VERBIAGE effectuating ILLEGAL WHOLESALE SEIZURE
VERBIAGE EFFECTUATING ILLEGAL WHOLESALE SEIZURE
Taken from 7/30/04 Order (From 6/30/04 Child Support Hearing). The Order [R91] is 3 pages; the transcript from 6/30/04 Child Support Hearing [R231] is 33 pages. The following is taken from page 3 of the Order:
"#5. In the interim, pursuant to §767.42 Wis. Stats. Stats., David M. Larsen is, enjoined until further order of the court from committing or causing to be committed the waste, harm, encumbrance, transfer, or disposition by sale or gift, of any interest in property, whether real or personal and whether tangible or intangible, that he held on, or acquired after January 31, 2004, whether said interest was held in his own name, through an ownership interest in a corporation, through his participation in a partnership, or otherwise, including, but not limited to, any interest in: pension accounts, individual retirement accounts, savings accounts, other cash accounts, 401K accounts, motor vehicles, boats, aircraft, trusts over which he exercises control of and of which he is a beneficiary, certificates, of deposit, things of value contained in any safety deposit box, stocks and bonds (whether held by Mr. Larsen personally or on his behalf by a brokerage or other third party), annuities, life insurance benefits, and the cash value of any life insurance policy."
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There are several things worth noting about the above referenced statute ( §767.42 (2004)):
- The statute referenced was totally inappropriate and the judge completely
misapplied the meaning and intent behind the statute; a statute that very specifically
deals with the "seizure of property" under "abandonment" circumstances, which was
clearly never even a factor or issue in Larsen's situation.
2. The statute was obsolete and apparently had been for some time as the Wisconsin
Legislature indicated and declared just a matter of months after the judge erroneously
attempted to cite it.
3. In March 2005, the Wisconsin Legislature recodified Ch. 767, Actions Affecting the
Family, (which contained § 767.42), in what is now known as "2005 Wisconsin Act 443"
(2005 WIS ACT 443). The Legislature stated the following within that Act, along with an
accompanying note:
SECTION 182: 767.42 of the statutes is repealed.
Note: Repealed as obsolete. This section, which apparently is not currently in use,
allows a county to seize and sell property for the support of a spouse or child if a
person abandons and fails to support the spouse or child.
4. Even if the statute had been appropriate, which it is not, it very specifically, REQUIRES "a
warrant to seize the property". No such warrant has ever existed, or was even sought.
Larsen's assets were simply taken/confiscated by a judge who had an unbelievable
and most serious Conflict of Interest.
Worth further noting:
5. The court demonstrates a complete disregard for Larsen's constitutional rights by
stating that future child support is primary over even payments for attorney's fees to
retain counsel for criminal prosecution. Based on the balances of Larsen's accounts
and value of assets, this was by no means an "EITHER/OR" situation. There is NO
reason in this world why Larsen could not have retained the counsel he desired, AND
continued to make child support payments as well. The Racine court instead prevented
Larsen from having any access whatsoever to his funds and assets for procuring the
counsel he desired and was constitutionally entitled to.
6. With regard to the whole "abandonment" issue of the statute referenced- The court did
not state or explain how "abandonment" might even remotely have been an issue. It
seemingly wants to imply that one of two absolutely ridiculous premises exist:
1. Abandonment occurred by virtue of the fact that Larsen had been arrested; or
2. Abandonment occurred by virtue of the fact that Larsen dropped his two daughters
off with a babysitter to go to work at the air traffic control tower.
Either one of these two premises is beyond ludicrous! Larsen had worked as a Federal
Aviation Administration- Air Traffic Control Specialist for over 20 years, the last 5 years
of which were in Illinois, traveling to and from Wisconsin no less than 5 days per week,
sometimes more. To even suggest the notion of "abandonment" simply because
Larsen had driven to work on the day in question is to suggest that "abandonment"
was an issue on every single day that Larsen had driven to work for the previous 5
years. This would be purely ludicrous in anyone's eye, yet this is the statute that was
used to seize everything that Larsen had ever worked for in his entire life.
7. Both Amendment IV and Amendment V of the U.S. Constitution prohibit such seizures.
Amendment IV of the U.S. Constitution very specifically states:
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
person or things to be seized."
Amendment V of the U.S. Constitution further states, in relevant part, that:
"No person shall...Be deprived of life, liberty, or property, without due process
of law..."
8. The United States Supreme Court has previously stated: "seizure of personal
property [will be] per se unreasonable within the meaning of the Fourth
Amendment unless it is accomplished pursuant to a judicial warrant issued upon
probable cause and particularly describing the items to be seized." United States
v. Place, 462 U.S. 696, 701 (1983).
9. Even existing case law, from the very Federal Circuit Court that Larsen is within, has
clearly stated: "Seizing personal property without a judicial warrant that describes
the items to be seized is presumptively unreasonable." United States v. James. 571
F.3d 707, 713 (7th Cir. 2007).
10. The United States Supreme Court has recently stated, in 2016, that the government
cannot improperly freeze assets of a defendant when those assets have no
connection to the charged crimes, thereby depriving the defendant of those
untainted assets intended to pay for counsel, because doing so deprives the
defendant of his fundamental right to the assistance of counsel of the defendant's
choice at the defendant's expense. The court further stated, that the
government's non-constitutional interest in preserving the assets to provide for
payment of potential criminal forfeitures or restitution if the defendant was
convicted is not the equivalent of the defendant's constitutional right to the
assistance of counsel of the defendant's choice. Luis v. United States, 136 S.Ct.
`1083, 194 L.Ed.2d 256, 2016 U.S. LEXIS 2272.
11. The United States Supreme Court "concluded that the pretrial restraint of
legitimate, untainted assets needed to retain counsel of choice violates the Sixth
amendment." Luis v. United States, 136 S.Ct. 1083, 1085 (2016).
12, The United States Supreme Court has also stated: "The right to select counsel on
one's choice" is thus "the root meaning" of the Sixth Amendment right to counsel."
United States v. Gonzalez-Lopez, 548 U.S. 140, 147-148 (2006), and Luis v United
States, 136 S.Ct. 1083, 1086 (2016).
13. The United States Supreme Court went further to state: "Where the right to be
assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary
to conduct an ineffectiveness or prejudice inquiry to establish a Sixth amendment
violation. Deprivation of the right is 'complete' when the defendant is erroneously
prevented from being represented by the lawyer he wants, regardless of the
quality of the representation he received. To argue otherwise is to confuse the
right to counsel of choice- which is the right to a particular lawyer regardless of
comparative effectiveness- with the right to effective counsel- which imposes a
baseline requirement of competence on whatever lawyer is chosen or appointed."
United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006).