In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 06-2680, 06-2963 & 06-3114

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIE WATSON, ANTHONY REDMOND,

and TRACY REDMOND,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 48—Matthew F. Kennelly, Judge.

____________

ARGUED OCTOBER 22, 2007—DECIDED MAY 13, 2008

____________

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. These three defendants were

convicted of robbing an armored car outside a Chicago

bank. They shot a guard three times at point-blank range

(thankfully, he survived) and made off with $400,000

in cash. One of them, Willie Watson, pleaded guilty to

aiding and abetting Hobbs Act robbery, 18 U.S.C. §§ 1951,

1952; the other two, brothers Anthony and Tracy Redmond,

went to trial and were found guilty of Hobbs Act robbery,

conspiracy to commit the same, and using a firearm during and in relation to the robbery, id. § 924(c). On appeal
2 Nos. 06-2680, 06-2963 & 06-3114

Tracy Redmond argues that evidence was improperly

admitted in violation of Federal Rule of Evidence 804(d)(3)

and the Confrontation Clause of the Sixth Amendment,

and Anthony Redmond argues that the indictment listed an

impermissible theory of federal jurisdiction, tainting

the jury’s verdict. The district court did not abuse its

discretion in admitting the evidence, and even if it did,

any error is harmless; and the chances of the indictment

influencing the jury are negligible. We therefore affirm

the judgment of the district court.

I. BACKGROUND

According to the government’s evidence at trial, Tracy

Redmond actually committed the robbery and shot the

guard, while Watson was the driver and Anthony rode

along. After the robbery, the three drove away in their

stolen van and switched to a different car to avoid detection; Anthony drove that car. But they weren’t as smooth

in their post-robbery execution as they were in their prerobbery planning. Anthony left a cigarette butt in the

van as well as a soda can containing his saliva. Police later

used these to link him to the robbery. Moreover, in

the days following the heist, the defendants splurged.

Tracy bought himself two cars and made $9000 in improvements to them, and Anthony bought a car of his own.

A fourth person—an insider—facilitated the robbery,

and her apprehension by police officers led to the gang’s

downfall. Estella Suttle, who is not a party to this appeal,

was a teller at the bank that had hired the armored car.

Among other things, she told the defendants about the

bank’s security camera system. But after the robbery,

she boasted to the wrong guy—an FBI informant. Suttle
Nos. 06-2680, 06-2963 & 06-3114 3

was arrested and agreed to cooperate with the authorities;

she ultimately pled guilty herself. Officers concocted a

ruse, directing Suttle to call Anthony (whom she was

dating) and tell him, falsely, that she had seen a news

report that “they identified the shooter.” Anthony did

not express surprise or ask which crime she was referring to, and after their brief call he called Tracy.

That call was not recorded. Later that night, Anthony

visited Suttle and, as the FBI recorders rolled, the two

had a wide-ranging conversation. Anthony said that he

had spoken to Tracy, and that the two believed the news

report to be a plant by the bank in order to fluster the

culprits. Anthony said that Tracy’s face had been too

well concealed for an identification: “I think it was just

kinda a bit impossible for them to, like identify

him . . . because . . . the whole face was covered . . . his hair

was up in his hat, he had his hat up over his face.” Anthony then made a statement that was eventually used

as evidence of Tracy’s involvement:

I don’t know what’s going on but I mean, you

know like when I told Dough [Tracy] he was like

no they can’t identify me. Period. You know, so

I don’t know. You know but I told him, I said look,

I don’t know, I’m telling you what she told me, so

be careful, be alert, watch your back, you know

all that, you know cause you just never know . . . .

I mean, a bank robber, come on man . . . . They

identify you? They’re gonna come get you, period.

At trial, both Suttle and Watson testified for the government. The Redmond brothers were found guilty and

sentenced to 256 months’ imprisonment (Tracy) and 190

months’ imprisonment (Anthony). Watson and the

Redmonds then appealed.
4 Nos. 06-2680, 06-2963 & 06-3114

1 The government contends that in the district court, Tracy

did not challenge the admissibility of Anthony’s statement

under Rule 804(b)(3), and that our review should be for plain

error only. The government is incorrect: Tracy made this

argument at record entry 104.

