201 F.3d 979 (7th Cir. 2000)
UNITED STATES OF AMERICA,    Plaintiff-Appellee,v.DAVID ALDACO,    Defendant-Appellant.
No. 98-4079
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 9, 1999Decided January 21, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 98 CR 211--Charles R. Norgle, Sr., Judge. [Copyrighted Material Omitted]
Before COFFEY, KANNE and EVANS, Circuit Judges.
COFFEY, Circuit Judge.


1
On March 31, 1998, a  federal grand jury in the Northern District of  Illinois returned a one-count indictment against  the defendant-appellant, David Aldaco, a  convicted felon,1 charging him with possession  of a shotgun in violation of 18 U.S.C. sec.  922(g)(1). At trial Aldaco offered no defense,  and the jury found him guilty as charged in the  indictment. Thereafter, the defendant-appellant  filed a motion for judgment of acquittal and a  motion for a new trial, both of which the court  denied without opinion. The trial judge sentenced  Aldaco to fifteen years imprisonment followed by  three years of supervised release. We affirm.

I.  BACKGROUND

2
Police officers for the city of Chicago,  Illinois, arrested David Aldaco on July 2, 1993,  while responding to a complaint that shots had  been fired from a city rooftop. Officer James  Sanchez was the first Chicago police officer to  respond that night and, while climbing through a  hatch door in a hallway ceiling, Officer Sanchez  observed Aldaco on the roof holding a long-  barreled weapon.2 Three other men were on the  rooftop with Aldaco. As Officer Sanchez was  climbing through the hatch, he witnessed Aldaco  throwing his weapon through the skylight. After  arresting the four individuals on the roof, the  officers confiscated the 12-gauge Mossberg  shotgun that Aldaco had thrown and abandoned in  the stairwell below the skylight.


3
The four men atop the roof were arrested and  placed in a squad car, at which time Aldaco told  Officer Sanchez that "the shotgun was his and not  to put it on any of the other guys." The  defendant-appellant repeated this same admission  to Officer Sanchez at the police station.


4
Following Aldaco's arrest, the Chicago police  sent the confiscated shotgun and ammunition to  its Evidence and Recovered Property Division.  Approximately one month later, a federal agent  from the Bureau of Alcohol, Tobacco, and Firearms  ("ATF") requested that the police test-firethe  weapon. The shotgun fired as designed.3


5
On September 15, 1993, Aldaco pled guilty in  Illinois state court to charges of "unlawful use  of a weapon" in violation of 720 ILCS sec. 5/24-  1, arising from the rooftop incident. In the  course of the state court guilty plea  proceedings, the state prosecutor summarized the  anticipated testimony of Officer Sanchez from his  reports; specifically, he stated that the officer  would testify that he observed Aldaco on the  rooftop holding a long-barreled shotgun and that  Aldaco had, on two separate occasions, admitted  ownership of the weapon. During a colloquy with  the Illinois state court judge prior to the  court's acceptance of the guilty plea, Aldaco  admitted that the facts that the prosecutor  offered as a summary of Officer Sanchez'  anticipated testimony accurately described the  events on the night in question.


6
Some four years after Aldaco pled guilty to the  state court charges, the Chicago police  authorities destroyed the shotgun and ammunition  impounded by the officers at the time of Aldaco's  arrest. Approximately four months after the  destruction of the shotgun, a federal grand jury  indicted Aldaco for being a felon in possession  of a firearm. Aldaco moved to dismiss the  indictment, or in the alternative, to suppress  the evidence from the test-firing conducted in  1993 because the shotgun had been destroyed. The  trial judge denied Aldaco's motion and the case  proceeded to trial.


7
At trial, the government introduced the test-  firing evidence and used a replica of the  original shotgun to assist in demonstrating to  the jury what Officer Sanchez observed when he  saw Aldaco holding the gun. Defense counsel  objected to the use of the test-firing evidence  and the replica. The government also read into  the record the colloquy from the state court  guilty plea proceedings including Aldaco's  testimony in which he admitted that the facts  recited from Officer Sanchez' anticipated  testimony were true and accurate. During closing  argument, the prosecutor made reference to  Aldaco's subpoena power, including his ability to  compel witnesses to testify, and, arguably, made  indirect references to his burden of proof and  his failure to testify on his own behalf.


