United States v. Faulkner

• Decision Date: 19 March 2018
• Docket Number: Nos. 16-2860 & 16-3525,s. 16-2860 & 16-3525
• Citation: 885 F.3d 488
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joseph FAULKNER and Otis Sykes, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

885 F.3d 488

UNITED STATES of America, Plaintiff–Appellee,

v.Joseph FAULKNER and Otis Sykes, Defendants–Appellants.

Nos. 16-2860 & 16-3525

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2018

Decided March 19, 2018

Rehearing Denied April 11, 2018

David E. Bindi, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff–Appellee.

Steve A. Greenberg, Attorney, STEVEN A. GREENBERG AND ASSOCIATES, LTD., Chicago, IL, for Defendants–Appellants.

Before Easterbrook and Barrett, Circuit Judges, and Stadtmueller, District Judge.^*

Stadtmueller, District Judge.

Joseph Faulkner and Otis Sykes were convicted of conspiring to sell heroin at a place called the Keystone, an open-air drug market on Chicago's west side. Faulkner was a leader of the gang which ran the market and Sykes was a low-level street dealer. In this consolidated appeal, Faulkner challenges numerous aspects of his conviction, while Sykes takes issue with his sentence. Neither presents arguments which merit reversal of the district court. Accordingly, we affirm the appellants' convictions and sentences. We have jurisdiction over these appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

I. JOSEPH FAULKNER

A. Factual & Procedural Background

Faulkner was a high-ranking member of the Imperial Insane Vice Lords, a Chicago street gang, also known as the Double I's. In 2011, he was prosecuted for heroin distribution that occurred in 2007 and 2008, and as well as charges related to heroin found in his apartment, discovered upon his arrest in February 2011. Following his arrest, Faulkner debriefed extensively with federal agents, explaining his role in the Double I's, their drug distribution activities, and the identities and roles of other gang members. He pled guilty to a superseding indictment asserting two counts of using a telephone to facilitate drug crimes. At his sentencing for the 2011 prosecution, the government sought, and the court imposed, an above-Guidelines sentence based upon the information Faulkner provided in his own debrief.

In September 2013, while Faulkner remained in prison, the government indicted him again. He and ten other defendants were charged with drug trafficking through the Double I's organization or within its territory. Count One charged Faulkner with participating in a RICO conspiracy under 18 U.S.C. § 1962(d). The government alleged that Faulkner conspired to distribute drugs at the Keystone from 1996 until his arrest in 2011. It also included a generic drug distribution conspiracy count, Count Nine, pursuant to 21 U.S.C. §§ 841(a)(1) and 846.

The final two counts directed at Faulkner, Counts Two and Three, related to the shooting of Tony Carr in January 2010. Count Two charged Faulkner with conspiracy to commit assault with a dangerous weapon, and Count Three was a related gun charge under 18 U.S.C. § 924(c). Carr sold marijuana near Double I territory but was not a member of the gang. Double I member Troy Ross and an accomplice broke into Carr's apartment in January 2010 and stole some marijuana. Carr found out that Ross was responsible and attacked him a few days later. Faulkner and another Double I member came to the scene. The other person helped Ross, but Faulkner did not intervene.

Carr ran away to his base of operations, a nearby cell phone store. Faulkner, Ross, and the other Double I member followed a while later. Ross pulled out a gun and shot Carr. Again, Faulkner stood by and did nothing. Faulkner was the only person charged in the Carr shooting. Ross himself received full federal immunity and a reduced state sentence, which prosecutors called "a phenomenal deal." According to Ross, Faulkner had ordered the shooting and provided the firearm.

Faulkner believed that the 2013 indictment concerned the very same drug distribution conduct that underlay his 2011 prosecution and sentencing. He moved to dismiss the second indictment as a violation of his Fifth Amendment right against double jeopardy. The trial court denied the motion, and this Court affirmed in July 2015. United States v. Faulkner [Faulkner I ], 793 F.3d 752 (7th Cir. 2015).

Faulkner then proceeded to trial before the court sitting without a jury. The government alleged that Faulkner conspired to sell drugs at the Keystone with gang members and affiliated non-members. As to Count One, the evidence adduced at trial consisted of testimony from Double I member Darrell Pitts and two government agents, who testified about the Double I's and their Keystone operation. Faulkner's debrief was also introduced. Finally, the government offered a series of recorded calls obtained pursuant to a wiretap of various Double I members. As to Counts Two and Three, testimony about the shooting came from Ross, Carr, a clerk at the cell phone store, and a Chicago police officer who processed the scene. Faulkner vigorously disputed the quality of the government's evidence, including Ross' credibility, the relevance of Pitts' testimony, and the admissibility of the recorded calls. Despite these concerns, the district judge found him guilty on all counts.

