In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2058
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RCHIE S TALLWORTH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 948—John F. Grady, Judge.
A RGUED F EBRUARY 23, 2011—D ECIDED S EPTEMBER 6, 2011
Before K ANNE, W OOD , and SYKES, Circuit Judges.
W OOD , Circuit Judge. This case had its beginning in
an undercover investigation that the Federal Bureau of
Investigation (FBI) launched in 2007 with the hope of
weeding out corruption in the Police Department of
Harvey, Illinois. It found Officer Archie Stallworth en-
gaging in a drug deal. This led to charges against
Stallworth for attempting knowingly or intentionally to
possess, with intent to distribute, a controlled substance,
2 No. 10-2058
in violation of 21 U.S.C. §§ 841(a) and 846. To make
matters worse, before trial Stallworth forged a police
report to make it appear as if all the while he had been
conducting an undercover investigation himself. His
effort resulted in an additional charge of falsifying a
police report to impede an investigation, in violation of
18 U.S.C. § 1519. Stallworth was convicted on both counts
and received a sentence of 12 years. On appeal, he has
opted to employ the shotgun approach, raising six issues
of varying degrees of merit. His arguments about entrap-
ment, the exclusion from evidence of a recorded con-
versation, and the sufficiency of the evidence with
respect to his intent to possess the drugs are sub-
stantial enough to warrant discussion here. His other
points can be handled more summarily. In the end, we
find no reversible error, and we thus affirm the dis-
trict court’s judgment.
I
As part of the FBI’s operation, Special Agent Carlos
Vargas posed as the general manager of Skybox Gentle-
man’s Club in Harvey, Illinois. Vargas’s orders were to
contact police officers and test their willingness to partici-
pate in drug transactions. In late April 2008 Stallworth
went to Skybox while on duty to handle an incident
involving a disruptive patron. The incident ended with
Stallworth pepper-spraying the patron. Vargas hap-
pened to be away during that incident, and so he decided
to visit the Police Department to find out what hap-
pened and to “meet and greet” Stallworth. This first
No. 10-2058 3
meeting between the two, on May 1, 2008, was short but
fruitful; they discussed the possibility of Stallworth
providing private security for Vargas. Shortly thereafter,
Vargas offered Stallworth a two-man security detail job
for $500 apiece. Stallworth declined but arranged for
two of his colleagues, Officer Weathers and Officer
Sneed, to provide security. Vargas and Stallworth kept in
touch and, in late July 2008, Vargas offered Stallworth
another security job. This time Stallworth accepted.
The job was straightforward. Stallworth picked up
Vargas in his car and drove to a Denny’s Restaurant
parking lot. Once there, Vargas went to another vehicle
and spoke to another undercover agent for several min-
utes. Stallworth kept a look-out. After Vargas re-
turned from the meeting, Stallworth drove him home.
For this minimal effort, Stallworth earned $300. But
Vargas wanted more. As he put it, he wanted a chat with
“Archie, and not Detective Archie, for a second.”
Stallworth accepted this not-so-subtle invitation to
discuss Vargas’s narcotics activity. Vargas explained the
details of his drug transactions and Stallworth’s
proposed role. The basic idea was that Stallworth would
be Vargas’s muscle in a future drug exchange. Stallworth
confirmed his willingness to participate, stating that he
did not want to know what was being exchanged but
that he would make sure that Vargas accomplished his
task. Indeed, Stallworth went the extra mile, providing
Vargas with tips on how to avoid police detection
when engaging in these drug transactions.
The fateful day arrived on August 11, 2008. Vargas
called Stallworth, offering to pay him $1,000 to help with
4 No. 10-2058
a job that involved picking up a drug shipment at the
DuPage Airport. Stallworth agreed, and the two rendez-
voused at Vargas’s apartment. At Vargas’s insistence, he
was and remained armed throughout the operation.
Vargas and Stallworth drove in separate cars to the
airport. There they met a man who had three duffel bags
purportedly containing 30 kilograms of cocaine. Vargas
and Stallworth moved the three bags into Vargas’s car.
Vargas then opened the bags and showed Stallworth,
over the latter’s protest that he did not want to view the
contents, powder appearing to be cocaine. (In fact, it was
fake.) They both then drove, again separately, to a Target
parking lot. At the exchange point, Vargas made a call
to another undercover agent who came and picked up
the drugs. Vargas paid Stallworth the agreed $1,000,
and they went their separate ways.