8
The jury convicted Aldaco of being a felon in  possession of a firearm. Aldaco appeals.

II.  ISSUES

9
On appeal, we consider: 1) whether the district  court's denial of Aldaco's motion to dismiss the  indictment was proper; 2) whether the court  abused its discretion when it admitted the  government's test-firing evidence and a replica  of the destroyed shotgun; 3) whether the trial  court incorrectly denied Aldaco's motion for a  mistrial based on the government's statements in  closing argument referencing Aldaco's subpoena  power, his "bad" character, and what might be  interpreted as an indirect reference to his  failure to testify on his own behalf; and 4)  whether the trial judge abused his discretion in  instructing the jury regarding possession of a  firearm.

III.  DISCUSSION
A.  Aldaco's Motion to Dismiss

10
We review a trial court's denial of a motion to  dismiss an indictment de novo. See United States  v. Lee, 72 F.3d 55, 57 (7th Cir. 1995).


11
Initially, Aldaco argues that the district court  incorrectly denied his motion to dismiss the  indictment. He contends that he was denied due  process when the shotgun and ammunition recovered  from the rooftop were destroyed before the gun  could be tested for recent firing or  fingerprints. "When, as in this case, the failure  of the prosecution to preserve evidence is at  issue, due process requires that the defendant  demonstrate: 1) bad faith on the part of the  government; 2) that theexculpatory value of the  evidence was apparent before the evidence 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. Watts, 29 F.3d  287, 289-90 (7th Cir. 1994) (citations omitted).


12
In Watts, the defendant argued that he was  denied due process by the police department's  destruction of a videotape of the robbery with  which he was charged. The police who investigated  the robbery destroyed the videotape evidence  after concluding that it was useless because it  was blurry. The defendant, Watts, claimed that  the videotape was exculpatory because of the  hairstyle of the man filmed on the tape4 and  that the government violated his constitutional  rights by intentionally destroying the evidence.


13
The district court denied Watts' motion to  dismiss the indictment on due process grounds and  we affirmed, finding that the defendant had  failed to establish a due process violation. We  ruled that Watts failed to demonstrate that the  actions of the government rose to the level of  bad faith. We also found that there was no proof  in the record implying, much less establishing,  that the destruction of the videotape was done  for any other reason than the fact that the  videotape was useless due to its blurriness.  Furthermore, the totality of the other evidence  against Watts was overwhelming. Specifically,  there were two eyewitnesses who identified Watts  as the robber, additional witnesses who placed  Watts near the crime scene during the relevant  time period, a sawed-off shotgun like the one  used in the robbery was found in the car Watts  was in at the time of his arrest, and Watts  admitted committing the robbery; thus the tape  was not the only piece of evidence that  implicated Watts in the robbery. The destruction  of the blurred tape was therefore logical in  light of the wealth of other evidence  establishing Watts' guilt and there was no  showing of bad faith on the part of the  government. In this context, we held that the  trial judge's denial of Watts' motion to dismiss  the indictment on due process grounds was proper.


14
Like the defendant in Watts, Aldaco has also  failed to demonstrate that the government acted  in bad faith as is necessary to establish that  his due process rights were violated. Aldaco  claims that the destruction of the shotgun just  four months before he was indicted and over four  years after his state court conviction on the  weapons charge provides sufficient grounds from  which to infer that the government acted in bad  faith. He contends that the fact that the ATF  agent requested the test-firing of the gun one  month after Aldaco's arrest demonstrates that the  federal government contemplated a prosecution  from early on in the process. He argues that the  government's failure to take possession of the  shotgun, much less even request its preservation,  lends support to his contention that the  government intentionally engaged in "an effort to  keep important evidence from Mr. Aldaco."5


