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                 United States Court of Appeals
                     For the First Circuit





No. 97-2013

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          JOHN LiCAUSI,

                      Defendant, Appellant.



No. 97-2014

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       JAMES FOGARTY, III,

                      Defendant, Appellant.

                       ____________________

No. 97-2030

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

           CHRISTOPHER DURFEE f/k/a CHRISTOPHER DUPRE,

                      Defendant, Appellant.

                       ____________________





          APPEALS FROM THE UNITED STATES DISTRICT COURT

                    DISTRICT OF NEW HAMPSHIRE

       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]



                              Before

                      Selya, Circuit Judge,
                 Aldrich, Senior Circuit Judge,
                   and Boudin, Circuit Judge.
                                
                                
                                
                                
     Glenn G. Geiger, Jr. with whom Geiger & Heiser was on brief
for appellant James Fogarty, III.
     Stephen A. Cherry with whom Wright, Cherry & Callen was on
brief for appellant Christopher Durfee.
     John H. LaChance with whom Victoria L. Nadel was on brief for
appellant John LiCausi.
     Donald A. Feith, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief for appellee.





January 27, 1999



                                
                                

�            ALDRICH, Senior Circuit Judge.  John LiCausi, James
  Fogarty, III, and Christopher Durfee were convicted in the
  United States District Court for the District of New Hampshire
  of multiple offenses in connection with the robbery and
  attempted robbery of several grocery stores and restaurants. 
  They allege several points of error as they challenge their
  convictions and sentences.  We affirm.
  I.  BACKGROUND
                         A. Facts
            We consider the evidence in the light most favorable
  to the prosecution, see United States v. Josleyn, 99 F.3d
  1182, 1185 n.1 (1st Cir. 1996), as we determine the basic
  facts the jury reasonably could have found.  We will add to
  our sketch other facts as they become necessary to the
  discussion of particular claims of error.
            On several occasions in November of 1995, Bernie
  Subocz and defendants Durfee and Fogarty met at Fogarty's
  garage in Lawrence, Massachusetts to discuss committing armed
  robberies of supermarkets.  As the meetings continued into
  December, defendant LiCausi was introduced to the group by
  Fogarty and participated in the discussions.  Subocz also had
  several robbery-related telephone conversations with Fogarty
  and Durfee during this time.
            Topics of discussion included the division of
  responsibilities in obtaining necessary equipment.  Subocz
  already owned a scanner for listening in on law enforcement
  radio transmissions, a frequency guide to use in programming
  the scanner, and two-way radios for communicating during
  robberies.   LiCausi was to obtain a shotgun, while Subocz
  would obtain one or two pistols.  Fogarty contributed $300
  towards the pistol purchase, and Subocz later had his
  girlfriend, Lori Munroe, buy two nine-millimeter semiautomatic
  pistols, a Beretta and a Smith & Wesson, and hollow-point
  ammunition.  Subocz later acquired a shotgun and radio
  frequency guides for several different local areas.  Fogarty
  later bought hats, gloves, jumpsuits, and three pairs of
  rubber boots.
            Members of the group soon began seeking out targets. 
  Subocz and Fogarty started things off by robbing a D'Angelo
  Sandwich Shop in Stoneham, Massachusetts on December 8, 1995. 
  Wearing masks and gloves and carrying the two loaded pistols,
  they made off with between one hundred and two hundred dollars
  each.  The pair then attempted to rob a supermarket in Ohio on
  December 17.  After casing the market and buying hats and a
  frequency guide for the area, they entered the store wearing
  gloves and hats and each concealing a pistol.  Subocz
  initially spoke to the manager regarding a rotten head of
  lettuce he claimed to have purchased, then pulled his shirt up
  to his eyes and showed his weapon.  On their way to the store
  safe, however, the manager stopped to speak to an employee,
  unnerving the robbers and prompting them to leave immediately. 
            Durfee started participating in actual robberies
  about a week later.  A few days after spending the evening of
  December 23 with Subocz but failing to find a suitable target,
  the pair robbed a Burger King in Kittery, Maine after one of
  the group's meetings.  They each carried one of the two
  pistols, Durfee having "rented" the Smith & Wesson from
  Fogarty for one or two hundred dollars.  They both showed
  their weapons, and Subocz forced the manager to hand over all
  of the cash in the office, some $1,400.  The pair netted
  substantially more, some $66,000 in cash, from their next
  robbery, that of a Vista Foods supermarket in Manchester, New
  Hampshire on January 3, 1996.  Subocz first cased the market
  a few days before and notified Durfee of its potential.  Then,
  on the designated evening, they hid in a closet next to the
  manager's office with the two pistols and waited for the store
  to close.  They burst out of the closet, surprising the
  manager, and threatened him with their weapons.  They had him
  open the safe, then cleaned it out and made their escape.
            LiCausi started participating in actual robberies
  with an attempt on a Market Basket in Woburn, Massachusetts
  during that January.  Subocz, Fogarty, and either Durfee or
  LiCausi were slated to participate, and LiCausi ultimately got
  the call.  After one or more of the men had cased the store
  over the course of several days, all three went there between
  five and seven o'clock the morning of their attempt.  In
  addition to the standard robbery attire, including masks and
  gloves, they had the pistols, the scanner, the frequency
  guide, and the two-way radios.  LiCausi wore a jumpsuit that
  Fogarty had purchased.  They ultimately abandoned their
  attempt because they feared a newspaper delivery truck parked
  in front of the store contained a SWAT team or other police
  officers.
            Jason Fournier, an acquaintance of Subocz, Fogarty,
  and Durfee who had agreed sometime during the previous year to