In mid-November 2008, two FBI agents followed up with
Stallworth about the August 11 transaction. Initially, they
spoke to him at the Metra police offices in Chicago.
Stallworth admitted that he had accompanied Vargas
for the transaction but he denied knowing what was in
the bags. He asked at that point to speak to his attor-
neys, while agreeing to reconvene shortly at the U.S.
Attorney’s office in Chicago. Once there, the FBI agents
confronted Stallworth with all the evidence against
him. Stallworth broke down, stating that he was not a
dirty cop, but that he had “screwed up.”
On November 19, 2008, the government charged
Stallworth with attempting knowingly or intentionally to
possess, with intent to distribute, a controlled substance,
No. 10-2058 5
in violation of 21 U.S.C. §§ 841(a) and 846. Before trial,
Stallworth submitted a subpoena to the Harvey Police
Department requesting a police report that had been
written by his colleague, Officer Sneed, in May 2008.
At that time, as part of the sting operation, Vargas ap-
proached Officer Sneed and Officer Weathers to guard
some drugs. Weathers insisted that the Department had
to be informed. Sneed said that he would take care of it
and submitted a report to Commander Michael Neal.
Sneed’s report did not reveal Vargas’s role in the case.
After the FBI confronted Stallworth, Sneed asked Neal
to submit the police report to the Chief of Police. Neal did
so; at this point, the report was still the cursory version
submitted in May 2008. But the version that came back
in response to the subpoena had two extra pages that
Stallworth had added. Inconsistent with department
procedure, the two new pages were paper-clipped to
the original, stapled report. Records also revealed that
Sneed had logged an envelope containing the newly
fashioned report into the Harvey Police Department
evidence room. This too was against department
protocol, as reports are not usually deposited into the
evidence room. As a result, in addition to the possession
count, Stallworth was charged with falsifying a police
report to impede an investigation, in violation of 18
U.S.C. § 1519.
On September 25, 2009, a jury convicted Stallworth on
both counts of the indictment. On April 21, 2010, he
was sentenced to 12 years on each count, with sentences
to run concurrently. This appeal followed.
6 No. 10-2058
II
A
Stallworth begins by arguing that the district court
erred when it denied his request for an instruction on the
defense of entrapment. To raise an entrapment defense,
a defendant must show: “(1) that he was induced by
a government actor to commit the crime at issue; and
(2) that he was not predisposed to commit that crime.”
United States v. Hall, 608 F.3d 340, 343 (7th Cir. 2010).
“When analyzing a defendant’s predisposition to
commit a crime, we consider: (1) the defendant’s
character or reputation; (2) whether the government
initially suggested the criminal activity; (3) whether the
defendant engaged in the criminal activity for profit;
(4) whether the defendant evidenced a reluctance to
commit the offense that was overcome by government
persuasion; and (5) the nature of the inducement or
persuasion by the government. No individual factor
controls the issue of predisposition, but the most im-
portant factor is whether the defendant was reluctant
to commit the offense.” Id. We review de novo a district
court’s decision not to give a proffered instruction. Id.
The point of the entrapment inquiry is to distinguish
those who were likely to commit a crime in any event
from those who are pushed by the government into
committing a crime that they would not otherwise have
done. Only if the evidence could support a finding that
a person is in the latter group is he or she entitled to
an instruction on the entrapment defense. Logically, once
it is apparent that a person is predisposed to commit
No. 10-2058 7
a particular crime, there is some likelihood that he will
take that step at some time or another. In such a case,
the government’s actions simply make it easier for the
government to apprehend him. A person who lacks
predisposition, in contrast, in many cases would not
have committed the crime at all but for the govern-
ment’s intervention. The government would have
engaged in the fruitless activity of causing the very crime
it wants to prosecute, and this has no societal benefit.
United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986).
This is why predisposition is so central to the entrap-
ment inquiry. United States v. Blassingame, 197 F.3d 271,
280 (7th Cir. 1999). Indeed, the inducement and predis-
position inquiries frequently inform one another. If
the government has done nothing at all, then it is
obvious that it is not engaged in fomenting crime; if
the government offers a transaction that is indistinguish-
able from an ordinary market-based deal, then it is also
unlikely to influence the target to do something unusual.
