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

No. 03-1104
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

LAWRENCE STEVENS,
                                        Defendant-Appellant.

                        ____________
          Appeal from the United States District Court
                 for the Central District of Illinois.
         No. 02 CR 20037—Michael P. McCusky, Judge.
                        ____________
  ARGUED FEBRUARY 25, 2004—DECIDED AUGUST 19, 2004
                   ____________



  Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges.
  ROVNER, Circuit Judge. Lawrence Stevens was charged
in a three-count indictment with possession with intent to
distribute five or more grams of crack, 21 U.S.C. § 841(a)(1)
(Count 1), possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1) (Count 2), and possession of a firearm during and
in relation to a drug trafficking crime, id. § 924(c) (Count 3).
A jury found Stevens guilty on all three counts, and he was
sentenced to concurrent 327-month terms of imprisonment
on Counts 1 and 2 and a consecutive sentence of life
imprisonment on Count 3. Stevens has appealed, and we
affirm.
2                                                No. 03-1104

                       Background
  On April 3, 2002, police in Decatur, Illinois, found the body
of Alban Woods outside of town. The police learned that the
previous night Woods had called a friend and told her that
he was following “Shadow” (a nickname Stevens used) to
the home of Shadow’s sister and then that he would return
to Decatur. Woods also told his friend that he recently had
purchased a dark blue Buick Roadmaster. The police did
not find the car when they recovered Woods’s body but five
days later observed a dark blue Buick Roadmaster parked
in front of Stevens’s house at 1338 Wood Street in Decatur.
A detective detailed all of this information in an affidavit
given to a state court judge, who in turn issued a warrant
allowing the police to search Stevens’s home for evidence of
Woods’s murder. Decatur police executed the search warrant
and found Stevens inside the house with his girlfriend and
her mother. In Stevens’s bedroom officers found 47.4 grams
of crack in a dresser drawer, including a 16.6-gram chunk
and 82 individual rocks packaged in separate bags. In the
same drawer officers found a dozen 9mm bullets. Tucked
between the mattress and box spring of the bed, the police
found a loaded 9mm semi-automatic pistol with a round in
the chamber, and under the bed officers found a shotgun and
the pistol’s case, which contained a fully loaded magazine.
The officers also found a postage scale with apparent crack
residue on it and two plastic bags containing over $15,000
in currency. The police did not find, however, any evidence
linking Stevens to Woods’s murder.
  Stevens agreed to speak with the police and signed a
waiver of his rights. He admitted that the crack and the
guns were his but said that he was holding the money for
someone else. Stevens even showed police where he had hid-
den additional money above the ceiling tiles of the bedroom.
Stevens’s girlfriend also made a statement to the police and
confirmed that the crack and guns were Stevens’s and that
she knew he was selling drugs.
No. 03-1104                                                  3

  After the federal drug trafficking indictment was returned,
Stevens moved to suppress the evidence seized during the
search of his home on the ground that the affidavit sup-
porting the warrant did not establish probable cause. The
district court disagreed and denied Stevens’s motion. The
district court went on to hold that, even if the warrant was
not based on probable cause, the good-faith exception to the
exclusionary rule would apply because the officers who
conducted the search reasonably relied on the warrant.
  Meanwhile, the police had forwarded the postage scale to
the Illinois State Police crime laboratory, and forensic
experts confirmed the presence of crack residue and also
found two fingerprints that matched Stevens’s. Forensic
scientist John Carnes completed his report concerning the
fingerprint evidence on July 29, 2002—10 days before
trial—and immediately forwarded it to the government.
That same day the government disclosed the report to
Stevens and notified him that Carnes would be called as an
expert witness at trial.
  On the first day of trial, Stevens moved in limine to ex-
clude the testimony of Carnes, alleging that the government
violated Federal Rule of Criminal Procedure 16 when it
disclosed the expert report just one week before trial. The
district court denied Stevens’s motion because the gov-
ernment had disclosed the report on the same day it was
received. After denying his motion, the court asked Stevens
whether he wanted any other relief other than exclusion of
the evidence, and Stevens said that he did not.
  On the second day of trial, the court held a jury instruction
conference at which the government submitted a proposed
instruction based on this circuit’s pattern jury instruction
4.03. The government’s submission informed the jurors that
they could not convict on Counts 2 or 3 unless they unani-
mously agreed that Stevens possessed a particular firearm.
Stevens conceded at the time that the proposed instruction
4                                                No. 03-1104

was appropriate, and so the district court agreed to give it.
Later, after the parties had rested, Stevens stated that he
had no proposed instructions of his own to tender to the
court. Subsequently though, just before the jury was to
receive the final charge, Stevens reversed course and told
the court that he had a “problem” with the unanimity
instruction because he thought it was confusing. Stevens
orally proposed two additional instructions that he thought
would avoid the perceived confusion, but he did not have
them in writing to submit to the court. Stevens acknowledged
that the government’s instruction was a correct statement
of the law, so the court denied his request. In closing argu-
ments, both the government and counsel for Stevens reminded
jurors that they were required to unanimously agree that
Stevens possessed at least one of the guns before they could
find him guilty on Counts 2 or 3. The jury returned guilty
verdicts on all three counts.


