United States Court of Appeals
For the First Circuit
Nos. 10-1526,
10-2164
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS ORLANDO MONSERRATE-VALENTÍN,
JAVIER FIGUEROA-VEGA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Howard and Thompson,
Circuit Judges.
Linda Backiel, for appellant Monserrate.
Jorge L. Armenteros-Chervoni, for appellant Figueroa.
Vernon B. Miles, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Luke Cass, Assistant United States Attorney, were on brief for
appellee.
September 6, 2013
TORRUELLA, Circuit Judge. Following a fourteen-day jury
trial in the U.S. District Court for the District of Puerto Rico,
Defendants-Appellants Luis Monserrate-Valentín ("Monserrate") and
Javier Figueroa-Vega ("Figueroa") were convicted of participating
in a conspiracy to commit armed robbery on a number of armored
trucks in Puerto Rico, in violation of 18 U.S.C. § 1951(a).
Figueroa and Monserrate were subsequently sentenced to 72 and 54
months' imprisonment, respectively. They both appeal their
convictions, arguing that the evidence presented by the government
at trial failed to prove that they joined the conspiracy charged in
the indictment and that the district court erred in allowing the
playback of certain audio recordings to the jury outside of
appellants' presence. Additionally, Monserrate argues that the
district court stumbled in admitting certain hearsay statements and
that the jury instructions it imparted were defective.
Although we detect that a variance occurred at trial, we
conclude that it did not substantially prejudice appellants. We
also reject appellants' remaining arguments and thus affirm their
convictions.
I. Background
The following facts are drawn from the record created at
trial and are presented in the light most favorable to the guilty
verdict. United States v. Rogers, 714 F.3d 82, 84 (1st Cir. 2013).
-2-
A. The Appellants' Planning Activities
Appellants were truck operators at Loomis Armored US,
Inc. ("Loomis").1 Loomis is an armored car company that provides
cash handling services to businesses, including secured, armored
transportation of cash. Frustrated over "the way that the company
treated [the truck] operators," appellants approached another
Loomis employee, Feliciano Santiago-Vázquez ("Santiago"), and asked
him whether he knew anyone who could "hit," or rob, their route.2
This meeting took place around August 2003 at the company's parking
lot. Santiago replied that he was going to see if he "could find
someone who would be willing to do the hit, to do the robbery." He
then spoke with a man named Iván Bravo ("Bravo"); Santiago had
known Bravo "for a few years" and described him as "a young man
from Toa Baja who's a gangster" and "a magnate . . . a big gangster
who had money." Bravo told Santiago that he was interested in the
venture and that they should begin planning and "get[ting] things
set." Santiago then returned to meet with appellants and told them
that Bravo was on board.
1
The company was formerly known as "Loomis Armored, Inc." In
1997, Loomis Armored Inc., acquired Wells Fargo Armored to create
"Loomis, Fargo & Co." In 2007, after consolidating with an
international cash-handling company, the company renamed itself
simply as "Loomis AB." Its American affiliate is known as "Loomis
Armored US, Inc."
2
Monserrate and Figueroa usually traveled together on the same
truck and route. Their route included parts of Naranjito and
Bayamón, Puerto Rico.
-3-
Thereafter, several meetings ensued between Santiago,
Figueroa and Monserrate. Although Santiago also met with Bravo a
couple of times, there was only one meeting where both Santiago and
Monserrate met with Bravo. That was the only time Monserrate ever
met with Bravo. Figueroa never met with Bravo.
At one of the meetings between Santiago and appellants,
appellants proposed robbing their route behind the K-Mart and Home
Depot stores located at the Rexville Shopping Center in Bayamón,
Puerto Rico. Subsequently, Santiago and Monserrate met with Bravo
and provided him with the four digit number that was affixed to
both the front bumper and rear portion of their truck, so that
Bravo could identify the truck and conduct surveillance on it.
During this meeting, Santiago and Monserrate told Bravo that it
would be better to conduct the heist following a long weekend or a
holiday "because those were the days when money moved the most in
banks." They also decided that, on the day of the robbery, Santiago
and Bravo would sit in a vehicle at a nearby parking lot to watch
for police while another group of men "from the Iván Bravo gang"
would arrive in another vehicle to rob the armored truck. In
addition, the parties planned that Figueroa would act as the
messenger of the Loomis truck on that day.3
3
Santiago testified that the messenger is the employee who sits
at the back of the truck and "who picks up the money, the one who
delivers the money and picks it up."
-4-
Later in the planning process, Bravo introduced Santiago
to the men who would participate in the robbery, but Figueroa and
Monserrate were not present at that meeting. Bravo then told
Santiago that "everything was ready and that the weapons would be
ready." Bravo also noted that it "was not going to be a forced
robbery." At trial, Santiago was shown a photograph of co-
defendant Edgardo Salas-Fernández ("Salas-Fernández"), one of
appellants' alleged co-conspirators, and Santiago testified that he
"look[ed] like one of the individuals at Iván Bravo's house during
the planning of the robbery."
Santiago also testified that the planning process went on
for "a month and a half or two," and that afterwards, Bravo
promised he would notify Santiago and the appellants when the
robbery would take place. However, Santiago then testified that,
"[a]fter some time went by and nothing happened, it came to my mind
that I just didn't want to go on with this, and there was no
communication [with Bravo]. And so I let it go, I let it stop
there." Although Santiago thought that the plan to rob the Loomis
truck behind the Home Depot and K-Mart stores had been abandoned,
a few months later, Figueroa's truck was robbed at gunpoint by
several masked individuals during a stop at a Texaco gas station in
Bayamón. The details of this robbery are as follows.
-5-
B. The April 30, 2004 Robbery
On April 30, 2004, José Núñez-Hernández ("Núñez") was
working as a substitute truck operator with Figueroa because
Monserrate was absent from work.4 Figueroa instructed Núñez to act
as the driver on that day while Figueroa would act as the messenger
who would handle the money from clients, as they were already
familiar with him. When Núñez and Figueroa arrived at their first
stop of the day, a Texaco gas station in Bayamón, the normal
parking areas were full. Consequently, Figueroa instructed Núñez
to park "outside the pumps," despite company policy requiring them
to wait for a spot to open across from the client's door. Núñez
testified that he felt he had to follow Figueroa's instructions
because it was Figueroa's normal route.5 At the Texaco gas
station, Figueroa spent about thirty minutes inside with the
station's manager, much more time than the seven to fifteen minutes
allotted for each stop by company policy.
When Figueroa returned to the truck, Núñez asked Figueroa
if the gas station had a bathroom. Figueroa said yes and opened
the back door of the truck. At this time, Núñez saw people
approaching the truck with weapons and, after Figueroa had closed
4
Monserrate was apparently engaged in union negotiations with
Loomis' management on that day.
5
Núñez testified that, while he was a part-time employee,
Figueroa was a full-time employee who outranked him, and therefore
he felt bound to follow Figueroa's instructions.
-6-
the back door, the brigands "put" Figueroa on the ground and
demanded that Núñez open the truck.6 Núñez wanted to drive away,
but he feared that Figueroa's head was underneath the truck.
Because the robbers were threatening to kill Figueroa, Núñez
complied with their demands and opened the truck. The robbers took
the money and placed it into the back of a mini-van.7 Then, as the
robbers were about to abscond with the money, one of them came back
to the truck, hit Figueroa on the head, and left. Figueroa was not
bleeding and appeared calm; his firearm was taken from him. Núñez
identified the vehicle that the robbers used on the day of the
robbery, which members of the Puerto Rico Police Department
("PRPD") later found abandoned.
C. The Indictment
On November 16, 2007, Monserrate, Figueroa, Ricardo
Torres-Ortiz ("Torres-Ortiz"), Edgardo Salas-Fernández, Xavier
Hernández-Albino ("Hernández"), Eric Fernández-Núñez ("Fernández"),
Rodolfo Villanueva-Olivo ("Villanueva") and Luis Matos-Montañez
("Matos"), were charged in a ten-count, second superseding
indictment issued by a grand jury in the District of Puerto Rico.
Monserrate and Figueroa were only charged in Count One of the
6
There was some controversy as to whether Figueroa was actually
placed on the ground by the assailants or whether he himself got
down on the ground before they approached him.
7
This vehicle belonged to one of the co-defendants in this case,
Ricardo Torres-Ortiz, who reported it stolen after the robbery.
-7-
indictment, which alleged a general conspiracy to interfere with
commerce by robbery of armored trucks in violation of 18 U.S.C.
§ 1951(a). Said Count also established the dates of the conspiracy
as "not later than September of 2003, until on or about March 15,
2007." The supposed object of the conspiracy was to "obtain by
robbery monies being moved and transported by Loomis Fargo and
Brink's by means of armored trucks, which monies belonged to
different commercial establishments engaged in business in Puerto
Rico." Further, the indictment claimed that Figueroa had arranged
to be the messenger of the Loomis armored truck that was robbed on
April 30, 2004, and that Monserrate had "obtained and provided to
his co-conspirators the route of [the same truck], including the
identifying four digit number that appears on the front bumper and
rear portion of every armored truck."
The indictment further recounted that between 2003 and
2007, four armored trucks were robbed in Puerto Rico, belonging to
both Loomis and Brink's armored truck companies. Defendants
Torres-Ortiz, Salas-Fernández, Hernández, Villanueva and Matos pled
guilty to the conspiracy to rob armored trucks and/or participating
in the robberies. Fernández pled guilty to helping cover up the
April 30, 2004 robbery. The appellants went on to trial.
D. Trial
Trial of the appellants commenced on April 8, 2008, and
lasted fourteen days. More than 30 witnesses were called. The
-8-
following is a brief summary of the testimony offered by several of
them.
