United States v. Corley Smith , 697 F.3d 625 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-2128 & 11-2398
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
CORLEY SMITH and KIM EVANS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 152—Amy J. St. Eve, Judge.
A RGUED A PRIL 20, 2012—D ECIDED O CTOBER 4, 2012
Before EASTERBROOK, Chief Judge, and M ANION and
ROVNER, Circuit Judges.
M ANION, Circuit Judge. Corley Smith and Kim Evans
were both convicted of one count of bank robbery and
one count of possession of a firearm in furtherance of
a crime of violence. Evans was also convicted of being
a felon in possession of a firearm. Smith and Evans
appeal from the denial of their motion to suppress evidence
seized following the bank robbery and also present
several challenges to evidentiary rulings and the jury
instructions. Smith also appeals his sentence. We affirm.
2 Nos. 11-2128 & 11-2398
I.
Corley Smith, Kim Evans, and Dezmond Swanson
were indicted by a grand jury and all charged with
one count of bank robbery and one count of using a
firearm in furtherance of a crime of violence. Evans was
also charged with being a felon in possession of a fire-
arm. Evans and Smith pleaded not guilty. Swanson pleaded
guilty and agreed to cooperate.
As part of his agreement to cooperate, Swanson testified
at the trial of Evans and Smith. Swanson testified that in
the afternoon of February 20, 2009, Evans approached
him near 73rd and May Streets in Chicago and asked
Swanson if he wanted to make some money.
Swanson agreed and then the duo got into a green Cadillac
which Evans was driving. Smith was already in the
front passenger seat. Evans told Swanson that they
were going to rob a bank and told Swanson to “stand
guard” while they got the money.
About 4:00 p.m., the three arrived at the Fifth Third
Bank in Evanston; they put on gloves and masks
and entered the bank. Evans entered first with a gun
drawn and vaulted over the teller counter. Smith
also vaulted over the counter, leaving a shoe print on
a piece of paper as he did so. Swanson stood guard near
the door. During the robbery, Evans and Smith yelled at
the bank employees with one of them saying repeatedly
“someone’s gonna die today.” No one was killed, but
Evans struck a teller named Stoyan Popov in the head
with the butt of the gun. Evans and Smith stuffed the
money into the bag Evans was carrying and left the
Nos. 11-2128 & 11-2398 3
bank. After the threesome fled, a dye pack hidden
inside some of the money exploded and the money-
bag started to smoke. Evans threw the bag with the
money on the ground in an alley and they then fled in
the green Cadillac, returning to 73rd and May Streets.
En route, Evans stopped and put the gun into the trunk
of the car.
Unbeknownst to the robbers, FBI agents were conducting
surveillance in the area of 73rd and May and prior to
the robbery had been following the green Cadillac;
the officers had lost sight of the Cadillac around 2:15 p.m.
The FBI had been watching the Cadillac because on Febru-
ary 16, 2009, two Chicago suburban banks had been
robbed and in the early morning of February 20, 2009,
an informant had told the FBI that the perpetrators of
the February 16th robberies intended to rob a bank later
that day. The FBI agent who received this information
had worked with the informant in the past and the infor-
mant had proven reliable.
Based on the informant’s statements, the FBI had held
a briefing at 10:00 a.m. on February 20, 2009. FBI Agents
Bacha, Heidenreich, and Stover, along with other FBI
agents and Task Force officers, attended. At the briefing,
they were told that a black male named “Kim” was
the leader of a group involved in the February 16th
bank robberies and that some of the other robbers resided
in the area of 73rd and May Streets in Chicago. After
this initial briefing, additional details from the
informant were relayed to law enforcement officers. Spe-
cifically, the officers learned that Kim, who was on
4 Nos. 11-2128 & 11-2398
home confinement, had recently cut off his electronic
monitoring bracelet; that two males involved with Kim
in the earlier bank robberies were standing on the street
near 73rd and May; and that Kim soon would be
arriving there in a green Cadillac to pick them up and
rob another bank.
By 11:30 a.m., Agents Bacha and Stover, as well as
several other agents, were in vehicles surveilling the
7300 block of May. Around noon, Agents Bacha
and Stover observed a two-door green Cadillac in the
area of 73rd and May. Over the next two hours,
Agents Bacha and Stover observed the Cadillac traveling
to various locations in the area of 73rd and May, with
several individuals getting into and out of the Cadillac.