                        Discussion
  Stevens first argues that the district court erred in find-
ing that the underlying affidavit contained sufficient facts
to establish probable cause for the search of Stevens’s home.
However, in his opening brief Stevens failed to attack the
court’s alternative holding that the evidence seized was
admissible under the good-faith exception to the exclusion-
ary rule articulated in United States v. Leon, 468 U.S. 897
(1984). In his reply brief, Stevens attempts to argue that the
good-faith exception should not apply, but the challenge is
brought too late and we will not consider his arguments.
See United States v. Alvarez-Martinez, 286 F.3d 470, 475
(7th Cir. 2002) (arguments raised for the first time in a re-
ply brief are waived).
  Nevertheless, if we were to examine the district court’s
decision, we would agree that the evidence was admissible
No. 03-1104                                                  5

under the good-faith exception. Under Leon, the exclusion-
ary rule will not bar evidence obtained pursuant to a search
warrant unless the magistrate who issued the warrant
abandoned his neutral and detached role in issuing it, or
unless “the officers were dishonest or reckless in preparing
their affidavit or could not have harbored an objectively
reasonable belief in the existence of probable cause.” Leon,
468 U.S. at 926.
  There has never been any suggestion in this case that the
magistrate abandoned his neutral role in issuing the
warrant or that the officers were dishonest or reckless in
preparing the supporting affidavit, so the only question is
whether the affidavit was so lacking in facts that the officers
could not reasonably have believed that probable cause
existed. The affidavit stated that police had learned that
just hours before his death, Woods told a friend that he was
driving a newly purchased Buick Roadmaster and was fol-
lowing “Shadow” to his sister’s house and then would return
to Decatur. The affidavit also contained a statement from a
confidential informant whose description of “Shadow”
matched that of Stevens. The affidavit also stated that a
recently purchased Buick Roadmaster was seen parked on
the street in front of Stevens’s residence. Although it is
debatable whether the affidavit contained sufficient facts to
establish probable cause, it is not so devoid of facts that a
reasonable officer could not have believed probable cause
existed. See United States v. Garey, 329 F.3d 573, 578 (7th
Cir. 2003); United States v. Koerth, 312 F.3d 862, 869-70 (7th
Cir. 2002). Accordingly, although Stevens does not challenge
the district court’s decision that the good-faith exception
applies, we see no error in the court’s conclusion.
   Second, Stevens argues that the district court failed to
comply with Federal Rule of Criminal Procedure 16 when
it denied his motion to exclude the testimony of the govern-
ment’s fingerprint expert, John Carnes, because the gov-
ernment did not disclose the substance of his testimony
6                                                No. 03-1104

until ten days before trial. Even though the government
turned over Carnes’s report as soon as it was produced,
Stevens argues that the government had possession of the
scale for three months and should have conducted the finger-
print analysis in a more timely manner. Stevens contends
that he was prejudiced by the government’s late disclosure
because he did not have time to obtain an independent fin-
gerprint expert to verify the accuracy of Carnes’s opinion.
  We review the district court’s denial of Stevens’s motion
to exclude for abuse of discretion. United States v. Duvall,
272 F.3d 825, 828 (7th Cir. 2001). Rule 16 requires the
government to provide, at the defendant’s request, a copy of
any scientific tests or reports in the government’s possession
and a written summary of any expert testimony it intends
to use during its case-in-chief. Fed. R. Crim. P. 16(a)(1)(F).
  We agree with the district court that the government did
not violate Rule 16 because it turned over the expert report
as soon as it learned the report existed. In fact, the govern-
ment could not have produced the report any sooner
because it received the report the day it was produced.
Nevertheless, even if the government had violated Rule 16,
the appropriate remedy was not necessarily exclusion of the
evidence. Subsection (d)(2) of Rule 16 provides for several
different remedies the district court “may” adopt in response
to discovery violations, including granting requests for con-
tinuances. The type of sanction is “left to the discretion of
the court,” United States v. Jackson, 51 F.3d 646, 652 (7th
Cir. 1995) (citations omitted), “and we will reverse only for
abuse of discretion prejudicial to the substantial rights of
the defendant,” United States v. Koopmans, 757 F.2d 901,
906 (7th Cir. 1985). “A defendant is prejudiced under Rule
16 only when he is unduly surprised and lacks an adequate
opportunity to prepare a defense, or when the violation
substantially influences the jury.” United States v. De La
Rosa, 196 F.3d 712, 716 (7th Cir. 1999).
No. 03-1104                                                 7

