In the
United States Court of Appeals
For the Seventh Circuit
Nos. 14-3311 and 14-3363
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERNON CHAPMAN,
Defendant-Appellant.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 11 CR 299 and 10 CR 961 — Milton I. Shadur, Judge.
ARGUED SEPTEMBER 11, 2015 — DECIDED OCTOBER 28, 2015
Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. On May 12, 2014, a jury convicted
defendant-appellant, Vernon Chapman (“Chapman”), for
distributing heroin and crack cocaine on five separate
occasions. All of the drug transactions were recorded by an
undercover informant wearing a Hawk recording device,
which captured audio-video recordings of each transaction.
The recordings were introduced at trial. Following his convic-
tion, Chapman was sentenced to 200 months’ imprisonment.
2 Nos. 14-3311 and 14-3363
Chapman appeals his conviction on several grounds. First,
he argues that the district court violated his constitutional
rights to a fair trial by both refusing to grant him a third expert
witness to examine the informant’s recordings and by denying
his motion to subpoena one of his earlier expert witnesses.
Second, he argues that the district court erred in admitting the
recordings at trial. Third, he argues that the district court erred
in denying his motion for acquittal based on his defense of
entrapment. Finally, he argues that his sentence of 200 months’
imprisonment was unreasonable. For the reasons that follow,
we affirm the district court’s rulings.1
I. Factual Background
In 2010, the Chicago Police Department and the Federal
Bureau of Investigations (“FBI”) conducted a joint operation
(code-named “Operation Blue Knight”) to investigate and
arrest individuals involved in drug trafficking on the West Side
of Chicago. As part of the investigation, the government
obtained the assistance of an undercover informant, Bernard
Baggett (“Baggett”). Baggett agreed to engage in several drug
transactions while wearing a Hawk recording device, which
captured audio-visual recordings. Prior to each drug transac-
tion, Baggett met with an FBI agent who installed and turned
1
Chapman also includes a sentence immediately prior to the conclusion
of his brief that simply states: “The district court should have given an
instruction to the jury that the government may not originate a criminal
design.” Since Chapman provided no explanation, rationale, or authority
to support this claim, it is waived on appeal. See United States v. Foster, 652
F.3d 776, 793 (7th Cir. 2011) (“As we have said numerous times, undevel-
oped arguments are deemed waived on appeal.”) (citation omitted).
Nos. 14-3311 and 14-3363 3
on the Hawk recording device. Once the device was activated,
the agent stated the agent’s name, the time, and the date. The
agent also installed a transmitter on Baggett, so that the agent
could listen to the real-time transactions as they unfolded.
After each transaction concluded, Baggett would again meet
with the same agent. The agent would restate the agent’s name,
as well as the time and date before deactivating the Hawk
recording device and removing the transmitter. If at any point
the Hawk recording device was turned off, a gap would
appear in the recording’s time stamp. Once the Hawk record-
ing device was deactivated, it was returned to the FBI offices
and attached to a computer, where the recordings were then
downloaded onto a DVD through a software program.
At the government’s direction, Baggett engaged in the
following five drug transactions with Chapman while wearing
the Hawk recording device:
On July 19, 2010, two months after Chapman was
released from prison for a prior narcotics conviction,
Baggett called Chapman to see if he would sell him
heroin. Chapman knew Baggett personally, and had
known him for nearly all of his life. Chapman told
Baggett to call him back. The following morning,
July 20, 2010, Baggett left two voicemails on Chap-
man’s phone. That afternoon, Baggett took the bus
to the corner of Kedzie Avenue and Ohio Street2 to
purchase heroin from Chapman. Once he arrived,
2
All of the street intersections referenced within this opinion are located
on the West Side of Chicago.
4 Nos. 14-3311 and 14-3363
Baggett met Chapman and several other people.
Chapman instructed one of the individuals present
to sell two grams of heroin to Baggett. However,
Baggett replied that he needed four. Chapman
asked: “You got money for four?” Baggett gave
Chapman the money he had, at which point Chap-
man directed an individual present to give Baggett
one gram of heroin. Chapman assured Baggett that
the heroin was high quality and had “ten pills on it.”
This referred to Dormin pills, which are used to cut
stronger heroin in order to increase the quantity of
the drug without significantly reducing its quality.
Chapman also stated: “I’m [going to] have some n-
ew [heroin], you can put 20 [pills] on there. Just
waiting to go back to the [supplier].” Following their
initial meeting, Chapman obtained three additional
grams of heroin for Baggett and delivered it to him
that same day. The following morning, Chapman
and Baggett spoke on the phone. During this conver-
sation, Chapman promised Baggett the heroin
quality would only get better.
