In re: United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2766
IN RE:
U NITED S TATES OF A MERICA,
Petitioner.
Petition for a Writ of Mandamus to the
United States District Court for the
Northern District of Illinois, Eastern Division,
and Petition for Rehearing as Amended.
No. 01 CR 1098-1—James F. Holderman, Chief Judge.
S UBMITTED JULY 26, 2010—D ECIDED JULY 27, 2010
O PINION JULY 30, 2010
Before P OSNER, R OVNER, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. On July 27, in response to the
government’s renewed petition for a writ of mandamus,
we issued an order granting the petition and directing
the district court to admit into evidence in United States
v. Herrera, the criminal trial of Clacy Watson Herrera on
drug charges, an exhibit labeled “Roberson Seizure 2”;
to allow the government to recall Stephen Koop to testify
at trial about the recovery of latent fingerprints from
2 No. 10-2766
that exhibit; and to allow testimony regarding compari-
son of the latent prints with known fingerprints of the
defendant. The judge had excluded the exhibit and
related testimony because he suspected the government,
on the most tenuous of grounds, of having tampered with
the evidence, and he threatened to grant a mistrial that
would bar any further prosecution of the defendant by
virtue of the constitutional prohibition against placing
a person in double jeopardy.
Our order further stated: “The case shall be reassigned
to a district judge who is immediately available to
preside, and the trial shall resume as soon as possible.”
(The trial had begun on July 6 and had been interrupted
for several days because of the judge’s rulings that gave
rise to two petitions for mandamus filed by the govern-
ment.) We were troubled to learn that a replacement
judge was not designated until the afternoon of July 29,
owing to an unaccountable delay in appointing an
acting chief judge to substitute for Chief Judge Holderman
(the district judge presiding in this case whom we
ordered recused) in arranging for the reassignment.
In a supplemental order issued on the 28th, we noted
that Fed. R. Crim. P. 25(a) provides that in a case in which
“death, sickness, or other disability” prevents the trial
judge from continuing to preside at a trial, the judge who
replaces him must certify his familiarity with the trial
record before proceeding. “The term ‘other disability’
in Rule 25(a) includes disability by reason of recusal.”
United States v. Sartori, 730 F.2d 973, 976 (4th Cir. 1984).
And so our supplemental order directed the new judge,
No. 10-2766 3
before proceeding with the trial, to certify familiarity
with the record.
We said in our order of the 27th that we would issue
an opinion explaining it. This is that opinion; in it we
also deny the defendant’s petition to rehear our order.
The petition for mandamus had been filed just one
day before we issued our order (which is why we were
unable, for lack of time, to issue a statement of reasons).
We ruled in unavoidable haste because in apparent
response to the government’s petition the defendant
had moved the district judge to declare a mistrial—and
the judge had already stated in open court that if he
granted a mistrial it would have double-jeopardy
effect on the entire case even though, he said, the ex-
hibit “relates to one count, Count No. 35, the very last
count . . . . What will remain are 14 counts . . . of which
multiple witnesses have testified about the defendant’s
involvement. And if we grant a mistrial, if a mistrial is
granted, every one of those counts potentially could be
dismissed from the standpoint that double jeopardy will
attach to each and every one of those additional counts.”
And he invited the jurors to provoke a mistrial by
telling them: “I certainly would understand if you are
not available, you have served your term, and more
than your term, as jurors”—a remark that precipitated
notes from several jurors expressing concern about con-
tinuing to serve.
The judge had accused the government of lying and
other misconduct and of not wanting the jury to decide
the case. The second accusation is difficult to under-
4 No. 10-2766
stand. Double jeopardy would bar a retrial if the gov-
ernment had procured the mistrial because of its dissatis-
faction with the jury, even if the motion for a mistrial
was made by the defendant, as it was. Oregon v. Kennedy,
456 U.S. 667, 673-76 (1982) (goading the defendant
into moving for a mistrial); United States v. Dinitz, 424
U.S. 600, 611 (1976) (same); United States v. Warren, 593
F.3d 540, 545 (7th Cir. 2010) (same). Yet the judge told
the prosecutors: “I find the government’s conduct in
seeking to preclude this jury from making a determina-
tion with regard to the other counts, if I determine
that Government Exhibit Roberson Seizure 2 is not admis-
sible, I find that to be an intentional, purposeful state-
ment that you don’t want a determination by the jury
in this case . . . . [W]hat the government wants is to
have this jury not decide this case.”
To prevent double jeopardy because of a trial judge’s
ruling that is so patently unsound as to exceed the legiti-
mate bounds of judicial power is a legitimate role for
mandamus when other mechanisms of review are unavail-
able, United States v. Vinyard, 539 F.3d 589 (7th Cir. 2008);
United States v. Amante, 418 F.3d 220, 222 (2d Cir. 2005);
United States v. Wexler, 31 F.3d 117, 128 (3d Cir. 1994);
United States v. United States District Court, 858 F.2d 534,
537 (9th Cir. 1988); see generally In re Rhone-Poulenc
Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir. 1995). We regret
to say that the judge’s ruling in this case can only be
characterized thus. We note that this judge was manda-
mused in In re United States, 398 F.3d 615 (7th Cir. 2005)
(per curiam), when he became wrathful toward federal
prosecutors in another criminal case.