II. ANALYSIS

We address Tracy Redmond’s arguments first, and then

turn to those raised by the other defendants.

A. Tracy Redmond

The principal argument on appeal is Tracy Redmond’s

challenge to the admission of Anthony Redmond’s statement discussed above. When Anthony went to visit coschemer Suttle in response to her (false) assertion that

she had seen a news report in which police boasted

they had identified the gunman, Anthony said some

things that were ultimately used to tie Tracy to the robbery.

Anthony told Suttle that Tracy said that he (Tracy) could

not possibly have been identified because he had worn

a mask during the robbery. Tracy challenges the admission

of this evidence under both Federal Rule of Evidence

804(b)(3) and the Confrontation Clause. We review the

former argument for an abuse of discretion, United States

v. Loggins, 486 F.3d 977, 981 (7th Cir. 2007), and the latter

de novo, United States v. Castelan, 219 F.3d 690, 694 (7th

Cir. 2000).1

1. Admission of the evidence did not violate Rule

804(b)(3)

Hearsay evidence like Anthony’s surreptitiously recorded, out-of-court statement is generally inadmissible
Nos. 06-2680, 06-2963 & 06-3114 5

because it is not sworn testimony, its admission prevents

juries from evaluating the speaker’s credibility, and the

opposing party cannot cross-examine the speaker. See

Fed. R. Evid. 802; Williamson v. United States, 512 U.S. 594,

598 (1994). One of the many exceptions to the hearsay

rule, however, applies to statements against the declarant’s interest. Most people would not say that they

knocked over a bank, spit on a policeman, or shoved

their mother if it wasn’t true. Hence Rule 804(b)(3) provides for the admission of

A statement which was at the time of its making

so far contrary to the declarant’s pecuniary or

proprietary interest, or so far tended to subject the

declarant to civil or criminal liability, or to render

invalid a claim by the declarant against another,

that a reasonable person in the declarant’s position would not have made the statement unless

believing it to be true.

(Emphasis added). In evaluating a district court’s decision

to admit evidence under this rule, courts look at three

factors: whether (1) the declarant is unavailable to testify

at trial; (2) the statement was against the declarant’s

penal interest; and (3) the circumstances suggest that the

statement is trustworthy. United States v. Leahy, 464

F.3d 773, 797-98 (7th Cir. 2006).

Tracy concedes that Anthony was “unavailable” under

factor one because Anthony chose not to take the stand.

But Tracy argues under factor two that Anthony’s statement—while concededly bad for Tracy—was not against

Anthony’s interest when made. Tracy points out that under

Williamson, our inquiry must be confined to the admissibility of a particular statement; we cannot simply admit

all neutral statements that precede or follow a state-
6 Nos. 06-2680, 06-2963 & 06-3114

ment that is truly against the declarant’s interest. See also

United States v. Bonty, 383 F.3d 575, 579 (7th Cir. 2004). This

limitation is significant in this case because Anthony

clearly exposed himself to criminal liability at various

points in his conversation with Suttle. For instance, he

gave a firsthand account of the way Tracy wore his mask

during the robbery. Yet as the Court observed in Williamson, we must still evaluate the statement sought to be

admitted “in light of all the surrounding circumstances.”

512 U.S. at 604. This latter language shows that we must

be mindful of the context in which a statement is made.

See also id. at 606 (Scalia, J., concurring).

The district court did not abuse its discretion in concluding that Anthony’s statement was against his penal

interest. The paragraph that Tracy challenges does not

make sense in a vacuum. Take, for instance, this phrase:

“when I told Dough [Tracy] he was like no they can’t

identify me.” Anthony had just (falsely) heard that the

police claimed to have identified the shooter in the armored car robbery, and he immediately called Tracy to

tell him the same. Thus, “when I told Dough” means,

“when I told Tracy that a news report said that the police

had identified the shooter in the armored car robbery.”