15
Aldaco's argument misses the point: the Chicago  Police Department, not the federal government,  confiscated, tested, retained possession of,  recorded, and eventually destroyed the gun some  four years after the commission of the crime.  Nothing in the record lends credence to the  defendant-appellant's assertion that the federal  government acted in collusion with the Chicago  Police Department to prevent Aldaco from gaining  possession of the shotgun for use in his defense;  in fact, the only documented contact between the  government and the police department regarding  Aldaco's case came just one month after his  arrest and nearly four years before the gun was  destroyed and Aldaco was federally indicted. We  cannot reasonablyexpect the Chicago Police  Department to continue to store evidence of this  nature indefinitely after a defendant had entered  a guilty plea in state court and had been found  guilty of a similar state crime involving the  same events unless it had a sufficient basis to  believe that the federal government was going to  indict him. In this case, the City of Chicago had  no reason to suspect that the federal government  was going to indict Aldaco.


16
Aldaco speculates and states that the Chicago  Police Department's "conscious destruction" of  the shotgun is sufficient to make a showing of  bad faith on its part for which the federal  government should be held responsible because it  took full advantage of the missing firearm. Even  though the defendant has not cited, nor have we  been able to discern from our research, any cases  from this circuit in which any state or local  government body destroyed evidence prior to a  defendant's indictment by a federal grand jury,  other circuits, when faced with a similar  situation, have refused to impute bad faith to  the federal government based on the state's  actions absent any evidence establishing that any  governmental agency was maliciously involved in  the destruction of evidence. See, e.g., United  States v. Gallant, 25 F.3d 36, 38-39 (1st Cir.  1994) (rejecting defendant's argument that his  due process rights were violated where state  police officer destroyed roots and stems of  marijuana plants seized from defendant's trailer  prior to federal indictment on drug charges);  United States v. Baca, 687 F.2d 1356, 1359-60  (10th Cir. 1982) (defendant could not establish  bad faith necessary for due process violation by  the federal government where state authorities  destroyed evidence prior to indictment and  defendant made "no showing of culpability on the  part of the federal government for the loss of  the evidence").


17
Just as the overwhelming evidence of guilt in  Watts diminished the need for the police to  retain the blurry videotape, there likewise was  far more evidence of Aldaco's guilt than what may  have been established by the shotgun. The  government was never asked nor did it have any  need to offer fingerprint evidence to establish  Aldaco's possession of the firearm; rather, it  offered the testimony of a Chicago police officer  to establish the defendant's possession of the  shotgun. In addition to Officer Sanchez'  testimony and Aldaco's admission to him at the  time of his arrest, Aldaco had also previously  pled guilty to the same set of facts in state  court proceedings. We are aware of no reason to  continue to retain and store evidence after the  defendant has admitted to its possession under  oath in open court. One can hardly blame the  Chicago Police Department for concluding that the  shotgun was no longer needed in light of these  circumstances, especially because Aldaco had not  yet been indicted in federal court after four  years. Obviously the police department's capacity  for the storage of items of evidence is not  boundless, and certainly a four-year period of  waiting prior to the destruction of evidence  cannot be considered an unreasonable span of time  given the factual situation in this case.


18
Because Aldaco has failed to make a showing, as  required by Watts, that the government acted in  bad faith when it destroyed the shotgun, we hold  that the district court's denial of his motion to  dismiss was proper.6


19
B.  Test-firing Evidence and the Shotgun Replica


20
Aldaco next argues that the trial judge erred  in allowing the government to present evidence of  the 1993 test-firing of the firearm as well as a  replica of the destroyed shotgun. Aldaco contends  that he was severely prejudiced by the admission  of this evidence at trial.