  become involved in robberies, then joined LiCausi and Subocz
  in an attempt on a Star Market in Saugus, Massachusetts in the
  early morning of February 2.  LiCausi again wore a jumpsuit
  that Fogarty had acquired and carried one of the radios and
  the Beretta pistol.  Fournier wore another jumpsuit and
  carried the other radio.  Subocz carried the shotgun he had
  acquired.  After successfully entering the store, detaining
  those inside, and finding the safe, they fled empty-handed
  upon seeing a man walking to an automatic teller machine
  outside the store.  Later that day, the trio robbed a Market
  Basket in Nashua, New Hampshire, netting approximately
  $18,000.  This time LiCausi wore a jumpsuit and carried
  Subocz's shotgun, while Fournier carried the Beretta pistol. 
            Durfee then joined Subocz and Fournier for two
  attempts on a Market Basket in Portsmouth, New Hampshire.  The
  first, on March 20, involved just the three of them.  Subocz
  carried the shotgun and one of the radios while Durfee carried
  the Beretta.  Fournier stayed outside with the other radio. 
  They abandoned their attempt, however, when the battery in one
  of the radios died.  LiCausi joined them a few days later for
  a second try.  Fournier was to be the lookout again while
  Durfee and LiCausi would enter the store armed with the
  shotgun and the Beretta.  They left immediately, however, when
  they saw the manager become alarmed and pick up the phone.
            LiCausi was also involved in the next three
  incidents.  He, Fournier, and Subocz made an attempt on a
  Market Basket in Tewksbury, Massachusetts on April 17.  After
  hiding in a crawl space above the ceiling of the men's
  restroom, LiCausi and Fournier dropped down wearing their
  masks and gloves and carrying the Beretta and a BB pistol
  LiCausi had provided.  They went onto the sales floor, found
  the manager, and almost had the safe open when Subocz warned
  them over the radio that two people outside were running
  towards a pay phone.  They immediately left the store and
  drove off with Subocz, then fired several shots at a pursuing
  vehicle.  The next day, LiCausi and Subocz made an attempt on
  a Market Basket in Warner, New Hampshire.  After they stole a
  car, got dressed, and readied their weapons, they abandoned
  the attempt when a crowd outside the store failed to disperse
  and the scanner picked up a transmission about the car they
  had just stolen.  Finally, LiCausi, Subocz, and Fournier
  attempted to rob a Pic-N-Pay in Portsmouth, New Hampshire on
  April 24.  LiCausi carried the shotgun, Fournier carried the
  Beretta, and Subocz listened to the scanner and maintained
  radio contact from the outside.  After binding several
  employees with duct tape, LiCausi and Fournier tried forcing
  the manager to open the safe.  This time, the manager fought
  back, and Fournier shot and wounded him in the hand.  The
  robbers escaped the struggle but left behind the Beretta
  pistol and one of the radios.  This and other problems, along
  with diligent investigative work, finally led to the group's
  undoing.
            As these stories indicate, each of the defendants
  was involved in several aspects of the continuing criminal
  association among them and others.  They also used much of the
  same equipment in almost all of their robberies.  Many times
  one or more of the persons involved in a particular robbery
  used equipment that an associate had purchased.
            In addition, the defendants and others used many of
  the same procedures during their robberies and attempts.  They
  often cased their targets, sometimes for several days.  Before
  carrying out an attempt they carefully wiped down all of their
  equipment, including their two-way radios and weapons, to
  remove any fingerprints.  The robberies often involved three
  individuals, two of whom entered the target premises wearing
  masks and gloves and carrying weapons while the third stood
  lookout outside.  In many cases, too, a stolen "drop" car was
  used for transport to and from the robbery site while a "safe"
  car waited elsewhere.
            Finally, we note that, while each defendant's
  participation in actual robberies ebbed and flowed over the
  course of the association, communications and relationships
  continued among the three defendants and others during that
  time.  For example, after the D'Angelo Sandwich Shop robbery,
  committed by Subocz and Fogarty, the two spoke by telephone
  two to three times per week, sometimes daily, and Subocz spoke
  with Durfee once or twice per week.  After Subocz and Durfee
  robbed the Vista Foods supermarket in Manchester, New
  Hampshire, Durfee lent some of his share of the proceeds to
  Fogarty and took a trip to Florida with him.  Subocz notified
  all three defendants when he had successfully acquired a
  shotgun.  Later, when Fournier refused to do anything with
  LiCausi because he did not know him, Subocz had him speak to
  Fogarty and Durfee, who both vouched for LiCausi during
  telephone conversations.  Such instances illustrate the extent
  of these persons' association, both personal and criminal.
                         B. Procedural History
            A federal grand jury sitting in Concord, New
  Hampshire returned a twenty-seven count superseding indictment
  against the three defendants on January 8, 1997.  Count 1
  charged all three with participating in an overarching
  conspiracy to violate the Hobbs Act, 18 U.S.C. � 1951, and the
  bank robbery statute, 18 U.S.C. � 2113, all in violation of 18
  U.S.C. � 371.  The remaining twenty-six counts charged one or
  more of them with separate robberies, attempted robberies, and
  conspiracies to commit robbery, all in violation of 18 U.S.C.
  � 1951, possession and interstate transportation of firearms
  in violation of 18 U.S.C. � 922, use of firearms during crimes
  of violence in violation of 18 U.S.C. � 924, and interstate
  transportation of stolen vehicles in violation of 18 U.S.C.
  � 2312.
            Counts 10, 13, 17, and 20, all charging conspiracy
  to commit robbery, were dismissed as to all defendants on the
  government's motion, and Count 9, charging conspiracy to
  commit the robbery of the Saugus Star Market, was dismissed as
  to Fogarty but not as to LiCausi.  In sum, LiCausi was tried
  on the count charging an overarching conspiracy, one count of
  robbery, three counts of attempted robbery, two counts of
  conspiracy to commit robbery, four counts of using a firearm
  during a violent crime, and five counts of interstate
  transportation of a stolen vehicle.  Fogarty was tried on the
