United States v. Monserrate-Valentín

• Decision Date: 06 September 2013
• Docket Number: 10–2164.,Nos. 10–1526,s. 10–1526
• Citation: 729 F.3d 31
• Parties: UNITED STATES of America, Appellee, v. Luis Orlando MONSERRATE–VALENTÍN, Javier Figueroa–Vega, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

729 F.3d 31

UNITED STATES of America, Appellee,

v.Luis Orlando MONSERRATE–VALENTÍN, Javier Figueroa–Vega, Defendants, Appellants.

Nos. 10–1526, 10–2164.

United States Court of Appeals,First Circuit.

Sept. 6, 2013.

Linda Backiel, for appellant Monserrate.

Jorge L. Armenteros–Chervoni, for appellant Figueroa.

Vernon B. Miles, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, HOWARD and THOMPSON, Circuit Judges.

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 stumbledin 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).

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.

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

Later in the planning process, Bravo introduced Santiago to the men who would participate in the robbery, but Figueroa and Monserrate were not present at that meeting. Bravo then told Santiago that “everything was ready and that the weapons would be ready.” Bravo also noted that it “was not going to be a forced robbery.” At trial, Santiago was shown a photograph of co-defendant Edgardo Salas–Fernández (“Salas–Fernández”), one of appellants' alleged co-conspirators, and Santiago testified that he “look[ed] like one of the individuals at Iván Bravo's house during the planning of the robbery.”

Santiago also testified that the planning process went on for “a month and a half or two,” and that afterwards, Bravo promised he would notify Santiago and the appellants when the robbery would take place. However, Santiago then testified that, “[a]fter some time went by and nothing happened, it came to my mind that I just didn't want to go on with this, and there was no communication [with Bravo]. And so I let it go, I let it stop there.” Although Santiago thought that the plan to rob the Loomis truck behind the Home Depot and K–Mart stores had been abandoned, a few months later, Figueroa's truck was robbed at gunpoint by several masked individuals during a stop at a Texaco gas station in Bayamón. The details of this robbery are as follows.

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 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 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 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...