Santiago identified appellants as the ones who had
planned to rob their own armored truck. Núñez, as well as several
other eye witnesses, testified as to how the April 30, 2004 robbery
occurred. Some of these witnesses noted that Figueroa seemed
"calm" after the robbery and that he was not bleeding.
The manager of the Texaco gas station, Edwin Vázquez-
Santiago, testified that, in his four years as a manager, he had
never seen a Loomis truck park where it did on the day of the
robbery. Texaco employee Víctor Vázquez also testified that his
manager found it strange how long the Loomis truck remained at the
station on April 30, 2004.
F.B.I. Special Agent Carlos Torres ("Agent Torres")
testified that, based on telephone records, Torres-Ortiz and
Fernández had spoken on the phone seventeen times on April 30,
2004, with the calls originating in the Lomas Verdes area of
Bayamón. Additionally, he testified that Salas-Fernández called
Torres-Ortiz twice, Hernández sixteen times, and Matos once. Agent
Torres also reported that Monserrate had called Figueroa on the day
of the robbery, even though Monserrate initially denied making that
call and then denied remembering what was said. There was no
evidence that Figueroa called any of the co-defendants on April 30,
2004.
-9-
Additionally, Angel Echevarría-Salas testified that his
cousin, co-defendant Salas-Fernández, told him in May of 2004 that
he had robbed a Loomis truck at a Texaco gas station with Torres-
Ortiz, Matos, Fernández, and Hernández. Although Salas bragged
that they had purloined over $900,000, he bemoaned that they each
had to pay $8,000 for an "inside payment." The government also
called Aníbal López-Narváez ("Informant López"), a friend of co-
defendant Torres-Ortiz who became a paid F.B.I. informant.
Informant López testified that, before the April 30, 2004 robbery,
he drove with Torres-Ortiz to "check out an armored truck route" in
Naranjito, Puerto Rico, and that Torres-Ortiz was supposed to meet
"a person [] from Wells Fargo" at a nearby establishment. López
also testified that Torres-Ortiz was receiving information relating
to the planned robbery of the Loomis truck from Bravo.
Furthermore, confidential informant Alex Irene-Ojeda
("Informant Irene") recorded conversations with Matos about how
Matos's "crew" had robbed several armored trucks. In a May 2, 2007
recording, Matos said, "[t]hey didn't catch anyone. Of the
connection they didn't catch anyone." Informant Irene asked Matos,
referring to the truck robbery at the Texaco station, "there the
guards had something to do with it, right?" Matos replied, "Man,
everybody there had something to do with it. Everyone there took
money. But, regretfully from this side they don't know anyone."
-10-
Finally, testimony was also presented concerning several
other armored truck robberies, including the robbery of $103,500
from a Brink's armored truck on October 25, 2003, and the robbery
of another Brink's armored truck on November 7, 2005, at a post
office in Arecibo, Puerto Rico, where $984,580 was stolen.
Evidence was also admitted concerning the robbery of $1,275,000
from a Loomis truck on March 15, 2007. Informant Irene recorded
Matos discussing these other armored truck robberies and Torres-
Ortiz's involvement in some of them. He also testified that Matos
stated that "when he didn't have anyone on the trucks, he would ask
and find out the amounts the trucks carried."
After the government rested, both appellants moved for
acquittal pursuant to Federal Rule of Criminal Procedure 29. The
district court denied the motions and appellants went on to present
several witnesses whose testimony we need not recount here.
Following the presentation of appellants' defense, they again moved
for judgments of acquittal under Rule 29, which were again denied.
The jury found appellants guilty on Count One of the
indictment on April 29, 2008. Monserrate was sentenced on
March 18, 2010, to 54 months' imprisonment, followed by a
supervised release term of three years. Figueroa was sentenced on
July 28, 2010, to serve 72 months in prison, followed by a
supervised release term of three years. Both appellants appealed.
-11-
II. Discussion
Appellants' appeals present four issues. First, we must
determine whether the evidence marshaled at trial by the government
was sufficient to prove that appellants joined the conspiracy as
charged in Count One of the indictment. Second, we must decide
whether the district court erred in admitting certain hearsay
statements that allegedly prejudiced the appellants. Third,
appellants ask us to determine whether the district court stumbled
in allowing the playback of certain audio recordings to the jury
outside of appellants' presence. Lastly, Monserrate alone argues
that the jury instructions imparted by the district court were
defective. We address each argument in turn.
A. Insufficiency of the Evidence/Variance
1. Background
Figueroa and Monserrate both assert that the evidence
presented at trial was insufficient to support their convictions
under Count One of the indictment and challenge the district
court's denial of their motions for judgment of acquittal. In
short, appellants argue that, while the indictment charged them
with participating in a four-year-long conspiracy to
indiscriminately rob both Loomis and Brink's armored trucks, the
evidence presented at trial only showed, at most, that they
conspired with Santiago and Bravo to rob their own armored truck.
Because appellants' challenges to the sufficiency of the evidence
-12-
and to the denial of their motions for judgment of acquittal raise
a single issue, we "apply the traditional sufficiency of the
evidence standard to these claims." United States v. Dellosantos,
649 F.3d 109, 115 (1st Cir. 2011).
In this case, both appellants moved for a judgment of
acquittal at the close of evidence, so we must review their
sufficiency claims de novo. Id. The following is a brief overview
of the law of conspiracy.
2. Conspiracy Law
A criminal conspiracy exists when two or more persons
agree to commit a crime. Id. In order to convict a defendant of
participating in a conspiracy, the government must show "the
existence of a conspiracy, the defendant's knowledge of the
conspiracy, and the defendant's voluntary participation in the
conspiracy." United States v. Bristol-Martir, 570 F.3d 29, 39 (1st
Cir. 2009)(internal quotation marks omitted). The defendant's
agreement to join the conspiracy "is the sine qua non of a
conspiracy" and it is "not supplied by mere knowledge of an illegal
activity, let alone by mere association with other conspirators or
mere presence at the scene of the conspiratorial deeds."
Dellosantos, 649 F.3d at 115 (quoting United States v. Zafiro, 945
F.2d 881, 888 (7th Cir. 1991))(internal quotation mark and ellipsis
omitted). We have therefore emphasized the importance of
determining what kind of agreement or understanding existed as to
-13-
each defendant, although the agreement need not be express; a tacit
understanding may suffice. Id.
3. The Appellants' Challenge to the Sufficiency of the
Evidence
Appellants argue that the evidence presented at trial
merely showed that they engaged in discussions with Santiago and
Bravo to rob their own armored truck at the Rexville shopping
center of Bayamón. According to them, the evidence then showed
that another group of malfeasants, led by Matos, decided to "steal
the hit" from Santiago and Bravo and carried out the robbery on
their own at another location in Bayamón: the Texaco gas station.
Appellants claim that when Matos decided to "steal the hit," a new
conspiracy was born, one which had nothing to do with their own
discussions with Santiago and Bravo to rob their armored truck.
They sustain this multiple conspiracies theory by calling our
attention to several facts, namely (1) that the April 30, 2004,
robbery was committed by a completely different cast of characters,
none of whom had any contact with the appellants prior to the
robbery; (2) that said robbery did not take place behind the
Rexville shopping center as they had planned, but rather took place
at another location, the Texaco gas station; (3) that appellants'
plan to have their own armored truck robbed stemmed from their
desire to seek revenge against Loomis for its mistreatment of
workers, while the Matos-led conspiracy had the objective of
robbing both Loomis and Brink's armored trucks indiscriminately for
-14-
their own pecuniary purposes; and (4) that the only conspirators
that appellants did have any contact with, Santiago and Bravo, were
never charged in the indictment.
Appellants thus argue that the evidence presented at
trial failed to prove that they joined the conspiracy described in
the indictment; rather, the evidence merely "proved a conspiracy
never brought to fruition involving Monserrate, Figueroa, Santiago
and Bravo." According to them, a prejudicial variance occurred
because the evidence "permitted [appellants'] conviction[s] based
upon [their] alleged association with a crew of professional
robbers whose misdeeds involving long weapons, masks, assaults and
others were spread before the jury when they in fact pertained to
a separate conspiracy in which [appellants] were not involved."
Appellants claim that, had the district court inquired into whether
an agreement existed between appellants and the other co-defendants
named in the indictment, it would have found none and thus would
have been forced to grant their Rule 29 motions. Because
appellants are making a variance argument, we proceed to discuss
the central tenets of variance law below.
4. Variance Law
"A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." Dellosantos, 649 F.3d at
116 (quoting United States v. Mangual-Santiago, 562 F.3d 411, 421
-15-
(1st Cir. 2009))(internal quotation marks omitted). The question
of whether the evidence adduced at trial demonstrated the existence
of one or multiple conspiracies "is a question of fact for the jury
and is reviewed only for sufficiency of the evidence." United
States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009). In conducting
our inquiry, we must look at the evidence presented at trial, as
well as all reasonable inferences derived therefrom, in the light
most favorable to the verdict. See Dellosantos, 649 F.3d at 116.
We must then determine whether a reasonable factfinder could
conclude, beyond a reasonable doubt, that appellants committed the
crime charged in the indictment. Id.
The task at hand requires us to consider the totality of
the circumstances, "paying particular heed to factors such as the
existence of a common goal, evidence of interdependence among the
participants, and the degree to which their roles overlap." Niemi,
579 F.3d at 127 (quoting United States v. Fenton, 367 F.3d 14, 19
(1st Cir. 2004)) (internal quotation mark omitted). However, no
single factor, by itself, is necessarily determinative, United
States v. Díaz-Arias, 717 F.3d 1, 21 (1st Cir. 2013), and courts
should not overly rely on these factors without analyzing what kind
of agreement existed between the defendant and the other co-
conspirators. See United States v. García-Torres, 280 F.3d 1, 4
(1st Cir. 2002) ("No one can join a conspiracy without knowledge of
-16-
its existence -- the gravamen is an agreement to commit an
offense.").
