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 PérezSosa, 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).

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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 codefendant 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.

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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 VázquezSantiago, 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 TorresOrtiz, 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 codefendant 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 TorresOrtiz'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 coconspirators. 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

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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 MangualSantiago, 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 coconspirators' 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

-21-
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 codefendants, 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 singlecrime 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 SalasFernández 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. SalasFernández'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 TorresOrtiz'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 selfincriminating. 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

-46-
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

-47-
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.

-48-
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

-49-
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:

-50-
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

-51-
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

-52-
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

-54-
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

-55-
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

-56-
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

-57-
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

-60-
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.

-61-
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

-62-
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,

-63-
however, we conclude that said variance did not substantially

prejudice appellants. We thus affirm their convictions.

Affirmed.

-64-