On July 30, 2010, Baggett called Chapman in order
to purchase more heroin. They had several conver-
sations, which culminated with them agreeing to
meet the following morning. On July 31, 2010,
Baggett called Chapman and told him that he
wanted to purchase three grams of heroin. Chapman
responded: “All right.” Chapman told Baggett to
meet him at the corner of Sacramento Boulevard and
Chicago Avenue. Baggett met Chapman at that
Nos. 14-3311 and 14-3363 5
location and offered him $240 for three grams of
heroin. Chapman refused to sell for that low of a
price, at which point Baggett paid him $300. Chap-
man gave him the three grams of heroin and assured
Baggett that this heroin was stronger than the
previous, since it could take “fifteen [Dormin] pills
a gram.” The following day, Chapman and Baggett
spoke over the phone and Chapman inquired
whether Baggett was satisfied with the heroin.
Baggett responded that he was and told Chapman to
maintain that quality of heroin.
On August 17, 2010, Baggett spoke with Chapman
over the phone and said that he wanted to purchase
heroin and that he had $300 available. Baggett and
Chapman agreed to meet at the corner of Cicero
Avenue and Augusta Boulevard. Baggett met with
Chapman at the intersection and gave him $280 in
exchange for three grams of heroin. Chapman
assured Baggett that this heroin could also take
fifteen Dormin pills. Chapman offered to obtain
future amounts of heroin for Baggett for $80 per
gram.
On October 1, 2010, Baggett called and left three
messages on Chapman’s phone regarding purchas-
ing more heroin. Eventually, the two spoke and
Baggett told Chapman that he needed to purchase
heroin that day. Chapman responded: “All right. I
am going to be ready for you.” Later that day,
Baggett spoke with Chapman again and informed
him he was interested in purchasing seven grams of
6 Nos. 14-3311 and 14-3363
heroin for $700. The two men met on the corner of
Kedzie Avenue and Ohio Street. When Baggett
arrived, Chapman told him to get into another car
driven by an individual acquainted with Chapman.
Chapman stayed behind. The individual drove
Baggett to a nearby residence, where the individual
entered and retrieved seven grams of heroin for
Baggett in exchange for $700.
On November 2, 2010, Baggett called Chapman and
left two messages. That afternoon, he spoke with
Chapman and said he was interested in purchasing
two ounces of cocaine. A few hours later, Baggett
met with Chapman in a parking lot at the intersec-
tion of Kedzie Avenue and Franklin Street. There
were several other people in the parking lot as well.
Chapman entered Baggett’s van and asked: “What
you say you trying to get?” Baggett replied that he
had $1,600 with which to purchase two ounces of
crack cocaine. Chapman responded: “Come on, let’s
roll.” Chapman then spoke to the other individuals
present at the parking lot, and made several phone
calls to determine whether anyone else was inter-
ested in purchasing cocaine or heroin that day.
Afterwards, Baggett and Chapman drove to a
residence to pick up the crack cocaine. Along the
way, Chapman bragged about the quality of the
cocaine, and asked whether Baggett was satisfied
with the heroin he had sold him. They eventually
reached the residence, where they waited for Chap-
man’s supplier to “cook it up.” As they waited,
Nos. 14-3311 and 14-3363 7
Chapman discussed that he had large quantities of
marijuana that he was selling. The two eventually
left the residence and went to Baggett’s van. Chap-
man entered the van with a scale and measured two
ounces of crack cocaine for Baggett. Chapman then
left the vehicle, but called Baggett later that evening
to be sure that Baggett was satisfied with the quality
of the drugs he received.
Chapman was arrested on November 17, 2010. During his
post-arrest statements, he admitted to selling drugs, as well as
having access to drugs.
On January 6, 2011, a federal grand jury returned a single
count indictment against Chapman for distribution of crack
cocaine in violation of 21 U.S.C. § 841(a)(1). On December 15,
2011, a federal grand jury returned an additional indictment
against Chapman charging him with four counts of distribut-
ing heroin in violation of 21 U.S.C. § 841(a)(1). The charges
were consolidated into one proceeding.
II. Motions for Experts
On July 9, 2012, Chapman filed a motion requesting the
court to appoint an expert to examine the audio-video record-
ing from the November 2, 2010, crack cocaine transaction.
Chapman claimed that certain acts that he recalled doing and
certain exonerating statements he remembered making were
not included in the recording. The district court granted the
motion and appointed Adam Dew (“Dew”) as Chapman’s
expert to investigate the recording.