In United States v. Morrow, 39 F.3d 1228 (1st Cir. 1994)
and United States v. Franco-Santiago, 681 F.3d 1 (1st Cir. 2012),
we discussed the problems that may arise when courts mistakenly
deal with the crime of conspiracy "as though it were a group rather
than an act [i.e., of agreement]." Morrow, 39 F.3d at 1234
(internal quotation mark omitted); see United States v. Glenn, 828
F.2d 855, 857 (1st Cir. 1987)("[C]onspiracy law, like most criminal
law, focuses upon the activities of an individual defendant. It is
therefore dangerous to think of a conspiracy as a kind of 'club'
that one joins or a 'business' in which one works."). In order to
convict a conspirator, then, of participating in a multiple-crime
conspiracy, the government must prove, "at a minimum," that such
conspirator had "knowledge or foresight of the conspiracy's
multiplicity of objectives." Morrow, 39 F.3d 1234; see also
Franco-Santiago, 681 F.3d at 9 ("[K]nowledge of the broader
conspiracy's existence is critical" (internal quotation marks
omitted)). If the government fails to adduce sufficient proof as
to the knowledge element, the defendant will not be "automatically"
held liable for the acts of the criminal conspiracy which he could
not foresee. Glenn, 828 F.2d at 857. Hence, "the gist of the
conspiracy offense remains the agreement, and it is therefore
essential to examine what kind of agreement or understanding
-17-
existed as to each defendant." Id. (quoting United States v.
Borelli, 336 F.2d 376, 384 (2d Cir. 1964)) (internal brackets and
quotation marks omitted).
5. A Variance Occurred
Monserrate and Figueroa are both correct in arguing that
the evidence proffered at trial was insufficient to establish an
agreement between them and the other co-conspirators to rob both
Loomis and Brink's armored trucks indiscriminately. While Count
One of the indictment described the object of the conspiracy to be
the "robbery [of] monies being moved and transported by Loomis
Fargo and Brink's by means of armored trucks" (our emphasis), the
evidence adduced at trial, when viewed in the light most favorable
to the verdict, was only able to show that Monserrate and Figueroa
participated in a narrower conspiracy to rob their own armored
truck. Figueroa and Monserrate met a handful of times with
Santiago to plan the robbery of their own armored truck because of
their desire to get back at Loomis for its mistreatment of workers.
Monserrate only met with Bravo once, while Figueroa never met with
him. Neither of them had any contact with Matos or any of the
other conspirators whose names appear in the indictment. And the
rest of the evidence presented by the government, whether direct or
circumstantial, was clearly insufficient for a rational factfinder
to impute appellants with any knowledge as to the Matos
conspiracy's broader goal to rob multiple armored trucks. In
-18-
short, the government failed to prove that appellants either agreed
to join the overarching conspiracy alleged in Count One of the
indictment or had any knowledge or foresight of its multiplicity of
objectives; instead, the evidence showed that they joined a
narrower conspiracy to rob their own armored truck, which suggests
that a variance resulted at trial.
The government disagrees with this assessment and instead
claims that the evidence was sufficient to prove both the existence
of a single conspiracy to rob armored trucks and appellants'
membership in it. It claims that the conspiracies in question met
our oft-relied-upon factors for determining the existence of a
single conspiracy: common goal, interdependence and overlap among
participants. See Dellosantos, 649 F.3d at 117. We are not
convinced.
Regarding the "common goal" requirement, although the
evidence showed that Matos and some of the other co-defendants
named in the indictment had the common goal of committing a series
of robberies on armored trucks, there was no such evidence as to
either Monserrate or Figueroa. See Franco-Santiago, 681 F.3d at
10. We also do not overlook the fact that appellants' main purpose
in planning the robbery of their own armored truck was to seek
revenge against Loomis for its mistreatment of workers, while the
Matos conspiracy's objective seems to have been purely pecuniary.
-19-
"The second factor, interdependence, concerns whether
the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme."
Dellosantos, 649 F.3d at 117 (citing Mangual-Santiago, 562 F.3d at
422) (internal quotation marks omitted). This means that "[e]ach
individual must think the aspects of the venture interdependent,
and each defendant's state of mind, and not his mere participation
in some branch of the venture, is key." Id. (citing Mangual-
Santiago, 562 F.3d at 422) (internal quotation marks omitted). The
government likens the conspiracy in this case to a "chain
conspiracy" where appellants' actions in providing Santiago and
Bravo information about their truck and having Figueroa act as the
messenger constituted the "links in a chain" that ultimately led to
the robbery of their truck on April 30, 2004. See United States v.
Giry, 818 F.2d 120, 127 (1st Cir. 1987). It argues that, because
appellants knew that their planning activities were interdependent
with those of the other individuals who would eventually assault
the truck, this "known interdependence" makes it reasonable for us
to speak of a tacit understanding between appellants and the other
members of the Matos conspiracy. See United States v. Portela, 167
F.3d 687, 695 (1st Cir. 1999) ("[E]vidence of an individual
participant's understanding of the interdependence of the co-
conspirators' activities is evidence -- often the best evidence --
-20-
of tacit agreement between the individual and his co-conspirators.").
The government's interdependency argument does not hold
water. Although it is true that appellants knew that their
planning activities were interdependent with the activities of the
other participants in the scheme, this interdependency does not go
much further than proving appellants' willingness to enter into an
agreement to rob their own armored truck. In other words, there
was simply no indication that appellants thought that their
participation in the scheme to rob their own armored truck was
"necessary or advantageous to the success" of the other robberies
carried out by the Matos conspiracy. See Franco-Santiago, 681 F.3d
at 11.
The government also argues that "overlap" was present in
the conspiracy because it featured the pervasive involvement of
Matos as the "core conspirator" or "hub character," as he
participated in all of the robberies. See United States v.
Sánchez-Badillo, 540 F.3d 24, 30-31 (1st Cir. 2008). Although the
government is correct to characterize Matos as a "hub character,"
"the mere fact that a central person (the 'hub' of a wheel) is
involved in multiple conspiracies (the wheel's 'spokes') does not
mean that a defendant," such as Monserrate or Figueroa, "who
participated in a spoke conspiracy[,] may be convicted of
participating in an overarching conspiracy encompassing the entire
wheel." Franco-Santiago, 681 F.3d at 11. The government must also
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produce "evidence from which a jury could reasonably infer that the
spoke defendant knew about and agreed to join any larger
overarching conspiracy." Id. As we have previously stated, such
evidence was not present here.8
In a final attempt to argue that appellants agreed to
join the overarching conspiracy charged in the indictment, the
government remarks that this case must be compared to United States
v. LiCausi, 167 F.3d 36 (1st Cir. 1999), United States v. James,
432 F.2d 303 (5th Cir. 1970), and United States v. Smith, 320 F.3d
647 (6th Cir. 2003), where the courts found sufficient evidence
from which a jury could reasonably infer that the defendants in
those cases knowingly participated in a single overarching
conspiracy. Having read through those cases, we find that the
8
On a side note, the government also seems to argue that we may
infer the existence of a single conspiracy due to the similarity of
the four robberies. It notes that, in each robbery, "the robbers
were masked, gloved, dressed in black, and took the guard's pistol
each time." See Fenton, 367 F.3d at 19 ("[P]attern and practice
bespeaks a single, continuing operation."); United States v. Shea,
211 F.3d 658, 665 (1st Cir. 2000) (noting that conspiracy may be
proven by evidence of "a common and continuing aim, similar
methods of operation, continuity in personnel, and
interdependence"). Although it is true that the robberies were
perpetrated using similar techniques, the government nevertheless
failed to present any evidence that appellants had any knowledge or
foresight as to the other robberies. See, e.g., United States v.
Hughes, 505 F.3d 578, 588 (6th Cir. 2007)("[T]he essence of a
conspiracy is the agreement to commit the offense and not the
commission of the substantive offense."); United States v. Mercer,
165 F.3d 1331, 1335 (11th Cir. 1999) (same); United States v.
Tejada, 956 F.2d 1256, 1264 (2d Cir. 1992) (same).
-22-
circumstances depicted in them are distinguishable from the ones
present here.
In LiCausi, we had no trouble concluding that the
defendants were aware of the conspiracy's continuing aim to rob
various supermarkets, given the fact that they participated in
various meetings where they discussed "committing armed robberies
of supermarkets," LiCausi, 167 F.3d at 41 (our emphasis), and where
they each participated in robbing, or attempting to rob, multiple
supermarkets or other establishments indiscriminately. Id. at 41-
43. The courts in James and Smith held that there was sufficient
evidence indicating that the defendants joined the overarching
conspiracy alleged in the indictment, because although they only
participated in one of the conspiracy's crimes, they had enough
contact with the conspiracy's other members that a jury could
reasonably infer that those members had disclosed to the defendants
the conspiracy's continuing aim to commit multiple offenses. Here,
however, there was no indication that either Santiago or Bravo had
participated in any prior robberies of armored trucks, or that
appellants had any contact with the other members of the Matos
conspiracy who had committed prior robberies on armored trucks.
Therefore, the case-law cited by the government fails support its
argument.
Consequently, we find that the evidence was insufficient
to prove that appellants joined the overarching conspiracy alleged
-23-
in the indictment. See Morrow, 39 F.3d at 1234 ("[I]f a defendant
agrees with others simply to commit a single crime (e.g., to rob
one bank) and has no knowledge or foresight of the conspiracy's
broader scope, that defendant is a member only of the narrower,
one-crime conspiracy."). Below, we proceed to discuss the
ramifications of our finding.