  count charging an overarching conspiracy, three counts of
  conspiracy to commit robbery, one count of possession of
  firearms by a felon, and one count of transportation of
  firearms by a felon.  Durfee was tried on the count charging
  an overarching conspiracy, one count of robbery, one count of
  attempted robbery, two counts of conspiracy to commit robbery,
  two counts of using a firearm during a violent crime, and one
  count of interstate transportation of a stolen vehicle.
            A jury trial began on April 2, 1997, and the jury
  returned verdicts on May 5, 1997.  LiCausi was convicted on
  all counts.  Fogarty was convicted on the overarching
  conspiracy count, the firearms counts, and one of the counts
  charging conspiracy to commit robbery, but was acquitted on
  the other two counts charging conspiracy to commit robbery. 
  Durfee was convicted on all counts except for one count
  charging conspiracy to commit robbery.
            LiCausi was sentenced to 1,042 months in prison plus
  three years of supervised release and ordered to pay a $1,600
  assessment and $21,206.51 in restitution.  Fogarty was
  sentenced to 387 months in prison plus three years of
  supervised release and ordered to pay a $250 assessment and
  $294 in restitution.  Durfee was sentenced to 437 months in
  prison plus three years of supervised release and ordered to
  pay a $700 assessment and $85,385.35 in restitution.  All
  three defendants filed timely appeals outlining multiple and
  often overlapping claims of error.
            II.       DISCUSSION
                         A. Waived Claims of Error
            We briefly mention at the outset those claims that
  the complaining defendants have not adequately preserved. 
  First, Durfee moved for severance immediately before the
  government called Matthew O'Brien as a rebuttal witness but
  not before trial.  By failing to raise the issue before trial,
  he has waived his right to pursue it here.  See Fed. R. Crim.
  P. 12(b)(5); United States v. McLaughlin, 957 F.2d 12, 18 (1st
  Cir. 1992).
            Second, Fogarty claims that venue was not properly
  established as to the counts charging conspiracy to commit the
  robbery of the D'Angelo Sandwich Shop in Stoneham,
  Massachusetts and possession and transportation, respectively,
  of firearms by a felon.  "It is settled beyond peradventure
  that venue is a personal privilege which can be waived." 
  United States v. Santiago, 83 F.3d 20, 24 (1st Cir. 1996). 
  Fogarty did not challenge venue on the conspiracy count until
  his motion for judgment of acquittal, and he challenges venue
  as to the firearms counts for the first time on appeal.  His
  failure to raise these challenges prior to trial prevents him
  from raising them now.  See id. (citing Fed. R. Crim. P.
  12(b)(2) (mandating waiver of most defenses that could have
  been, but were not, raised prior to trial)).
            Third, LiCausi challenges the sentences he received
  for his four convictions for using a firearm during a violent
  crime.  See 18 U.S.C. � 924(c)(1).  He was sentenced under the
  statute to one five-year term for his first violation and
  three twenty-year terms for his second and subsequent
  violations, all to be served consecutively to each other and
  to the sentences imposed for his other offenses.  LiCausi
  preserved an objection to these sentences based on the
  proposition that a defendant must have already served the
  five-year sentence for his first offense before a twenty-year
  sentence could be imposed.  LiCausi abandoned this argument
  on appeal, thereby waiving it.  See United States v. Dietz,
  950 F.2d 50, 54 (1st Cir. 1991).  He argues instead that
  multiple sentences imposed under � 924(c) in one proceeding,
  while required to run consecutively to non-� 924(c) sentences,
  may run concurrently with each other.  The law is clear that
  a defendant may not raise arguments for the first time on
  appeal that he did not seasonably address to the trial court. 
  See id. at 55 ("A criminal defendant, dissatisfied with the
  district court's rulings at sentencing yet persuaded that his
  original arguments lacked merit, cannot switch horses mid-
  stream in hopes of locating a swifter steed.").  LiCausi's
  claim, then, is dead on arrival.
            Having disposed of these contentions, we may now
  address those that were properly preserved.
                         B. Challenges Relating to the Convictions as to
               a Single Overarching Conspiracy
            All three defendants claim, first, that the evidence
  presented at trial was insufficient to prove a single,
  overarching conspiracy among them and the government's
  cooperating witnesses.  They claim further that, given this
  alleged variance between the conspiracy charged and the proof
  at trial, they were prejudiced by the admission of
  inadmissible hearsay and by evidentiary spillover.  Finally,
  both LiCausi and Fogarty claim that they should not have been
  sentenced for both conspiracy to violate the laws of the
  United States in violation of 18 U.S.C. � 371 and conspiracy
  to commit robbery in violation of 18 U.S.C. � 1951. 
  Addressing each one of these claims in turn, we find no reason
  to disturb the judge's rulings or the jury's verdict.
            Whether a single conspiracy or a multiple conspiracy
  exists is, of course, a question of fact for the jury.  See
  United States v. Drougas, 748 F.2d 8, 17 (1st Cir. 1984).  In
  assessing a sufficiency-of-the-evidence challenge to such a
  finding, we credit both direct and circumstantial evidence,
  resolve all evidentiary conflicts and credibility questions in
  the prosecution's favor, and choose from among competing
  inferences the one best fitting the prosecution's theory of
  guilt.  See United States v. Olbres, 61 F.3d 967, 970 (1st
  Cir. 1995).  To uphold a conviction, we "need not believe that
  no verdict other than a guilty verdict could sensibly be
  reached, but must only satisfy [ourselves] that the guilty
  verdict finds support in 'a plausible rendition of the
  record.'"  United States v. Echeverri, 982 F.2d 675, 677 (1st
  Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 711
  (1st Cir. 1992)).
            In reviewing a jury's finding that a single
  conspiracy existed, we consider specifically such factors as
  the commonality vel non of the nature, motive, design,
  implementation, and logistics of the illegal activities as
  well as the scope of coconspirator involvement.  See United
  States v. Randazzo, 80 F.3d 623, 629 (1st Cir. 1996).  While
  these factors inform our inquiry, however, we will leave
