                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 12-2987
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                  KAREEM RUSSELL
                                     a/k/a Reem,

                                     Kareem Russell,
                                             Appellant
                                   _____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. No. 2-10-cr-00186-001)

                      District Judge: Honorable Gene E. K. Pratter
                                     _____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 20, 2015

                Before: SMITH, JORDAN, SLOVITER, Circuit Judges.

                             (Opinion filed: March 20, 2015)

                                ______________________

                                        OPINION

                                ______________________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SLOVITER, Circuit Judge.

       Kareem Russell directly appeals his conviction for possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g). Russell was arrested after police

searched his home and found a loaded gun in Russell’s bedroom while Russell, a

convicted felon, was in the room with his girlfriend. Russell raises two issues. First,

Russell contends that the record on appeal is incomplete because the trial transcript omits

the testimony of three Government witnesses. Therefore, he argues that the record is not

sufficient to permit appellate review. Second, before Russell’s trial, the Philadelphia

Police Department destroyed the firearm that led to Russell’s conviction, and Russell

argues that all evidence pertaining to the firearm should have been suppressed. For the

reasons discussed below, we will affirm.

       I.     Sufficiency of the Record on Appeal1

       Under the Federal Rules of Appellate Procedure, within 14 days after filing a

notice of appeal, the appellant must either order “a transcript of such parts of the

proceedings not already on file as the appellant considers necessary,” or “file a certificate

stating that no transcript will be ordered.” Fed. R. App. P. 10(b). Where the proceedings

were not recorded or a transcript is unavailable, “the appellant may prepare a statement of

the evidence or proceedings from the best available means, including the appellant’s

recollection.” Id. 10(c). The appellee may then serve objections or proposed

amendments. Id. “The statement and any objections or proposed amendments must then

1The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
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be submitted to the district court for settlement and approval. As settled and approved,

the statement must be included by the district clerk in the record on appeal.” Id. A mere

absence of transcripts “does not constitute per se reversible error.” United States v.

Sierra, 981 F.2d 123, 125 (3d Cir. 1992). Rather, “to be successful with an argument that

because a portion of the trial transcript is missing the case ‘warrants reversal,’ [a

defendant] must make ‘a specific showing of prejudice.’” United States v. Sussman, 709

F.3d 155, 163 (3d Cir. 2013) (quoting Sierra, supra).

       After protracted attempts to obtain trial transcripts (frustrated through no fault of

his own, and during which time this court granted several extensions of time), Russell

succeeded in obtaining only a rough transcription replete with mistakes and omissions,

and could not obtain audio recordings of the trial. On April 21, 2014, Russell filed a

statement of the evidence under Rule 10(c), which included the incomplete, rough

transcript and set forth the record’s deficiencies. However, since then, the Government

recovered audio recordings of Russell’s trial by investigating the court reporter and

running a forensic examination on her laptop. The court reporting company used those

recordings to create a more complete and accurate transcript, which the Government

submitted with its response to Russell’s statement of the evidence. Russell concedes that

the record now contains complete and accurate transcripts for two of the three days of his

trial (April 9, and April 11, 2012). The court reporting company reconstructed the third

day’s proceedings (April 10, 2012) in part, and Russell does not object to the portion of

the April 10th proceedings for which a transcript now exists. However, the April 10th

transcript is incomplete: the audio recordings did not include (and therefore the

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transcripts do not include) complete testimony from three Government witnesses. It is to

these omissions that Russell now objects.2

       In its response to Russell’s statement of the evidence, the Government attempted

to reconstruct the missing testimony. It stated that one of those witnesses, Philadelphia

Police Officer Jeffrey Hampton, had testified (and been subject to cross examination) the

day before at a pretrial hearing, and that his testimony at trial was identical to his

testimony at the pretrial hearing. Russell provided no recollection to the contrary; instead

he merely stated that he cannot recall the substance of Hampton’s testimony. The other

two witnesses were firearms experts; the Government contended (and both parties’

closing arguments reflect) that this testimony was uncontroversial, going to the

uncontested interstate commerce element of the crime, and whether the gun fit the

statutory definition of a “firearm.” Again, Russell offered no specific recollection

contrary to the Government’s reconstruction, nor does he point to what prejudice he

suffered by any of these transcripts’ omission. The District Court adopted and approved

of the Government’s Statement of the Evidence.

       Russell has done no more on appeal than he did before the District Court to

demonstrate any prejudice he may have suffered based on these missing transcripts.

Therefore, the omission of these portions of the trial transcripts was harmless. See

Sussman, 709 F.3d at 163.



2 Russell filed his opening brief in this appeal before the Government filed the improved
transcripts. Russell declined to file a revised brief to reflect the current state of the record
despite being given an opportunity to do so.
                                               4
       II.    Suppression of Evidence

       Before trial, the Philadelphia Police Department destroyed the gun that led to

Russell’s conviction for being a felon in possession of a firearm. The police

photographed the gun both as they found it and after removing it from the closet where

they found it. Those photographs were presented at trial. Russell also admitted in a

signed statement that the gun was in his bedroom, and that he knew it was there. Russell

argues that all evidence related to the gun should have been suppressed.

              Whatever duty the Constitution imposes on the States to
              preserve evidence, that duty must be limited to evidence that
              might be expected to play a significant role in the suspect’s
              defense. To meet this standard of constitutional materiality,
              evidence must both possess an exculpatory value that was
              apparent before the evidence was destroyed, and be of such a
              nature that the defendant would be unable to obtain
              comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-89 (1984) (internal citations omitted).

“[U]nless a criminal defendant can show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute a denial of due process of law.”

Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

       Here, Russell fails to show that police acted in bad faith in destroying the gun.

The police destroyed the gun as part of a bulk weapon destruction process following their

standard evidence retention and destruction procedures. Russell also fails to show that

the gun would have possessed any exculpatory value, let alone exculpatory value that

would have been apparent before it was destroyed. The existence of a gun would, on its

face, be inculpatory, not exculpatory. Nor could the evidence Russell claims he would


                                             5
have gained from the gun—fingerprints and DNA evidence—have actually been

exculpatory in this case. The Government did not offer DNA or fingerprint evidence at

trial; the Government states that the police had not even tested the gun for prints. As the

Government aptly notes, “In this situation, Russell never would have tested the gun

himself; the result could only make things worse (if his prints were found), not better.”

Appellee’s Br. at 29-30. For both of these reasons, the gun’s destruction did not deny

Russell due process, and evidence related to the gun should not have been suppressed.

       III.   Conclusion

       For the reasons discussed above, we will affirm the District Court’s judgment.




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