6. Consequences of the Insufficiency Finding
Having determined that the evidence was insufficient to
prove appellants' knowing participation in the conspiracy alleged
in the indictment, we must now look to "whether the evidence was
sufficient to permit a jury, under a proper set of instructions, to
convict the defendant of a related, similar conspiracy." United
States v. Maryea, 704 F.3d 55, 73-74 (1st Cir. 2013).
In this case, appellants were charged with participating
in a conspiracy to rob armored trucks, in violation of 18 U.S.C.
§ 1951(a). This provision, known as the Hobbs Act, states that,
Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of
any article or commodity in commerce, by
robbery or extortion or attempts or conspires
so to do, or commits or threatens physical
violence to any person or property in
furtherance of a plan or purpose to do
anything in violation of this section shall be
fined under this title or imprisoned not more
than twenty years, or both.
Evidence of an overt act is not required to establish a Hobbs Act
conspiracy. United States v. Palmer, 203 F.3d 55, 63 (1st Cir.
2000). Having reviewed the record, we conclude that the government
-24-
presented sufficient evidence from which a jury could reasonably
conclude that appellants participated in a conspiracy "similar" and
"related" to the one alleged in the indictment, namely, a
conspiracy to commit the April 30, 2004, robbery.9
The government's first witness, Santiago, testified as to
how both appellants approached him in the parking lot of Loomis and
asked him whether he knew anyone who "could hit the route." During
their discussions with Santiago, appellants proposed robbing their
truck behind the Rexville Shopping Center in Bayamón, and in a
later meeting between Santiago, Monserrate, and Bravo, Monserrate
provided the four digit number that was affixed to both the front
bumper and rear portion of their truck, in order to facilitate
Bravo's surveillance of it. Monserrate also told Bravo that it
would be better to conduct the heist following a long weekend or a
holiday "because those were the days when money moved the most in
banks." It was also clear that Figueroa was supposed to act as the
messenger on the day of the robbery, since Bravo commented to
Santiago that it "was not going to be a forced robbery." Santiago
9
In this context, "a conspiracy to commit the April 30, 2004,
robbery" does not refer to the never-hatched conspiracy between
Monserrate, Figueroa, Santiago, and Bravo that appellants argue was
the extent of their illegal involvement. Rather, it refers to the
question of whether the evidence was sufficient to show that
appellants engaged in a single act of conspiracy, brought to
fruition, to rob only their own truck at the gas station parking
lot on April 30, 2004.
-25-
testified that this planning process went on for "a month and a
half or two."
Additionally, Cristian Benítez, a former manager of the
Texaco gas station, testified that, a year before the April 30,
2004 robbery, Monserrate told him that a "good place" to rob the
truck was behind the Rexville Shopping Center because there were no
cameras there. There was also ample evidence showing that
appellants harbored resentment towards the company because of its
alleged ill-treatment of workers.
The government also presented evidence tying appellants
to the co-defendants who robbed their truck on April 30, 2004.
Santiago testified that he believed that one of these co-
defendants, Salas-Fernández, was present at a meeting he had with
Bravo in his house. Informant López testified that co-defendant
Torres-Ortiz, who conducted surveillance on appellants' truck,
mentioned to him that the information for the robbery was coming
from Bravo, who in turn obtained some of his information from
appellants.
And although it is a close question, we believe the jury
may have reasonably inferred that appellants were in on the
April 30, 2004 robbery, given Figueroa's actions on that day.
Figueroa instructed the driver on that day, Núñez, to park "outside
the pumps," thereby positioning the truck in a less secure
location. Although the evidence reflected that the gas station was
-26-
full at the time, company policy dictated that operators wait until
a spot opens up across from the client's door. In addition, the
station manager at the time testified that, in his "three to four
years" working as a manager, he had never seen a Loomis truck park
where it did on the day of the robbery. The jury could have easily
inferred that this was a significant and unusual deviation from
standard procedure, and that it was done to facilitate the robbery
of the truck on that day.10
The government also notes that Figueroa spent half an
hour inside the station collecting the money, despite company
policy stating that such visits should only last between seven and
fifteen minutes. Appellants, however, ascribe this delay to the
station manager, who testified that he had to count the money twice
that day, and that this was the cause of the delay. We see no
reason for not crediting appellants' theory that the delay in
leaving the gas station was due to circumstances entirely beyond
Figueroa's control. The government presented no evidence to the
contrary. It merely cites the testimony of Víctor Vázquez, who was
an employee at the gas station, and who stated that the station
manager found it odd how long the Loomis truck remained parked at
the station that day. But, because it was the manager who caused
10
On appeal, Figueroa argues that he and Núñez shared joint
responsibility for where the truck parked. However, Núñez's
testimony reflects that he felt compelled to follow Figueroa's
instruction to park the car "outside of the pumps" because Figueroa
was a full-time operator who outranked him.
-27-
the truck's initial delay by counting money twice, his statement of
surprise could only refer to the time the truck remained at the
station after it was robbed, and one would have reasonably expected
the truck to remain there until the authorities arrived. Hence,
the purported fifteen-minute delay should not be held against
appellants in this case.
Unfortunately for appellants, however, the government's
remaining points bear more weight. When Figueroa returned to the
truck with the money he had collected from the station manager,
Núñez asked him whether they should charge Texaco for the extra
time they had to wait. Figueroa responded affirmatively, at which
point Núñez announced that he had to go to the bathroom. The
following is Núñez's testimony, describing what happened next:
A: So I'm waiting for [Figueroa] to come up
front so I could get off. When I'm jotting
down that, he opened the back door, and I look
through the rearview mirrors in the truck,
there were some persons approaching with
weapons.
I was going to let him know, but he had
already -- he was already on the ground.
Q: What did he do before he hit the ground?
A: Got down and closed the door.
Although Figueroa closed the door before being placed on
the ground, the jury could have questioned why Figueroa exited the
vehicle in the first place when Núñez's testimony reflects that, as
Figueroa was exiting the vehicle, there were persons approaching
-28-
the rear of the vehicle with weapons. Taking the evidence in the
light most favorable to the verdict, as we must, we conclude that
the jury could have inferred that Figueroa chose to exit the
vehicle knowing that it was about to be robbed, thereby
facilitating the robbery. This was in violation of Loomis policy
requiring operators to make sure the area is secure before exiting
the truck.11
The government also calls our attention to something
unusual that happened during the robbery. After the robbers
finished taking the money from the vault of the truck and were
inside their vehicle ready to leave, one of them exited the
vehicle, went over to Figueroa, and hit him over the head. Several
witnesses who saw Figueroa immediately after the robbers had left
testified that he seemed calm and was not bleeding. This evidence,
when viewed alongside Figueroa's decision to park away from the
pumps and exit the truck when he did, could have led the jury to
believe that the robbers hit Figueroa in order to make sure that
everyone believed it was a "forced robbery."
Appellants attempt to anesthesize the potency of this
evidence in various ways. Figueroa in particular states that the
evidence merely showed that he and Monserrate engaged in
11
The government, during its closing argument, also argued that
Figueroa could have merely stepped back in to the vault of the
truck instead of closing the door and waiting for the brigands to
approach him.
-29-
discussions with Santiago and Bravo to rob their own truck behind
the Rexville Shopping Center of Bayamón. He claims that this
robbery "never took place and [it] is debatable how serious were
the conversations to pursue it, as the evidence are sparce [sic]
comments, without more, made by the appealing defendants." Both
appellants claim that, once Torres-Ortiz "stole the hit" from Iván
Bravo, "a new conspiracy . . . was formed" whose purpose was "to
rob other places, the drive in, the gas station, the Western Bank
and the Arecibo Post Office," thus leaving "no link" between
appellants' desire to get back at Loomis for its ill treatment of
workers and the "professional gang recruited by Matos," whose main
purpose was to indiscriminately rob both Loomis' and Brink's
armored trucks.
Although appellants make good arguments, at the end of
the day they are defeated by the evidence cited above. The
question of whether the Figueroa-Monserrate-Santiago-Bravo
conspiracy and the Matos-led conspiracy constituted a single
conspiracy for the narrower purpose of robbing the Loomis truck on
April 30, 2013, was one of fact for the jury to decide. See
Portela, 167 F.3d at 696. As we have just recounted, the evidence
was sufficient for the jury to have inferred that appellants agreed
to join the Matos-led conspiracy to commit the April 30, 2004,
robbery, particularly given Figueroa's actions on that day and the
fact that Monserrate provided information to Bravo which eventually
-30-
reached Torres-Ortiz. Figueroa's argument that the April 30, 2004,
robbery was perpetrated by "a whole new set of characters" who
never had any contact with him is unpersuasive. The evidence
showed that Bravo and Santiago actually met with co-defendant
Salas-Fernández at Bravo's house. This co-defendant later admitted
to his cousin that he participated in the April 30, 2004, robbery
at the Texaco gas station.
Additionally, the fact that other co-conspirators may
have "stolen" the idea of robbing appellants' truck from Bravo does
not necessarily preclude a finding by the jury of a single
conspiracy to rob their own armored truck, for we have repeatedly
held that "[c]hanges in the cast of characters do not preclude a
finding of a single overarching conspiracy." United States v.
Soto-Beníquez, 356 F.3d 1, 19 (1st Cir. 2003) (citing United States
v. Shea, 211 F.3d 658, 665 (1st Cir. 2000)). "What [is] essential
is that the criminal 'goal or overall plan' have persisted without
fundamental alteration, notwithstanding variations in personnel and
their roles." United States v. Bello-Pérez, 977 F.2d 664, 668 (1st
Cir. 1992). As such, so long as the evidence reasonably shows that
appellants remained involved in this "stole[n]" conspiracy in some
capacity, the mere fact of altered plans and additional personnel
does not change our analysis.
