In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3250
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY ALLEN,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 01 CR 80—William C. Lee, Judge.
____________
ARGUED DECEMBER 8, 2003—DECIDED NOVEMBER 29, 2004
____________
Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. A jury convicted defendant
Anthony Allen of burglarizing the Standard Federal Bank
in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2. Allen
challenges his conviction, arguing that: (1) the government
did not present sufficient evidence to support his conviction,
(2) the government’s use of an expert shoe-print witness at
trial was improper, (3) the admission at trial of a photo-
graph of him taken shortly after his arrest was prejudicial,
(4) his trial counsel rendered ineffective assistance, and (5)
the district court’s aiding and abetting jury instruction was
flawed. We find all of Allen’s arguments unpersuasive and
for the reasons stated below, we affirm.
2 No. 02-3250
I. Background
On October 28, 2001 around 11 p.m., Fort Wayne, Indiana
police dispatch received a 911 hang-up call suggesting that
Standard Federal Bank’s alarm system may have been dis-
abled. Officer Shane Hopkins was the first to arrive on the
scene. When Officer Hopkins, who had provided security
services at the bank on occasion, arrived he noticed that the
security and interior lights were out and the automatic
teller machine (“ATM”) doors were open. When he went to
the bank’s rear entrance, someone opened the door from the
inside. Officer Hopkins, who was about seven feet away,
described the individual as a black male, approximately six
foot one or six foot two inches in height, wearing a dark
blue jacket and shirt, black pants, and a black ski mask.
Upon seeing Officer Hopkins, the individual ran back into
the bank. Officer Hopkins radioed for assistance.
Officer Hopkins also relayed the description of the indi-
vidual to Officer Jeffrey McCann, the next officer to arrive
at the bank. Officer McCann then saw a black male match-
ing that description attempting to exit the bank’s front
entrance. When he spotted Officer McCann, the individual
turned, ran into a glass wall, and then back into the bank.
Officer McCann’s report describing the incident indicated
that the individual left fingerprints on the glass.
Meanwhile, Officer Hopkins saw an individual wearing a
tan jacket, tan pants, and a black ski mask hiding in the
bushes about 30 feet from the bank. The individual ran
south. While Officer Hopkins was distracted by this individ-
ual, the first individual he encountered, wearing the dark
clothing, ran east from the bank. Officer Hopkins pursued,
but tripped and lost track of the suspect. Officer Hopkins
radioed to dispatch that the suspect was running east towards
North Clinton Street.
That night, presumably around the same time, a citizen,
Gerald Campbell, was driving on North Clinton Street, when
No. 02-3250 3
he noticed multiple police squad cars in the area. He then
saw a man about a block away wearing dark clothing run-
ning east in the direction of the Coliseum Park Apartments.
Campbell could not discern whether the individual was
wearing a ski mask. He reported the sighting to a police
officer.
When Officer Kenneth Fries heard on his radio that a sus-
pect with dark clothing was running east from the Standard
Federal Bank, he drove as far east as he thought the suspect
might have run, to the Coliseum Park Apartments. There,
he saw a black male in dark clothing but not wearing a
mask. Officer Fries, about 100 yards away from the individ-
ual, followed briefly but eventually lost sight. Soon thereaf-
ter, Officer Fries encountered two other officers who informed
him that the suspect had been reported running in their di-
rection. The officers then heard a noise in the bushes, shined
a flashlight, saw a man running north along a creek, and
yelled to him to stop running. The man, who was the same
man Officer Fries had seen a moment earlier, continued to
run until he reached an area which was impassable. He
threw an object, later identified as a flashlight, into the
weeds. The man, identified as defendant Anthony Allen,
was apprehended by the police. Approximately 30 minutes
had elapsed since Officer Hopkins first arrived at the bank.
