                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-3162
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                 v.

MALCOLM BAKER,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 04 CR 325—Blanche M. Manning, Judge.
                          ____________
   ARGUED FEBRUARY 22, 2006—DECIDED JUNE 29, 2006
                   ____________



  Before FLAUM, Chief Judge, and WILLIAMS and SYKES,
Circuit Judges.
  WILLIAMS, Circuit Judge. In this appeal, we address
Malcolm Baker’s argument that his conviction for possess-
ing a gun as a felon should be vacated because the Govern-
ment failed to disclose information on the history of the
gun’s ownership, in violation of the Supreme Court’s
decision in Brady v. Maryland, 373 U.S. 83 (1963), and Rule
16 of the Federal Rules of Criminal Procedure. After in
camera review, the district court concluded that there was
no reasonable probability that the disputed information,
2                                                No. 05-3162

had it been disclosed, would have led to Baker’s acquittal.
We agree, and since Baker cannot demonstrate that the
district court abused its discretion, we affirm the judgment
below.


                    I. BACKGROUND
  On the night of December 6, 2003, Malcolm Baker was
standing on a sidewalk when two Chicago Police Depart-
ment trainee officers observed him drinking from a beer
bottle. They slowed their cruiser and called to him. Accord-
ing to the officers, Baker immediately dropped the beer
bottle and ran. The officers got out of the cruiser and chased
him through the residential area. As they were running,
one of the officers noticed that Baker was clutching some-
thing in his waist area, and he radioed the dispatch officer
that they were dealing with a possible “UUW” (unlawful use
of a weapon). The chase culminated one block away from
where the officers first observed Baker. Baker fell, and
Officer O’Carrol saw a gun fall from Baker’s waist to the
ground. The officers testified at trial that Baker fell towards
the weapon in a manner suggesting that he was trying to
retrieve it, but the second officer, Officer Bartuch, simulta-
neously kicked the gun to the curb. After handcuffing and
arresting Baker, they picked up the gun, which was a
loaded, .40 caliber, semiautomatic pistol.
  Before trial, Baker moved for the disclosure of exculpa-
tory evidence. The Government turned over documents
identifying Chamon White as the registered owner of the
gun, where he purchased the gun, White’s employment as
an Illinois Department of Corrections (“IDOC”) prison
guard, and White’s address. Baker asked the Government
to stipulate that he was not the registered owner of the gun.
The Government agreed, with the express reservation that
Baker could not “seek to introduce any evidence or make
No. 05-3162                                              3

any argument, directly or indirectly, about the identity of
the registered owner of the gun.” The Government also
turned over documents that indicated the gun had been
used in an April 2003 murder in Maywood, Illinois, several
months before Baker’s arrest. Baker moved in limine to
exclude the documents that connected the gun to the
Maywood murder and moved to exclude any reference to the
murder at trial. The Government agreed, “provided that
defendant did not seek to introduce any evidence or make
any argument . . . about the whereabouts or possession of
the gun before December 6, 2003.”
  Three weeks before trial, the Government submitted
additional documents to the district court under seal and
requested that the district court conduct an in camera
review to determine whether the documents needed to be
turned over to Baker. The Government was still investigat-
ing the April 2003 murder involving the gun and did not
want to release reports that might compromise the investi-
gation. The reports consisted of interviews of Chamon
White and an individual named Kaywan Palmer, as well as
an analysis of fingerprints found on the gun and at the
murder scene. The Government argued that these docu-
ments related only to “the persons who possessed the
weapon between January 2003 and April 9, 2003.”
  After a hearing, the district court, applying Rule 16 and
Brady, found that the contested documents did not have to
be turned over because they were irrelevant. Baker was
convicted and now appeals.


                     II. ANALYSIS
A. Standard of Review
  The district court’s determination that the disputed
information did not have to be disclosed is accorded sub-
stantial deference, and Baker can only succeed if he
demonstrates that the district court’s decision constituted
4                                               No. 05-3162

an abuse of discretion. See United States v. O’Hara, 301
F.3d 563, 569 (7th Cir. 2002); United States v. Plescia, 48
F.3d 1452, 1457 (7th Cir. 1995). A district court’s decision
constitutes an abuse of discretion only “if no reasonable
person could agree with the district court.” Tobel v. City of
Hammond, 94 F.3d 360, 362 (7th Cir. 1996).