Figueroa also assails the evidence presented by the
government going to his participation in the April 30, 2004,
-31-
robbery. He claims that the decision to park the truck "outside
the pumps" was prompted by the gas station being full that day,
that the delay was due to the station manager having to count the
money twice, and that were it not for Núñez's desire to go to the
bathroom, the robbery never would have happened. He also notes
that it was Núñez's actions that precipitated the robbery, because
Núñez opened the truck to the robbers when company policy mandated
that he drive away, and because he did not move the truck closer to
the station when a spot opened up. Although Figueroa's theory as
to how the April 30, 2004, robbery occurred is plausible, we have
to recognize that the government's theory was equally plausible.
Figueroa was able to present his side of the story to the jury, and
we have to assume that the jury rejected it. See United States v.
Ayewoh, 627 F.3d 914, 919 (1st Cir. 2010) ("[T]he Court must view
the facts in the light most favorable to the Government, deferring
to the jury's verdict if the evidence can support varying
interpretations, at least one of which is consistent with the
defendant's guilt." (quoting United States v. Neal, 36 F.3d 1190,
1203 (1st Cir. 1994)) (internal quotation mark omitted); United
States v. Hernández, 218 F.3d at 58, 66 n.5 (1st Cir. 2000) ("It is
not our role to assess the credibility of trial witnesses or to
resolve conflicts in the evidence, instead we must resolve all such
issues in favor of the verdict."). In fact, the jury was given a
-32-
multiple-conspiracies instruction by the district judge, yet it
still decided to convict appellants.
In light of the above, we believe that a properly
instructed jury could have convicted appellants of agreeing to join
a more limited conspiracy with Matos and the other co-defendants to
rob their own armored truck on April 30, 2004.
7. Whether the Variance Caused Appellants Prejudice
Now that we have determined that a variance occurred
because the evidence showed that appellants joined a narrower
conspiracy than the one alleged in the indictment, we must assess
whether this variance caused appellants prejudice.
In United States v. Mubayyid, we remarked that a
defendant "can hardly be heard to complain when the 'government's
proof at trial establishes a scheme similar to but somewhat
narrower in breadth and malignity than that charged in the
indictment.'" 658 F.3d 35, 48-49 (1st Cir. 2011) (quoting United
States v. Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006)). We have
also stated that "[a] jury need not believe that the defendant did
everything the indictment charges; it may convict if it believes he
did some of the things the indictment charges," as long as "those
things, by themselves, amount to a violation of the statute, [and]
the indictment enables the accused to know the nature and cause of
the accusation against him." Mueffelman, 470 F.3d at 38-39
(internal quotation marks and brackets omitted); see also United
-33-
States v. Muñoz-Franco, 487 F.3d 25, 46 (1st Cir. 2007) ("Where, as
here, the indictment alleges a conspiracy to commit multiple
offenses, the charge may be sustained by sufficient evidence of
conspiracy to commit any one of the offenses."); United States v.
Bustamante, 493 F.3d 879, 885 (7th Cir. 2007) ("[A] prosecutor may
elect to proceed on a subset of the allegations in the indictment,
proving a conspiracy smaller than the one alleged."). The fact
that the conspiracy proved is not as extensive as that charged does
not by itself establish a material variance and therefore the
variance may be subject to the harmless-error rule. Mubayyid, 658
F.3d at 51-52, 54; see also United States v. Wilson, 134 F.3d 855
(7th Cir. 1998) (holding that, if the conspiracy charged in the
indictment includes the smaller conspiracy found by the jury, then
the variance will not be fatal since the indictment would have
sufficiently notified the defendants of the government's
accusations.).
Therefore, the mere fact that the evidence marshaled at
trial proved a narrower conspiracy than the one alleged in the
indictment is not automatically grounds for reversal; "in order to
reverse a conviction, a court must find that the variance affected
the defendant's substantial rights." United States v. Tormos-Vega,
959 F.2d 1103, 1115 (1st Cir. 1992) (internal quotations omitted);
Glenn, 828 F.2d at 858 ("The risks of prejudice in such trials [of
large criminal conspiracies] are serious and warrant reversal when
-34-
they materialize; but when substantial rights are not affected, the
error is 'harmless.'" (citing 28 U.S.C. § 2111)). There are at
least three ways in which a variance may be found to affect a
defendant's substantial rights: (1) the defendant may receive
inadequate notice of the charges against him, such that he may be
surprised at trial; (2) "a defendant may be twice subject to
prosecution for the same offense;" and (3) a defendant may suffer
from evidentiary spillover, which is "the 'transference of guilt'
to a defendant involved in one conspiracy from evidence
incriminating defendants in another conspiracy in which the
particular defendant was not involved." United States v.
Candelaria-Silva, 166 F.3d 19, 40 (1st Cir. 1999).
The question of whether the variance in this case
affected appellants' substantial rights is reviewed de novo.
United States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996).
As to the first prong, we note that appellants do not
claim that they received insufficient notice of the charges against
them. The Second Superseding indictment informed appellants that
they were being charged with participating in a Hobbs Act
conspiracy. Count One of the indictment also included the "overt
acts in furtherance of the conspiracy," which named both
appellants. There, Monserrate was alleged to "have obtained and
provided to his co-conspirators the route of a Loomis Fargo armored
truck to be robbed on April 30, 2004, including the identifying
-35-
four digit number that appears on the front bumper and rear portion
of every armored truck," while Figueroa was alleged to have
"arranged to be the messenger of the Loomis Fargo armored truck to
be robbed on April 30, 2004." The indictment therefore contained
sufficient information for appellants to be aware of the nature and
cause of the accusation made against them. See Morrow, 39 F.3d at
1235 (holding that, although there was a variance between the
multiple-crime conspiracy alleged in the indictment and the single-
crime conspiracy proved at trial, it was not prejudicial because
"the indictment gave appellants ample notice of the events
charged.").
Appellants also do not argue that the variance in this
case exposed them to being prosecuted again for the same offense,
and we prefer to avoid speculating as to this possibility.
As to the third prong, appellants do complain that they
were prejudiced because of evidentiary spillover. Figueroa
specifically claims that the evidence as to the other three
robberies substantially prejudiced him, even though he had nothing
to do with those robberies. He further argues that the district
court "reduced the standard of evidence by permitting [his]
conviction upon the general conspiracy, rather [than] on the
specific acts for which evidence was presented." Additionally, he
argues that Informant Irene's testimony regarding what Matos told
Irene misled the jury and facilitated its verdict against him. At
-36-
the end of the day, we must reject his arguments. The district
court properly instructed the jury that it could only convict each
appellant based on his "own acts, statements and conduct, and any
other evidence in the case which may be applicable to him." The
government was not required to prove that appellants participated
in all of the robberies, and therefore the district court did not
improperly "reduce[] the standard of evidence."
Monserrate advances similar arguments. In particular, he
claims that the variance in this case permitted his conviction
"based upon his alleged association with a crew of professional
robbers whose misdeeds involving long weapons, masks, assaults and
others were spread before the jury when they in fact pertained to
a separate conspiracy in which he was not involved." But he does
not explain why he thinks the jury was unable to separate his
actions from those of the other co-defendants who were involved in
the other robberies, particularly in light of the district court's
instructions.
He does, however, challenge those instructions as
deficient, and he also attacks several of the district court's
evidentiary rulings concerning statements that were made by
unavailable witnesses. These statements mainly described how
members of the Matos conspiracy had to pay unknown Loomis employees
for inside information helpful to conduct the robberies. In
addition, he and Figueroa claim that the district court committed
-37-
error in replaying several tape recordings containing these
statements to the jury outside of their presence and without
relevant cross-examination testimony. For the reasons that follow,
we are unconvinced that these alleged missteps caused either of the
appellants substantial prejudice in the form of evidentiary
spillover, and we thus find that the variance in this case was
harmless. We begin with the district court's admission of the
statements from the unavailable witnesses.
B. The District Court's Evidentiary Rulings
1. Background
Monserrate challenges the district court's decision to
admit certain hearsay statements made by various co-conspirators
who were unavailable to testify at trial. He claims that these
statements were unfairly prejudicial to him under Federal Rule of
Evidence 403 because they contained references to "insiders,"
"guards" or "connections" who had purportedly provided the
necessary inside information to perpetrate the robberies. The
district court admitted these statements under Federal Rule of
Evidence 804(b)(3) as statements against interest. We briefly
discuss this rule below.
2. Rule 804(b)(3)
Hearsay is defined as a statement that the declarant
"does not make while testifying at the current trial or hearing"
and which the proponent "offers in evidence to prove the truth of
-38-
the matter asserted in the statement." Fed. R. Evid. 801(c).
Hearsay is inadmissible unless certain exceptions are met. Fed. R.
Evid. 802. Rule 804(b)(3) establishes one of those exceptions:
statements made by an unavailable declarant against penal interest.
"A statement is against the declarant's penal interest if it tends
to subject the declarant to criminal liability to such an extent
that a reasonable person would not make the statement unless it
were true." United States v. Fogg, 666 F.3d 13, 17 (1st Cir. 2011)
(citing United States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005))
(internal quotations and brackets omitted). We must look at all of
the surrounding circumstances in order to determine whether a
statement is admissible under the rule. See United States v.
Pelletier, 666 F.3d 1, 8 (1st Cir. 2011).
In Williamson v. United States, 512 U.S. 594 (1994), the
Supreme Court elucidated the scope of Rule 804(b)(3) as it applies
to statements against penal interest. There, the Court determined
that the Rule "does not allow [the] admission of non-self
inculpatory statements, even if they are made within a broader
narrative that is generally self-inculpatory." Id. at 600-01.