During the pursuit, Officer Richard Jennings initiated a
canine track of the suspect from the bank that led northeast
from the bank and across North Clinton Street towards the
Coliseum Park Apartments. After the canine led Officer
Jennings to approximately 80 feet from where the officers
picked up Allen, he pulled the canine off track because the
area was contaminated by the presence of police officers
and squad cars.
After the officers apprehended Allen, Officer Hopkins
went to the apartment complex and identified him as the
man he had seen in the bank. Allen was sitting in the back
4 No. 02-3250
of a squad car when he was identified. Allen was taken back
to the crime scene and photographed standing beside a
squad car with his hands behind his back.
When detectives conducted their investigation inside the
bank, they found cement pieces and dust everywhere with
a tennis shoe footprint in the dust near the vault and
another boot print on top of it. Detectives also found a pair
of gloves in the bank’s back office. Although they recovered
fingerprints from the glass door that Officer McCann indi-
cated the suspect had touched, the prints did not match those
of the defendant. Outside the bank, where Officer Hopkins
had seen the second suspect hiding in the bushes, detectives
found a nylon bag, two crowbars, a sledge hammer, a box
with a picture of binoculars, and a money counter.
Allen was charged with committing and aiding and abet-
ting the burglary of the Standard Federal Bank in violation of
18 U.S.C. § 2113(a) and 18 U.S.C. § 2. At trial, witnesses
testified to the events as recounted above. The photograph
taken of Allen standing in front of the police car was ad-
mitted into evidence without objection and shown to the jury.
Further, following an evidentiary hearing, the court admitted
expert testimony indicating that, although it could not be
conclusively determined, Allen’s shoes could have formed
the tennis shoe print found in the cement dust in the bank.
The jury convicted Allen who now appeals.
II. Analysis
A. Sufficiency of the Evidence
On appeal, Allen’s primary contention is that the govern-
ment did not present sufficient evidence for the jury to con-
vict him of burglary of the Standard Federal Bank in
violation of 18 U.S.C. § 2113(a) and § 2. Ordinarily, this court
will reverse a criminal conviction on insufficiency grounds
No. 02-3250 5
if, viewing all evidence in the light most favorable to the gov-
ernment, no rational jury “could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Toro, 359 F.3d 879, 883 (7th Cir. 2004). In this
case, however, Allen’s burden is even higher. Allen did not
seek a judgment of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure and, thus, he waived
his right to challenge the sufficiency of the evidence. See
United States v. Buchmeier, 255 F.3d 415, 419 (7th Cir. 2001)
(noting that failure to file a Rule 29 motion results in waiver
of a challenge to the sufficiency of the evidence). Therefore,
this court will review for plain error and reverse only if Allen
demonstrates that absent reversal, a manifest miscarriage
of justice will result. United States v. Rock, 370 F.3d 712,
714 (7th Cir. 2004). Under this most demanding standard,
reversal is warranted only “if the record is devoid of evi-
dence pointing to guilt, or if the evidence on a key element
was so tenuous that a conviction would be shocking.” United
States v. Taylor, 226 F.3d 593, 597-98 (7th Cir. 2000) (in-
ternal citations omitted). On the record before us, Allen
cannot overcome this arduous standard of review.
In order to support a conviction for burglary under 18
U.S.C. § 2113(a), the government had to establish that
Allen entered the bank with the intent to commit a felony
in it. United States v. Castaldi, 453 F.2d 506, 508-09 (7th
Cir. 1971). Allen does not dispute that whoever was in the
bank intended to burglarize it; rather, he challenges his
conviction, arguing that the government failed to establish
that he was the individual the police officers encountered at
Standard Federal Bank.
Several facts support Allen’s conviction. First, Allen matches
the description of the suspect that Officer Hopkins relayed
over the police radio. In fact, Officer Hopkins identified
Allen as the individual he encountered at the bank that
night. Second, the police apprehended Allen approximately
20-30 minutes after Officer Hopkins lost sight of him in the
6 No. 02-3250
very area to which all evidence (e.g., Campbell’s testimony,
police testimony, and the canine track) indicated that the
suspect had run. Third, the shoe print evidence, although
not conclusive, suggested that the perpetrator wore shoes of
the same size and type as Allen’s. Finally, the circum-
stances of Allen’s arrest support his conviction. Allen ran
from the police when they yelled for him to stop and threw a
flashlight into the bushes just before he was apprehended.
