United States of America v. Torrie King

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
T ORRIE KING , et al.,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cr‐00772 — Elaine E. Bucklo, Judge.
____________________
A RGUED SEPTEMBER 7, 2018 — D ECIDED D ECEMBER 6, 2018
____________________
Before FLAUM, R IPPLE , and BARRETT , Circuit Judges.
BARRETT , Circuit Judge. Nathaniel Hoskins, Julian Martin,
and Torrie King were members of the Imperial Insane Vice
Lords, a gang in Chicago. Following a multi‐year
investigation into the gang’s activities, they were prosecuted
together in a bench trial and convicted on several counts.
After trial and before sentencing, the government disclosed
evidence that it had obtained from a confidential informant.

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2 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
The district court held that the late disclosure did not violate
Brady v. Maryland, 373 U.S. 83 (1963), because the suppressed
evidence was neither exculpatory nor material. All three
defendants appeal that ruling. In addition to the joint Brady
claim, Martin raises two issues that are unique to him: he
argues that the district court violated the Confrontation
Clause when it admitted a statement made by a non‐testifying
codefendant and that the district court made several errors
when it imposed his sentence. Neither the defendants’ joint
claim nor either of Martin’s individual claims warrants
reversing the district court.
I.
This case arises from the operations of the Chicago gang
known as the Imperial Insane Vice Lords (“Vice Lords”). The
gang controlled drug operations near Thomas Street and
Keystone Avenue on the west side of Chicago. In late 2010,
the government began investigating the gang’s activities,
which led to the indictment of two dozen people for various
offenses, including racketeering conspiracies, firearm
offenses, narcotics offenses, and murder. Among the indicted
were the defendants in this case: Nathaniel Hoskins, Julian
Martin, and Torrie King. Their two‐week joint bench trial
produced a vast record; here, we discuss only the small slice
relevant to this appeal.
First, trial testimony described the gang’s hierarchy. The
head of the Vice Lords was known as the “King.” The
hierarchy also included other important positions such as the
Don (second in command), the Prince (third in command),
and Five Star Universal Elites (those who ranked above an
average Vice Lords member). During the time of the alleged
conspiracy, Martin served as the Prince and Hoskins was

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 3
vying to be the King. Former gang member Darrell Pitts and
special agent William Desmond testified that the Vice Lords
held meetings, controlled certain areas, and used
punishments to maintain control over lower‐level members.
This was corroborated by intercepted gang member calls.
And evidence showed that Hoskins, Martin, and King
participated in these gang actions.
Second, Vice Lords member and codefendant Raymond
Myles testified that Martin provided him with a weapon and
ordered him to kill a man named Tony Carr. Myles testified
that he didn’t know Carr and that Martin didn’t explain why
he wanted Carr killed. Myles ultimately didn’t go through
with the murder—he said that he got cold feet—and beat Carr
with the gun instead.
Third, the government presented evidence that Vice Lords
member Andre Brown murdered a man named Marcus
Hurley. The evidence included surveillance footage of the
actual murder, along with circumstantial evidence indicating
that it was committed in retaliation for an incident involving
members of the Four Corner Hustlers (“Hustlers”), a gang
with whom the Vice Lords had an ongoing feud. Recorded
calls showed both that Hoskins, Martin, and King sought to
shelter Brown following the murder and that Hoskins took
credit for it. The government also introduced a post‐arrest
statement that Hoskins had given to Investigator Andrew
Marquez, which included information about the murder.
Marquez testified that Hoskins told him that he was with
Martin, Brown, and others following the murder of Hurley
and that Brown informed them that he had killed Hurley.
Finally, evidence showed that Martin and King plotted to
kill another Hustlers gang member, Brian Smith. Martin also