Around 2:15 p.m., law enforcement agents lost sight of
the Cadillac and were unable to locate it in the vicinity
of 73rd and May. Then between 4:15 and 4:30 p.m.,
Agents Bacha and Stover—who had remained in the area
of 73rd and May looking for the green Cadil-
lac—received information that the Evanston Fifth Third
bank had been robbed at about 4:00 p.m. by three
black males. Based on their familiarity with the Chicago
area, the agents knew that it would be possible for a
vehicle to travel from the area where the green Cadillac
had last been seen at 2:15 p.m. to Evanston, Illinois,
within about an hour and a half.
Just before 5:00 p.m., Agents Stover and Heidenreich each
received an email from another FBI agent regarding the
Fifth Third robbery. The email included “Update #3”
which stated: “per bank staff identification” there were
at least three black male suspects, all five feet, nine
Nos. 11-2128 & 11-2398 5
inches tall, and thin. This update also provided a descrip-
tion of the clothing worn by the robbers, including that
one robber was wearing black jeans, black shoes, a green
sleeveless jacket, a black hoodie, and black gloves.
The email further advised: “All subjects considered armed
and dangerous.”
At about 6:00 p.m., surveillance agents saw the
green Cadillac return to the area of 73rd and May. The
agents saw a man, later identified as Evans, pull the Cadil-
lac into a street parking spot and stop. Another man,
later determined to be Smith, got out. Surveillance agents
then approached and identified themselves as law enforce-
ment agents, calling “police,” prompting Evans to drive
off at a high speed with Swanson still in the car. In
fleeing, Evans collided into an oncoming FBI vehicle with
its police lights activated. Evans then got out of the
crashed Cadillac and fled. He was later apprehended;
Swanson was apprehended at the scene of the crash.
After confirming that the individuals in the Cadillac
matched the perpetrators’ descriptions and attire,
officers searched the Cadillac. They recovered a gun similar
to the one used in the robbery, as well as clothing, black
face masks, black stocking hats, and multiple sets of gloves.
The car, which was rendered immobile from the crash,
was towed and later subjected to an inventory search.
Meanwhile, as the other agents pursued Evans and
Swanson, Agent Stover handcuffed Smith at the location
where he had gotten out of the Cadillac. Agent Stover
patted Smith down and held him for ten minutes until
another agent arrived with photographs of the robbers.
6 Nos. 11-2128 & 11-2398
Smith’s attire matched one of the robbers’ clothing
(as captured in the photographs) perfectly and Agent
Stover arrested him. Either during the frisk, or later
during a full-blown search pursuant to the arrest—it is
unclear which from the record—Agent Stover recovered
from Smith’s person a pair of black gloves and a Velcro
face mask.
Prior to trial, Smith moved to suppress the evidence
seized from his person, arguing that his arrest was unconsti-
tutional. Additionally, Evans and Smith sought to
suppress the evidence seized during the search of the
green Cadillac. The district court denied those motions,
so the jury heard the above evidence. Smith also sought
to suppress expert testimony identifying the footprint on
the teller’s counter as belonging to the shoes he was
wearing at the time of his arrest. The district court
also denied that motion and allowed FBI Forensic Examiner
Michael Smith to testify. FBI Examiner Smith first
testified about his methodology for examining shoe
prints. He then testified about his comparison of
the footwear impressions collected at various locations
from the bank with the shoes Smith was wearing at the
time of his arrest. FBI Examiner Smith concluded that
the left Nike shoe worn by defendant Smith at the time
of his arrest had made the partial impression on the piece
of paper recovered from the tellers’ counter at the bank.
He further testified that the impressions left on the
bank carpet either corresponded in physical size and design
or shared similar design features with the left and right
Nike shoes worn by Smith at the time of his arrest.
Nos. 11-2128 & 11-2398 7
Based on the above testimony and evidence, a
jury convicted the defendants on all counts. The district
court sentenced Smith to a total of 162 months’ imprison-
ment and Evans to a total of 444 months’ imprisonment.
Smith and Evans appeal.
II.