Taken together, this evidence, viewed in the light most favor-
able to the prosecution, could have led a rational juror to
find Allen guilty beyond a reasonable doubt. And, even if not
convinced that Allen necessarily acted as a principal in the
burglary, the presence of the second suspect hiding in the
bushes where the police recovered the burglary tools could
have led a rational juror to find that, at the very least, Allen
aided and abetted the burglary.1 It is of little import that
the prosecution’s case against Allen was largely circumstan-
tial. After all, “[c]ase law recites that circumstantial
evidence is not less probative than direct evidence, and, in
some cases is even more reliable.” United States v. Robinson,
177 F.3d 643, 648 (7th Cir. 1999) (citations omitted). On these
facts, the record simply cannot be construed as devoid of
evidence pointing to Allen’s guilt.
We do not mean to suggest, however, that the govern-
ment’s case against Allen was airtight. There was a break
in the chain of sight between when the police encountered
the suspect and apprehended Allen, Officer Hopkins identi-
fied Allen while he was sitting in the squad car, the police
did not have the canine track for the ski mask and, indeed,
never recovered the ski mask, and, although slight, there
was a discrepancy between the reported height of the suspect
and Allen’s height. In addition, while potentially explained
1
The elements of aiding and abetting include: “knowledge of the
crime being aiding and abetted, a desire to help the activity
succeed, and some act of helping.” United States v. Fauls, 65 F.3d
592, 599 (7th Cir. 1995) (internal citations omitted).
No. 02-3250 7
by the fact that Allen was wearing gloves when he was ap-
prehended, the fingerprints recovered at the bank did not
match Allen’s. Nonetheless, such questions are best explored
on cross-examination and in closing argument, but do not
necessitate a reversal of the jury’s verdict. See United States
v. Lewis, 100 F.3d 49, 53 (7th Cir. 1996) (noting that insuf-
ficiencies in the government’s case against the defendant
would have been better explored in cross-examination or in
closing argument). Further, at most, such deficiencies in the
government’s case against Allen show “that it may be
possible to concoct an alternative theory under which
another individual is responsible for the crime,” Robinson,
177 F.3d at 648. In this case, these deficiencies in the gov-
ernment’s case are insufficient to warrant reversal of the
jury’s verdict, especially under the plain error standard of
review. Accordingly, we reject Allen’s argument that there
was insufficient evidence to support his conviction.
B. Expert Testimony
We next consider Allen’s contention that the district court
abused its discretion by admitting expert testimony by Fort
Wayne Police Forensic Examiner Thomas Pitzen regarding
shoe print evidence. Pitzen testified that, although not a de-
finitive match, the shoes Allen was wearing at the time of
his arrest could have made the tennis shoe impression the
police found in the cement dust in the bank.
Rule 702 of the Federal Rules of Evidence governs the ad-
mission of expert testimony and provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evi-
dence or to determine a fact in issue, a witness qua-
lified as an expert by knowledge, skill, experience,
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
8 No. 02-3250
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.
In Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597 (1993),
the Supreme Court explained that to be admissible, expert
testimony must be both relevant and reliable. Thus, a
“district court is required to determine (1) whether the
expert would testify to valid scientific knowledge, and (2)
whether that testimony would assist the trier of fact with
a fact at issue.” Walker v. Soo Line R.R. Co., 208 F.3d 581,
586 (7th Cir. 2000). We review de novo the district court’s
application of the Daubert framework. Ammons v. Aramark
Unif. Servs. Inc., 368 F.3d 809, 816 (7th Cir. 2004). As-
suming proper application of Daubert, we review the district
court’s decision to admit or exclude the expert testimony for
an abuse of discretion. Id.
