### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 16

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U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T ORRIE K ING

, 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 S EPTEMBER 7, 2018

— D ECIDED D ECEMBER 6, 2018

____________________

Before F LAUM

, R IPPLE

, and B ARRETT

, Circuit Judges

.

B ARRETT

, 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.2 Nos. 16

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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 wasNos. 16

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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 also4 Nos. 16

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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.Nos. 16

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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.6 Nos. 16

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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 noNos. 16

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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.8 Nos. 16

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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.Nos. 16

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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 Sixth10 Nos. 16

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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

‐Nos. 16

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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 of12 Nos. 16

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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 monthsNos. 16

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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.14 Nos. 16

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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.”).Nos. 16

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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.