  undisturbed the jury's finding so long as the totality of the
  evidence sufficiently demonstrates "that all of the alleged
  coconspirators directed their efforts towards the
  accomplishment of a common goal or overall plan."  Drougas,
  748 F.2d at 17.  The government need not prove that each
  defendant participated in every transaction necessary to
  fulfill the aim of the overall agreement, see id., nor must it
  prove that each defendant knew every detail of the conspiracy
  or knew or had contact with every other coconspirator.  See
  United States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir.
  1993).  We think that the facts outlined above, which include
  meetings involving all of the defendants and relating to
  supermarket robberies, shared equipment contributed by
  different members of the group, common participants and
  similar logistical arrangements, and close contact among
  members of the group during the life of their association,
  adequately support the jury's finding that a common goal or
  overall plan existed.
            As for individual defendants and their culpability
  vel non for involvement in that overarching conspiracy, we
  start with the principle that a defendant who has committed
  only one or a few of the crimes necessary to fulfill the aim
  of a multiple-crime conspiracy can nevertheless be convicted
  for that conspiracy if the evidence supports a finding that he
  had "knowledge or foresight of the conspiracy's multiplicity
  of objectives."  United States v. Morrow, 39 F.3d 1228, 1234
  (1st Cir. 1994) (emphasis omitted).  This is so "even if the
  conspiracy is open-ended (e.g., a conspiracy to rob banks) and
  the specifics of the future crimes (e.g., which banks) is
  undetermined or at least unknown to the defendant."  Id.  A
  defendant can be found guilty of a narrower conspiracy only if
  he agreed with others to commit one or a few crimes and had no
  knowledge or foresight of the conspiracy's broader scope.  See
  id.  We have no trouble finding here that each of the
  defendants had knowledge or foresight of the conspiracy's
  multiplicity of objectives.  Indeed, the association formed
  here appears very much like the hypothetical one described in
  Morrow:  an open-ended conspiracy where the specifics of
  future crimes were undetermined or unknown to particular
  defendants.  See id.  Thus, the jury properly found beyond a
  reasonable doubt that all three defendants and others formed
  a single, overarching conspiracy.
            We may therefore spend very little time on
  defendants' other claims regarding admissibility of evidence
  offered to prove the individual crimes.  As to the hearsay
  testimony, "[h]earsay statements are admissible against a
  defendant when it is more likely than not that he was a
  coconspirator of the speaker, that the conspiracy existed at
  the time the statements were made, and that they were made in
  furtherance of it."  United States v. Rivera, 68 F.3d 5, 7
  (1st Cir. 1995); see also Fed. R. Evid. 801(d)(2).  Since the
  overarching conspiracy was adequately proven at trial, the
  testimony as to statements made regarding the individual
  robberies was properly admitted.  As to the prejudicial
  spillover claim, the evidence presented was relevant not only
  to prove that the individual robberies, attempts, and
  associated crimes took place, but also to the issue of whether
  an overall conspiracy existed.  See United States v. Gomez-
  Pabon, 911 F.2d 847, 853 (1st Cir. 1990) (holding that proof
  of a conspiracy may consist of circumstantial evidence and
  inferences from surrounding circumstances).  It was therefore
  relevant to all of the defendants, and "[w]here evidence
  featuring one defendant is independently admissible against a
  codefendant, the latter cannot convincingly complain of an
  improper spillover effect."  United States v. O'Bryant, 998
  F.2d 21, 26 (1st Cir. 1993).  Moreover, the jury acquitted
  Durfee on one count and Fogarty on two counts, including one
  on which Durfee was convicted, indicating to us that the jury
  was able to assess the guilt of each defendant on each count
  separately.
            Nor do we see any merit in LiCausi's and Fogarty's
  claims that imposing separate, consecutive sentences for the
  overarching conspiracy and the individual Hobbs Act
  conspiracies violates Double Jeopardy principles.      Under
  Blockburger v. United States, 284 U.S. 299 (1932), and its
  progeny, "[a] single act may constitute two different offenses
  for double jeopardy purposes so long as two different statutes
  were violated and each requires an element that the other does
  not."  United States v. Claudio, 44 F.3d 10, 13 (1st Cir.
  1995).  This is true of conspiracy as well as other crimes. 
  See id. (citing Albernaz v. United States, 450 U.S. 333
  (1981)).  The test is satisfied here.  The Hobbs Act, 18
  U.S.C. � 1951, requires proof that the objective of the
  conspiracy was obstruction of the flow of commerce or an
  article in commerce.  Such proof is not necessary under the
  general conspiracy provision, 18 U.S.C. �371.  Section 371
  requires proof of an overt act in furtherance of the
  conspiracy, an element that the government need not prove to
  establish a Hobbs Act conspiracy.  Thus, the charged
  conspiracies are two separate offenses and can be punished as
  such.
                         C. Sufficiency of the Evidence as to Durfee's
               Other Convictions
            In addition to claiming that the government failed
  to prove a single overarching conspiracy, Durfee has launched
  a sufficiency-of-the-evidence attack on the rest of his
  convictions.  Durfee was convicted of conspiring to commit,
  actually committing, and using a firearm in connection with
  the January 3 robbery of Vista Foods in Manchester, New
  Hampshire, attempted robbery and use of a firearm in
  connection with the attempted robbery of the Market Basket in
  Portsmouth, New Hampshire in March of 1996, and transportation
  of a stolen Ford Thunderbird from New Hampshire to Vermont.
            We believe a rational factfinder could have found
  Durfee guilty of these crimes beyond a reasonable doubt. 
  Subocz, one of the government's cooperating witnesses,
  testified at length and in great detail regarding Durfee's
  role in the Vista Foods robbery, discussing, among other
  things, where they parked their car, where they hid within the
  store, what they wore and the weapons they carried, and what
  they succeeded in taking from the store.  In addition, Lori
  Munroe, Subocz's girlfriend, testified that on that evening