Allen first attacks the relevance of the expert testimony,
arguing that Pitzen’s testimony had little value since his
opinion was inconclusive. This argument will not carry the
day, as an “expert need not have an opinion on the ultimate
question to be resolved” to satisfy the relevance require-
ment. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.
2000); see also Walker, 208 F.3d at 587.
Allen also attacks the reliability of the expert evidence,
arguing that (1) a layperson could have performed the visual
comparison of Allen’s shoe and the impression left in the
cement, and (2) shoe-print identification is not a reliable
methodology because it is not subject to peer review.2 Allen’s
arguments are belied by the testimony of two witnesses,
Sandra Wiersema (a forensic examiner with the F.B.I.) and
John Vanderkolk (manager of the Indiana State Police
Laboratory), at the evidentiary hearing. The witnesses
testified that accurate comparisons require a trained eye;
2
Allen does not apparently question Pitzen’s qualifications which,
as the district court found, are fairly extensive.
No. 02-3250 9
the techniques for shoe-print identification are generally
accepted in the forensic community; and the methodologies
are subject to peer review. We are, therefore, unpersuaded
by Allen’s argument that the district court abused its dis-
cretion by admitting Pitzen’s expert testimony regarding
the shoe print evidence.
C. Admission of the Photograph
We now turn to Allen’s argument that he was prejudiced
by the admission at trial of a photograph depicting him
standing in front of a police car with his hands behind his
back and his arm held by a police officer. Because Allen
failed to object to the admission of the photograph at trial,
we review for plain error. United States v. Alwan, 279 F.3d
431, 438 (7th Cir. 2002); United States v. Richardson, 562
F.2d 476, 478 (7th Cir. 1977).
Rule 403 of the Federal Rules of Evidence provides: “Al-
though relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice . . . .” Fed. R. Evid. 403. Allen contends that any
probative value of the photograph was greatly outweighed
by its prejudicial effect because the photograph depicted
him in a state of restraint standing in front of the bank,
thereby placing him at the scene of the crime. We disagree.
Contrary to Allen’s assertion, the bank is not pictured in
the photograph. In addition, although it did not depict Allen
in the most glowing light, the photograph showed the jury
what it already knew, that Allen was in police custody on
the night of the burglary. See Richardson, 562 F.2d at 478-
79 (noting that photos taken upon defendant’s arrest told
the jury no more about his contacts with the law enforce-
ment than did the testifying agent). Importantly, the
photograph also did not suggest that Allen was involved in
10 No. 02-3250
prior criminal activity, as it was clear that it was taken
incident to Allen’s arrest, rather than during a past en-
counter with the police. See Beadin v. Clark, 762 F. Supp.
243, 246 (N.D. Ind. 1990), aff’d by 931 F.2d 58 (7th Cir.
1991) (admitting mug shot as it was clear to the jury that
it was taken incident to arrest); see also United States v.
Cochran, 697 F.2d 600, 608 (5th Cir. 1983) (declining to find
error in the admission of photographs taken at time of
defendant’s arrest, as they showed what he looked like on
that night and did not indicate any prior criminal activity).
Further, the photograph was not without probative value,
as it demonstrated that Allen’s appearance on the night of
his arrest was consistent with the description the police
gave of the suspect. See Richardson, 562 F.2d at 478-79 (ad-
mitting photograph taken during arrest as it was necessary
for comparison with bank surveillance photographs). While
we recognize that the prosecution had custody of Allen’s
clothes and thus could have introduced the clothes rather
than the photograph into evidence to show that Allen
matched the description of the suspect, on this record, we
cannot say that the district court committed plain error by
admitting the photograph at trial.
D. Ineffective Assistance
Allen also contends that his trial counsel was ineffective
for two reasons: she failed to make a motion for acquittal
pursuant to Rule 29 of the Federal Rules of Criminal
Procedure and she failed to object to the admission of the
photograph of Allen taken upon his arrest. Both omissions
resulted in a less scrutinizing standard of review on appeal.