If, however, the facts could support a finding of induce-
ment, then we must reach the crucial question of pre-
disposition.
In the present case, we have no trouble saying that a
jury could find that Vargas induced Stallworth. We thus
turn to Stallworth’s predisposition: was he the likely
offender caught simply at a convenient time and place,
or could the evidence support a conclusion that he
was an innocent lured into crime by the government’s
actions? We see no error in the district court’s conclusion
that he was the former, for Stallworth has proffered little
8 No. 10-2058
to suggest that he was not predisposed to commit the
crime. He states, and for present purposes we accept,
that on the whole he was a man of good character and
reputation. Then he correctly notes that the scheme
initially was suggested by the government. Yet Stallworth
showed no reluctance in participating and profiting
from the deal—he even gave Vargas advice on how to
avoid being caught in future drug transactions. Further-
more, as Stallworth concedes, the government’s effort
to induce Stallworth was not great. He was not sub-
jected to any “unusual or unfair persuasion”; he was
just offered an attractive, but reasonable, sum of money.
Hall, 608 F.3d at 344 (using the “unusual or unfair persua-
sion” language in analyzing the fifth factor). We
conclude that the district court properly rejected
Stallworth’s request for an entrapment instruction.
Related to Stallworth’s entrapment theory is his argu-
ment that he was not engaged in a criminal transaction
at all, but instead that he himself was running a sting
operation designed to bust Vargas. In essence, he is
raising the defense of public authority or entrapment
by estoppel. The two defenses are similar. United States
v. Baker, 438 F.3d 749, 753 (7th Cir. 2006). Both require
that a government official affirmatively communicate to
the defendant that he is authorized to engage in certain
conduct without incurring criminal liability. Id. The
conceptual difference is that with the public authority
defense the defendant engages in conduct that the de-
fendant knows to be otherwise illegal but that has
been authorized by the government, whereas with entrap-
ment by estoppel the defendant, relying on the govern-
No. 10-2058 9
ment’s statements, believes that his conduct is not pro-
hibited. United States v. Jumah, 493 F.3d 868, 874 n.4 (7th
Cir. 2007). In the rare case, this distinction might have
some practical legal consequence: for entrapment by
estoppel, the communication relied on may be from a
government official acting with either actual or apparent
authority. Baker, 438 F.3d at 753. In contrast, as our sister
circuits see it, the public authority defense is limited to
those situations where the communication was from a
government official acting with actual authority, and
not merely apparent authority. Id. at 753-54 (citing United
States v. Fulcher, 250 F.3d 244, 254-55 (4th Cir. 2001);
United States v. Pitt, 193 F.3d 751, 757-58 (3d Cir. 1999);
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18
(11th Cir. 1994); United States v. Duggan, 743 F.2d 59, 83-84
(2d Cir. 1984)). We have not had occasion to address
this, nor do we find it necessary to do so here.
For what it is worth, Stallworth’s claim looks to us like
a public authority defense. He was engaged in what
he knew to be an illegal drug transaction, but he did so
(he says) for law enforcement purposes that should
insulate him from liability. But he forgets that under
either the public authority defense or entrapment by
estoppel, someone in the government would have had
to authorize his actions. Here, there was no one, and so
it makes no difference whether this nonexistent person
had actual or apparent authority. Stallworth thus had
no right to present either defense to the jury.
10 No. 10-2058
B
Stallworth also argues that the district court should not
have excluded a recording of statements made by
Officer Weathers. Weathers’s testimony centered on his
interactions with Vargas, Sneed, and Stallworth, as well
as the fake report submitted by Stallworth and Sneed.
Vargas had recorded many of his conversations with
the officers. According to Stallworth, in one of them,
Weathers warned Vargas that Stallworth was investi-
gating him. This conversation, Stallworth maintains,
bolsters his contention that he was conducting a secret
sting operation and impeaches Weathers’s testimony.
The district court excluded the recording on two bases:
First, the district court could not understand what it
was that Weathers was communicating; and second, the
district court ruled that even if it were to accept
Stallworth’s characterization of Weathers’s statements,
the recordings were inadmissible hearsay. We review
evidentiary rulings for an abuse of discretion. United
States v. Serrano, 434 F.3d 1003, 1004 (7th Cir. 2006).