  she saw Subocz and Durfee come home with a box with money in
  it.  As to the attempted robberies of the Market Basket in
  Portsmouth, New Hampshire, Subocz testified in detail
  regarding the participants' roles, the equipment used and
  clothing worn, which gun Durfee carried, and what caused them
  to abort their attempts.  Fournier testified to many similar
  details, including Durfee's reluctance to go forward with the
  first attempt and the theft of a 1996 Ford Thunderbird for the
  second attempt.  Finally, as to the stolen vehicle
  transportation, both Subocz and Fournier testified that they,
  LiCausi, and Durfee drove to Vermont and left the Thunderbird
  in a parking lot there.
            To support his claim of insufficient evidence,
  Durfee points out that his convictions rest largely on the
  testimony of cooperating witnesses.  This may be true, but it
  does not help Durfee's cause.  The law is clear that "an
  accomplice is qualified to testify as long as any agreements
  he has made with the government are presented to the jury and
  the 'judge gave complete and correct instructions detailing
  the special care the jury should take in assessing the
  testimony.'"  United States v. Hernandez, 109 F.3d 13, 15 (1st
  Cir. 1997) (quoting United States v. Ortiz-Arrigoitia, 996
  F.2d 436, 438-39 (1st Cir. 1993)).  "Indeed, a conviction
  based solely upon the uncorroborated testimony of an
  accomplice can be upheld, as long as the jury is properly
  instructed and the testimony is not incredible as a matter of
  law."  Id. (citing United States v. Andujar, 49 F.3d 16, 21
  (1st Cir. 1995)).
            Here, the government elicited on direct examination
  the cooperation arrangements for each witness and introduced
  into evidence their plea agreements.  The cooperating
  witnesses were extensively cross examined regarding their
  credibility, and the trial judge carefully instructed the
  jurors as to the caution they should use in evaluating their
  testimony.  Finally, we do not think that the contradictions
  Durfee describes amount to the "overwhelming evidence"
  contemplated in Hernandez as necessary to make the witnesses'
  testimony unbelievable to any rational juror and therefore
  incredible as a matter of law.  We hold, then, that the jury
  could have concluded beyond a reasonable doubt that Durfee in
  fact committed the crimes of which he was accused.
                         D. Sufficiency of the Evidence as to LiCausi's
               Conviction for Attempted Robbery of the
               Warner, New Hampshire Market Basket
            LiCausi claims that the evidence at trial was
  insufficient to prove attempted robbery of the Market Basket
  in Warner, New Hampshire.  To prove attempt, the government
  must establish an intent to commit the substantive offense and
  a substantial step towards its commission that is more than
  preparation but less than the last act necessary to commit the
  crime itself.  See United States v. Chapdelaine, 989 F.2d 28,
  33 (1st Cir. 1993) (citing United States v. Figueroa, 976 F.2d
  1446, 1459 (1st Cir. 1992); United States v. Manley, 632 F.2d
  978, 987 (2d Cir. 1980)).  According to LiCausi, the evidence
  at trial failed to establish the "substantial step."  We
  disagree.
            The evidence showed that on April 18, 1996 Subocz
  and Munroe, their daughter Brianna, and LiCausi were in the
  Warner area looking for potential robbery targets.  The group
  saw the Market Basket from the highway and turned off to
  determine its viability as a target.  Munroe and LiCausi went
  inside, looked over the store, and returned to tell Subocz
  that its arrangement was similar to that of most other Market
  Baskets.  Subocz and LiCausi decided to rob it.  LiCausi then
  stole a car, which they placed in a McDonald's parking lot
  right next to the Market Basket.  Subocz and LiCausi began
  observing the store through binoculars, and Subocz set the
  radio scanner to pick up local police frequencies.  At some
  point, the group drove in Munroe's car to a secluded area not
  far from the store, where Subocz and LiCausi changed into
  their robbery clothes, including gloves, and readied their
  weapons, the shotgun and the Beretta pistol.  Then they
  returned to the McDonald's parking lot and continued to
  observe the Market Basket.  The scanner picked up a radio
  transmission having something to do with a water treatment
  center.  Concerned that this might mean a greater police
  presence in the area, they drove back to the area where
  LiCausi had stolen the car and saw some state troopers there. 
  Unsure whether the police presence was due to the stolen car
  or the intercepted radio call, the group returned to the
  McDonald's parking lot.  Subocz and LiCausi ultimately
  abandoned their plan because a group of people in front of the
  store showed no signs of leaving and because they heard
  another radio transmission related to the car they had stolen.
            We have found the "substantial step" requirement
  satisfied in similar circumstances.  In Chapdelaine, for
  example, the defendant and his associates had "'cased' the
  BayBank branch and the armored truck, positioned stolen
  vehicles for an escape, acquired weapons and disguises,
  arrived at the scene ready to commit the crime and were
  frustrated only by an accidental change in the truck's
  schedule."  Chapdelaine, 989 F.2d at 33.  In another case, the
  group's conduct "in casing the bank, stealing a car, and
  arriving armed at the bank shortly before the Wells Fargo
  truck was to arrive, constituted a 'substantial step' toward
  the robbery that demonstrated that this [intent to commit the
  robbery] was no idle whim."  United States v. Del Carmen
  Ramirez, 823 F.2d 1, 2 (1st Cir. 1987).
            The robbers in Del Carmen Ramirez were alerted to
  a police stakeout of the robbery location, tried to put their
  guns in some tall grass and leave the area on foot, and were
  subsequently arrested.  See id.  LiCausi's and Subocz's
  preparations were virtually identical to those in Del Carmen
  Ramirez.  The reason for the abandonment, be it impossibility,
  as in Chapdelaine, or fear of capture, as in Del Carmen
  Ramirez, is irrelevant.  The only issue is whether the actions
  Subocz and LiCausi took before abandoning their plans
  constituted the requisite "substantial step."  Given First
  Circuit precedent, we think it clear that they did.
                         E. Denial of Fogarty's Motion to Sever
            Fogarty claims that his pretrial motion to sever
  should have been allowed and that, as a result of its denial,