This court employs the familiar two-part test set forth in
Strickland v. Washington, 466 U.S. 668 (1984) to evaluate
ineffective assistance of counsel claims: (1) whether counsel’s
performance fell below an objective standard of reasonable-
ness; and (2) whether the defendant was prejudiced by
No. 02-3250 11
counsel’s deficient performance. Id. at 688-92. In assessing
whether counsel was deficient, this court “presume[s] that
counsel’s conduct falls within the wide range of reasonable
professional assistance” and that “the challenged act or
omission might have been considered sound trial strategy.”
Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001). We
will find prejudice where there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id.
With this backdrop, we turn to Allen’s ineffective assist-
ance claims. We first consider his argument that his trial
counsel was ineffective by failing to move for acquittal. This
court has previously rejected a similar argument, reasoning
that a failure to file a motion for acquittal was not prejudi-
cial where the evidence against the defendant was sufficient
to support a conviction. See United States v. Draves, 103
F.3d 1328, 1336 (7th Cir. 1997); see also United States v.
Quintero-Barraza, 78 F.3d 1344, 1351 (9th Cir. 1995) (find-
ing that although counsel’s failure to file a renewed motion
for acquittal waived any challenge to the sufficiency of the
evidence, it did not constitute ineffective assistance). As
discussed above, the evidence against Allen was sufficient
to support a conviction and, thus, he was not prejudiced by
his counsel’s omission. Accordingly, his ineffective assis-
tance claim based on counsel’s failure to file a renewed
motion for acquittal fails.
Allen’s ineffective assistance claim based on his counsel’s
failure to object to the admission of the photograph of Allen
suffers the same fate. We can only surmise as to why Allen’s
trial counsel did not object to the admission of the photograph
at trial. She may have opted against objecting for strategic
reasons, namely to avoid drawing greater attention to the
photograph. See United States v. Payne, 741 F.2d 887, 891
(7th Cir. 1984) (“A competent trial attorney might well es-
chew objecting . . . in order to minimize jury attention to the
damaging material.”). Or perhaps she declined to object
12 No. 02-3250
understanding that any objection would have likely been
futile. In any event, we need not decide, as Allen cannot
overcome the prejudice prong of the Strickland test, for,
even without the photograph, there was sufficient evidence
to support his conviction.
E. Aiding and Abetting Jury Instruction
Finally, we consider Allen’s challenge to the district court’s
aiding and abetting jury instruction. The district court in-
structed the jury regarding aiding and abetting as follows:
Any person who knowingly aids, counsels, com-
mands, induces or procures the commission of an
offense may be found guilty of the offense. That
person must knowingly associate with the criminal
activity, participate in the activity, and try to make
it succeed.
Allen concedes that the instruction was an accurate state-
ment of the law, but argues that the district court misled
the jury by not advising it that mere presence at the crime
scene does not constitute aiding and abetting. Although Allen’s
trial counsel objected to the instruction on the grounds that an
aiding and abetting instruction was altogether inappropri-
ate because, according to him, the person in the bank was
acting as a principal and not an aider and abettor, he did
not object to the instruction as incomplete. Thus, Allen has
forfeited this objection and we review for plain error. See
United States v. Bailey, 227 F.3d 792, 799 (7th Cir. 2000)
(noting that a “party must state both the matter objected to
and the grounds objected on to preserve the objection for
appellate review”). We will find plain error where the error
seriously affects the fairness, integrity, or public reputation
of the proceedings. United States v. Moore, 363 F.3d 631,
639 (7th Cir. 2004). Allen cannot meet this burden. Allen
concedes that the aiding and abetting instruction was
accurate. Moreover, the evidence does not suggest that
No. 02-3250 13
Allen was merely present at the scene of the crime; rather,
it suggests that he actively participated in it.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
conviction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-29-04