Prior to the trial, the parties waived formal findings, but Judge Bucklo provided detailed findings anyway. As to Count One, she found that the Double I's were indeed a drug trafficking conspiracy and that Faulkner was a member. As to Counts Two and Three, Judge Bucklo found Ross' testimony credible that Faulkner ordered the shooting and did so to intimidate Carr and enhance Faulkner's position in the Double I's. Finally, as to Count Nine, she concluded that Faulkner's long-time leadership of the Keystone market made him responsible for distributing over 1,000 grams of heroin. On June 28, 2016, Faulkner was sentenced to 30 years' imprisonment on Counts One and Nine, 3 years on Count Two, and 10 years on Count Three.

B. Legal Analysis

Faulkner filed a timely notice of appeal on July 3, 2016. He raises four issues on appeal: (1) whether the evidence presented at trial was sufficient to support his convictions on Counts One, Two, and Three; (2) whether the district court erred in finding that he did not withdraw from the conspiracy as of the time of his arrest in February 2011; (3) whether his Sixth Amendment right to confrontation was violated by the admission of hearsay statements from alleged co-conspirators; and (4) whether his Fifth Amendment right to be free from double jeopardy was violated by the two prosecutions. The Court will address each point in turn.

1. Sufficiency of the Evidence

Faulkner first challenges his convictions on Counts One, Two, and Three.

"[W]e review a challenge to the sufficiency of the evidence," as Faulkner presents here, "to determine only whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the government." United States v. Webster , 775 F.3d 897, 904–05 (7th Cir. 2015). We cannot re-weigh the evidence or reassess witness credibility. United States v. Wasson , 679 F.3d 938, 949 (7th Cir. 2012). In other words, "we will 'overturn the jury's verdict only when the record contains no evidence, regardless of how it is weighed, from which the [factfinder] could find guilt beyond a reasonable doubt.' " United States v. Peterson , 823 F.3d 1113, 1120 (7th Cir. 2016) (quoting United States v. Pribble , 127 F.3d 583, 590 (7th Cir. 1997) ). This burden has been described as "nearly insurmountable." United States v. Taylor , 637 F.3d 812, 815 (7th Cir. 2011). None of Faulkner's arguments can carry it.

As to Count One, the government was required to prove "that another member of the enterprise committed ... two predicate acts and that [Faulkner] 'knew about and agreed to facilitate the scheme.' " United States v. Garcia , 754 F.3d 460, 477 (7th Cir. 2014) (quoting Salinas v. United States , 522 U.S. 52, 66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ); Seventh Circuit Pattern Jury Instructions, 18 U.S.C. § 1962(d) Racketeering Conspiracy—Elements, Pattern Requirement—Racketeering Conspiracy; see also United States v. Amaya , 828 F.3d 518, 531–32 (7th Cir. 2016) (upholding RICO conspiracy conviction where defendant was an enforcer of gang rules with knowledge that those rules encouraged violence and drug dealing). It did not, as Faulkner suggests, need to show that he was personally involved in two or more of the predicate acts. Garcia , 754 F.3d at 477. Thus, Faulkner's first contention—that the district court failed to identify any specific predicate acts—is a non-starter. The evidence adduced on Count Nine, a conviction Faulkner does not challenge on appeal, supplied more than five specific incidents of drug distribution.

Faulkner further argues that the conspiracy charge was improperly predicated solely on his own debrief. See United States v. Fearn , 589 F.2d 1316, 1321 (7th Cir. 1978) ("It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused."). The government counters that the debrief was supported by the narcotics recovered during the 2011 arrest and the testimony of various witnesses regarding Faulkner's role as the manager of the Keystone. The government is correct that the debrief was indeed corroborated.

As to Counts Two and Three, Faulkner makes two arguments. First, he alleges that the government failed to prove that he was involved in the Carr shooting. According to Faulkner, Ross' testimony was critical to his conviction on those counts, and Ross' testimony was so rife with inconsistencies that it was entirely beyond belief. Yet, if Ross' testimony is believed, Faulkner does not contest that it establishes that he ordered the Carr shooting. Second, Faulkner says the government did not prove a necessary element of Count Two—namely, that Faulkner was motivated to order the shooting "because he knew it was expected of him by...