                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                           Submitted November 1, 2006*
                            Decided November 2, 2006

                                      Before

                 Hon. ILANA DIAMOND ROVNER, Circuit Judge

                 Hon. DIANE P. WOOD, Circuit Judge

                 Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1832

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Southern District of Illinois.

      v.                                      No. 4:04CR40030-001-JPG

JOSEPH SANDERS,                               J. Phil Gilbert,
    Defendant-Appellant.                      Judge.

                                     ORDER

       Federal inmate Joseph Sanders was convicted of possessing a prohibited
object after prison guards discovered a makeshift knife hidden in his shoe. See 18
U.S.C. § 1791(a)(2). The district court sentenced him as a career offender to 60
months’ imprisonment, the applicable statutory maximum. See id. § 1791(b)(3),
(d)(1)(B). We affirm.

      Sanders was serving a term of imprisonment at the United States
Penitentiary in Marion, Illinois (“USP-Marion”), when the knife was found in May
2004. At trial the government presented the testimony of Officers Matthew Grant

      *
        We granted the appellant’s unopposed motion to waive oral argument.
Thus, the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(f).
No. 06-1832                                                                    Page 2

and Wayne Boaz, prison guards at USP-Marion, and Larry Kammerer, the prison’s
law-enforcement coordinator. Grant and Boaz both testified that, while conducting
a routine search for contraband in Sanders’s prison cell, they searched Sanders and
found a makeshift knife concealed in his right shoe; a prison security tape that
captured the search shows Boaz reaching into Sanders’s shoe and removing a small
item. The knife was fashioned out of 3½ inches of sharpened metal and was
wrapped in feces-covered cellophane and toilet paper. The officers seized the knife
and gave it to Kammerer to retain as evidence; according to Kammerer, he placed
the knife into evidence storage but destroyed the wrappings because he believed
they were bio-hazards that had no evidentiary value. Grant and Boaz also testified
that shortly after they seized the knife Grant asked Sanders where he got the metal
to fashion it. According to both officers, Sanders replied, in substance: “Doesn’t
matter where I got it. I’ll have another one shortly.”

       In his defense Sanders first called FBI Special Agent Bastian Fruend, who
investigated the incident. Fruend testified that, although Officer Boaz did not
mention overhearing Sanders’s boast to Officer Grant that he could get another
weapon, Grant did report Sanders’s statement, which Fruend documented in his
investigation report. Sanders then testified that Boaz “planted” the knife in his
shoe, and he denied telling anyone that he could get another weapon.

       At the close of evidence, Sanders moved for a judgment of acquittal or, in the
alternative, a new trial. He argued that the knife wrappings were exculpatory, and
that their destruction thus violated his right to due process as recognized in Arizona
v. Youngblood, 488 U.S. 51 (1988), and California v. Trombetta, 467 U.S. 479 (1984).
He also claimed that the government violated his due process rights under Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose before trial that Officer Boaz
was present when Sanders informed Officer Grant that he could obtain a new
weapon. The district court denied the motion and found Sanders guilty.

       At sentencing the court determined that Sanders was a career offender with
a total offense level of 17 due to three prior convictions in Palm Beach, Florida, for
crimes of violence. See U.S.S.G. § 4B1.1(b)(F). Combining this offense level with
Sanders’s Criminal History Category of VI yielded a guidelines imprisonment range
of 51 to 60 months, and the court sentenced Sanders at the high end. Sanders
appeals and we affirm.

       On appeal Sanders challenges the denial of his motion for a judgment of
acquittal or new trial. Sanders continues to deny possessing the knife, and asserts
that DNA testing of the knife wrappings would have proven definitively “whose
rectal cavity had harbored the weapon prior to it allegedly being found in [his]
shoe.” He also asserts that the government’s failure to disclose that Officer Boaz
was present when he told Officer Grant he could get another weapon kept him from
No. 06-1832                                                                       Page 3

using that information to “impeach” Grant at trial. In addition, Sanders challenges
the district court’s sentencing determination that he is a career offender. He argues
that his previous convictions occurred during a time that the Palm Beach County
court system “was fraught with racially discriminatory practices and fundamental
defects to the extent that [his prior] convictions could not be presumed to be
constitutional.” All of these contentions are patently frivolous.