Stallworth argues that the district court erred because
it misunderstood the conversation and failed to realize
that Weathers’s statements fall in the state-of-mind excep-
tion to hearsay. Rule 803(3) exempts from the bar on
hearsay “[a] statement of the declarant’s then existing
state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but not including a statement of
memory or belief to prove the fact remembered or
believed . . . .” FED. R. E VID. 803(3). Stallworth contends
No. 10-2058 11
that the state of mind at play here is Weathers’s belief
that Stallworth was investigating Vargas. Even if we
were to credit Stallworth’s explanation of the conversa-
tion, however, the main reason to present Weathers’s
statement of belief would be to prove that Stallworth
was in fact investigating Vargas. This would then be a
statement of belief used to prove the “fact remembered
or believed.” This logic thus leads to the conclusion
that Weathers’s statement does not fit within Rule 803(3)’s
hearsay exception.
Stallworth’s final argument for admission of the re-
cording is that he was trying to impeach Weathers.
Stallworth notes that Weathers knew nothing of Vargas’s
undercover status. Stallworth’s rather convoluted theory
is that by showing that Weathers thought—rightly or
wrongly—that Stallworth was investigating Vargas and
that Weathers tried to warn Vargas about Stallworth’s
efforts, Stallworth could reveal that it was Weathers
who was the dirty cop. This could then be used to
impeach his testimony about the officers’ interactions
with Vargas.
Our biggest problem with the impeachment purpose
is that Stallworth never suggested this to the district
court. And as we said earlier, the biggest problem with
the recording lies in the dubious nature of Stallworth’s
characterization of Weathers’s statement. The conversa-
tion is mostly indecipherable, and given the tangential
(at best) nature of its relevance, the district court did not
abuse its discretion in excluding it.
12 No. 10-2058
C
Next, Stallworth contends that there was insuf-
ficient evidence to support the “intent to possess” element
of his narcotics charge. He argues that he held the duffel
bags for only a few moments. He never had control of the
bags, he continues; he was just a human luggage trolley.
Citing United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995),
Stallworth avers that this is not enough to establish
attempted possession. We review challenges to the suf-
ficiency of the evidence de novo, “consider[ing] the evi-
dence in light most favorable to the govern-
ment, drawing all reasonable inferences in its favor.”
United States v. Aldridge, 642 F.3d 537, 544 (7th Cir. 2011).
“As long as a rational trier of fact could have returned a
guilty verdict, the verdict will be affirmed.” Id.
To prove the crime of attempted knowing or inten-
tional possession, with intent to distribute, of a con-
trolled substance, the government must show: (1) the
defendant acted with the intent to possess a controlled
substance with the intent to distribute; and (2) the defen-
dant engaged in conduct which constitutes a sub-
stantial step toward commission of the offense. United
States v. Haddad, 976 F.2d 1088, 1094 (7th Cir. 1992). The
government could have established both the “intent to
possess” and “substantial step” requirements without
showing that Stallworth intentionally possessed the fake
drugs. See, e.g., United States v. Jean, 25 F.3d 588, 596
(7th Cir. 1994) (holding that a recorded negotiation was
sufficient to establish the intent to possess); United States
v. Carrillo, 435 F.3d 767, 777 (7th Cir. 2006) (holding
No. 10-2058 13
that, after negotiating a drug deal, arriving at the trans-
action’s location with the required sum of money was
sufficient to establish that defendant had taken a sub-
stantial step). But the government has chosen not to
make any such argument, instead relying on Stallworth’s
putative possession of the fake drugs to establish his
attempted possession. It has thus forfeited the more
straightforward theory. We therefore focus on whether
Stallworth intentionally possessed the fake drugs.
In fact, the evidence readily supports a finding of
intentional possession. Kitchen, on which Stallworth
relies most heavily, is distinguishable from our case.
There a defendant held packages of cocaine for two to
three seconds while he decided whether he wanted to
carry out the transaction. Kitchen, 57 F.3d at 519-20. The
defendant was immediately arrested before he made
a decision on purchasing the drugs. The fact that he
was still considering his next action was demonstrated
by his comment that he was worried about the purity
of the merchandise. Id. We held that this was insufficient
to establish possession, because it was uncertain that the
defendant would complete the transaction and walk
away with the drugs. Id. at 522. There was no evidence
that the defendant exercised control over the contraband.
Stallworth wants to characterize Kitchen as standing
for the proposition that holding something for just a
few seconds is categorically not enough for possession.