  he was significantly prejudiced by the admission of evidence
  relating to several crimes in which he was not involved.  We
  find no error.
            The government may join multiple defendants in a
  single indictment where "at least one count alleges a
  conspiracy . . . and the indictment separately alleges that
  the appellant committed a substantive offense."  United States
  v. DeLuca, 137 F.3d 24, 36 (1st Cir. 1998); see also Fed. R.
  Crim. P. 8(d).  "The federal courts have long recognized that
  consolidated trials tend to promote judicial economy, conserve
  prosecutorial resources, and foster the consistent resolution
  of factual disputes common to properly joined defendants." 
  United States v. Josleyn, 99 F.3d 1182, 1188 (1st Cir. 1996). 
            Where, as here, multiple defendants have been
  properly joined for trial, a defendant may nevertheless
  request severance when it appears that he is prejudiced by the
  joinder.  See Fed. R. Crim. P. 14.  "We reverse the decision
  to deny a motion for severance only upon a showing of strong
  prejudice, demonstrating a manifest abuse of discretion that
  deprived the defendant of a fair trial."  United States v.
  Nason, 9 F.3d 155, 158 (1st Cir. 1993).  The appellants thus
  bear the burden of proving "prejudice greater than that which
  necessarily inheres whenever multiple defendants . . . are
  jointly tried."  United States v. Walker, 706 F.2d 28, 30 (1st
  Cir. 1983).  They must prove "prejudice so pervasive that a
  miscarriage of justice looms."  United States v. Pierro, 32
  F.3d 611, 615 (1st Cir. 1994).  This high standard accords
  with the Supreme Court's instruction that "a district court
  should grant a severance under Rule 14 only if there is a
  serious risk that a joint trial would compromise a specific
  trial right of one of the defendants, or prevent the jury from
  making a reliable judgment about guilt or innocence."  Zafiro
  v. United States, 506 U.S. 534, 539 (1993).
            We find no abuse of discretion in this case.  While
  the jury did hear extensive testimony relating to several
  crimes in which Fogarty was not involved, that fact does not,
  by itself, create sufficient prejudice:  "It is well settled
  that, '[e]ven where large amounts of testimony are irrelevant
  to one defendant, or where one defendant's involvement in an
  overall agreement is far less than the involvement of others,'
  the court of appeals must be 'reluctant to second guess
  severance denials.'"  United States v. O'Bryant, 998 F.2d 21,
  26 (1st Cir. 1993) (quoting United States v. Boylan, 898 F.2d
  230, 246 (1st Cir. 1990)).
            Moreover, since all three defendants were charged
  as coconspirators, almost all of the evidence relating to
  other defendants was relevant to, and therefore independently
  admissible in, the prosecution's case against Fogarty.  As we
  have said, this circumstance precludes a spillover argument. 
  See id.; see also United States v. Brandon, 17 F.3d 409, 440
  (1st Cir. 1994)(quoting United States v. Searing, 984 F.2d
  960, 965 (8th Cir. 1993) ("In the context of conspiracy,
  severance will rarely, if ever, be required.")).
            Finally, the fact that the jury acquitted Fogarty
  on two counts indicates that the jury was not prevented from
  making reliable judgments about guilt or innocence, but was
  able to weigh the evidence independently against each
  defendant.  See United States v. Flores-Rivera, 56 F.3d 319,
  326 n.2 (1st Cir. 1995) (finding that acquittals suggested
  "that the jury was able to sift through the evidence in an
  analytical fashion and that the alleged spillover effect did
  not cause the jury merely to enter a lump sum conviction");
  Brandon, 17 F.3d at 440 (finding acquittals to be a relevant
  factor in upholding a district court's denial of a severance). 
  For all of these reasons we affirm the judge's decision to
  deny Fogarty's motion to sever.
                         F. Hearsay Testimony of Laura Watson and Lisa
               Munroe
            LiCausi claims that certain testimony from two
  witnesses, Laura Watson and Lori Munroe, was inadmissible
  hearsay.  We find error only in the admission of Munroe's
  testimony but find insufficient prejudice to warrant a new
  trial for LiCausi.
            LiCausi challenges, first, the testimony of Watson,
  an acquaintance of Fournier's, as to certain statements by
  Fournier after the attempted robbery of the Pic-N-Pay in
  Portsmouth, New Hampshire.  Watson testified that she left
  work at Bickford's restaurant in Portsmouth at about 11:30 PM. 
  She saw Fournier, who asked for a ride home and for help
  finding a friend he had lost near the Holiday Inn.  Watson was
  then allowed to testify, over objection, that Fournier's
  friend's name was "John."  When they could not find "John,"
  she drove him to his residence.  LiCausi argues that
  Fournier's statement identifying his friend as "John" was
  improperly admitted as a statement in furtherance of a
  conspiracy.
            As we discussed earlier, a hearsay statement is
  admissible against a defendant if the trial court finds that
  it is more likely than not that (1) the defendant was a
  coconspirator of the speaker; (2) the conspiracy existed at
  the time the statement was made; and (3) it was made in
  furtherance of the conspiracy.  See United States v. Rivera,
  68 F.3d 5, 7 (1st Cir. 1995) (citing United States v.
  Petroziello, 548 F.2d 20, 23 (1st Cir. 1977)).  A district
  court's findings of fact in applying this test must be upheld
  unless they are clearly erroneous.  See United States v.
  Fields, 871 F.2d 188, 193 (1st Cir. 1989).
            Given our discussion as to the conspiracy counts,
  supra, we have no difficulty accepting the trial court's
  finding that a conspiracy existed and that both Fournier and
  LiCausi were members of it.  The closer question is whether
  the trial judge permissibly found that Fournier's statement
  identifying his "friend" as "John" was in furtherance of the
  conspiracy.  We have observed in the past that "there is no
  'talismanic formula for ascertaining when a conspirator's
  statements are 'in furtherance' of the conspiracy.'"  See id.
  at 194 (quoting United States v. Reyes, 798 F.2d 380, 384
  (10th Cir. 1986)).  The statement is admissible if it "tends
  to advance the objects of the conspiracy as opposed to
  thwarting its purpose."  United States v. Fahey, 769 F.2d 829,
  838 (1st Cir. 1985).  We accept that looking for LiCausi was
  in furtherance of the conspiracy.  To help by identifying him