  Although Stevens argues on appeal that he did not have
time to obtain an independent fingerprint expert to verify
the accuracy of the government’s witness, he did not re-
quest a continuance or any other alternative remedy even
when the trial court asked him if he wanted any other relief
other than exclusion of the evidence. Furthermore, Stevens
was not prejudiced because his counsel was able to thor-
oughly cross-examine Carnes at trial. See United States v.
Navarro, 90 F.3d 1245, 1259 (7th Cir. 1996). Given the wide
discretion we afford the district court in fashioning a proper
remedy for a Rule 16 violation and Stevens’s failure to show
that he was prejudiced, we affirm the district court’s ruling.
  Next, Stevens argues that the district court erred in re-
jecting his demand for a unanimity instruction concerning
which firearm he possessed. Stevens contends that the court’s
instruction might have confused the jury and resulted in his
conviction on Counts 2 and 3 without all the jurors agreeing
on which firearm he possessed. Stevens acknowledges that
he did not submit in writing a proposed instruction on
point.
   Where, as here, a defendant fails to tender a proposed
instruction, we review the district court’s ruling for plain
error. United States v. Mutuc, 349 F.3d 930, 935 (7th Cir.
2003). Only if we find that a miscarriage of justice has oc-
curred will we remand. See Johnson v. United States, 520
U.S. 461, 470 (1997); United States v. Hoover, 246 F.3d
1054, 1058 (7th Cir. 2001). Stevens admitted at trial that
the unanimity instruction was a correct statement of the
law. Furthermore, any confusion in the jury instructions
was countered by the explicit instructions given by both
Stevens and the government during closing argument that
it could find Stevens guilty of Counts 2 and 3 only if they
unanimously agreed on whether he possessed the pistol or
the shotgun. Thus, we find that the district court did not
commit plain error.
8                                                 No. 03-1104

   Stevens’s final argument is that the government did not
prove beyond a reasonable doubt that he “possessed” a
firearm in violation of § 924(c)(1)(A). Stevens contends that
the government failed to show that the guns were related to
the drugs and not in the bedroom for the purpose of self-
defense, as Stevens argued at trial.
  We consider the evidence in the light most favorable to
the government and will overturn a conviction only if no
rational trier of fact could conclude that the government
proved the crime’s essential elements beyond a reasonable
doubt. United States v. Young, 316 F.3d 649, 660 (7th Cir.
2002). Under § 924(c)(1)(A), “any person who, during and in
relation to any . . . drug trafficking crime . . . for which the
person may be prosecuted in a court of the United States,
sues or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm,” is subject to various terms of
imprisonment. A conviction under § 924(c)(1) is inappro-
priate if “the firearm’s presence is coincidental or entirely
unrelated to the crime.” Smith v. United States, 508 U.S.
223, 238 (1993); see United States v. Stott, 245 F.3d 890, 906
(7th Cir. 2001). However, if the drugs and gun are found in
the same place it is “nearly an inescapable conclusion” that
they satisfy the “in relation to” prong of § 924(c)(1). United
States v. Jackson, 300 F.3d 740, 747 (7th Cir. 2002) (citing
United States v. Molina, 102 F.3d 928, 932 (7th Cir. 1996)).
   We believe the government met its burden of proof in
Stevens’s case. At trial, the jury heard testimony that both
the pistol and the shotgun were found in the same bedroom
with the drugs and drug paraphernalia, the guns were eas-
ily accessible (the pistol was tucked between the mattress
and box spring and the shotgun was under the bed), the
pistol was loaded and had a round chambered, and extra
bullets for the pistol were found in the same drawer as the
82 individually packaged bags of crack. Given the testimony
elicited at trial, the jury reasonably could have concluded
that Stevens possessed a gun in relation to a drug traffick-
ing offense.
No. 03-1104                                                 9

 Accordingly, we AFFIRM Stevens’s convictions in all respects.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—8-19-04