The Court went on to say that,
[W]hether a statement is self-inculpatory or
not can only be determined by viewing it in
context. Even statements that are on their
face neutral may actually be against the
declarant's interest. "I hid the gun in Joe's
apartment" may not be a confession of a crime;
but if it is likely to help the police find
the murder weapon, then it is certainly
-39-
self-inculpatory. "Sam and I went to Joe's
house" might be against the declarant's
interest if a reasonable person in the
declarant's shoes would realize that being
linked to Joe and Sam would implicate the
declarant in Joe and Sam's conspiracy. And
other statements that give the police
significant details about the crime may also,
depending on the situation, be against the
declarant's interest.
Id. at 603-04.
In addition to being sufficiently self-inculpatory, the
statement must also be "supported by corroborating circumstances
that clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant to criminal
liability." Fed. R. Evid. 804(b)(3)(B). Although the requirement
for corroboration is not "unrealistically severe," United States v.
Mackey, 117 F.3d 24, 29 (1st Cir. 1997), it does "demand meaningful
corroboration of proffered testimony," United States v. Bradshaw,
281 F.3d 278, 286 (1st Cir. 2002). This means providing "evidence
that clearly indicates that the statements were worthy of belief,
based upon the circumstances in which the statements were made."
Pelletier, 666 F.3d at 8 (citing United States v. Barone, 114 F.3d
1284, 1300 (1st Cir. 2011)) (internal quotation mark omitted).
We review the district court's application of Rule
804(b)(3) for abuse of discretion. Bradshaw, 281 F.3d at 286.
-40-
3. Challenged Statements
a. Statement by Co-Defendant Salas-Fernández
Monserrate argues that the statements co-defendant Salas-
Fernández made to his cousin, Angel Echevarría-Salas, in May of
2004, that he robbed a Loomis truck at a Texaco station with
Torres-Ortiz, Matos, Fernández and Hernández, and that each had to
pay $8,000 for an "inside payment," was not a single statement
against interest, but rather "part of a blame spreading narrative"
that was inadmissible under the framework established in
Williamson. He also argues that, even if this "narrative" was
admissible, it should have been excluded under Rule 403 "because
the fact that 'insiders were paid' is only relevant if the jury
speculated or made the improper inference that [Monserrate] was a
recipient, merely because he was one of those accused at trial."
He claims that the government presented no evidence that he
received $8,000, or any quantity of money, for his alleged
participation in the robbery.
Monserrate's argument does not resonate with us. Salas-
Fernández's statement that he robbed the Loomis truck at the Texaco
gas station is plainly self-inculpatory, even though it also
inculpated other members of the conspiracy. In Barone, we rejected
the argument that Williamson created a per se bar to the admission
of any statements against interest that also incriminate other
persons. Barone, 114 F.3d at 1295; see also Williamson, 512 U.S.
-41-
at 606 (Scalia, J., concurring) ("[A] declarant's statement is not
magically transformed from a statement against penal interest into
one that is inadmissible merely because the declarant names another
person or implicates a possible co-defendant."). Further, the
statement at issue by its very nature does not reflect that it was
made with the intent to shift the blame for the robberies to the
other co-conspirators. The same can be said for Salas-Fernández's
statement that he had to make an inside payment; it merely
described what he and the other co-conspirators had to do with
their ill-gotten proceeds.
Additionally, the district court did not abuse its
discretion in ruling that the statements were sufficiently
corroborated as trustworthy because the statements were made to a
close relative of Salas-Fernández. See Barone, 114 F.3d at 1301
(agreeing with the district court that the fact that the declarant
made the statement to close relatives "in a noncustodial setting
rather than to the police" and that he had no reason to lie were
factors constituting "corroborating circumstances").
Lastly, we agree with the government that the statement
did not lend itself to improper inferences or speculation. Nothing
prevented Monserrate from arguing to the jury that those statements
did not conclusively establish that he was such an insider, and
that in fact there were other insiders in Loomis who were also
involved in the robberies. Ultimately, it was for the jury to
-42-
determine whether the insiders mentioned were the appellants, and
as discussed at length in the previous section, there was
sufficient evidence for the jury to conclude that appellants were
among the insiders mentioned.
b. Statements by Matos to Informant Irene
Monserrate also attacks the district court's admission of
several statements made by Matos to Informant Irene over the phone.
The first group of impugned statements include those contained in
"all of pages 26 and 27" of a recording taken on May 7, 2007. The
parties do not dispute that the statements are mostly Matos'
descriptions of Torres-Ortiz's role in the robbery, to the effect
that the latter, after committing the Texaco robbery, drove off
with the money and then parked his car in front of a school.
Apparently several bystanders saw Torres-Ortiz handling the stolen
cash in his vehicle and reported it to the police, along with his
license plate number. Then, according to Matos, Torres-Ortiz ("the
dummy") panicked and reported his vehicle stolen "right away" and
"got fucked."
Monserrate argues that these statements do not
incriminate Matos in the Texaco robbery; rather, they merely
describe Torres-Ortiz's error in the commission of said robbery and
reflect that Matos was "privy to this gossip." The government
rejoins that the statements, when taken in context, reflect that
Matos had "intimate knowledge" of the conspiracy's criminal
-43-
activities. Although it is a close call, we agree with Monserrate
that the statements do not sufficiently incriminate Matos in the
Texaco robbery. Rather, the statement gives the impression that
Torres-Ortiz's mishap was common knowledge, especially since it
occurred in plain view of innocent bystanders who reported it to
the police. Were any of these bystanders to make the same kind of
comments based on what they saw, we do not think that the
statements would be admissible to prove their membership in the
conspiracy. However, the admission of these statements was
harmless to the appellants, because they merely described Torres-
Ortiz's involvement in the conspiracy, and, as such, they did not
affect the outcome of the trial.
The second group of statements challenged by Monserrate
can be found at the bottom half of page 28 and at the top half of
page 29 of the transcript. As to these, we also have to agree with
Monserrate that they were erroneously admitted. The only statement
of substance uttered by Matos in this segment is the following:
Tell them to fuck themselves. No one has
evidence or anything. And, regretfully, I'm
clear. Because I'm clear with what's mine.
Look, damn, Baby is going to raise his hand.
Matos apparently made these remarks in response to Informant
Irene's comment that Matos' name was "messed up" in some circles.
And although it is unclear what exactly was being said about Matos
behind his back, we believe that these statements are not self-
incriminating. Just the opposite, it appears that Matos is
-44-
attempting to say that he does not care about what is being said
about him, because "no one has evidence" and he is "clear with
what's mine." The statements are therefore not against Matos'
penal interest, and we disagree with the district court's ruling
that, when taken in context with the preceding statements, they
described Matos' role in the conspiracy. The fact that Matos'
statement somehow incriminated "Baby," whom the government asserts
was Salas-Fernández, does not alter our conclusion. However, as
before, Monserrate does not explain how this statement prejudiced
his defense and we are confident that they did not affect the
outcome of the case one way or another.
The third group of statements challenged by Monserrate
can be found in the following exchanges between Informant Irene
(CW) and Matos (LM):
LM: "[Salas-Fernández] can't raise his hand.
He has to wait for someone to accuse him.
Because in this, when you go to do these kind
of jobs . . . bam, if someone accuses you
. . . over there, that's when you go to jail."
* * *
CW: "There, the guards had something to do
with it, right? They’re fucked there."12
LM: "Man, everybody there has something to do
with it. Everyone there took money. . . ."
CW: "There, everyone, everyone there took
money. Even, even, even this one was pissed
12
Informant Irene testified that he was referring to the guards
"from the armored truck in Bayamón."
-45-
off once, because . . . they offered him
something and they didn't comply."
LM: "Who?"
CW: "Andrés, they offered Andrés money for
the, for the one . . . and supposedly they
offered him an amount and they gave him
another. And he is . . . you know what Andrés
was like."
LM: "No, but not me, not me, not really.
There I don't know. I don't have know . . . eh
. . . I don't know shit about that. But I know
that everybody got money and . . . and they
were also fighting because those people got
payed a lot of money . . ."
CW: "The ones from the van?"
LM: "Yes. [Pause]. They were talking shit,
'not, that . . . You see, they payed those
people too much. That they had to pay them
less.'"
The district court did not abuse its discretion in admitting these
statements under Rule 804(b)(3). The statements demonstrate "an
insider's knowledge" as to the activities of the conspiracy,
because they showed that Matos knew the amounts of money the
participants were being paid, and further, he stated: "in this,
when you go to do these kind of jobs . . . bam, if someone accuses
you . . . over there, that's when you go to jail." A reasonable
person in Matos' shoes would not have made this statement, because,
as previously stated, it gives the impression that he was directly
involved in the conspiracy. See Williamson, 512 U.S. at 603
("[O]ther statements that give the police significant details about
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the crime may also, depending on the situation, be against the
declarant's interest.").
The fourth group of statements being challenged by
Monserrate can be found on pages 6-7 and 17-18 of the May 14, 2007,
recording between Informant Irene and Matos. Pages 6-7 depict a
conversation between Matos and Informant Irene regarding the
April 30, 2004, robbery, where Matos confirms that "sadly the
connection is what is involved here," and that "nothing has
happened with it," although someone else's connection has
apparently gotten a little weaker. It is unclear from Monserrate's
brief what exactly he is arguing as to these statements. However,
since the statements reflect Matos speaking about his "connection,"
we do not see how these are not incriminating as to him.
The same can be said for the statements on pages 17-18,
which directly incriminate Matos in the Westernbank robbery. We
reject Monserrate's assertion that these statements should have
been excluded under Federal Rule of Evidence 403, because they were
meant to prove Matos' involvement in one of the robberies alleged
in the indictment, even though neither Monserrate nor Figueroa
participated in that robbery.