21
We review a district court's decision to admit  evidence for an abuse of discretion, affording  "great deference to the trial court's  determination of the admissibility of evidence  because of the trial judge's first-hand exposure  to the witnesses and the evidence as a whole, and  because of the judge's familiarity with the case  and ability to gauge the impact of the evidence  in the context of the entire proceeding." United  States v. Van Dreel, 155 F.3d 902, 905 (7th Cir.  1998). Compare United States v. Mancillas, 183  F.3d 682, 701 n. 22 (7th Cir. 1999) ("We do not  second-guess the [trial] judge's credibility  determinations because he or she has had the best  opportunity to observe the verbal and nonverbal  behavior of the witnesses focusing on the  subject's reactions and responses to the  interrogatories, their facial expressions,  attitudes, tone of voice, eye contact, posture  and body movements, as well as confused or  nervous speech patterns in contrast with merely  looking at the cold pages of an appellate  record." (citation omitted) (brackets in  original)), petition for cert. filed, No. 99-6626  (Oct. 18, 1999). "Accordingly, we will find  reversible error only if the district court's  decision is not within the range of options from  which one would expect a reasonable trial judge  to select." VanDreel, 155 F.3d at 905.


22
Under the Federal Rules of Evidence, relevant  evidence, which is defined as evidence which  tends to make the existence or non-existence of  a material fact more likely than not, is  admissible. See Fed. R. Evid. 402. In order to  properly exclude otherwise relevant evidence, a  trial court must be satisfied that the prejudice  to the defendant substantially outweighs the  probative value of the evidence. See Fed. R.  Evid. 403.

1.  The test-firing evidence

23
Aldaco also argues that the test-firing evidence  should have been deemed inadmissible because it  was unduly prejudicial to him. Alternatively, the  defendant-appellant argues that the evidence  should have been excluded as a sanction for the  destruction of the shotgun.7


24
The court concluded that the results of the  test-firing conducted by the police which  demonstrated that the shotgun fired as designed  were relevant and admissible evidence and  furthermore that it was not unduly prejudicial to  Aldaco. However, in an attempt to protect  Aldaco's rights, the trial judge stressed to the  parties that defense counsel would be given  latitude to fully explore the gun firing and  testing issue on cross-examination, advising that"this may be fully explored by the defendant in  cross-examining the witnesses who are called  regarding the gun, the shotgun, and its testing  and also any other circumstances surrounding the  acquisition of the weapon, the testing of it, and  ultimately that it was destroyed."


25
We refuse to hold that the trial judge abused  his discretion in denying Aldaco's motion to  suppress the evidence regarding the test-firing  of the long-barreled shotgun. The indictment  charged Aldaco, a convicted felon, with  possession of a firearm in violation of 18 U.S.C.  sec. 921(a)(3). The statute defines a firearm as  "any weapon (including a starter gun) which will  or is designed to or may readily be converted to  expel a projectile by the action of an explosive  . . . ." Id. Obviously, the government was  required to introduce the test-firing results in  order to satisfy their burden of establishing  that the shotgun was a "firearm." Proof that the  shotgun properly fired during the test-firing  conducted by Chicago police demonstrates that the  weapon is a firearm as charged in the indictment.  The test results were relevant. Given the fact  that Aldaco pled guilty in Illinois state court  to charges of "unlawful use of a weapon" in  violation of 720 ILCS sec. 5/24-1, offered no  defense in his federal trial, and twice made the  admission to Officer Sanchez that "the gun was  his and not to put it on any of the other guys,"  and because Aldaco also had more than ample  opportunity to challenge the testing evidence at  trial, we hold that the court did not erroneously  conclude that the relevance of the gun-testing  issue outweighs any potential prejudice to  Aldaco. The trial court's conclusion that the  test-firing evidence was admissible was proper.

2. The replica shotgun

26
Applying the abuse of discretion standard as is  proper when reviewing a trial court's  determination dealing with the admissibility of  demonstrative evidence, see United States v.  Salerno, 108 F.3d 730, 742 (7th Cir. 1997), we  are convinced that the court did not err in  allowing the government to use a replica of the  destroyed shotgun as demonstrative evidence. We  agree with the trial judge's determination that  the probative value of the replica shotgun  outweighed the prejudice to Aldaco.