8 Nos. 14-3311 and 14-3363
Dew owns and operates a video production company, and
has over ten years of experience working with “digital video in
all [its] forms.” Dew received a DVD containing the Hawk
recording device’s audio-visual recording of the November 2,
2010, crack cocaine transaction. He examined the DVD and
issued a report. In the “Summary of findings” section of his
report, Dew stated:
I came to the conclusion that the video as delivered
to us on DVD does not appear to show any signs of
tampering. I did not have access to the original
camera recordings, only the time-stamped DVD … .
The time-stamp does appear to indicate a continu-
ous, uninterrupted recording … . [T]here is a glitch
in the video with an audio skip, however [the] time
code is continuous on the DVD. While we do lose
sight of Chapman for a few moments … [the] time
code is continuous on the DVD and there is no
noticeable tampering with the recording.
On May 29, 2013, Chapman filed a second motion seeking
appointment of a forensic expert to examine the November 2,
2010, recording. In the motion, Chapman again insisted that
portions of the conversation between Chapman and Baggett
had been removed. The district court again approved the
motion, and appointed Barry Dickey [“Dickey”] as Chapman’s
second expert.
Dickey is an expert in “forensic evaluation and/or authen-
tication of acoustical/visual media, including the analysis of
elemental acoustics and video images contained therein.”
Dickey examined the DVD containing the November 2, 2010,
Nos. 14-3311 and 14-3363 9
crack cocaine transaction and issued a report. His report stated
that data from the DVD was “extracted into forensic software
for examination.” Dickey noted that the data appeared
“consistent with surveillance recordings commonly associated
with federal law enforcement agencies.” Dickey’s procedures
included verifying the frame rate of the visual recording,
examining the quality of the imaging, and examining the audio
embedded from the Hawk recording device. In addition, “[an]
overview of HBI/VBI, color scheme, vector/waveform, embed-
ded data, transitions and other parameters were also per-
formed.” Dickey’s report was as follows: “Data integrity
checks verified the files as individually and collectively
continuous … . Data creation and download time/date infor-
mation was also verified … . All creation time and dates are
sequentially uniform.” Therefore, Dickey concluded: “[the
November 2, 2010, recording] does not contain any anomaly
which would question its authenticity as a continuous and
reliable record of the events existing therein.”
On December 26, 2013, Chapman filed a motion seeking
appointment of a “computer expert,” and explained that the
prior two experts were insufficient because they were audio-
visual experts. The district court conducted hearings regarding
this motion on December 27, 2013, and January 8, 2014. At the
hearings, the district court pointed out that Chapman did not
produce any evidence supporting his theory that the recording
had been tampered with, and that Chapman’s prior two
experts were unable to find any issue with the recording;
therefore, there was no reason to justify the appointment of a
third expert. The district court denied the motion.
10 Nos. 14-3311 and 14-3363
On April 21, 2014, Chapman filed another motion seeking
a third expert to examine the November 2, 2010, recording. On
April 24, 2014, the district court conducted a hearing on that
motion. The court stated: “There is simply no basis at all for
appointing … another person, to examine the materials … in
the prayerful hope that that doctor will disclose a different
diagnosis than the prior doctors and will therefore provide one
that helps Mr. Chapman’s self-diagnosis.” Chapman’s counsel
again said that the purpose of the third expert was to appoint
a computer expert, as opposed to an audio-visual expert. The
district court noted that: “[Chapman has] to have some
plausibility predicate for advancing a claim, and there is
nothing even to suggest the plausibility of that predicate
[here].” The court suggested that it might have considered the
appointment if Chapman had indicated any flaw in the
software or system the government used to transfer the
recording from the Hawk recording device onto the DVD.
Since Chapman had no evidence to substantiate this claim, the
district court denied the motion for a third expert.
We find no error in the district court’s ruling.
III. Motion to Subpoena Dew
On December 17, 2013, Chapman filed a motion to sub-
poena Dew in order for him to testify that he did not receive
the original recordings. On December 27, 2013, the district
court conducted a hearing on the motion. The court denied this
motion because Chapman’s only basis for subpoenaing Dew
was a single statement in Dew’s report indicating that he did
not have access to the “original camera recordings.” Thus, the
Nos. 14-3311 and 14-3363 11
district court found that allowing the subpoena would “make
a mountain out of a very small molehill.”
We find no error in the district court’s ruling.
IV. Admission of the November 2, 2010, Recording
On October 17, 2013, Chapman filed a motion to compel the
government to produce the “mirror of the hard drive from the
computer that was used to download the recording.” On
November 15, 2013, Chapman filed a motion to compel the
government to produce the original Hawk recording device
that recorded the November 2, 2010, crack cocaine transaction.