But he is stressing the wrong thing—time, rather than
control. In Kitchen, we recognized that the hallmark of
possession is “the authority or the ability to exercise
14 No. 10-2058
control over the [object].” Id. at 523. In light of that, we
reasoned that, if there is no evidence that the defendant
exercised control over an object, the fact that the
defendant merely held the object is insufficient to
establish legal possession. Id. at 525. But we further
stated that if there is evidence of control, even a momen-
tary holding is sufficient to establish possession. Id.
Here, the question is whether Stallworth’s actions
demonstrated that he was exercising control over the
duffel bags of fake drugs. Unlike the defendant in
Kitchen, Stallworth was not caught in the twilight before
the dawn of his decision. He decided to take the duffel
bags of drugs to the car and did so. He had control over
the bags, even if briefly, and he used that control to
deposit them in Vargas’s trunk. See id. at 522 (“By taking
delivery of the drug and loading it into a briefcase or a
van, a defendant clearly demonstrates [possession of the
drugs].”).
Stallworth responds that he was merely Vargas’s
lackey and did not have ultimate control over the drugs;
thus, he was not in possession. Instructive on this point
is United States v. Hunte, 196 F.3d 687 (7th Cir. 1999).
There the defendant joined a group on a cross-country
road trip for the purpose of purchasing and bringing
back a load of narcotics. Id. at 689. The defendant’s boy-
friend was the leader of the group; he made most of the
decisions and paid all expenses. Id. at 689-90. The defen-
dant was shielded from most of the business aspects of
the transactions, but she drove one of the vehicles con-
taining the drugs and helped package and sample some
No. 10-2058 15
of them. Id. at 690. We held that this was sufficient to
constitute possession. Id. at 693. In so doing, we
stated, “The fact that one person leads and the others
follow does not mean that only the leader has possession
of the contraband. [The defendant] had access to the
drugs at various times and assisted in their conceal-
ment and transportation. As a group, [each member of
the gang] exercised joint possession of the narcotics
by virtue of their individual acts consistent with
non-exclusive dominion and control over the contraband.”
Id. This perfectly describes Stallworth’s situation. He
followed Vargas’s orders, but he had access to the fake
drugs and helped transport them, thereby exercising
joint control over them. Thus, a reasonable jury was
entitled to conclude that Stallworth possessed the fake
drugs.
With possession sufficiently established, we finally
inquire into Stallworth’s mental state: was his possession
intentional? (Neither Stallworth nor the government
address the element of “intent to distribute,” and so we
follow suit.) The Model Penal Code states that one acts
intentionally, with respect to an element of the offense
relating to his conduct, when “it is his conscious object to
engage in” that conduct. M ODEL P ENAL C ODE § 2.02(1)(a)
(defining “purposely”); M ODEL P ENAL C ODE § 1.13(2)
(stating that “intentionally” means “purposely”). The
evidence here was sufficient to establish that it was
Stallworth’s conscious object to possess what he
thought were real drugs. Vargas explained the details of
the drug transaction to Stallworth, and Stallworth replied
that he would make sure the transaction went through.
16 No. 10-2058
Although Stallworth remarked that he did not want to
know what was in the bags, the jury was entitled to
view that as an effort not to get caught, and not as an
unwillingness to engage in unlawful behavior. Moreover,
even if the jury believed Stallworth was conflicted about
his involvement with drugs, this does not necessarily
negate his intentional possession. One can intentionally
engage in conduct that he adjudges to be morally or
legally wrong. The jury was entitled to conclude that,
though Stallworth realized that aiding Vargas was
contrary to his ethical obligations and the law, he pur-
posely did it anyway for the money. We thus reject
Stallworth’s challenge to the sufficiency of the evidence
supporting this conviction.
D
Stallworth also throws out a number of additional
arguments that we deal with in short order. He argues
that the government’s conduct, in creating an elaborate
fake drug ring, was so outrageous that it violated his
due process rights. But there is a fatal problem with this
point: Outrageous government conduct is not a defense
in this circuit. United States v. White, 519 F.3d 342, 346
(7th Cir. 2008). Even if it were, we have noted in the
past that there is nothing inherently outrageous about
conducting a sting operation. See, e.g., United States v.
Murphy, 768 F.2d 1518, 1528-29 (7th Cir. 1985).