  as John may have been of questionable value, but it was
  presumably so intended.  We are not "left with the definite
  and firm conviction that a mistake has been made."  Mitchell
  v. United States, 141 F.3d 8, 17 (1st Cir. 1998).
            We come to a different conclusion regarding the
  admissibility of Munroe's testimony as to certain statements
  by Subocz.  Before going to Ohio with Fogarty to rob a
  supermarket, Subocz told her that he was going away to do a
  carpet job.  Sometime after he returned, he told her that at
  one point he and Fogarty had been in a supermarket with a gun
  but did not attempt a robbery because it did not feel right. 
  Subocz also told Munroe details of what happened during the
  Saugus Star Market robbery attempt, the Nashua Market Basket
  robbery, and the Portsmouth Pic-N-Pay robbery attempt.  These
  statements cannot fairly be considered in furtherance of the
  conspiracy.  All but one were made after the crimes they
  described took place, and they do not appear to have yielded
  significant enough information to constitute reports to a
  coconspirator, assuming Munroe could be considered as such. 
  Rather, they appear to us to be instances where Subocz was
  merely blowing off steam or venting anxiety.   Subocz's lie
  about his trip to Ohio is a closer call, but we think that it
  is more appropriately characterized as made simply to avoid an
  argument with his girlfriend.  Thus, we think the statements
  were not made to advance the conspiracy and were inadmissible.
            While these statements may have been improperly
  admitted, we do not think they worked such prejudice that a
  new trial is necessary.  The testimony was cumulative and the
  weight of the additional evidence overwhelming.  That
  additional  evidence pointed to LiCausi's deep involvement in
  the conspiracy and the individual crimes that Subocz discussed
  with Munroe.  The government elicited extensive testimony on
  those topics, some of which was corroborated by toll records
  and other evidence.  Accordingly, we think it highly probable
  that the error in admitting Lori Munroe's hearsay testimony
  did not contribute to the verdicts.  See United States v.
  Rose, 104 F.3d 1408, 1414 (1st Cir. 1997).  The error
  therefore need not concern us.
                         G. Admissibility of Special Agent Mulvaney's
               Testimony
            Durfee claims that the trial court erroneously
  allowed FBI Special Agent John Mulvaney to testify regarding
  a telephone call, charged to Munroe's account, made on January
  2, 1996 to that number.  Based on investigation he conducted
  on April 9, 1997, Agent Mulvaney testified that the number
  from which the call was made was that of a pay phone located
  at the Vista Foods supermarket in Manchester, New Hampshire. 
  According to other testimony, Subocz and Durfee attempted to
  rob that supermarket on January 3, the day after the call was
  made.  Durfee argues that Agent Mulvaney's testimony was
  erroneously admitted because disclosure of Agent Mulvaney's
  report after Subocz had testified regarding the Vista Foods
  robbery attempt deprived defense counsel of the opportunity to
  cross examine Subocz regarding the call, because the testimony
  was irrelevant given Subocz's testimony that no advance
  planning occurred before the attempt, and because the evidence
  was more prejudicial than probative.  We reject all three
  contentions.
            First, we see no prejudice in the disclosure of the
  projected testimony after Subocz had testified.  Durfee
  apparently had the phone records and an investigator and could
  have made his own investigation had he deemed it necessary. 
  In addition, he had no right to the results of Agent
  Mulvaney's investigation under the Federal Rules of Criminal
  Procedure, see Fed. R. Crim. P. 16(2) (including as
  information not subject to disclosure "reports, memoranda, or
  other internal government documents made by the attorney for
  the government or any other government agent investigating or
  prosecuting the case"), nor was the information Brady or
  Jencks Act material.  Absent a special right to disclosure of
  information, the trial lawyer must make judgments about what
  information is significant and what information is not.  Then,
  based on those judgments, he must prepare to meet what he
  thinks opposing counsel will present as evidence.  When the
  lawyer miscalculates, he risks being caught unprepared.  That
  is apparently what happened here, and we will not recast
  defense counsel's tactical decision (or oversight, perhaps)
  into a trial error.
            Moreover, the trial judge invited defense counsel
  to recall Subocz if he wished, but defense counsel failed to
  do so.  He contended during oral argument that, assuming the
  nondisclosure was improper, this remedy was inadequate because
  later cross examination would be less effective.  But the
  opportunity was there, and, given this and all of the
  circumstances, we fail to see how Durfee's due process rights
  have been violated.
            Durfee's second argument, that the results of Agent
  Mulvaney's investigation were irrelevant, fares no better. 
  The test for relevance is, of course, whether the piece of
  evidence sought to be introduced has "any tendency to make the
  existence of any fact that is of consequence to the
  determination of the action more probable or less probable
  than it would be without the evidence."  Fed. R. Evid. 401. 
  The occurrence of a phone call from the Vista Foods parking
  lot charged to Subocz's telephone account and made to Durfee's
  residence clearly is circumstantial evidence tending to make
  it more probable that Subocz cased the supermarket, that he
  told Durfee it was a good robbery target, and that the two
  ultimately robbed it.  Subocz's testimony that they committed
  this robbery with no planning, radios, lookout, safe car, or
  drop car does not change matters.  It does not follow
  automatically from that acknowledgment that Subocz and Durfee
  were simply walking by the store and decided without prior
  discussion to rob it.  While the pair did not make the same
  preparations that became standard operating procedure in other
  robberies, testimony did establish that Subocz did case the
  store and tell Durfee about it.  In light of this evidence we
  think that testimony as to the location of the number listed
  in the toll records was most certainly relevant.
            Nor do we believe that the testimony was more
  prejudicial than probative.  See Fed. R. Evid. 403.  We review