On November 25, 2013, the district court conducted a
hearing on the motions to compel. At the hearing, the govern-
ment explained why it was unable to produce a “mirror
image” of the computer’s hard drive:
[T]he short answer to that is that doesn’t exist. And
this is the reason why: For these Hawk recording
devices there is a special software that is made by
the company that makes the devices that is installed
in about 20-plus computers in the FBI. Once an
agent finishes—for example, after the transaction,
[and] comes back to the offices … [the agent] atta-
ches that device to one of these particular computers
that has the software. The software then acts almost
like a conduit from the recording device to whether
it is a CD or DVD … . And then nothing is stored on
that computer … . And so there is nothing that is
saved on the particular computer that the defendant
can have a mirror image of because nothing is stored
12 Nos. 14-3311 and 14-3363
on the computer. It is only on that original [CD or
DVD].
Chapman responded that the government had violated the
rules of discovery by destroying the original recording. The
district court rejected Chapman’s argument and denied the
motion.
On May 5, 2014, Chapman proceeded to trial. All of the
recordings were admitted into evidence. The government
established a proper foundation for each individual recording.
Regarding the November 2, 2010, recording, an FBI special
agent who worked on the case testified that he activated the
Hawk recording device on November 2, 2010, as well as
listened to the real-time crack cocaine transaction as it occurred
over the transmitter. The agent similarly deactivated the Hawk
recording device when Baggett returned with the crack
cocaine, and downloaded the recording onto the DVD. He also
testified that the Hawk recording device was working properly
that day. He listened to the recording after it was downloaded
onto the DVD, and found that the recording was a true and
accurate depiction of the conversation he heard. After verifying
the recording, he initialed the DVD. That DVD, with the
agent’s initials, was introduced at trial.
On appeal, Chapman argues that the district court violated
the Best Evidence Rule by admitting the recording of the
November 2, 2010, crack cocaine transaction at trial.
Under the Best Evidence Rule, an “original writing,
recording, or photograph is required in order to prove its
content unless [the Federal Rules of Evidence] or a federal
statute provides otherwise.” FED. R. EVID. 1002. However, “[a]
Nos. 14-3311 and 14-3363 13
duplicate is admissible to the same extent as the original unless
a genuine question is raised about the original’s authenticity.”
FED. R. EVID. 1003 (emphasis added). A “duplicate” is defined
as: “a counterpart produced by … electronic, or other equiva-
lent process or technique that accurately reproduces the
original.” FED. R. EVID. 1001(e). Furthermore, if a party chal-
lenges the admission of a duplicate, it is the challenger’s
burden to demonstrate that a “genuine issue of authenticity
exists.” Tyson v. Jones & Laughlin Steel Corp., 958 F.3d 756, 761
(7th Cir. 1992).
Chapman claims that the data on the Hawk recording
device constitutes the “original recording,” and thus the DVD
is non-admissible under the Best Evidence Rule. However,
even assuming that the data on the Hawk recording device is
the “original,” the DVD constitutes a “duplicate” because the
computer’s software was an electronic process that, according
to the special agent’s testimony, reproduced a true and
accurate copy of the November 2, 2010, recording.
Furthermore, Chapman did not raise a genuine issue of
authenticity regarding the DVD.
We find no error in the district court’s evidentiary ruling.
V. Entrapment
At trial, Chapman did not deny his involvement in the drug
transactions, but claimed entrapment by the government. At
the conclusion of the government’s evidence, Chapman filed
a motion for acquittal based on entrapment, which the district
court denied.
14 Nos. 14-3311 and 14-3363
To establish the defense of entrapment, a defendant must
show “government inducement” of the crime, and defendant’s
“lack of predisposition” to commit the crime. United States v.
Theodosopoulos, 48 F.3d 1438, 1444 (7th Cir. 1995) (citations
omitted). In order to establish “inducement,” the defendant
must show that the government solicited the crime, “plus some
other government conduct that creates a risk that a person who
would not commit the crime if left to his own devices will do
so in response to the government’s efforts.” United States v.
Mayfield, 771 F.3d 417, 434–35 (7th Cir. 2014) (en banc) (empha-
sis in original). In order to establish “lack of predisposition,”
the court examines five relevant factors: the defendant’s
character or reputation; whether the crime was originally
suggested by the government; whether the defendant engaged
in criminal conduct for profit; whether there was evidence that
the defendant was reluctant to commit the crime; and the
nature of the government’s persuasion. Theodosopoulos, 48 F.3d
at 1444 (citations omitted).
