United States v. Joseph Faulkner
2015 U.S. App. LEXIS 12180
| 7th Cir. | 2015Background
- In 2011 Faulkner pleaded guilty to two counts of using a communication facility to facilitate a drug-related felony (21 U.S.C. § 843(b)); the government moved to dismiss an earlier four-count heroin distribution indictment in exchange for the plea.
- At sentencing the court imposed an above-Guidelines 91-month term, citing uncharged conduct: long‑running gang-related heroin trafficking, associated violence, and frequent handgun use.
- In 2013 Faulkner was indicted with other Imperial Insane Vice Lords members on racketeering, firearms, and drug‑conspiracy charges, including violent conduct on January 15, 2010.
- Faulkner moved to dismiss the 2013 indictment under the Double Jeopardy Clause, arguing (1) he was already punished for the same conduct because sentencing had considered that conduct, and (2) earlier charges (or the plea) were the same offenses now charged.
- The district court denied the motion, relying on Witte v. United States; Faulkner appealed. The Seventh Circuit affirmed, rejecting both the successive punishment and successive prosecution arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using sentencing consideration of uncharged conduct constitutes "punishment" for that conduct, barring later prosecution | Faulkner: sentencing remarks and enhancements punished him for the same conduct now charged | Government: Witte controls; consideration of uncharged conduct in sentencing is not "punishment" for purposes of Double Jeopardy | Court: Denied — Witte forecloses this claim; sentencing consideration is not double jeopardy punishment |
| Whether Booker and post‑Booker jurisprudence undermines Witte | Faulkner: Booker (and related cases) eroded Witte’s rationale so Witte should not apply | Government: Witte remains binding Supreme Court precedent; Booker does not overrule it | Court: Denied — Witte remains controlling; Alleyne/Apprendi not to the contrary because sentence remained within statutory limits |
| Whether prior dismissed heroin distribution counts (via plea agreement) and the § 843(b) plea are the same offenses as the 2013 charges | Faulkner: earlier counts or plea encompass the same conduct now charged | Government: The earlier charges and plea are legally and factually distinct from the racketeering, conspiracy, and § 924(c) charges | Court: Denied — Blockburger analysis shows distinct elements (e.g., conspiracy vs. substantive offense); counts are not identical |
| Whether jeopardy attached to dismissed counts bars later prosecution | Faulkner: even if dismissed by plea, jeopardy attached and bars reprosecution | Government: Jeopardy may not attach to dismissed counts under plea deals; but regardless, offenses differ | Court: Did not decide the uncertain rule on dismissal-with-prejudice; found no identity of offenses so claim fails |
Key Cases Cited
- Witte v. United States, 515 U.S. 389 (1995) (consideration of uncharged conduct at sentencing is not punishment for double jeopardy purposes)
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two offenses are the same for double jeopardy)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (jury must find facts increasing statutory maximum beyond prescribed range)
- Alleyne v. United States, 570 U.S. 99 (2013) (fact increasing mandatory minimum must be submitted to jury)
- Booker v. United States, 543 U.S. 220 (2005) (mandatory Federal Sentencing Guidelines unconstitutional; advisory regime)
- Peugh v. United States, 569 U.S. 530 (2013) (advisory Guidelines retain significant force for certain constitutional claims)
- Pinkerton v. United States, 328 U.S. 640 (1946) (conspiracy is a distinct offense from the substantive offense committed by a coconspirator)