As to all of Matos' foregoing statements that we have
deemed to be "against interest," we further hold that they were
admissible under Rule 804(b)(3) because they also satisfied the
Rule's corroboration requirement. We agree with the district court
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that the statements were made in "an unofficial, non-coercive
atmosphere, between defendant, Luis Matos Montañez and a
Confidential Informant, [Irene,] who is an acquaintance of said
Defendant and whom the Defendant considered as an ally."
4. Agent Torres' Testimony
Monserrate also alleges that his rights under the
Confrontation Clause were violated when Agent Torres testified, in
response to questions from Monserrate's own attorney, that Santiago
had confessed to him that "sometime before the robbery took place,
Mr. Luis Monserrate Valentín approached him in the parking lot of
Loomis Fargo and told him that there was an employee at that gas
station, a former employee who had approached him, and told him
that he was willing to let himself get robbed."13 Monserrate claims
that Santiago's testimony to the FBI agent was testimonial hearsay
which was "calculated to make the jury think that [he] had indeed
planned to rob the Texaco station." Even if it were not
testimonial hearsay, he claims, it should have been excluded sua
sponte by the district judge.
We conclude that Monserrate has waived any challenge as
to the admission of this testimony. Monserrate's trial counsel did
not immediately request an instruction from the judge after Agent
Torres' testified as to the confession, nor did she move to strike
13
Agent Torres later clarified that the gas station employee had
asked Monserrate whether Monserrate would let himself be robbed.
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the statement from the record. In addition, the district judge
warned Monserrate's counsel that her question was going to elicit
hearsay from Agent Torres and gave her an opportunity to withdraw
it. She chose not to. As such, we conclude that any objection as
to the admission of this testimony is waived. See United States v.
Harris, 660 F.3d 47, 52 (1st Cir. 2011) ("Ordinarily, a party who
elicits evidence would waive any claim that its admission was
error."); United States v. Lizardo, 445 F.3d 73, 84 (1st Cir. 2006)
(holding that statement was elicited on cross-examination by
defense who "cannot now contest his own invited error").
5. Cristian Benítez's Statement
Former Texaco manager Cristian Benítez testified that
approximately a year before the robbery, Monserrate told him that
"a good place" to do a "hold up would be behind Rexville because
there is no camera there." Benítez, thinking the remark was a
joke, said, "[c]ount me in." Monserrate now argues that the
statement is not admissible as against Benítez's penal interest
because Benítez did not think that Monserrate was serious. But
Monserrate confuses the issue. The relevant statement was made by
Monserrate and not by Benítez, so whether it was against Benítez's
penal interest is irrelevant. In the end, the statement made by
Monserrate to Benítez was admissible under Rule 801(d)(2)(A), which
allows an out-of-court statement to come in if it is offered
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against the party who made it. See United States v. Avilés-Colón,
536 F.3d 1, 23 (1st Cir. 2008).
C. The Playback Issue
Both appellants argue that their rights under the Due
Process Clause of the Fifth Amendment and the Confrontation Clause
of the Sixth Amendment, as well as Federal Rule of Criminal
Procedure 43, were violated when the district court chose to replay
the recordings containing the conversations between Matos and
Informant Irene for the jury without allowing appellants to be
present and without allowing the recordings to be supplemented with
relevant cross-examination. Background follows.
1. Background
After the jury retired to deliberate, the district court
received a note signed by two jurors asking to hear the recording
"talking about El Viejo and el Grandote." The note was accompanied
by the CDs of the two taped conversations between Matos and
Informant Irene that were admitted into evidence. However, both
parties and the district court realized that there were no
recordings admitted into evidence that explicitly referenced either
"El Viejo" or "El Grandote." The admitted recordings only depicted
Matos talking about "connections" he had inside Loomis, but he
never mentioned anyone specifically by name. The names "El Viejo"
and "El Grandote" surfaced when Figueroa's counsel was
cross-examining Informant Irene:
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Q: Now, sir, and in this connection [Matos]
told you it was El Grandotes, El Viejo; isn't
that correct, sir?
A: He didn't say that to me here in this one.
Q: But, sir, through the different
conversations that you had with [Matos],
didn't he tell you that his connection inside
Loomis Fargo was El Viejo, with El Grandotes?
A: He said that to me, but it doesn't appear
in any of the recorded conversations.
Q: Did he in fact tell you that, sir?
A: Yes.
The references to "El Viejo" and "El Grandote" were important to
the defense, because appellants maintained that "El Viejo" and "El
Grandote" were executive insiders of Loomis Fargo, and not regular
truck operators like themselves. Therefore, when the note was
received by the district judge, appellants argued that the jurors
should be allowed to listen to the recordings of Matos'
conversations with Informant Irene, but that the district court
should issue an instruction clarifying that the references to "El
Grandote" and "El Viejo" arose during the cross-examination of
Irene. The government countered that the tapes should simply be
replayed, and that no mention of the cross-examination should be
made, arguing that the district judge should avoid commenting on
the evidence.
The district judge called the jury in and asked them what
exactly they wanted to hear. The foreperson stated: "We want to
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see the one that mentions what we wrote in the note." When asked
again whether they wanted "to listen to the two tapes, yes or no?"
the foreperson answered "yes." The district judge then decided to
simply replay the recordings to the jury on the following day,
noting that the jury would find out on their own that the
recordings did not mention either "El Viejo" or "El Grandote."
Figueroa's attorney objected about "interfering with the jury's
deliberation process" because the "connection versus el Grandioto
[sic]" was "a very different thing." The district court stated
that the jury's note was unclear, but the fact that they
accompanied it with both tapes showed that they wanted those
recordings to be replayed. The government also requested that the
tapes be replayed to the jury in the jury room, but the district
judge stated that the "preferred method" for playbacks was in open
court under the judge's supervision and with both parties and their
attorneys present. The district judge, however, pointed out that
he would not be available on the following day, and that another
judge who would be substituting for him would have the final word
on the matter.
On the following day, the substitute judge stated that
the original district judge had reconsidered his position, and that
now the tapes were to be replayed to the jury by a technician in
the jury room with no one else but the jurors present. The
appellants restated their objections, which the substitute judge
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denied. After playing the tapes, the technician was questioned on
the record, but not under oath. He explained what he had done, and
stated that both he and the jury had followed the court's
instructions. The defendants renewed their objections, to no
avail. Shortly thereafter, the jury returned to the courtroom and
issued guilty verdicts as to both appellants.
Appellants now renew their objections before this court.
We review their constitutional claims de novo. United States v.
Brown, 669 F.3d 10, 19 (1st Cir. 2012). We have also held that the
decision on whether to reread testimony during jury deliberations
"rests in the presider's sound discretion." United States v.
Akitoye, 923 F.2d 221, 226 (1st Cir. 1991).
2. The Constitutional and Rule 43 Claims
The Supreme Court has noted that "[t]he constitutional
right to presence is rooted to a large extent in the Confrontation
Clause of the Sixth Amendment;" additionally, said right is also
"protected by the Due Process Clause in some situations where the
defendant is not actually confronting witnesses or evidence against
him." United States v. Gagnon, 470 U.S. 522, 526 (1985). A
defendant has a due process right to be present at proceedings
"whenever his presence has a relation, reasonably substantial, to
the fullness of his opportunity to defend against the charge."
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934). "[T]he
presence of a defendant is a condition of due process to the extent
-53-
that a fair and just hearing would be thwarted by his absence, and
to that extent only." Id. at 107-08.
In this case, both appellants argue that the district
court's decision to replay the tapes outside of their presence
violated their rights under the Confrontation and Due Process
Clauses, as well as Federal Rule of Criminal Procedure 43. There
seems to be a circuit split on this issue. Appellants, for their
part, base their contentions on Ninth Circuit case law, which holds
that "a defendant has a right to be present when tape-recorded
conversations are replayed to a jury during its deliberations."
United States v. Félix-Rodríguez, 22 F.3d 964, 967 (9th Cir. 1994).
However, the Ninth Circuit has also stated that "the Supreme Court
has never held that a jury readback or playback is a critical stage
of the trial at which a defendant has a right to be present."
Wauls v. Roe, 121 F. App'x 179, 181 (9th Cir. 2005). The Fourth
Circuit seems to have taken a stance similar to that of the Ninth
Circuit. See United States v. Pratt, 351 F.3d 131, 138-39 (4th
Cir. 2003) ("The risk attendant to the practice of sending a person
into the jury room to cue up an audiotape on a tape recorder is
sufficiently great that we do not condone it."). Although our
circuit has not taken a stance on the issue, the District of
Columbia Circuit has taken a position contrary to that of the
Fourth and Ninth Circuits. In United States v. Sobamowo, 892 F.2d
90, 97 (D.C. Cir. 1989), then Circuit Judge Ginsburg held that the
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tape replaying at issue in that case "was not a stage of trial
implicating the confrontation clause or Rule 43(a)." Appellants,
however, urge us to adopt the Ninth Circuit's position and rule
that all readbacks and playbacks should be conducted in open court,
because that is "the only way to guarantee an appellate record of
exactly what transpired during this re-presentation of evidence."
We decline this invitation and rule that, given the procedural
safeguards employed by the substitute district judge, appellants'
constitutional rights to be present during the proceedings against
them were not violated.
At the outset, we must note that "readbacks" and
"playbacks" may refer to different things; for instance, a jury
might request to be read back the testimony of a witness at trial
from the transcript of said testimony, see, e.g., United States v.
Luciano-Mosquera, 63 F.3d 1142, 1156-57 (1st Cir. 1995), or it may
request that trial exhibits containing audio recordings be played
back to them. This case features the latter situation, where the
jury, albeit unclearly, requested a playback of the two recordings
containing the statements made by Matos to Informant Irene
concerning the existence of certain "connections" inside Loomis.