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4 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
recruited Myles to help with this job. But when Martin, King,
and Myles arrived at the place where they planned to kill
Smith, law enforcement—wise to the plot courtesy of
previous wiretaps—arrived and forced them to abandon the
plan.
The defendants were each convicted on multiple counts.
The ones relevant to this appeal are the following: the district
court found all three defendants guilty of racketeering
conspiracy and conspiracy with intent to distribute, Hoskins
guilty of conspiracy to murder in aid of racketeering activity,
and Martin and King each guilty of being an accessory after
the fact to murder. It found Martin and King not guilty of
attempting to murder Smith in furtherance of the conspiracy.
After the bench trial but before sentencing, the
government disclosed to the defendants reports from the
Drug Enforcement Administration about D.J., an alleged
former leader of the Vice Lords who became a confidential
informant on the gang’s activities. The materials showed,
among other things, evidence of infighting within the Vice
Lords. After the disclosure, Martin and Hoskins moved for a
new trial, contending that the government’s failure to timely
disclose this information amounted to a Brady violation. See
Brady v. Maryland, 373 U.S. 83 (1963).1 The district court
denied the defendants’ motions because it found the new
evidence to be neither material nor exculpatory. The
defendants proceeded to sentencing.
King was sentenced first. Even though King and Martin
had not been convicted of attempting to murder Smith, the
1 King did not move for a new trial below because he had already filed his
notice of appeal when the government disclosed the new reports.

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 5
court still had to determine whether to consider it in
sentencing King. After a hearing, the court held that the
attempt was not relevant conduct because the government
had failed to establish by a preponderance of the evidence
that it had been undertaken to further the conspiracy. It gave
King an above‐guidelines sentence of 230 months.
Hoskins was sentenced next. The district court sentenced
him to life imprisonment, which was within the guidelines
range.
Martin was sentenced last. At his sentencing, the court
made two decisions that matter here. First, the court reversed
course and found that Martin and King’s attempted murder
of Smith had in fact been committed to further the conspiracy.
The court acknowledged that this finding contradicted its
earlier finding on the same issue in King’s sentencing. It
explained, however, that it had become convinced that its
initial ruling was wrong and added that it probably would
have given Martin the same sentence anyway. Second, the
court concluded that the attempted murder of Carr was
relevant conduct because it had been committed to further the
conspiracy. Martin received a sentence of 310 months, which
was below his guidelines range of 360 months to life.
Before us, the defendants jointly make one argument: that
the district court erred in denying them a new trial to remedy
the alleged Brady violation. Martin makes two individual
claims: (1) that the district court violated the Confrontation
Clause and (2) that the district court erred at sentencing by
finding that the attempted murders of Smith and Carr aimed
to further the conspiracy.

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6 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
II.
The defendants contend that they are entitled to a new
trial because the government failed to disclose the
information about D.J., the confidential informant, before
trial. See Brady, 373 U.S. 83. We review a district court’s denial
of a motion for new trial based on a Brady claim for abuse of
discretion. United States v. Walter, 870 F.3d 622, 629 (7th Cir.
2017). The government argues that King should have to prove
plain error because he failed to move for a new trial below;
King retorts that he had already filed his notice of appeal
when the government provided the Brady material, so he
couldn’t have moved for a new trial. Because King’s claim
fails even under the less stringent abuse of discretion
standard, we need not resolve this dispute.
To establish a Brady violation, a defendant must show that
the evidence is “(1) favorable, (2) suppressed, and (3) material
to the defense.” Id. (internal quotation marks omitted).
Because the government does not contest that it suppressed
the evidence, we consider only whether it was favorable and
material.
Evidence is favorable if it is either exculpatory or
impeaching. Turner v. United States, 137 S. Ct. 1885, 1893
(2017). We have stated that “[e]vidence need only have ‘some
weight’ or ‘tendency’ to be favorable to the defendant.”
United States v. Ballard, 885 F.3d 500, 504 (7th Cir. 2018)
(quoting Kyles v. Whitley, 514 U.S. 419, 451 (1995)). The
defendants assert that because the new evidence showed
infighting within the Vice Lords—such as one member
ordering the shooting of another and a member switching his
drug supplier to a rival gang—it demonstrates that no

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 7
enterprise or conspiracy existed. 2 Their argument is grounded
in the principles that individuals acting “independently and
without coordination” do not constitute an enterprise under
RICO, Boyle v. United States, 556 U.S. 938, 947 n.4 (2009), and
that a conspiracy typically requires cooperative relationships
seeking to achieve common goals, United States v. Townsend,
924 F.2d 1385, 1395 (7th Cir. 1991). Because the new evidence
carries “some weight” in favor of the defendants on these
points, they clear the “favorability” hurdle.
That leaves materiality. The standard for materiality is
whether there is “a reasonable probability” that the outcome
would have been different if the evidence had been disclosed.
Walter, 870 F.3d at 630. The defendants contend that the new
evidence would have allowed them to call DEA agents to
testify about the constant infighting within the Vice Lords and
about the fact that a confidential informant had led the Vice
Lords for several years. 3 They argue that this would have cast
doubt on the government’s efforts to prove an enterprise or
conspiracy, which in turn would have “put the whole case in
such a different light as to undermine confidence in the
verdict.” Kyles, 514 U.S. at 435.
2 Because proof of an enterprise or conspiracy is necessary on only three
of the counts on which the defendants were found guilty, the defendants’
Brady argument goes solely to their racketeering conspiracy convictions,
their conspiracy to possess with intent to distribute convictions, and
Hoskins’s conspiracy to murder in aid of racketeering activity conviction.
3 The government argues that the evidence must be admissible to be
material under Brady. See United States v. Morales, 746 F.3d 310, 314–15 (7th
Cir. 2014) (noting a circuit split on this issue). Because the defendants’
claim here fails either way, we need not address this question.