Next, Stallworth contends that the indictment was so
unclear on the count of attempt to possess a controlled
substance that it violated his Fifth and Sixth Amendment
rights. As he correctly points out, there are a number
No. 10-2058 17
of different ways to violate 21 U.S.C. §§ 841(a) and 846:
by attempted manufacture; attempted distribution; at-
tempted dispensing; or attempted possession, with the
requisite specific intent, of a controlled substance. See
21 U.S.C. §§ 841(a) and 846. Stallworth complains that
the indictment did not properly signal which subset of
illegal conduct he was charged with.
He assumes, however, that the government was
obliged to include these specifics in the indictment. He
is wrong. The Fifth and Sixth Amendment guarantees
require only that an indictment accomplish “three func-
tions: it must state each of the elements of the crime
charged; it must provide adequate notice of the nature
of the charges so that the accused may prepare a
defense; and it must allow the defendant to raise the
judgment as a bar to future prosecutions for the same
offense.” United States v. Fassnacht, 332 F.3d 440, 444-45
(7th Cir. 2003). We review the sufficiency of an indict-
ment de novo. Id. at 444. This indictment satisfied those
criteria. Count I charged “[that] defendant [] did attempt
to knowingly and intentionally possess with intent to
distribute and to distribute a controlled substance . . . .” It
also indicated that the operative facts were based on the
August 11, 2008, transaction. That was enough.
Finally, in an attack on his conviction for falsifying
a police report, Stallworth filed a motion for a new trial,
complaining that the government violated its obligations
under Brady v. Maryland, 373 U.S. 83 (1963), by failing to
turn over surveillance recordings of the Harvey Police
Department. The indictment states that the falsification
happened between November 20, 2008, and December 5,
18 No. 10-2058
2008. The government turned over material from Novem-
ber 23 to December 2, but Stallworth also wanted the
recordings from November 20 to November 23. The
latter, Stallworth asserts, would have shown that he did
not enter the station and falsify the report.
“For a Brady violation to exist, entitling a defendant to
a new trial, he must establish (1) that the prosecution
suppressed evidence; (2) that the evidence was favorable
to the defendant; and (3) that it is material to an issue
at trial. Evidence is material if there is a reasonable proba-
bility that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” United States v. Palivos, 486 F.3d 250, 255 (7th
Cir. 2007). We review the denial of a motion for a new
trial based upon an alleged Brady violation for an abuse
of discretion. Id.
Here there is no indication that the government sup-
pressed any evidence at all. The government turned over
all the recordings it had—some 40 compact discs of video
surveillance. It represented that it does not and did not
have anything for Stallworth’s desired dates. Stallworth
suspects foul play, suggesting that the government sup-
pressed the evidence by failing to preserve the record-
ings. He might mean one of two things: that the govern-
ment knew the material was exculpatory and failed to
preserve it, or that the government failed to preserve the
recordings while recognizing that it was potentially
exculpatory. There is a difference between how these
situations are handled. Arizona v. Youngblood, 488 U.S. 51,
57-58 (1988). The first is governed by Brady, while the
defendant faces a more difficult burden in the second,
No. 10-2058 19
because the Due Process Clause does not impose “an
undifferentiated and absolute duty to retain and
to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution.”
Youngblood, 488 U.S. at 57-58.
Stallworth has no evidence that the government has
ever known about the content of the missing
recordings, and so his claim is not governed by Brady. For
a Youngblood claim, the defendant must show: “ ‘(1) bad
faith on the part of the government; (2) that the exculpa-
tory value of the evidence was apparent before the evi-
dence was destroyed; and (3) that the evidence was of
such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably
available means.’ ” United States v. Stewart, 388 F.3d 1079,
1085 (7th Cir. 2004) (internal citations omitted). We
again review for abuse of discretion. United States v.
Kimoto, 588 F.3d 464, 493 (7th Cir. 2009).
Other than his naked allegations, Stallworth presented
no evidence of bad faith on the part of the government.
No explanation was given for the missing material, but
it is plausible that there is an innocent explanation. For
example, the Harvey Police Department may have
deleted the recording as a routine part of video record
maintenance. Thus, Stallworth has not established the
government’s bad faith and his Youngblood claim fails. The
district court did not abuse its discretion in denying
Stallworth’s motion for a new trial.
* * *
20 No. 10-2058
We therefore A FFIRM the judgment of the district court.
9-6-11