27
The government introduced the replica to  illustrate what Officer Sanchez saw when he  observed Aldaco holding the shotgun in order that  the jury might properly determine whether the  events happened as Officer Sanchez testified.  This Court has frequently approved the use of  this type of demonstrative evidence to establish  that objects of this nature were actually used in  the commission of a crime. See, e.g., United  States v. Towns, 913 F.2d 434, 446 (7th Cir.  1990) (district court did not abuse its  discretion in allowing admission of a gun and ski  mask identified by eyewitnesses "as being similar  to those possessed by the robbers" for "the  limited demonstrative purpose of providing  examples of the gun and ski mask" used in the  robbery); United States v. Salerno, 108 F.3d at  742-43 (no abuse of discretion when the district  judge allowed the use of a scale model of a crime  scene as demonstrative evidence); Roland v.  Langlois, 945 F.2d 956, 963 (7th Cir. 1991)  (trial court did not abuse its discretion in  allowing into evidence a life-sized model of an  amusement park ride for demonstrative purposes).  Courts in our sister circuits have also  frequently approved of the admission of replica  evidence, more specifically guns, for  demonstrative purposes. See United States v.  McIntosh, 23 F.3d 1454, 1456 (8th Cir. 1994);  United States v. Russell, 971 F.2d 1098, 1105  (4th Cir. 1992); United States v. Ferreira, 821  F.2d 1, 6 (1st Cir. 1987); Banning v. United  States, 130 F.2d 330, 335-36 (6th Cir. 1942).


28
The only potential prejudice Aldaco has  attempted to identify that might have resulted  from allowing the replica shotgun into evidence  is jury confusion over whether the gun displayed  in court was actually the shotgun in the  defendant's hand on the night of the arrest. To  reduce the risk that the replica might in some  unknownway prejudice Aldaco, the judge cautioned  the government to make clear to the jury that the  shotgun it displayed at trial was not the actual  shotgun possessed by Aldaco. The government made  this clear both in its opening statement ("the  thing to remember as we go through the trial is  that [the Mossberg shotgun presented at trial]  will not be the same. It will not be the same  firearm"), and during its direct examination of  Officer Sanchez by asking him to describe how the  firearm at trial differs from that found on July  2, 1993. Finally, the judge assisted in  minimizing prejudice by prohibiting the  government from keeping the replica shotgun in  the court room in plain view of the jury during  the trial.


29
Because the use of replica evidence for  demonstrative purposes is a widely-accepted  practice, and because the court took steps to  minimize potential prejudice to Aldaco, we refuse  to hold that the court abused its discretion in  allowing the use of a replica shotgun in this  case.

C.  Aldaco's Motion for a Mistrial

30
Aldaco claims that the prosecutor made repeated  impermissible references to his failure to  testify on his own behalf, to the defendant's  subpoena power, and to the fact that Aldaco was  one of the reasons that his neighborhood was bad.  According to Aldaco, these comments impermissibly  violated his Fifth Amendment rights and his right  to a fair trial. As such, Aldaco asserts that the  district court erred in denying his motion for a  mistrial.


31
This Court ordinarily reviews the court's  decision not to grant a mistrial for an abuse of  discretion. See United States v. King, 150 F.3d  644, 647 (7th Cir. 1998). However, in this case  the trial judge applied an erroneous legal  standard in deciding whether to grant Aldaco's  motion for a mistrial.8 We thereby review the  trial court's decision to deny Aldaco's motion de  novo. See In re Sealed Case, 146 F.3d 881, 883  (D.C. Cir. 1998).


32
1.  Indirect references to Aldaco's failure to  testify


33
Direct comment on a defendant's failure to  testify is forbidden by the Fifth Amendment. See  Griffin v. California, 380 U.S. 609, 613-14  (1965). Additionally, indirect commentary on a  defendant's failure to take the stand can also  constitute a violation of the defendant's Fifth  Amendment privilege not to testify. See United  States v. Cotnam, 88 F.3d 487, 497 (7th Cir.  1996). Further, "a prosecutor's comment that the  government's evidence on an issue is  'uncontradicted,' 'undenied,' 'unrebutted,'  'undisputed,' etc., will be a violation of the  defendant's Fifth Amendment rights" if: 1) the  only person who could have contradicted, denied,  rebutted, or disputed the evidence was the  defendant; 2) the prosecutor manifestly intended  to refer to a defendant's silence; or 3) a jury  would "naturally and necessarily" take the remark  for a comment on the defendant's silence. Id.  (citations omitted).