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8 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
But neither the evidence of infighting nor the fact of D.J.’s
cooperation would have put the case in a different light. As
for the evidence of infighting, the defendants already tried
and failed to persuade the district court that infighting is
inconsistent with the existence of an enterprise or conspiracy.
For example, defense counsel asked one of the special agents
during cross‐examination whether individuals were
“working for themselves … [or had] their own agenda when
they were out on the street.” The special agent answered that
individuals sometimes had their own goals in mind. And the
district court noted that the Vice Lords acted as a unit despite
changes in membership and leadership—and even though
“Hoskins was not always obeyed.” The belatedly disclosed
evidence is simply more of the same, and cumulative
evidence does not justify a new trial under Brady. United States
v. Ervin, 540 F.3d 623, 631 (7th Cir. 2008).
As for D.J.’s cooperation, the presence of a turncoat—like
the evidence of infighting—is not inconsistent with the
existence of an enterprise or conspiracy. An enterprise need
only have a “purpose, relationships among those associated
with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose.” Boyle, 556 U.S.
at 946. D.J.’s cooperation does not undermine confidence in
the district court’s conclusion that the Vice Lords satisfied this
definition: the gang had a sustained hierarchy that persisted
over a ten‐year period and its members worked toward
common objectives. The fact that someone within the gang
reported on its hierarchy, members, and objectives bolsters
rather than undercuts proof that the enterprise or conspiracy
existed.

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 9
The defendants also claim that they could have used the
new evidence to cross‐examine and impeach Pitts and Myles
about the gang infighting. We have explained before that
newly discovered impeachment evidence is not ordinarily
material. United States v. Brown, 865 F.3d 566, 574 (7th Cir.
2017). Regardless, this evidence does not help the defendants.
As an initial matter, the defendants don’t identify any
differences between it and the prior testimony of Pitts and
Myles. Even if they could, however, the impeachment
evidence is cumulative of what the district court already
learned during the trial. Like substantive evidence,
“impeachment evidence is not material if it is ‘merely
cumulative.’” Socha v. Richardson, 874 F.3d 983, 989 (7th Cir.
2017) (quoting United States v. Dweck, 913 F.2d 365, 371 (7th
Cir. 1990)).
The final and weakest piece of the Brady claim comes from
Martin, who argues that he could have used the suppressed
evidence from D.J. to impeach Carr and that impeaching Carr
would have affected his sentence. According to Martin, the
government’s suppression deprived him of the opportunity
to explain that Carr was part of a gang and that Faulkner
wanted to take over his drug spot. This argument is a non‐
starter—the evidence is not exculpatory, much less material.
In short, the district court did not abuse its discretion in
concluding that the belatedly disclosed evidence failed to
create a reasonable probability of a different result.
III.
Having disposed of the defendants’ collective Brady claim,
we now turn to Martin’s two individual claims. We begin
with his argument that the district court violated his Sixth