B. Alleged Brady Violation
   Pursuant to the Supreme Court’s ruling in Brady, “the
government has the affirmative duty to disclose evidence
favorable to a defendant and material either to guilt or
punishment.” United States v. Fallon, 348 F.3d 248, 251
(7th Cir. 2003) (citing Brady, 373 U.S. at 83). Evidence
favorable to a defendant includes both impeachment and
exculpatory evidence. See United States v. Bagley, 473 U.S.
667, 676 (1985). The Court has articulated three critical
elements to a true Brady violation: (1) “The evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching;” (2) “that evidence
must have been suppressed by the State, either willfully or
inadvertently;” and (3) “prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The Court
has further explained that “there is never a real ‘Brady
violation’ unless the nondisclosure was so serious that there
is a reasonable probability that the suppressed evidence
would have produced a different verdict.” Id. at 281. We
have described this inquiry as “materiality,” and stated that
the demonstration of materiality is the key to obtaining a
new trial where a defendant alleges a Brady violation. See
United States v. Gillaum, 372 F.3d 848, 858 (7th Cir. 2004)
(“evidence is material under Brady only if there exists a
‘reasonable probability’ that its disclosure to the defense
would have changed the result of the trial”) (internal
quotation marks and brackets omitted) (quoting United
States v. Irorere, 228 F.3d 816, 829 (7th Cir. 2000)).
No. 05-3162                                                 5

  Baker argues that had he possessed additional informa-
tion on the gun’s ownership history, he would have been
able to more successfully investigate the weapon’s back-
ground to prove his theory at trial—that the gun was either
already present on the street when he arrived or that one of
the officers brought the gun to the crime scene. He also
argues, without explaining why, that the information might
have been useful to impeach the Government’s witnesses.
Baker does not actually contend that the reports constituted
exculpatory material, but rather that there was some
possibility that they might lead to unknown exculpatory
material and that his trial preparation was hampered. We
rejected such an argument in Fallon, where the defendant
“argue[d] that his trial strategy was affected by the late
disclosure of [certain] statements.” Fallon, 348 F.3d at 253.
We stated that “[m]ateriality focuses not on trial prepara-
tion, but instead on whether earlier disclosure would have
created a reasonable doubt of guilt.” Id.
   More to the point, Baker cannot demonstrate that there
is a “reasonable probability” that he would have been
acquitted had he possessed the suppressed information. In
a prosecution for possession of a firearm in violation of 18
U.S.C. § 922(g), the ownership of the gun is not dispositive.
See United States v. Hubbard, 61 F.3d 1261, 1272 (7th Cir.
1995) (“that Hubbard did not own the guns does not vitiate
his possession of them for purposes of section 922(g)”). The
Government was required to prove “(1) that [the defendant]
had a previous felony conviction, (2) that he possessed a
firearm and (3) that the firearm had traveled in or affected
interstate commerce.” See United States v. Kitchen, 57 F.3d
516, 520 (7th Cir. 1995). Baker stipulated as to the first and
third elements, so the only question at trial was whether he
had “possessed” a firearm. This is a case of alleged “actual
possession,” which occurs “when a tangible object is in the
immediate possession or control of the party.” United States
v. Garrett, 903 F.2d 1105, 1110 (7th Cir. 1990).
6                                                    No. 05-3162

  The verdict demonstrates that the jury found that the two
Chicago Police officers who arrested Baker were credible,
and he has not articulated how additional information on
the gun’s history would have impeached the officers’
testimony. We have no reason to believe that a different
outcome would have resulted had Baker possessed the
information. For the purposes of the Brady inquiry, the best
case scenario for Baker’s theory that the gun was already
lying on the ground is that one of the prior owners lived at
an address directly in front of or near the location where
Baker was arrested. Baker has not demonstrated that such
a conclusion can be drawn from the suppressed information.
But even if this were true, it would not overcome the
officers’ testimony that the gun fell from Baker’s waist and
that he appeared to attempt to retrieve it. Nor would it
provide a reasonable explanation for Baker’s decision to flee
from the police and later resist arrest. The jury would be
left scratching their heads over the infinitesimally low odds
that Baker, a convicted felon, fled the police and managed
to be unluckily apprehended at the exact location of an
abandoned firearm.
  Baker’s other theory—that the police planted the
weapon—faced additional hurdles that we do not envision
the alleged exculpatory evidence would overcome. For the
jury to accept this theory, the history of the gun would have
to have been sufficient to convince the jury members that
two rookie police officers had already become so corrupt
that they had begun to employ the use of “drop guns”1 to set



1
  See Wells v. Rushing, 755 F.2d 376, 378 (5th Cir. 1985) (“the
major controversy centers around the .25 caliber pistol found in
Harris’ hand, which Wells alleges was a ‘drop gun,’ i.e., a gun
planted by Rushing after the shooting in order to give the
appearance that he acted in self defense.”); see also Todd v. City
                                                     (continued...)
No. 05-3162                                                      7

up otherwise law-abiding citizens who happened to be
consuming beer on the streets of Chicago. We doubt that
the history of the gun would have aided Baker in making
such a demonstration, or that it would have explained the
officers’ pre-apprehension radio to the dispatch officer that
there was a possible UUW, based on their observation that
Baker was clutching his waist.
   Moreover, the Government supplied Baker with signifi-
cant information on the history of the weapon. The name
and occupation of the original owner of the gun was dis-
closed. As a result, Baker had a significant starting point
for an investigation on the history of the gun’s ownership,
if he believed such an investigation would be fruitful. The
Government also stipulated at trial that Baker was not the
registered owner of the gun.
  We confronted similar facts in Gillaum, 372 F.3d at 851,
and concluded that the defendant failed to demonstrate
materiality. In Gillaum, the defendant was charged with a
violation of Section 922(g) after police searched his apart-
ment and found a handgun on the premises. According to
police testimony, contested by the defendant, Gillaum
admitted during the search that he had handled the gun
and that the police would find his fingerprints on it. At
trial, Gillaum claimed that the gun had been brought into
his apartment by a man named Stinson and that he had
told Stinson that it could not be kept in the apartment.