34
Aldaco argues that the prosecutor made  statements during his closing argument that  violated his Fifth Amendment right not to  testify. Aldaco specifically objects to  statements by the prosecutor like "they have not  disputed this. . . ," and "[w]ell, if there was  anyone who could corroborate their version of the  events, . . ." claiming that they are  impermissible under Cotnam because Aldaco was the  only one who could controvert or dispute Officer  Sanchez' testimony and the other evidence  presented against him.


35
In this case, the prosecution merely commented  in closing arguments that Officer Sanchez had  consistently stated thatAldaco was the man on  the roof with the gun and that "they have not  disputed this;" "this" referring to the fact that  Officer Sanchez had consistently identified  Aldaco as the man on the roof holding the gun.  The prosecution evidently felt the need to point  out this consistency in Officer Sanchez'  testimony because Aldaco's counsel focused on  other areas in which Officer Sanchez' testimony  was not entirely consistent. Indirect references  to the "undisputed" evidence or the lack of  corroboration by the defendant violate the Fifth  Amendment only when the defendant is the sole  source who could possibly rebut the statement.  See id. Where, as in this case, the defendant's  three accomplices were available to rebut the  officer's allegation that Aldaco possessed the  gun, the prosecutor's statement that the evidence  was "undisputed" was not improper.

2.  Other Prosecutorial Comments

36
In addition to the prosecutor's statements  regarding the undisputed evidence and the  defense's lack of corroboration, Aldaco argues  that the prosecutor made other inappropriate  remarks that had the collective result of denying  him his right to a fair trial.9 He objects to  the government's reference to the defense's power  to subpoena witnesses, claiming that it  inappropriately shifted the burden of proof to  the defense, and of the comment that Aldaco was  partially responsible for making his neighborhood  "bad."


37
"[I]mproper prosecutorial comments that do not  implicate specific constitutional rights of the  accused, such as the right to counsel and the  right to remain silent, are evaluated to  determine whether they deprived the defendant of  a fair trial." Id. at 497-98. If comments from a  closing argument, taken in isolation, are deemed  to be improper, we then consider the remarks in  light of the entire record to determine if the  defendant was deprived of a fair trial. See id.  Relevant considerations are: 1) the nature and  seriousness of the prosecutorial misconduct; 2)  whether defense counsel's conduct invited the  remarks; 3) whether the jury instructions were  adequate; 4) whether the defense could counter  the improper remarks through rebuttal; and 5) the  weight of the evidence against the defendant. See  United States v. Pirovolos, 844 F.2d 415, 425  (7th Cir. 1988).


38
We hold that it was not improper for the  prosecutor to make clear to the jury that the  defendant, like the government, has the power to  subpoena any witness or witnesses relevant to the  case after Aldaco's counsel had opened the door  to this reply argument by the prosecution. In  closing argument, Aldaco's counsel pointed out  that the government had not called the other  three individuals who were on therooftop that  evening as witnesses at the trial nor the citizen  who had called the police with the original  complaint. In rebuttal, the government noted that  both parties in a trial may compel witnesses to  testify, and, at the same time, made very clear  to the jury that, of course, Aldaco did not bear  the burden of proof. This Court has previously  considered such remarks proper under similar  circumstances. See United States v. King, 150  F.3d 644, 648-49 (7th Cir. 1998) (remark that  defendant "had the opportunity to call witnesses"  not improper in light of defense counsel's  argument that the government should have called  additional witnesses); United States v.  Sblendorio, 830 F.2d 1382, 1391-94 (7th Cir.  1987) (where defense opened the door by pointing  out that certain witnesses had failed to testify,  prosecution justified in pointing out that  defense also has subpoena power while at the same  time informing the jury that defense did not have  to prove anything).