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10 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
Amendment right to confront the witnesses against him.
After he was arrested, Hoskins gave a statement that
incriminated both himself and Martin in the murder of
Marcus Hurley, and Investigator Marquez related the
contents of this statement at trial. Because Hoskins didn’t
testify at trial, Martin had no opportunity to cross‐examine
him. Martin argues that the introduction of Hoskins’s
statement therefore violated Bruton v. United States, 391 U.S.
123 (1968), and that he is entitled to a new trial on the charge
that he was an accessory after the fact to Hurley’s murder.
The Confrontation Clause renders the confession of a non‐
testifying codefendant altogether inadmissible in a jury trial
if it implicates the defendant. Bruton, 391 U.S. at 135–37. This
rule seeks to protect defendants from jurors who may be
incapable of understanding or abiding by the instruction that
they can consider the statement as evidence against one
defendant but not the other. Martin, however, had a bench
trial—and we have held that the blanket rule of Bruton “is
simply inapplicable” in that context. Faulisi v. Pinkney, 611
F.2d 176, 178 (7th Cir. 1979). Because judges, unlike jurors, are
skilled at distinguishing between permissible and
impermissible uses of evidence, the rationale for Bruton does
not apply when a court, rather than a jury, serves as the
factfinder. Id.; see Rogers v. McMackin, 884 F.2d 252, 257 (6th
Cir. 1989) (“To apply Bruton to bench trials would be to
conclude that judges, like jurors, may well be incapable of
separating evidence properly admitted against one defendant
from evidence admitted against another.”).
To be sure, judges are not infallible; sometimes, they make
mistakes. The Supreme Court addressed that circumstance in
Lee v. Illinois, in which it held that a judge’s reliance on a non‐

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 11
testifying codefendant’s pretrial confession as evidence
against the defendant violated the Confrontation Clause. 476
U.S. 530, 542–43 (1986). But despite Martin’s argument to the
contrary, Lee does not render Bruton applicable to bench trials.
Rather than presuming that judges suffer from the same
incapacity as jurors, Lee simply enforces the bedrock rule that
absent an opportunity for cross‐examination, the
Confrontation Clause prohibits the use of out‐of‐court
testimony as substantive evidence against the accused. See
Johnson v. Tennis, 549 F.3d 296, 300–01 (3rd Cir. 2008) (rejecting
“the notion that Lee v. Illinois expanded the Bruton doctrine to
encompass bench trials” (citation omitted)); Rogers, 884 F.2d
at 257 (“We do not agree that Lee made Bruton applicable to
bench trials.”). Lee, which deals with judges, rather than
Bruton, which deals with juries, controls.
The question, then, is whether the district court relied on
Hoskins’s unexamined confession to find him guilty of being
an accessory after the fact to murder. Martin says that it did,
but the record doesn’t support that assertion. Before
Marquez’s testimony, the district court acknowledged that it
could not use those statements against Martin because
Hoskins did not testify. And when it found Martin guilty of
this charge, the court stated:
The evidence … [is] the photographs of [Martin
and King] with Mr. Brown in the days after the
murder. And, more important, the tapes, where
both admit they are hiding him and, in Martin’s
case, helping Brown change his appearance.
Martin also paid for his room at the Red Roof
Inn. … I’ll also add that both of them were with
Brown right after the murder, within an hour of

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12 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
it, where Mr. Brown has suddenly changed his
clothes. So all of this shows to me, beyond a
reasonable doubt, that they knew why they
were hiding Mr. Brown.
Trial Tr. 1409–10. This reasoning reveals that the district court
relied on photographs, tapes, testimony from officers, and
other circumstantial evidence. Because the district court did
not use Hoskins’s pretrial confession against Martin, it did not
violate Martin’s confrontation right. And because the district
court did not rely on Hoskins’s statement in finding Martin
guilty, Martin’s secondary argument—that Hoskins’s
statement was unreliable—similarly goes nowhere.
IV.
Martin also contends that the district court clearly erred
by treating the attempted murders of Smith and Carr as
relevant conduct at sentencing. Acquitted or uncharged
offenses constitute relevant conduct if they “occurred during
the commission of the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(1). They must be proven by a preponderance of the
evidence, see United States v. Waltower, 643 F.3d 572, 574 (7th
Cir. 2011), and we review a district court’s finding regarding
relevant conduct for clear error, United States v. Salem, 597
F.3d 877, 884 (7th Cir. 2010).
A.
We start with the attempted murder of Smith. At King’s
sentencing, the district court concluded that the government
had not proven by a preponderance of the evidence that the
attempted murder of Smith was committed in furtherance of
the conspiracy. But at Martin’s sentencing several months