On appeal, Smith and Evans argue that the district
court erred in denying their motion to suppress evidence
seized during a search of the green Cadillac. Smith
presents several additional arguments on appeal
related solely to him. Specifically, Smith asserts that
the district court erroneously denied his motion to suppress
evidence seized when officers searched him. Next,
he argues that the district court erred in admitting FBI
Examiner Michael Smith’s testimony concerning the
footprint impressions. Smith further challenges the suf-
ficiency of the evidence related to his conviction for
using a firearm in connection with a crime of violence.
Finally, Smith challenges his sentence, arguing that the
district court erred in enhancing his advisory guideline
range for making a death threat and for causing bodily
injury. Appellant Evans presents one additional argument
in his appeal: He claims that the district court abused
its discretion and committed reversible error by providing
an aiding and abetting instruction and a Pinkerton instruc-
tion related to the government’s case against him.
We consider each issue in turn.
8 Nos. 11-2128 & 11-2398
A. Search of the green Cadillac
On appeal, both Smith and Evans argue that the
district court erred in denying their motion to
suppress evidence seized during the search of the
green Cadillac, asserting that the officers lacked
probable cause to search the car. Smith, though, was a
mere passenger in the car and there is absolutely no evi-
dence indicating that he had any ownership interest in
the car. And there is no other basis to conclude that he
had a reasonable expectation of privacy in the car. Accord-
ingly, Smith’s Fourth Amendment rights were
not violated and the district court properly denied
his motion to suppress the evidence seized from the Cadil-
lac. See United States v. Walker, 237 F.3d 845, 849 (7th
Cir. 2001).
Evans’s challenge to the motion to suppress evidence
seized from the Cadillac also fails. The Supreme Court
held in Arizona v. Gant, 556 U.S. 332, 351 (2009), that
the “[p]olice may search a vehicle incident to a
recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the
time of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest.” In this case,
the agents arrested Evans and Swanson for bank robbery
and they had every reason to believe there was evidence
of the offense in the green Cadillac. The bank robbery
had just occurred and when officers approached the
vehicle, Evans sped off, striking another agent’s auto-
mobile. He then attempted to flee. The arresting officers
were notified in Update #3 about the armed bank robbery,
Nos. 11-2128 & 11-2398 9
about the description of the three perpetrators, and that
the robbers were to be considered armed and dangerous.
Under these circumstances, it was entirely reasonable
for the officers to believe that the gun and other evidence
of the offense was in the green Cadillac. Accordingly,
it was permissible for the officers to search the Cadillac.
Moreover, after crashing the Cadillac, the car was dam-
aged too extensively to be driven and it was partially
obstructing the street. Thus, it had to be towed. In the
latter part of April 2009, the FBI conducted an
inventory search of the Cadillac. Had the Cadillac not
been searched earlier, i.e., at the time of Evans’s arrest,
the inventory search—which is perfectly constitutional,
see United States v. Clinton, 591 F.3d 968, 972 (7th
Cir. 2010)—would have uncovered the evidence of
the crime. Thus, the evidence seized during the search of
the Cadillac following the robbery would have
been inevitably discovered and was admissible for
that reason alone. See United States v. Stotler, 591 F.3d
935, 940 (7th Cir. 2010); United States v. Simms, 626 F.3d
966, 971 (7th Cir. 2010). For these reasons, we conclude
that the district court properly denied the motion to sup-
press the evidence seized from the green Cadillac
and properly admitted as evidence the gun, black
face masks, black stocking hats, and multiple sets of
gloves recovered from the car.
B. Arrest and search of Smith
As noted above, following the robbery, the Cadillac
returned to the area of 73rd and May Streets. After
10 Nos. 11-2128 & 11-2398
Evans pulled the Cadillac into a street parking spot
and stopped, Smith exited the vehicle. To calls of “police,”
Evans sped off, followed by FBI agents. A solo FBI
agent, Agent Stover, remained at the scene; he hand-
cuffed Smith and patted him down. Agent Stover
held Smith for ten minutes until another agent arrived
with photographs of the robbers. According to Agent
Stover, after noting that Smith’s attire matched one of
the robbers perfectly, he then arrested Smith. A search
of Smith (either the initial frisk or a later search when
Agent Stover arrested him—it is unclear from the
record which one) uncovered a pair of black gloves and
a Velcro face mask. Smith moved to suppress this evidence,
but the district court denied the motion to suppress.