39
Finally, the trial court's determination that  there were insufficient grounds to declare a  mistrial from the prosecutor's statement in his  argument to the jury that Aldaco was "one of the  reasons" that the area in which he was arrested  was a bad neighborhood was not improper. Defense  counsel admitted in his opening statement to the  jury that the area in which Aldaco was arrested  was "one of the rougher stretches of the city,"  and the prosecutor was merely echoing and  agreeing with this assertion in his closing  argument. Moreover, the prosecutor's remarks in  reply to defense counsel find support in the  record. On the night Aldaco was arrested, police  officers responded to a complaint that shots had  been fired from the roof of a building in that  neighborhood. When they arrived, Officer Sanchez  saw Aldaco on the roof of the building  brandishing a shotgun in the company of three  other individuals. Aldaco's activity on the roof  clearly contributed to the neighborhood's  reputation as being a "rough stretch" of the  city. See United States v. Cook, 432 F.2d 1093,  1096 (7th Cir. 1970) (prosecutor may speak  harshly about the action and conduct of the  accused if the evidence in the record supports  his comments).


40
After review of the record, we refuse to hold  that the prosecutor's statements regarding  Officer Sanchez' uncontroverted testimony, the  defense's subpoena power, and Aldaco's  contribution to his "bad neighborhood" rose to  the level sufficient to warrant the granting of  a mistrial. There was no Fifth Amendment  violation when the prosecution referenced the  "undisputed" evidence because there were  witnesses besides Aldaco who could have contested  the evidence that Aldaco possessed the gun on the  roof. Additionally, there was nothing improper in  the remarks that the defense has subpoena power  or that Aldaco made the neighborhood "bad."  Therefore, Aldaco was not deprived of his right  to a fair trial.

D.  Jury Instructions Regarding Possession

41
The trial court instructed the jury on both  sole and joint possession of a firearm. The  instructions, given over defense counsel's  objections, were as follows:


42
A person who has direct physical control over a  thing, at a given time, is then in actual  possession of it. The law recognizes also that  possession may be sole or joint. If one person  alone has actual possession of a thing,  possession is sole. If two or more persons share  actual possession of a thing, possession is  joint. You may find that the element of  possession, as just defined, is present if you  find that the defendant had actual possession,  either alone or jointly with others.


43
Aldaco argues that the district judge erred in  giving this instruction because it was not  germane to the facts of this case.


44
We review the trial judge's rulings on jury  instructions for an abuse of discretion. See  United States v. Neville, 82 F.3d 750, 759 (7th  Cir. 1996). If the jury instructions fairly and  accurately summarize the law and have support in  the record they will not be disturbed on appeal.  See United States v. Wimberly, 79 F.3d 673,676 (7th Cir. 1996). Finally, even if the instruction  was erroneous, Aldaco must show actual prejudice  to warrant reversal. See United States v. Smith,  131 F.3d 685, 688 (7th Cir. 1997).


45
We hold that the district court did not abuse  its discretion in giving the instruction on sole  and joint possession because the instruction  referred to provides a fair and accurate summary  of the law as applied to the facts in the case;  the fact that there were four men on the rooftop  on the night in question supports the need for  the instruction on joint possession. See United  States v. Mahone, 537 F.2d 922, 929 (7th Cir.  1979) (instruction on joint possession of gun  proper where defendant in car with three other  individuals even though defendant argued that  there was no evidence of joint possession  presented at trial).

IV.  CONCLUSION

46
We hold that the district court's denial of  Aldaco's motion to dismiss the indictment was  proper because Aldaco failed to present  sufficient evidence to establish that the  government acted in bad faith in destroying the  shotgun in question. We also conclude that the  trial court did not abuse its discretion in  admitting the government's test-firing evidence  and the replica shotgun over defense counsel's  objections that such evidence unduly prejudiced  Aldaco. Further, we hold that the court's denial  of Aldaco's motion for a mistrial was not  improper despite the prosecutor's comments about  the undisputed evidence, defendant's subpoena  power, and the defendant's character. Finally,  the trial judge did not abuse his discretion in  instructing the jury on both sole and joint  possession. The jury instruction was a fair and  accurate statement of the law and was amply  supported by the evidence presented at trial.