While it may be technically possible that Tracy and Anthony just like to listen to the crime blotter and excitedly

update each other about unsolved area robberies, in

context, Anthony was indicating his inside awareness

of the robbery and expressing concern that he and the

crew might have reason to fear detection. Similarly,

when Anthony said that he had told Tracy, “so be careful,

be alert, watch your back, you know all that, you know

cause you just never know,” in context, this can only

mean, “be careful because the police may be on to you as a
Nos. 06-2680, 06-2963 & 06-3114 7

perpetrator of the robbery.” “Be careful” could theoretically be read as an innocent friend’s statement of concern for a guilty friend, but in context, Anthony was

saying, “hey, don’t get caught because I don’t want to get

caught.”

These statements do indeed expose Anthony to criminal

liability as a member of the conspiracy. As we noted in

United States v. Westmoreland, 240 F.3d 618, 626-27 (7th

Cir. 2001), “a statement that implicates the declarant in

a larger conspiracy tends to subject the declarant to criminal liability and thus is a statement against interest. This

is so because a member of a conspiracy is liable for any

co-conspirator’s act committed in furtherance of the

conspiracy” (internal citations omitted). By revealing his

inside knowledge of the conspiracy and helping one of

its perpetrators avoid detection, Anthony could at the

very least be charged with being an accessory after the

fact to robbery, 18 U.S.C. § 3; United States v. Osborn, 120

F.3d 59, 63-64 (7th Cir. 1997), if not with the more serious

crime of aiding and abetting the conspiracy, 18 U.S.C. § 2;

United States v. Irwin, 149 F.3d 565, 569-71 (7th Cir. 1998).

Tracy also argues that even if Anthony’s statement to

Suttle was against Anthony’s penal interest, the circumstances render the statement untrustworthy. Anthony

had gone to talk to Suttle about the news report, and,

Tracy emphasizes, Anthony was downplaying to Suttle

his own role in the robbery. Suttle was promised $20,000

for giving the crew inside information about the armored

car, but instead she only got a few thousand. According

to Tracy, Anthony was minimizing his own role in the

crime so that he could avoid blame for giving Suttle such

a meager cut—“it was Tracy’s show,” Anthony might have

said to Suttle, “so Tracy stiffed you, not me.” This argu-
8 Nos. 06-2680, 06-2963 & 06-3114

ment does give us some pause. After all, one of the key

situations in which a co-defendant’s statement against

interest is unreliable hearsay is when the co-defendant

is shifting blame away from himself and onto another.

See Varela v. United States, 481 F.3d 932, 936 (7th Cir.

2007). Blaming one’s self and someone else does not

necessarily reduce a statement’s trustworthiness, but that

is not what Tracy is alleging happened here. On the other

hand, the quintessential untrustworthy statement is

made to police officers, who offer inducements to an

arrested suspect in return for cooperation, United States

v. Ochoa, 229 F.3d 631, 638 (7th Cir. 2000), whereas here,

Anthony thought he was speaking privately to a confederate. Every twist and turn in intra-conspiracy politics

should not necessarily undermine the trustworthiness of

a private statement between criminal plotters. Thus there

are considerations both against and in favor of the trustworthiness of Anthony’s statement.

We need not pursue this issue further, for any error

in admitting Anthony’s statement as evidence against

Tracy was harmless. See Westmoreland, 240 F.3d at 629. The

other evidence of Tracy’s guilt was substantial and supported a finding of guilt beyond a reasonable doubt even

without Anthony’s recorded statement. Both Watson

and Suttle cooperated with the government and testified

in detail about Tracy’s leading role in planning and

carrying out the armored car operation. Tracy went on a

spending spree immediately after the robbery, buying a

car the very next day and making thousands of dollars in

improvements to it three days later, and buying another

car two weeks later. See United States v. Ewings, 936 F.2d

903, 906 (7th Cir. 1991) (“Spending sprees, like other

evidence of pecuniary gain, tend to show participation in
Nos. 06-2680, 06-2963 & 06-3114 9

crimes where financial enrichment is the motive.”). And

Tracy’s brother’s fingerprints and DNA were found all

over a stolen van used in the robbery. This evidence

supports the jury’s verdict of guilt beyond a reasonable

doubt, even in the absence of Anthony’s recorded statement.