The district court held that the FBI’s initial encounter
with Smith (after he exited the green Cadillac) was
an investigatory detention supported by reasonable suspi-
cion and that it was not until ten minutes later, after another
officer arrived with photographs of the robbers,
which showed one robber wearing the same clothing
as Smith, that Smith was arrested. Because the initial
stop was supported by reasonable suspicion and the later
arrest was supported by probable cause, the district
court denied the motion to suppress the evidence.
On appeal, Smith argues that his initial encounter with
Agent Stover was an arrest and that because the govern-
ment lacked probable cause to arrest him at that time,
the evidence seized was inadmissible. Conversely,
the government maintains that Agent Stover’s initial
encounter with Smith was an investigative detention, i.e.,
a Terry stop, which required only reasonable suspicion,
Nos. 11-2128 & 11-2398 11
and that Smith was arrested only after the agents
received photographs of the robbers, which matched
Smith’s attire.
We agree with the government. “A Terry investigative
stop is ‘a brief detention which gives officers a chance
to verify (or dispel) well-founded suspicions that a
person has been, is, or is about to be engaged in criminal
activity.’ ” United States v. Bullock, 632 F.3d 1004, 1014-15
(7th Cir. 2011) (internal quotations omitted). “For an
investigative stop based on reasonable suspicion to
pass constitutional muster, the investigation following
it must be reasonably related in scope and duration to
the circumstances that justified the stop in the first
instance so that it is a minimal intrusion on the
individual’s Fourth Amendment interests.” United States
v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994). And
“[t]he reasonableness of a particular stop depends in
turn on the extent of the intrusion on the rights of
the individual as well as on the reason for the restraint.”
United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994).
In this case, Agent Stover detained Smith briefly
while other agents pursued the fleeing suspects in
the Cadillac. Then, within ten minutes, an agent returned
bringing with him photographs of the robbers from
the bank surveillance video. These photographs allowed
the agents to confirm their suspicions and to verify that
Smith’s appearance matched one of the robbers. Based
on these facts, we agree with the district court that
Agent Stover’s initial encounter with Smith was a
Terry investigative stop and not an arrest.
12 Nos. 11-2128 & 11-2398
Smith attempts to negate this conclusion by noting
that Agent Stover had drawn his weapon when approach-
ing the Cadillac and by stressing that Agent Stover
had handcuffed him immediately. Agent Stover,
though, testified that while he initially drew his gun,
he then re-holstered it because he believed Smith might
flee and he did not want to chase him with a gun drawn.1
In any event, officers conducting an investigatory stop
may approach with guns drawn and may handcuff
a suspect without transforming an investigatory stop into
an arrest. Tilmon 19 F.3d at 1228. And in this case, it
was entirely reasonable for officers to approach the Cadillac
with guns drawn because they had been directed to con-
sider the bank robbers “armed and dangerous” and
because they knew the bank robbery had involved a
gun. Similarly, it was entirely reasonable for Agent Stover
to use handcuffs to securely detain Smith during the
brief ten minutes when Agent Stover was left alone
1
Smith also argues that he was forced to the ground based on
Swanson’s trial testimony that he heard law enforcement officers
scream “get down.” But there was no testimony that Smith heard
this command, complied with it, or was held on the ground.
And even had he been, that would not change the analysis.
See Tilmon, 19 F.3d at 1228 (explaining that “[w]hen a suspect is
considered dangerous, requiring him to lie face down on
the ground is the safest way for police officers to approach
him, handcuff him and finally determine whether he carries
any weapon[, and] [t]hus a ‘lying prone’ requirement may
be within the scope of an investigative detention”).
Nos. 11-2128 & 11-2398 13
with Smith on a public street—both to protect himself
and the public at large. Tilmon, 19 F.3d at 1228; Bullock,
632 F.3d at 1011.
Smith alternatively argues that even if his initial encoun-
ter with Agent Stover was merely an investigatory
detention and not an arrest, Agent Stover lacked reasonable
suspicion to effectuate a Terry stop. See Tilmon, 19 F.3d
at 1224 (“An investigatory stop not amounting to an
arrest is authorized if the officer making the stop is able
to point to specific and articulable facts that give rise to
a reasonable suspicion of criminal activity.”) (quoting Terry
v. Ohio, 392 U.S. 1, 21-22 (1968)). Again, we disagree. In
this case, the evidence was more than sufficient to establish
that Agent Stover had reasonable suspicion to effectuate
a Terry stop following Smith’s exit from the green Cadillac.