  such a claim only for abuse of discretion, United States v.
  Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996), and find none
  here.  Durfee argues that the government created an unfair
  inference as to the call's content and significance by merely
  presenting evidence of the call and failing to question Subocz
  as to its contents.  However, the evidence of the call was
  circumstantial evidence of Durfee's participation in the
  robbery, evidence upon which the jury was entitled to rely in
  determining Durfee's guilt.  Such evidence is, of course,
  always prejudicial to the defense, and we do not think that
  the government's failure to question Subocz regarding the
  phone call, whether by oversight or by design, made Agent
  Mulvaney's testimony unfairly prejudicial such that Rule 403
  mandated exclusion.
  �                         H. Admissibility of Matthew O'Brien's Testimony
            LiCausi claims that the trial judge erred in
  admitting as the government's rebuttal evidence the testimony
  of Matthew O'Brien.  O'Brien testified that he had seen
  Fogarty and LiCausi at the Hillsborough County Jail while he
  was awaiting sentencing for an unrelated offense.  Fogarty and
  LiCausi, who were being held pretrial, asked him to tell
  Fogarty's lawyer that Fournier told him that Fournier's
  brother and Subocz's brother, not LiCausi and Fogarty, had
  been involved with Subocz and Fournier in the armed robberies. 
  LiCausi claims here that the evidence was not proper rebuttal
  and was so inflammatory that allowing its admission at such a
  late stage of the case amounted to an abuse of discretion.  We
  disagree.
            "Rebuttal evidence may be introduced to explain,
  repel, contradict or disprove an adversary's proof."  United
  States v. Laboy, 909 F.2d 581, 588 (1st Cir. 1990).  The fact
  that testimony would have been more appropriately offered
  during the proponent's case-in-chief does not preclude its
  admission as rebuttal evidence.  See United States v. Clotida,
  892 F.2d 1098, 1107 (1st Cir. 1989) (citing United States v.
  Luschen, 614 F.2d 1164, 1170 (8th Cir. 1980)).  Rather, the
  decisions as to what constitutes proper rebuttal evidence and
  the order in which the parties present their evidence lie
  within the sound discretion of the trial judge and are subject
  to substantial deference.  See id.; United States v. Thuna,
  786 F.2d 437, 444 (1st Cir. 1986).
            In this case, Subocz testified in great detail
  regarding the attempted robbery of the Saugus Star Market in
  the early morning hours of February 2, 1996 and the events of
  the evening before.  He also testified in detail regarding the
  robbery of the Nashua Market Basket that evening.  He named
  LiCausi as a participant in both incidents.  Munroe also
  testified that LiCausi was with Subocz the night and early
  morning of the Star Market attempt.  Fournier also testified
  as to LiCausi's involvement in the two incidents.
            In his defense, LiCausi called several alibi witness
  who testified that LiCausi was out with friends almost all
  night on February 1 and arrived at his sister's house between
  5:30 and 6:00 PM on the evening of February 2 to babysit her
  children.  Accepting this testimony over that of Subocz,
  Munroe, and Fournier would mean that LiCausi could not have
  participated in the Star Market attempt or the Market Basket
  robbery.
            We note first that Matthew O'Brien's testimony had
  no particular connection to any defense witness, and therefore
  as a practical matter could not be offered during cross
  examination.  As such, the evidence could have been offered
  only during the government's case-in-chief or as rebuttal. 
  The potential admissibility during the case-in-chief is not
  controlling, of course, and we find no abuse of discretion as
  to its admission on rebuttal.  Matthew O'Brien's testimony,
  while not directly contradicting the testimony of LiCausi's
  alibi witnesses, certainly tended to disprove or refute their
  testimony by undermining its credibility.  Given these facts,
  we do not think that the trial judge abused his broad
  discretion in allowing O'Brien to testify.
                         I. The Restitution Order as to Durfee
            Finally, Durfee argues that the district court erred
  in ordering restitution in the amount of $85,385.35 without
  properly considering his financial resources.   We review
  restitution orders for abuse of discretion, see United States
  v. Newman, 49 F.3d 1, 10 (1st Cir. 1995), and find none here.
            We have repeatedly pointed out that the provision
  addressing restitution, 18 U.S.C. � 3664(a) (1994), does not
  require an explicit finding that the defendant has the ability
  to pay the restitution ordered.  Rather, "it is sufficient if
  the record on appeal reveals that the judge made implicit
  findings or otherwise adequately evinced his consideration of
  those factors."  Newman, 49 F.3d at 10.  Here, the record
  reveals just that.  First, the court explicitly adopted the
  factual findings of the presentence investigation report,
  which included information relating to Durfee's financial
  condition, earning ability, and ability to pay.
            Second, the court recognized the possibility that
  Durfee's financial prospects might improve.  As this court has
  held, "there is no requirement that the defendant be found
  able to pay now."  United States v. Lombardi, 5 F.3d 568, 573
  (1st Cir. 1993); see also United States v. Vankin, 112 F.3d
  579, 592 (1st Cir. 1997) ("A defendant's impoverishment today
  is no assurance of future poverty, and, hence, present
  impecuniousness is not a bar to the imposition of
  restitution."); Newman, 49 F.3d at 10.  Accordingly, "[a]
  sentencing court permissibly may take into account a
  defendant's earning capacity and the prospect that his
  fortunes will improve."  Vankin, 112 F.3d at 592.  Here, the
  court refused to speculate on Durfee's inability to pay after
  his release, thereby acknowledging the possibility that
  Durfee's fortunes might improve.  Thus, we think this record
  shows that the trial judge adequately considered Durfee's
  financial situation and did not abuse his discretion in
  arriving at a restitution amount.
            III.      CONCLUSION
            Despite the defendants' valiant efforts at finding
  error compelling us to reverse, careful analysis of the issues
  presented leads us to conclude that neither a new trial nor
  resentencing is warranted.  The defendants' convictions and
  sentences are therefore affirmed.
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