We fail to see how these types of recordings are any
different from the other types of documentary evidence that are
routinely reviewed by jurors during their deliberations. See
Dallago v. United States, 427 F.2d 546, 553 (D.C. Cir. 1969) ("The
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jurors, at some time prior to verdict, are entitled to examine the
documents admitted in evidence, and their examination in the jury
room during deliberations is a matter within the sound discretion
of the trial court."). In fact, trial courts around the country
often provide juries with admitted tape recordings and transcripts
before they begin deliberating. See, e.g., United States v.
Walker, 205 F.3d 1327 (2d Cir. 2000) ("This court has long held
that a jury's review during its deliberations of a trial transcript
is not a stage of the trial requiring the defendant's presence and
that physical evidence, such as a tape, is routinely sent into the
jury room for inspection by jurors outside the presence of the
court.") (internal citations and quotation marks omitted)
(unpublished); United States v. Hofer, 995 F.2d 746, 748 (7th Cir.
1993) (reviewing district court's decision to allow exhibits into
the jury room for abuse of discretion and noting that said
discretion is "not limited when the exhibits are audio tape
recordings"). Therefore, appellants have failed to persuade us
that a mere playback to the jury of an admitted recording is a
stage of the trial implicating a defendant's rights under the
Confrontation Clause.
We believe, however, that in certain circumstances a
defendant's due process rights and his right to a fair trial may be
jeopardized if the district court fails to take adequate
precautions during the playback of the recordings. This problem
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realistically arises when the jury is not provided with the
recordings prior to its deliberations or is not provided with a
means by which to replay the tape recordings on their own inside
the jury room. In these situations, if the district court receives
a note from the jury asking to rehear the recordings, the court may
decide to send a technician or another person into the jury room to
replay the tapes for the jury, thereby giving rise to several
inherent dangers. There is always the risk that said person,
extraneous to the jury, may inject extrinsic evidence into the
deliberative process, by making comments or gestures to the jurors
during the playback, editorializing the tapes, or playing back
portions of the tapes which were not admitted into evidence.
Additionally, other courts such as the Ninth Circuit have expressed
worry that playing back audio recordings for the jury may result in
the jury overemphasizing that evidence merely because it heard it
last, thereby unfairly prejudicing the party against which it was
brought. See United States v. Richard, 504 F.3d 1109, 1113-14 (9th
Cir. 2007).
In this case, however, the substitute district judge took
the proper precautionary measures to ensure that the concerns
listed above did not occur. The substitute judge instructed the
technician on how to replay the tapes and warned him not to make
any comments on the contents of the tapes, not to answer any
questions posed by the jurors, and not to editorialize the tapes in
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any way. The substitute judge also instructed the technician that,
after he replayed the relevant portions of the tapes to the jury,
he would have to certify to the court that only the authorized
sections of the tapes had been played. He additionally instructed
the jury not to make any comments during the playback, that it was
their "recollection that really counts" and not to give the tapes
"more emphasis than any other part of the evidence just because you
heard the tape." Appellants have not argued that the district
court's instructions were not followed, or that there is reason to
believe that the technician somehow editorialized the tapes, or
that the jury was exposed to any type of extrinsic evidence. Given
this scenario, we conclude that the district court did not abuse
its discretion in allowing the tapes to be replayed to the jury
alone and that appellants' constitutional rights to a fair trial
and due process were not transgressed.14 See United States v.
Venerable, 807 F.2d 745, 747 (8th Cir. 1986) (holding that district
court did not abuse its discretion in allowing the jury to review
exhibits during jury deliberations in view of said court's
admonishment to the jury not to place undue emphasis on exhibits).
Our holding in United States v. Luciano-Mosquera, 63 F.3d
1142 (1st Cir. 1995), does not mandate a different result. There,
14
We especially note that both parties and their attorneys were
present when the district court received the note, and both sides
were heard on the issue of how to respond to the note. The
substitute judge, per the defense's request, also made sure that
only the admitted portions of the tapes were replayed to the jury.
-58-
we faulted the district court for allowing the court reporter to
enter the jury room unsupervised so that she could read back a
portion of testimony the jury had requested without taking "some
precautions." 63 F.3d at 1156. Quite the contrary happened in
this case, where the substitute judge took adequate precautions.
3. The Failure to Supplement the Recording with
Cross-Examination
Appellants also argue that the district court abused its
discretion when it declined to supplement the playback of the tapes
with the cross-examination testimony of Informant Irene, who
admitted that Matos had told him that the "connections" he spoke
about were "El Viejo" and "El Grandote." Appellants believe that
omitting this testimony "had the devastating effect of
communicating there was no such culprit as 'El Grandote' or 'El
Viejo'" and resulted in leaving the jurors "with a distorted view
of the evidence, and no alternative but to conclude that defense
counsel had built a defense out of thin air." We disagree.
We first note that appellants only made their request
before the original district judge, who seemingly was disinclined
to allow it. The following day, when the substitute judge took
over, appellants did not renew their request before the new judge.
Therefore, this issue is likely waived, and plain error seems to
apply. In any event, we detect no error on the district court's
part. The note provided by the two jurors was unclear as to what
piece of evidence they wanted to rehear. The district court, out
-59-
of an abundance of caution, recalled the jury to ask them more
specifically whether they wanted to listen to the two recordings
they had included with their note. The jury first stated that they
wanted to hear the recordings that mentioned what they wrote in the
note. When asked a second time, they answered that they wanted to
hear both of the recordings they had sent with the note. Contrary
to what appellants argue, the district court's decision to allow
them to rehear the two recordings without the cross-examination did
not have the effect "of mandating that the jury reach a conclusion
on a particular issue." The district judge commented to the jury
that "[t]here is no guarantee about anything, other than hearing
the two tapes." Then the judge stated, in front of the jury,
"[t]here it is, they want to listen to two tapes. They may or may
not have questions relating to the two tapes. We'll wait. So
we'll play the two tapes at this time." As a result, if the jurors
reheard the tapes and were still confused as to why there was no
explicit reference in them to "El Viejo" and "El Grandote," nothing
prevented them from asking the court for more clarification. There
is no way to know exactly what the jury's doubt was as to "El
Viejo" and "El Grandote," but the district court's decision to have
the jury rely on its own recollection as to how those two
references came up during the trial was not an abuse of discretion.
Appellants also compare their case with that of Richard,
where the Ninth Circuit ascribed error to the district court for
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replaying only a portion of a witness' testimony directly
incriminating the defendant, without also including portions of
that testimony that "arguably undermined [the witness']
credibility." 504 F.3d at 1115. The Ninth Circuit also faulted
the district court for failing to provide the jury with a
cautionary instruction that warned them not to unduly emphasize the
portion of the testimony that was read back to them. Id.
Appellants' case is distinguishable from Richard because there, the
testimony that was read back was the only piece of evidence that
directly incriminated Richard in the crime. As the court stated,
"[t]he portion of Reeder's testimony replayed was especially
damaging to Richard as she was the only witness-indeed, the only
evidence-directly connecting Richard to the gun." Richard, 504
F.3d at 1115 (emphasis in original). Here, in contrast, there was
more than enough evidence to connect appellants with the conspiracy
to rob their own armored truck on April 30, 2004, apart from the
recordings of Matos talking about unidentified "connections."15 For
instance, the government presented Núñez's testimony, describing
how Figueroa told him to park away from the pumps, and it also
introduced Salas-Fernández's statements to his cousin, describing
how insiders had been paid in connection to the April 30, 2004,
15
In fact, we doubt whether any rational jury could have believed
that appellants were indeed these "connections," as Matos stated
that the "connections" had not been touched when he spoke to
Informant Irene in May of 2007. The appellants, however, had
already been indicted in March of 2007.
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robbery. In addition, co-defendant Torres-Ortiz relied on
information provided by Monserrate to Bravo to carry out the
robbery on appellants' armored truck.
Therefore, under the circumstances, the district court
did not abuse its discretion in failing to supplement the playback
of the recordings with the cross-examination urged by the defense.
D. Jury Instructions
The final claim of error in this appeal is one that is
made by Monserrate only; it concerns whether the district court's
instructions were delivered in a confusing manner, and whether they
failed to properly inform the jury as to how they were to determine
whether Monserrate agreed to join the specific conspiracy charged
in Count One of the indictment. In particular, Monserrate argues
that the instructions failed to require the jury to find that he
had agreed with the other named conspirators to commit the overt
acts mentioned in Count One. He notes that the district court
instead charged the jury that it merely had to find that the
agreement specified in the indictment "existed between at least two
people to commit robbery." We find no merit to appellant's
arguments.
First, we note that Monserrate never raised an objection
to the district court's instruction to the jury that it may convict
if it found that an agreement existed "between at least two people"
Therefore, this argument is waived. In any event, the Eighth
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Circuit has already rejected a similar argument in United States v.
Spencer, 592 F.3d 866, 873 (8th Cir. 2010), and we find its
reasoning to be persuasive.
As to the argument that the district court erred by
failing to instruct the jury that it needed to determine that
Monserrate agreed to commit the overt act mentioned in Count One of
the indictment, we find it to be equally meritless. As we have
stated earlier, a Hobbs Act conspiracy does not require proof of an
overt act. Therefore, the district court did not err in declining
to include the overt acts listed in the indictment as part of its
instructions.
We also see no merit to Monserrate's argument that the
instructions were confusing. Although the district court made some
mistakes in reading back the indictment, these errors were de
minimis and were effectively neutralized by the fact that the jury
had a copy of the indictment with them. We are unable detect any
other errors in the district court's instructions.
III. Conclusion
We have determined that a variance resulted at trial
because the evidence showed that appellants' agreed to participate
in a conspiracy to rob their own armored truck, while the
indictment charged them with participating in a broader conspiracy
to rob multiple armored trucks. For the above-stated reasons,
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however, we conclude that said variance did not substantially
prejudice appellants. We thus affirm their convictions.
Affirmed.
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