First, Agent Stover knew that an informant had told an
FBI agent that a bank robbery would occur that day and
that the robbers would be leaving from the 73rd and
May location in a green Cadillac. Agent Stover and
other officers saw three black males driving in the 73rd
and May vicinity that afternoon in a green Cadillac, before
disappearing. And then about an hour and forty-five
minutes later, a bank robbery occurred within the Chicago-
land area, in a location about 90 minutes away from the
last known vicinity of the green Cadillac. Prior to Smith’s
arrest, Agent Stover also had received “Update #3,”
which stated that the robbers were three black males
and that one was wearing black jeans, black shoes, a green
sleeveless jacket, a black hoodie, and black gloves.
When Smith exited the Cadillac, he was wearing clothing
very similar to that described, namely all black clothing,
14 Nos. 11-2128 & 11-2398
including a sleeveless jacket and a black hoodie. And
after Smith’s departure from the Cadillac, to calls
of “police,” the driver sped away and crashed into another
car.
The totality of these facts easily established a reasonable
suspicion that Smith was involved in the bank robbery.
Accordingly, Agent Stover was entitled to effectuate a
Terry stop and pat down Smith upon Smith’s exit from
the Cadillac. And then when the other officer arrived
with photographs confirming that Smith’s appearance
matched one of the robbers perfectly, Agent Stover
had probable cause to arrest Smith and to conduct a search
incident to arrest. Whether the evidence seized from
Smith was recovered during the initial frisk or the
later search pursuant to his arrest is irrelevant because it
all would have been discovered inevitably. Accordingly,
the district court properly denied Smith’s motion to sup-
press the evidence seized from Smith’s person and
properly admitted the evidence at trial.
C. Admissibility of FBI Examiner Smith’s testimony
Smith next challenges the admissibility of the expert
testimony from FBI Examiner Michael Smith. Prior to
trial, the government indicated its intention to introduce
the testimony and conclusions of FBI Examiner Smith,
who had examined footwear impressions left at the
bank and the shoes worn by Smith and his co-defendants.
Smith challenged the admissibility of this evidence, arguing
that footwear-impression analysis was not grounded
Nos. 11-2128 & 11-2398 15
in reliable scientific facts, data, and methodology as re-
quired by Fed. R. Evid. 702.
The district court held a hearing to determine the admissi-
bility of FBI Examiner Smith’s testimony. At that
hearing, FBI Examiner Smith explained that all
shoes differ and that they have features which
an average layperson, without training and experience,
would not be able to distinguish adequately. FBI
Examiner Smith further testified concerning the four-step
methodology he used to compare the footprints. He ex-
plained that he considered: (1) if there was sufficient
detail in the questioned impression (i.e., the one
recovered from the bank) and then he compared the
design (e.g., a series of diamonds or circles) of the ques-
tioned impression on the outsole (or bottom
of the shoe) with the design on the outsole of the
known shoes; (2) if the design of the questioned
impression and that of the known shoe were the same,
he determined if the physical sizes (i.e., the outside dimen-
sions, length, and width) and spatial relationship of
the design features corresponded; (3) if the design and
size were the same, he analyzed whether there were wear
features in the questioned impression (e.g., portion of
design elements such as a logo worn off) that were also
in the known shoe; and (4) if the design and size were
the same and there was wear correspondence, he looked
for any identifying characteristics on the questioned
impression and the known shoe, such as rocks or glass or
nicks, cuts, or gouges that may appear on the bottoms of
the shoes. FBI Examiner Smith added that other
forensic examiners at the FBI’s laboratory in Quantico,
16 Nos. 11-2128 & 11-2398
Virginia use this precise four-step methodology, as do
forensic laboratories throughout the United States, in
Canada, and in thirty other countries. Additionally, FBI
Examiner Smith explained there have been peer reviews of
this methodology published in several books and articles
and it is generally accepted in the field of footwear-impres-
sion evidence.
FBI Examiner Smith then testified that based
on his examination, the left Nike shoe worn by
defendant Smith at the time of the robbery made the
partial impression on the piece of paper recovered from
the tellers’ counter at the bank and that the impressions
left on the bank carpet were consistent with the
shoes worn by defendant Smith at the time of his arrest.