In this case, the evidence presented at trial was sufficient to
establish that Chapman was not induced by the government to
commit the heroin and crack cocaine transactions. Chapman
claims that Baggett relied on their friendship to convince him
to sell him heroin and crack cocaine. But, the recordings do not
demonstrate any persuasion other than a basic inquiry into the
price and quantity Chapman was willing to accept. The
evidence presented at trial sufficiently established that there
was no inducement, and that Chapman was predisposed to
engage in drug transactions.
We find no error in the district court’s ruling.
Nos. 14-3311 and 14-3363 15
VI. Sentencing
On October 6, 2014, the district court conducted a sentenc-
ing hearing. Chapman’s counsel argued that Chapman should
receive an acceptance of responsibility credit because he never
claimed that he did not commit the crimes. The district court
denied the credit. After determining that the appropriate
Sentencing Guidelines range was between 360 months to life,
the district court sentenced Chapman to 200 months’ imprison-
ment. Chapman appeals that this sentence was unreasonable
because he should have received the responsibility credit, and
the sentence imposed constituted an unwarranted disparity.
A. Responsibility Credit
We review a denial of responsibility credit for clear error,
while granting “great deference” to the district court. United
States v. Collins, 796 F.3d 829, 835–36 (7th Cir. 2015) (citations
omitted).
In this case, the district court denied Chapman’s request for
acceptance of responsibility credit due to his behavior through-
out the proceedings. Specifically, the district court noted that
it did not believe Chapman was truthful in his trial testimony,
and that Chapman’s statements at the sentencing hearing were
not “forthright.” Since the district court is entitled to great
deference and our circuit’s precedent has established that
dishonesty and unsupported factual allegations are sufficient
to deny acceptance of responsibility credit, see United States v.
Jones, 52 F.3d 697, 701 (7th Cir. 1995), United States v. Munoz,
610 F.3d 989, 993–94 (7th Cir. 2010), we hold that the district
court did not commit error, let alone clear error, in denying
Chapman’s request.
16 Nos. 14-3311 and 14-3363
Chapman argues that since he admitted to committing the
crimes, he is entitled to the acceptance of responsibility credit.
However, Chapman’s acknowledgment of his involvement in
the drug transactions does not mandate that the district court
grant the reduction. See Jones, 52 F.3d at 701 (finding that if a
defendant has not truthfully described and accepted responsi-
bility, “bare statements of remorse and acceptance of responsi-
bility will not compel the reduction”) (citation omitted).
B. Unwarranted Disparity
Chapman also argues that his sentence of 200 months’
imprisonment was unreasonable under 18 U.S.C. § 3553(a)(6)
due to the disparities between the perceived strictness of his
sentence against other criminals convicted under Operation
Blue Knight. In support, Chapman cites several specific
defendants who also were labeled career criminals, but
received sentences of less than 120 months’ imprisonment.
Pursuant to 18 U.S.C. § 3553(a)(6), district courts should
prevent “unwarranted sentence disparities” between defen-
dants who have similar records and are convicted of similar
conduct. However, the key phrase is unwarranted sentence
disparities. See United States v. Statham, 581 F.3d 548, 556 (7th
Cir. 2009) (emphasis added) (citation omitted). A sentencing
disparity among similar defendants by itself is insufficient to
render a particular criminal sentence unreasonable.
In this case, the district court properly found that Chap-
man’s total offense level was 37, and that he had a category VI
criminal history. As a result, the appropriate Sentencing
Guidelines range was between 360 months to life imprison-
ment. The government agreed that was the correct range, but
Nos. 14-3311 and 14-3363 17
recommended a sentence ranging from 262 to 327 months’
imprisonment. The district court sentenced Chapman to 200
months’ imprisonment, well below both the Sentencing
Guidelines and the prosecution’s recommendation. The
Seventh Circuit has held that a sentence below the Sentencing
Guidelines range is not an unwarranted disparity. United States
v. Gonzalez, 765 F.3d 732, 740 (7th Cir. 2014) (emphasis in
original) (citation omitted).
Furthermore, in his brief, Chapman makes an additional
unwarranted sentence disparity argument. He claims that the
Sentencing Guidelines range was so severe due to the govern-
ment informant requesting crack cocaine during the
November 2, 2010, transaction. Chapman argues that had the
government not directed the informant to request crack
cocaine, he would have received a lower Sentencing Guidelines
range; and thus this makes the sentencing disparity unwar-
ranted. This is not a cognizable unwarranted disparity argu-
ment. See, e.g., Gonzalez, 765 F.3d at 739 (discussing how
unwarranted sentencing disparities result when multiple
defendants are convicted of similar conduct, yet one defendant
receives a different sentence due to “alienage, race, [or] sex”).
VII. Conclusion
Therefore, for the foregoing reasons, the judgment of the
district court is AFFIRMED.