2. Admission of the evidence did not violate the

Confrontation Clause

Notwithstanding Rule 804(b)(3), Tracy contends that

admitting Anthony’s statement violated his Sixth Amendment right to confront an adverse witness. In Crawford v.

Washington, 541 U.S. 36, 68 (2004), the Supreme Court

explained that the Confrontation Clause bars the admission of a witness’s “testimonial statement” unless

the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine him or

her. The Confrontation Clause does not, however, apply

to statements that are not testimonial in nature. See Davis

v. Washington, 126 S. Ct. 2266, 2274-75 (2006). While

the Court has not comprehensively defined the term

“testimonial,” it stated in Crawford that it extends to “prior

testimony at a preliminary hearing, before a grand jury,

or at a former trial; and to police interrogations.” 541 U.S.

at 68. The Court also added that evidence is “testimonial”

in nature when given in formal pleadings, such as affidavits, declarations, or confessions, or—most pertinent

here—when “made under circumstances which would

lead an objective witness reasonably to believe that the

statements would be available for use at a later trial.” Id.

at 52. In short, an “accuser who makes a formal statement to government officers bears testimony in a sense

that a person who makes a casual remark to an acquain-
10 Nos. 06-2680, 06-2963 & 06-3114

tance does not.” Id. at 51. The Constitution restricts the

admission of the former type of out-of-court statement,

while only the rules of evidence restrict the latter.

Anthony’s private statement to a confederate, which

was secretly recorded, does not fit into any of Crawford’s

broad categories of testimonial evidence. It certainly

was not made to the police in an interrogation, which is

the classic type of testimonial evidence the Sixth Amendment seeks to limit. Id. at 68 (reversing lower court’s

admission of evidence made during interrogation at

police station). It was not contained in any formal court

document, or given as evidence at another proceeding. The

closest match would be if Anthony had reasonably believed

that the statement would be preserved for later use at a

trial, but he couldn’t have thought this because he did not

know that the FBI was secretly recording the conversation.

See, e.g., United States v. Summers, 414 F.3d 1287, 1302 (10th

Cir. 2005) (proper focus is on whether declarant would

believe statement would later be used as evidence). A

statement unwittingly made to a confidential informant

and recorded by the government is not “testimonial” for

Confrontation Clause purposes. United States v. Tolliver, 454

F.3d 660, 665 (7th Cir. 2006); United States v. Underwood, 446

F.3d 1340, 1347-48 (11th Cir. 2006); United States v.

Hendricks, 395 F.3d 173, 182-84 (3d Cir. 2005); United States

v. Saget, 377 F.3d 223, 229-30 (2d Cir. 2004).

3. Tracy’s sentence was reasonable

Tracy also challenges his sentence, but his arguments

are unpersuasive and do not require much analysis. He

contends that the district court clearly erred in imposing

a two-point enhancement for being an “organizer,
Nos. 06-2680, 06-2963 & 06-3114 11

2 Anthony Redmond does not directly challenge his sentence, but he contends that affording a presumption of reasonableness to a sentence within the applicable Guidelines range

is inconsistent with United States v. Booker, 543 U.S. 220 (2005).

Rita had not yet been decided when Anthony filed his brief;

it forecloses this argument.

leader, manager, or supervisor,” U.S.S.G. § 3B1.1(c),

arguing that Suttle was actually in charge. But the district

court permissibly credited testimony that Tracy planned

the robbery and pressed Suttle for insider details about

the bank; brought Watson into the conspiracy; took the

largest chunk of the proceeds for himself and decided

how the rest should be apportioned; and actually committed the robbery and shot the guard. All of these factors

support the district court’s decision. Id. cmt. n.4; United

States v. Johnson, 489 F.3d 794, 797-98 (7th Cir. 2007). Tracy

also argues that his sentence was unreasonable, but

since it was within the Guidelines range we presume it

was reasonable, Rita v. United States, 127 S. Ct. 2456,

2462 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005),2

 and find that the district judge legitimately

believed that callously shooting a guard three times and

leaving him for dead warranted a stiff punishment.

