact in any application for or receipt of any Wisconsin Works benefit or payment.

946.90(2)(b) (b) Having knowledge of the occurrence of any event affecting the initial or continued eligibility for a Wisconsin Works benefit or payment under Wisconsin Works, conceals or fails to disclose that event with an intent to fraudulently secure a Wisconsin Works benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

946.90(3) (3) Whoever violates sub. (2) by furnishing items or services for which payment is or may be made under Wisconsin Works is guilty of a Class H felony.

946.90(4) (4) 

946.90(4)(a) (a) Whoever solicits or receives money, goods, services, or any other thing of value, in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under Wisconsin Works, or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under Wisconsin Works, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

946.90(4)(b) (b) Whoever offers or provides money, goods, services, or any other thing of value to any person to induce the person to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under Wisconsin Works, or to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part under any provision of Wisconsin Works, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

946.90(4)(c) (c) This subsection does not apply to any of the following:

946.90(4)(c)1. 1. A discount or other reduction in price obtained by a provider of services or other entity under chs. 46 to 51 and 58 if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under Wisconsin Works.

946.90(4)(c)2. 2. An amount paid by an employer to an employee who has a bona fide employment relationship with the employer for employment in the provision of covered items or services.

946.90(5) (5) A provider who knowingly imposes upon a participant in Wisconsin Works charges in addition to payments received by the provider for services under Wisconsin Works or knowingly imposes direct charges upon a participant in Wisconsin Works in lieu of obtaining payment under Wisconsin Works is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000. This subsection does not apply if benefits or services are not provided under Wisconsin Works and the Wisconsin Works participant is advised of this fact prior to receiving the service.

946.90 History History: 2013 a. 226 ss. 2, 7, 9, 51, 52, 53; Stats. 2013 s. 946.90.

946.91 946.91 Medical Assistance fraud.

946.91(1) (1) In this section:

946.91(1)(a) (a) “Facility” means a nursing home or a community-based residential facility that is licensed under s. 50.03 and that is certified by the department of health services as a provider of aid under Medical Assistance.

946.91(1)(b) (b) “Medical Assistance” means the program providing aid under subch. IV of ch. 49, except ss. 49.468 and 49.471.

946.91(1)(c) (c) “Provider” means a person, corporation, limited liability company, partnership, incorporated business, or professional association, and any agent or employee thereof, who provides services under Medical Assistance.

946.91(2) (2) Whoever does any of the following is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000:

946.91(2)(a) (a) Intentionally makes or causes to be made any false statement or representation of a material fact in any application for any Medical Assistance benefit or payment.

946.91(2)(b) (b) Intentionally makes or causes to be made any false statement or representation of a material fact for use in determining eligibility for any Medical Assistance benefit or payment.

946.91(2)(c) (c) Having knowledge of the occurrence of any event affecting the initial or continued eligibility for any Medical Assistance benefit or payment or the initial or continued eligibility for any such benefit or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceals or fails to disclose such event with an intent to fraudulently secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

946.91(2)(d) (d) Having applied to receive any Medical Assistance benefit or payment for the use and benefit of another and having received it, knowingly and willfully converts the benefit or payment or any part thereof to a use that is not for the benefit of such other person.

946.91(3) (3) 

946.91(3)(a) (a) Whoever solicits or receives, directly, indirectly, overtly, or covertly, money, goods, services, or any other thing of value in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under Medical Assistance, or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under Medical Assistance, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

946.91(3)(b) (b) Whoever offers or provides, directly, indirectly, overtly, or covertly, money, goods, services, or any other thing of value to any person to induce such person to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under Medical Assistance, or to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part under Medical Assistance, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

946.91(3)(c) (c) This subsection does not apply to any of the following:

946.91(3)(c)1. 1. A discount or other reduction in price obtained by a provider of services or other entity under chs. 46 to 51 and 58 if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under Medical Assistance.

946.91(3)(c)2. 2. An amount paid by an employer to an employee who has a bona fide employment relationship with such employer for employment in the provision of covered items or services.