47
AFFIRMED.



Notes:


1
 At the time of his indictment, Aldaco had prior  felony convictions for attempted robbery,  attempted armed robbery, armed robbery, and  murder.


2
 Officer Sanchez testified that he was  approximately 20 feet away from Aldaco when he  observed Aldaco with the shotgun.


3
 The shotgun was not tested for fingerprints.


4
 The man shown in the video had his hair pulled  back in a single ponytail. Watts claimed that he  always wore his hair in two pigtails--that is,  one ponytail on each side of his head.


5
 There is no evidence in the record indicating  that Aldaco ever requested that the gun be tested  for fingerprints or independently test-fired.


6
 Even assuming, arguendo, that Aldaco could  demonstrate bad faith on the part of the  government, he still failed to demonstrate that  his due process rights were denied because he  failed to offer any testimony to establish the  third prong of the Watts test--that the evidence  that might have been procured from the shotgun  could not have been elicited from a different  source. Specifically, Aldaco claims that evidence  obtained from the shotgun alone might have proven  him innocent of the charges and contradicted  Officer Sanchez' testimony, had it been tested  for fingerprints or firing. Officer Sanchez  testified that at the time of arrest and also at  a later time while in police custody, Aldaco  stated that "the gun was his" and asked that "it  not be pinned on any of the other guys." Aldaco  now denies having made that statement on either  of the two separate occasions and claims that  only the shotgun can prove his innocence. Aldaco  overlooks the fact that there were three other  individuals on the roof with him the night he was  arrested who could have testified that Aldaco was  not in possession of the 12-gauge Mossberg if  that indeed had been the case. Therefore, because  the evidence that may have been obtained from the  shotgun was not of such a nature that Aldaco  would be unable to obtain convincing evidence by  any other means, he has failed to meet the third  prong of the Watts test and his due process  claims again fall short.


7
 Aldaco asks this Court to adopt the standard set  forth by the Ninth Circuit for excluding  destroyed evidence instead of applying the  standard set forth in United States v. Watts, 29  F.3d 287, 289-90 (7th Cir. 1994). In the Ninth  Circuit, "[f]actors to be considered when  determining if exclusion is an appropriate  sanction for destroying or failing to preserve  evidence are 'the quality of the Government's  conduct and the degree of prejudice to the accused.'"  United States v. Belden, 957 F.2d 671, 674 (9th  Cir. 1992) (citation omitted). Aldaco offers no  reason why this Court should adopt the Belden  rule aside from his observation that "it merely  supplements the bad faith rule with a lower  standard for exclusion of evidence." Aldaco  having offered, and this Court finding, no  compelling reason to discard the Watts standard  in favor of the less stringent Belden standard,  we decline to do so.


8
 The district court mistakenly applied the  "manifest necessity" standard in denying Aldaco's  motion for a mistrial. "Manifest necessity" is  the burden that the prosecutor must satisfy to  avoid the double jeopardy bar when moving for a  mistrial over the defendant's objection. See  Arizona v. Washington, 434 U.S. 497, 505-06  (1978).


9
 In addition to the prosecutor's statements  previously addressed, Aldaco objects to the  following arguments by the prosecution:
Now, let me say this too, ladies and gentlemen,  because counsel raised this point about who the  government brought in or--and that we only  brought in police officers and we only brought in  these police officers, that there were other  people in the building.
The defense has subpoena power just like the  government. They don't have any burden of proof.
* * *
Well, if there was anyone who could corroborate  their version of these events.
* * *
In his opening statement Mr. Martin told you that  the blocks around 1900 South Racine was a bad  neighborhood. And I submit to you, ladies and  gentlemen, that after you look at all of the  evidence that a logical inference to be drawn  from that is that one of the reasons that that  was a bad neighborhood is sitting right there.