B. Anthony Redmond

Anthony contends that the indictment offered two

theories for satisfying the jurisdictional element of the

Hobbs Act, and that one of those theories was legally

invalid. The indictment first mentioned a “depletion of

assets” theory of federal jurisdiction—that by stealing

from the armored truck company, which customarily
12 Nos. 06-2680, 06-2963 & 06-3114

purchases items in interstate commerce, the defendants

“limit[ed] the victim-enterprise’s potential as a purchaser

of goods.” See United States v. Re, 401 F.3d 828, 835 (7th

Cir. 2005). But the indictment also stated an arguable

second theory of satisfying the Hobbs Act’s jurisdictional

element: “The Bank’s handling of coin and paper U.S.

currency affected interstate commerce, and the coin and

paper United States currency which Davis Bancorp delivered to the bank by armored car traveled in interstate

commerce.”

When an indictment offers two theories of liability and

a jury returns a general verdict that does not say under

which theory it convicted, the conviction can be imperiled.

If the evidence would only support one theory or the

other, the jury is presumed to have gone with the bettersupported theory, and the conviction stands. But we

cannot so credit the jury if one of the theories is legally

insufficient—if, for instance, the behavior under that

theory does not constitute a crime. See Tenner v. Gilmore,

184 F.3d 608, 611 (7th Cir. 1999). If in the latter scenario “it

is impossible to tell which ground the jury selected,” the

case must be retried. Yates v. United States, 354 U.S. 298,

312 (1957); see also United States v. Gonzalez, 93 F.3d 311,

320 (7th Cir. 1996).

Here, the government’s second “theory” of jurisdiction—that the money the defendants stole traveled in

interstate commerce—is indeed legally insufficient, for

if cash could serve as the jurisdictional hook, any robbery

would be a federal crime under the Hobbs Act. See United

States v. Peterson, 236 F.3d 848, 855 (7th Cir. 2001). Nevertheless, it is exceedingly unlikely that the jury convicted

under this “theory” of jurisdiction, because it was just a

one-off line in the indictment that the government never
Nos. 06-2680, 06-2963 & 06-3114 13

3 Tracy and Anthony also contend that under the Constitution, Hobbs Act robbery must have a substantial impact on

interstate commerce. Neither develops the argument, so it is

waived; and in any event it is a perennial loser. See United

States v. Griffin, 493 F.3d 856, 861 (7th Cir. 2007); United States

v. Sutton, 337 F.3d 792, 796 (7th Cir. 2003).

even mentioned. We do not mean to excuse the government’s sloppy drafting; it could have averted this appellate argument with a more carefully worded indictment.

But the government’s evidence at trial and its closing

argument focused exclusively on the legally sound depletion of assets theory. Cf. United States v. Colvin, 353

F.3d 569, 577 (7th Cir. 2003) (“highly unlikely” that jury

convicted on impermissible ground, because it could not

have done so and still convicted on a separate charge). The

chances that in establishing federal jurisdiction the jury

relied on a line in the indictment that was never mentioned at trial, instead of the proper theory that was

advanced and well supported with evidence, are minuscule. On the facts of this case—and in the context of

satisfying the de minimis connection to interstate commerce—we therefore reject Anthony’s argument.3

C. Watson’s and Anthony’s restitution argument

Finally, Anthony and Watson contend that the district

court erred by neglecting to set out a schedule of restitution payments. They concede that the district court properly ordered them to pay $400,000 in restitution, but argue

that by simply saying that the payments must begin

immediately, rather than giving a schedule of payments,

the district court impermissibly delegated a core judi-
14 Nos. 06-2680, 06-2963 & 06-3114

cial duty. But they did not raise this contention below, and

our decision in United States v. Sawyer, No. 06-1275, ___

F.3d ___, 2008 WL 942653, at *3 (7th Cir. Apr. 9, 2008),

decided after oral argument in this case, holds that

a district court’s failure to set out a restitution schedule

is not plain error.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the defendants’

convictions and sentences.

USCA-02-C-0072—5-13-08