He added that another qualified footwear examiner at
the FBI reviewed the same evidence and came to the
same conclusion.
Following the hearing, the district court issued
a written opinion carefully reviewing Smith’s
objections to the testimony concerning the footwear evi-
dence. The district court ruled that the expert
testimony was admissible at trial. And then at trial,
FBI Examiner Smith testified similarly to the above testi-
mony.
On appeal, Smith argues that the district
court erred in admitting FBI Examiner Smith’s
testimony under Rule 702. The then-applicable version
Nos. 11-2128 & 11-2398 17
of Rule 702 of the Federal Rules of Evidence,2 which gov-
erned the admission of expert testimony, provided:
If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto
in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid 702. See also Daubert v. Merrell
Dow Pharamaceuticals, Inc. 509 U.S. 579 (1993).
We have previously held that it is within a district
court’s discretion to permit expert testimony regarding
footwear impressions. United States v. Allen, 390
F.3d 944, 949-50 (7th Cir. 2004). Several of
our sister circuits agree. See United States v. Ford, 481
F.3d 215, 217-21 (3d Cir. 2007); United States v. Mahone,
453 F.3d 68, 70-73 (1st Cir. 2006); United States v. Ross,
263 F.3d 844, 846-47 (8th Cir. 2001); United States v.
Rodgers, 85 Fed. Appx. 483, 487 (6th Cir. 2004).
2
Judgment against defendants was entered in June 2011. Fed-
eral Rule of Evidence 702 was amended in 2011, effective
December 1, 2011. Fed. R. Evid 702. The changes were merely
stylistic and not intended “to change any result in any ruling
on evidence admissibility.” Fed. R. Evid. 702, Advisory Com-
mittee’s Note.
18 Nos. 11-2128 & 11-2398
Notwithstanding this weight of authority, Smith argues
that Allen should be revisited because footwear-impression
analysis does not meet the demands of Rule 702.
We disagree and today reaffirm our holding in Allen.
In Allen, we affirmed the admission of footprint analysis
testimony where the expert testified that “accurate compari-
sons require a trained eye; the techniques for shoe-
print identification are generally accepted in the
forensic community; and the methodologies are subject
to peer review.” Allen, 390 F.3d at 949-50. In this case,
FBI Examiner Smith testified that the four-step approach
he used is used by forensic laboratories throughout
the United States, in Canada, and in thirty other coun-
tries. He also explained that there have been peer reviews
of the methodology he used published in several books and
articles. And FBI Examiner Smith explained in detail how he
applied this methodology to the footprint impressions
recovered at the bank. Thus, Smith’s testimony was based
“upon sufficient facts,” was the “product of reliable princi-
ples and methods,” and his testimony established that he
“applied the principles and methods reliably to the facts
of the case.” Fed. R. Evid. 702. Accordingly, consistent
with our holding in Allen, we conclude that the district
court did not abuse its discretion in admitting FBI Examiner
Smith’s expert testimony regarding the shoe print evidence.3
3
Smith also argues that FBI Examiner Smith’s technique was
fatally flawed because he did not use the four-step methodology.
Smith points to FBI Examiner Smith’s statement that he could
positively match a shoe to a footwear impression based on “one
(continued...)
Nos. 11-2128 & 11-2398 19
D. Sufficiency of the evidence for the firearm count
against Smith
Next, Smith challenges the sufficiency of the evidence
supporting his conviction for using a firearm in
connection with a crime of violence, in violation of 18
U.S.C. § 924(c). In reviewing a conviction for the
sufficiency of the evidence, “we must view the evidence
in the light most favorable to the prosecution and
determine whether any rational trier of fact could
have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Vasquez, 909 F.2d
235, 239 (7th Cir. 1990).
It is undisputed that Smith did not possess a gun
himself during the robbery. Nonetheless, under Pinkerton
v. United States, 328 U.S. 640 (1946), even a defendant
who did not physically possess a gun, like Smith, may
be found guilty of violating § 924(c) if a co-conspirator
used or carried a firearm during and in relation to
the conspiracy, if the evidence shows that it was reasonably
foreseeable to the defendant that a member of the con-
spiracy would possess a gun in furtherance of the conspir-
acy. United States v. McLee, 436 F.3d 751, 758 (7th Cir.
