                              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 dur-
ing 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 detec-
tion; Anthony drove that car. But they weren’t as smooth
in their post-robbery execution as they were in their pre-
robbery 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 im-
provements 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 re-
ferring 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.” An-
thony 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 gov-
ernment. 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

                       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 state-
ment discussed above. When Anthony went to visit co-
schemer 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 re-
corded, out-of-court statement is generally inadmissible


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.
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 de-
clarant’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) pro-
vides 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 posi-
    tion 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 state-
ment—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 admissi-
bility 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 William-
son, 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 con-
cluding 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 ar-
mored 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 An-
thony 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 theoreti-
cally be read as an innocent friend’s statement of con-
cern 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 crimi-
nal 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 circum-
stances 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 con-
federate. 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 trust-
worthiness 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 sup-
ported 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 state-
ment.


    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 Amend-
ment 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 ad-
mission of a witness’s “testimonial statement” unless
the witness is unavailable to testify at trial and the defen-
dant 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 af-
fidavits, 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 state-
ment 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 Amend-
ment 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

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 com-
mitted 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



2
   Anthony Redmond does not directly challenge his sen-
tence, but he contends that affording a presumption of rea-
sonableness 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.
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 deliv-
ered 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 better-
supported 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 jurisdic-
tion—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). Never-
theless, 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

even mentioned. We do not mean to excuse the govern-
ment’s sloppy drafting; it could have averted this appel-
late argument with a more carefully worded indictment.
But the government’s evidence at trial and its closing
argument focused exclusively on the legally sound deple-
tion 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 men-
tioned at trial, instead of the proper theory that was
advanced and well supported with evidence, are minus-
cule. On the facts of this case—and in the context of
satisfying the de minimis connection to interstate com-
merce—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 restitu-
tion payments. They concede that the district court prop-
erly 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-



3
   Tracy and Anthony also contend that under the Constitu-
tion, 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).
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.




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