1
   (...continued)
of Chicago, No. 96-C-5247, 1999 WL 356293 at *4 n.3 (N.D. Ill.
May 24, 1999) (discussing “the notorious illegal practice of
planting an unregistered loaded “drop gun” on the victim to make
it appear that the officer’s use of deadly force was in response to
a threat and was hence justified”). We are aware of no cases
discussing the use of “drop guns” in illegal consumption of alcohol
investigations.
8                                               No. 05-3162

Gillaum was convicted, and during sentencing the Govern-
ment produced, for the first time, a trace report by the
Bureau of Alcohol, Tobacco, and Firearms that revealed the
name of the original owner of the gun. The ATF report also
included a police report in which the original owner of the
gun reported a burglary and identified Stinson as the
suspected perpetrator. Gillaum moved for a new trial under
Rule 33, pursuant to Brady. We said, “the question for the
jury was whether Gillaum, a convicted felon, possessed the
handgun,” and the “critical evidence was the testimony of
[the defendant] and [the arresting officer].” Id. at 858. We
found that “the history of the gun prior to entering
Gillaum’s apartment [was] immaterial” because “a jury
could have considered the BATF report, found it persuasive,
and still reached the same decision.” Id.
   Here, as in Gillaum, the jury could have considered the
reports describing additional past owners of the gun, found
them persuasive, and still convicted Baker on the basis of
the eyewitness testimony of two police officers. But Baker’s
argument here is less persuasive than the argument made
in Gillaum because the critical evidence relied on by the
jury was the observation of two police officers rather than
the testimony of one officer who claimed only that the
defendant had admitted possessing the gun. Gillaum
underscores that evidence of alternative ownership will
rarely be sufficient to demonstrate materiality where there
is credible evidence of possession. Furthermore, this case is
subject to a more deferential standard of review than that
applicable in Gillaum because the Government properly
submitted the contested reports to the district court for in
camera review. Baker has not demonstrated that there is
any reasonable possibility the alleged Brady material would
lead to his acquittal. He therefore falls far short of demon-
strating any abuse of discretion on the part of the district
court.
No. 05-3162                                                 9

C. Alleged Rule 16 Violation
  For substantially the same reasons, Baker also fails to
demonstrate that the district court abused its discretion
when it concluded that a Rule 16 violation did not occur.
See United States v. Jackson, 51 F.3d 646, 651 (7th Cir.
1995) (“We review a district court’s ruling on a Rule 16
motion for an abuse of discretion”). Under Rule 16(a)(1)(E)
of the Federal Rules of Criminal Procedure, the Govern-
ment “must permit the defendant to inspect and to copy or
photograph” all documents and similar items that the
Government possesses if “(i) the item is material to prepar-
ing the defense; (ii) the government intends to use the item
in its case-in-chief at trial; or (iii) the item was obtained
from or belongs to the defendant.” Rule 16, as some courts
have concluded, is broader than Brady. They have deter-
mined that Rule 16 requires the production of inculpatory
as well as exculpatory evidence, which might assist in
preparation of a defense. See United States v. Marshall, 132
F.3d 63, 68 (D.C. Cir. 1998) (“we see no reason why
inculpatory evidence could not serve the [same functions] as
exculpatory evidence, and the government has not articu-
lated any such reason.”); see also United States v. Conder,
423 F.2d 904, 911 (6th Cir. 1970) (“We are therefore of the
view that the disclosure required by Rule 16 is much
broader than that required by the due process standards of
Brady.”).
  But in the context of this case, that additional breadth is
not implicated, since the disputed information in no way
incriminated Baker. The information was not used by the
Government in its case-in-chief and was not obtained from
Baker. The only question is whether the disputed informa-
tion was material to the preparation of Baker’s defense, i.e.,
was it exculpatory or helpful for impeachment? The answer
is no. See 2 Charles Alan Wright, Federal Practice &
Procedure § 254 (3d ed. 2000) (“to satisfy the requirement
of [Rule 16] materiality a defendant must demonstrate
10                                              No. 05-3162

some indication that the pretrial disclosure of the disputed
evidence would enable defendant significantly to alter the
quantum of proof in his or her favor”). Since the answer is
no, Baker has not demonstrated an abuse of discretion in
the district court’s conclusion that the disputed information
was immaterial.


                   III. CONCLUSION
  The judgment of the district court is AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-29-06