2006). Additionally, Smith was charged in the indictment
3
(...continued)
identifying characteristic.” Smith, though, takes this testimony
out of context. FBI Examiner Smith clearly explained the four-
step process and his application of it in this case and did not
base his conclusion on one identifying characteristic, but on
the overall four-step methodology.
20 Nos. 11-2128 & 11-2398
with aiding and abetting, and this serves as an independent
basis for § 924(c) liability. “Proving that a defendant
aided and abetted the use of a firearm [in violation of
18 U.S.C. § 924(c)] requires evidence that (1) the
defendant knew, either before or during the crime, of
the principal’s weapon possession or use; and
(2) the defendant intentionally facilitated that
weapon possession or use once so informed.” United States
v. Moore, 572 F.3d 334, 341 (7th Cir. 2009).
The evidence was more than sufficient to support
the jury’s finding of guilt on the firearm count against
Smith. First, a jury could easily conclude that it was reason-
ably foreseeable to Smith that Evans had a gun. While
it might not be foreseeable in every bank robbery that a
gun will be used, see United States v. Atwater, 272 F.3d
511, 512 (7th Cir. 2001), this bank robbery was a take-
over robbery (as opposed to a note-passing rob-
bery), necessitating some mechanism of obtaining control
of the bank. More significantly, though, the jury saw
the video of the actual robbery and could reasonably
conclude based on Smith’s behavior during the robbery
that Smith and Evans had discussed how the robbery
would happen before entering the bank. Moreover,
from Smith’s demeanor, a jury could further gauge
whether Smith knew or foresaw that Evans was planning
on using a gun during the robbery. Coupled with the
bank employees’ testimony that Evans had the gun
drawn from the moment he entered the bank, a reasonable
jury could find that Smith knew that Evans had a gun, or
at a minimum that it was foreseeable that he would
have one. Second, even if Smith did not foresee
Nos. 11-2128 & 11-2398 21
Evans’s possession of the firearm, he is nonetheless
liable for aiding and abetting because he clearly
knew “during the crime” that Evans possessed the gun
and because the evidence showed that Smith intentionally
facilitated the possession and use of the gun during
the robbery by helping to bag up the money. This
division of responsibility made it easier for Evans to
possess the gun and use it during a bank robbery. See
United States v. Curry, 538 F.3d 718, 731-32 (7th Cir.
2008). For this additional reason, Smith’s conviction stands.
E. Smith’s sentence
Smith’s final arguments on appeal concern his sentence.
Smith was sentenced to a total of 162 months’ imprison-
ment—78 months’ imprisonment on the robbery charge
and a consecutive 84-month term of imprisonment on
the gun charge. In sentencing Smith, the district
court enhanced his base offense level by two, pursuant
to U.S.S.G. § 2B3.1(b)(2)(F), because “a threat of death”
had been made in furtherance of the robbery. The
district court enhanced Smith’s offense level another
two levels, pursuant to U.S.S.G. § 2B3.1(b)(3)(A), because
a teller suffered bodily injury during the robbery
when Evans struck the teller in the head with the butt of
the gun. Smith argues that these sentencing enhancements
were inappropriate because he did not know that Evans
had a gun, intended to make a threat of death, or intended
to strike the teller. This court reviews for clear error
the district court’s application of a sentencing guide-
line enhancement and its finding that a co-conspirator’s
22 Nos. 11-2128 & 11-2398
act was reasonably foreseeable. United States v. Maiden, 606
F.3d 337, 339 (7th Cir. 2010); United States v. Williams,
553 F.3d 1073, 1082 (7th Cir. 2009).
The district court did not commit clear error in enhancing
Smith’s sentence. First, during the robbery, one of
the robbers announced “Someone’s gonna die today,”
and such a statement is a threat of death made in further-
ance of the robbery. Even if it were Evans who had
made this threat and not Smith, the district court
could reasonably conclude that under the circumstances
of this case a threat of death was foreseeable to Smith.
As the district court noted at Smith’s sentencing hearing
in rejecting Smith’s arguments, this “was not just a
bank robbery where they walked up to the window and
got the money and ran out. Your client was actively en-
gaged, jumping on teller counters, yelling things,
actively participating, actively getting money,
jumping behind, jumping back on the teller counter.”