       Sanders did not challenge the destruction of the knife wrappings before trial,
see Fed. R. Crim. P. 12(b)(2), but even if he had, it is clear that their destruction did
not violate due process. First, Sanders fails to show that the district court erred in
finding that Kammerer did not act in “bad faith” when he destroyed the knife
wrappings. In this context, bad faith means a “‘conscious effort to suppress
exculpatory evidence,’” United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th
Cir. 2000) (quoting Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992)); thus, a
finding of bad faith turns on “the [government’s] knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed,” see Youngblood, 488 U.S. at 56
n.*; Chaparro-Alcantara, 226 F.3d at 624. Here, the district court found that
Kammerer had no “suspicion that the source of the feces could in any way be
considered exculpatory evidence,” and we will uphold this determination unless it is
clearly erroneous. See United States v. Garza, 435 F.3d 73, 75 (1st Cir. 2006).
Sanders, however, offers nothing but conclusory assertions that Kammerer’s
explanations for destroying the wrappings are “absurd” because, in Sanders’s
opinion, the officer should have known that the wrappings had sufficient
evidentiary value to warrant saving. Even if we were to agree with Sanders’s
assertions (and we do not), his argument fails because to establish bad faith he
must point to much more than purported “absurdity,” see Henry v. Page, 223 F.3d
477, 481-82 (7th Cir. 2000), or negligence, see Hubanks v. Frank, 392 F.3d 926, 930
(7th Cir. 2004). He must show that Kammerer consciously destroyed evidence he
knew was exculpatory, see Chaparro-Alcantara, 226 F.3d at 624, and absent such a
showing we cannot say that the district court committed clear error in finding that
Kammerer did not act in bad faith.

       Although Sanders’s failure to show that Kammerer acted in bad faith
obviates any need to examine the materiality of the knife wrappings, see Jones, 965
F.2d at 478-89, we do so only to point out that they were neither “apparently
exculpatory” nor “potentially useful,” see Youngblood, 488 U.S. at 57; Trombetta,
467 U.S. at 488-89. Sanders was charged only with possession of the knife, and
there is overwhelming evidence pointing to his guilt—namely, the testimony of
Officers Grant and Boaz and the security video showing Boaz finding the knife in
Sanders’s shoe. Thus, DNA testing of the knife wrappings could not exculpate
Sanders; rather, the most that testing would prove is that Sanders obtained the
knife from someone else immediately before Boaz found it in his shoe. See Henry,
223 F.3d at 481 (holding that destruction of narcotics did not violate defendant’s
No. 06-1832                                                                    Page 4

right to due process where there was “nothing in the record to suggest that the
substances possessed an exculpatory value that was apparent before they were
destroyed”); Hubanks, 392 F.3d at 931 (“A favorable DNA test would not have
exonerated [defendant]. . . . As a result, the evidence had no apparent exculpatory
value [under Youngblood].”).

       Sanders’s Brady claim likewise fails. The government made available to
Sanders written reports detailing his oral statement to Officer Grant that he could
quickly obtain another weapon, see Fed. R. Crim. P. 16(a)(1)(A)-(B), so Sanders was
aware that his statement could be used against him at trial. Nothing in Rule 16
required that Boaz’s testimony be disclosed before trial, see id.; United States v.
Edwards, 47 F.3d 841, 843 (7th Cir. 1995), and since Boaz’s account of Sanders’s
statement was inculpatory, and not exculpatory, neither did Brady require advance
disclosure, see United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001).

       Finally, Sanders’s challenge to the application of the career-offender
guideline fails. At sentencing he was foreclosed from raising any collateral attack
on his predicate state convictions so long as he was represented by counsel during
those proceedings, which he was. See Daniels v. United States, 532 U.S. 374, 378
(2001) (citing Custis v. United States, 511 U.S. 485, 490-97 (1994)); Ryan v. United
States, 214 F.3d 877, 877 (7th Cir. 2000).

                                                                         AFFIRMED.