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 13
later, it reached the opposite conclusion, explaining that it had
erred at King’s sentencing.
Martin says that the court clearly erred because its factual
finding at his sentencing directly contradicted its finding at
King’s sentencing. See United States v. Barnes, 602 F.3d 790, 797
(7th Cir. 2010) (“Without any justification for why one co‐
conspirator is responsible for a greater quantity of drugs than
his fellow co‐conspirators, such a discrepancy in factual
findings is clearly erroneous.”). We stress that the court’s
obligation to avoid conflicting findings does not require it to
adhere to a previous mistake; so long as it adequately explains
why it was wrong in one sentencing but right in the other, it
can rectify the error. See United States v. Block, 705 F.3d 755,
761–62 (2013) (“We never held that trial courts cannot
consider new evidence in sentencing a defendant after
making an earlier drug quantity determination for his co‐
conspirator.”). The court did so here. It explained that it had
incorrectly analyzed the attempted murder at King’s
sentencing by asking whether the attempt was “logical”
rather than whether it aimed to further the conspiracy. Under
the correct analysis, the result changed. Martin had discussed
or hinted at the attempted murder—both before and after it
happened—on at least four phone calls with other members
of the Vice Lords. For example, in one recording, Martin
explained the situation to fellow member Kenyatta McLaurin.
He told McLaurin that the murder was “some shit we [the
Vice Lords] had set up.” What’s more, Smith was a former
member of the Hustlers gang—a gang engaged in an ongoing
and deadly feud with the Vice Lords. The court held that these
pieces of evidence established by a preponderance standard
that Martin attempted to murder Smith to further the
conspiracy. That conclusion isn’t clearly erroneous.

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14 Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212
Martin lodges one last attack on this aspect of his sentence:
he contends that even if the facts support the district court’s
finding, the disparity between his sentence and King’s
renders his sentence substantively unreasonable under 18
U.S.C. § 3553(a)(6). We review the reasonableness of a
defendant’s sentence for abuse of discretion. United States v.
Harris, 791 F.3d 772, 782 (7th Cir. 2015). Reasonableness under
§ 3553(a)(6) depends on, among other things, “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.” When it performs that analysis, a district court
may—“if it wishes”—consider sentencing disparities
between two codefendants. United States v. Solomon, 892 F.3d
273, 278 (7th Cir. 2018). Because, however, the sentencing
guidelines derive from national patterns, we have also held
that a properly calculated guidelines recommendation
necessarily considers the “consistency between similarly
situated defendants.” United States v. Grigsby, 692 F.3d 778,
792 (7th Cir. 2012). In this case, the district court properly
calculated Martin’s sentence, the sentence was below the
guidelines range, and the district court provided sufficient
reasons for the disparity between Martin’s and King’s
sentences by admitting error. Thus, it was not substantively
unreasonable. See United States v. Trudeau, 812 F.3d 578, 594
(7th Cir. 2016) (asserting that “[a] below‐guidelines sentence
will almost never be unreasonable.”); United States v. Shamah,
624 F.3d 449, 460 (7th Cir. 2010) (“A within guidelines
sentence necessarily gives weight and consideration to
avoiding unwarranted sentencing disparities.”).

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Nos. 16‐1275, 16‐2260, 16‐3084, & 16‐4212 15
B.
Martin also argues that the district court clearly erred in
treating the attempted murder of Carr as relevant conduct at
sentencing. We disagree. Evidence showed that the attempted
murder was committed to further the conspiracy.
First, Myles testified at trial that Martin gave him a gun
and asked him to kill Carr. Second, both Myles and Martin
were members of the Vice Lords. And third, Martin was
Myles’s superior within the gang’s hierarchy. These facts
support the district court’s conclusion that attacking Carr was
gang‐related. In addition, former Vice Lords leader Faulkner
had previously made an attempt on Carr’s life so that he could
take over Carr’s drug spot at Division and Pulaski. In fact,
Faulkner was facing charges related to an attempt on Carr’s
life at the time of the second attempted murder (and Carr was
planning to testify against him). Carr was no stranger to the
Vice Lords. Given this evidence, we do not think that the
district court clearly erred in concluding that attempting to
murder Carr aimed to further the conspiracy. Compare United
States v. Garcia, 754 F.3d 460, 472 (7th Cir. 2014) (concluding
that violence aided racketeering activity because the order
“went through [the gang’s] chain of command[,] it was
implemented by subordinates,” and it followed the gang’s
practices), with United States v. Thai, 29 F.3d 785, 818 (2d Cir.
1994) (concluding that violence did not aid racketeering
activity when there was “no evidence from which the jury
could conclude that [defendant’s] motive … was other than
purely mercenary”).
* * *
We AFFIRM the judgments of the district court.

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