From the type of robbery involved, Smith’s reaction to
the brandishing of the gun (captured on video tape), and
the fact that Evans had the gun displayed upon entering
the bank, the district court could reasonably conclude
that it was foreseeable to Smith that a threat of death would
be made. For the same reasons, it was reasonably foresee-
able to Smith that someone would be injured during
the robbery. Accordingly, the district court did not commit
clear error in enhancing Smith’s sentencing level for
the making of a threat of death and for the infliction
of bodily injury during the course of the crime. We thus
affirm Smith’s sentence.
Nos. 11-2128 & 11-2398 23
F. Evans’s conviction
Above we discussed Evans’s challenge to the search of
the green Cadillac. See supra at 8-9. Evans presents
one additional challenge to his conviction on appeal,
arguing that the district court erred in instructing the
jury. Specifically, at trial, the district court gave both
a Pinkerton instruction (i.e., that defendants are liable
for their co-conspirator’s foreseeable actions) and an
aiding and abetting instruction. Evans claims that
these instructions should have been limited to the gov-
ernment’s case against Smith because the govern-
ment’s evidence only supported a theory that he
(Evans) was the principal. Thus, Evans asserts
that there was no evidentiary basis to support a theory
that he was liable as a co-conspirator under Pinkerton
or for aiding and abetting Smith.
This court reviews the district court’s decision to
give specific jury instructions for an abuse of discretion.
United States v. Powell, 652 F.3d 702, 708 (7th Cir. 2011).
Any instructional error, though, is subject to the
harmless error standard. See United States v. Williams,
493 F.3d 763, 766-67 (7th Cir. 2007). Here any possible
error in failing to specify that the Pinkerton and aiding
and abetting instructions applied only to Smith was harm-
less. The evidence overwhelmingly supported the
jury’s guilty verdict based on Evans acting as the principal.
Specifically, prior to the bank robbery, agents received a
tip from a confidential informant (known to be reliable)
that “Kim” would be robbing a bank that day and that
he would be picking up his accomplices in the vicinity
24 Nos. 11-2128 & 11-2398
of 73rd and May Streets in a green Cadillac. Then, after
the officers lost sight of the Cadillac, a bank was
robbed about 90 minutes later—the approximate travel
time from the last known location of the automobile to
the bank. The green Cadillac then returned to the 73rd
and May Street location. When approached by
officers, Evans fled. Upon his arrest, he and his cohorts
were wearing clothing identical to that depicted in a
video tape from the bank. Evans’s clothing had residue
on it from the dye pack. And a search of the car and
Smith’s person revealed the gun and other evidence of
the crimes. Given the overwhelming evidence against
Evans, there was “no real danger” that the jury
would convict him on the basis of aiding and abetting
or Pinkerton instructions or that “the jury was confused
or misled by the instruction[s].” United States v. Valencia,
907 F.2d 671, 689 (7th Cir. 1990). Accordingly, any error
was harmless.
III.
The district court did not err in denying the defen-
dants’ motion to suppress. The initial encounter with Smith
was an investigative detention justified by reasonable
suspicion and his later arrest was supported by probable
cause. Thus, the evidence recovered from Smith’s person,
either during the initial frisk or later during a search
pursuant to the arrest, was properly admitted. Likewise
probable cause justified the search of the green Cadillac.
Smith’s attack on the expert testimony concerning footprint
impressions also fails because the testimony satisfied
Nos. 11-2128 & 11-2398 25
the requirements of Rule 702. Additionally, Smith’s chal-
lenge to his conviction for using a firearm in
connection with a crime of violence fails because there
was sufficient evidence from which the jury could
conclude that Smith aided and abetted Evans and that
it was foreseeable to Smith that Evans would brandish
a firearm. Finally, Smith’s appeal of his sentence
falters because the evidence was sufficient to support
the district court’s enhancements for making a death
threat and for causing bodily injury. Appellant
Evans presents one additional argument in his appeal:
He claims that the district court abused its discretion
and committed reversible error by providing an aiding
and abetting and a Pinkerton instruction related to
the government’s case against him. Even if these instruc-
tions were erroneous, any error was harmless. For these
and the foregoing reasons, we A FFIRM both Evans’s
and Smith’s convictions and Smith’s sentence.
10-4-12