COURT OF APPEALS

DECISION

DATED AND FILED

May 25, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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. 
No. 2019AP2296-CR

3

(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 Varala4and 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.
No. 2019AP2296-CR

4

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 
No. 2019AP2296-CR

5

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 
No. 2019AP2296-CR

6

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,
No. 2019AP2296-CR

7

[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),6the 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.
No. 2019AP2296-CR

8

(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.
No. 2019AP2296-CR

9

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).
No. 2019AP2296-CR

10

¶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)8allows 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.
No. 2019AP2296-CR

11

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.”
No. 2019AP2296-CR

12

“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 
No. 2019AP2296-CR

13

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
No. 2019AP2296-CR

14

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).