United States v. Corley Smith

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