No. 10-2766 5
The defendant responded to our order of the 27th
seemingly within minutes by filing a petition for re-
hearing (we accepted his amended petition for filing
the next day). In it he argued that our ordering man-
damus was improper because we had given neither
him nor the judge a chance to respond to the petition,
as required (he claims) by Fed. R. App. P. 21(b). Con-
fusingly, this subsection of the rule refers to a response
by the “respondent,” and the respondent in a petition for
mandamus is the judge. But Rule 21(a)(1) and the Com-
mittee Notes to the 1996 Amendments to Rule 21 make
clear that “respondent” in (b)(1) refers just to parties, not
to the judge. Indeed the judge may not respond to the
petition unless invited or ordered to by the court of
appeals, Fed. R. App. P. 21(b)(4), and not wanting to
delay the resumption of the trial we had not ordered or
invited him to reply.
And because there was no time for us to order and
await a response from either the defendant or the judge
before granting the petition, the absence of such an
order did not preclude our granting the petition for
mandamus. Rule 2 of the appellate rules authorizes a
court of appeals on its own initiative to suspend any of
those rules that are not jurisdictional if necessary “to
expedite its decision or for other good cause.” See Alva v.
Teen Help, 469 F.3d 946, 956 n. 17 (10th Cir. 2006); Lazy Oil
Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999). Good
cause there was. But now, in deciding to deny the defen-
dant’s motion to rehear our order, we have treated the
defendant’s motions, the judge’s request to file a re-
sponse (which we had not received before we granted
6 No. 10-2766
the petition for mandamus), along with the transcript of
the district judge’s pertinent remarks in court, as re-
sponses, pursuant to Fed. R. App. P. 21(b), to the
petition for mandamus.
The defendant points out that 18 U.S.C. § 3731, which
governs appeals by the United States in criminal cases,
does not authorize an appeal from an order excluding
evidence if the order was issued after the jury is sworn.
Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v.
Salahuddin, 509 F.3d 858, 862-63 and n. 9 (7th Cir. 2007);
United States v. Centracchio, 236 F.3d 812, 813-14 (7th
Cir. 2001); United States v. Brooks, 145 F.3d 446, 453
n. 2 (1st Cir. 1998). But the government has not ap-
pealed from the order; it has sought mandamus, which
is typically directed against nonappealable orders, as
otherwise an appeal would do. “There is no need to issue
a writ of mandamus if the normal procedures for error
correction would suffice.” United States v. Vinyard, supra,539 F.3d at 591. They would not in this case; were the
defendant to be acquitted because of the exclusion of the
fingerprint evidence, double jeopardy would bar any
further prosecution of him. The judge said that the evi-
dence related to only one count of the indictment, but
that is wrong. United States v. Herrera, 366 Fed. App’x
674, 676-77 (7th Cir. 2010). The evidence is key in
linking the defendant to the conspiracy charged in the
other counts, and is made especially important by the
long delay (attributable to difficulty in locating the de-
fendant and bringing him back to the United States for
trial) between the crimes with which he is charged,
which occurred between 1996 and 1999, and the trial in
No. 10-2766 7
2010. The fingerprint evidence, unlike the memories of
witnesses, had not deteriorated with the passage of time.
The trial, as we said, began on July 6. Before then, in
March, on the government’s appeal from an order ex-
cluding evidence before trial we had reversed the
district judge’s decision to exclude evidence that two of
the defendant’s fingerprints had been recovered from a
bag of heroin wrapped in tape and further encased in
condoms and found in a drug courier’s rectum. United
States v. Herrera, supra. The heroin had been removed
from the bag and placed in an evidence bag (Roberson
Seizure 1) and then both it and the packaging (the tape
and condoms) had been placed in another evidence
bag (Roberson Seizure 2), and it was this second
exhibit that was at issue. The district judge’s ground for
excluding it was the government’s having violated a
discovery deadline, and we ruled that there was no indi-
cation of bad faith by the government and that the ex-
clusion of highly probative fingerprint evidence was a
disproportionate sanction for an innocent violation that
had not prejudiced the defendant.
A week into trial the district judge again ordered the
evidence excluded, this time because of his concern that
the government hadn’t adequately demonstrated the
requisite “chain of custody”—that there had been no
opportunity to tamper with or otherwise mishandle the
evidence between when it was obtained and the trial. Yet
a challenge to chain of custody ordinarily goes to the
weight rather than the admissibility of the evidence. E.g.,
United States v. Turner, 591 F.3d 928, 934-35 (7th Cir. 2010);
8 No. 10-2766
United States v. Lee, 502 F.3d 691, 697-98 (7th Cir. 2007). And
already by the end of the first week of trial the govern-
ment had offered nine witnesses—and it added a tenth
before filing its second mandamus petition—to establish
that the chain had been intact and thus assuage the
judge’s concerns.
The judge stayed the trial to enable the government to
petition for mandamus. We granted a brief further stay
while we considered the petition, but upon being unex-
pectedly advised by the judge that he hadn’t yet made
a final decision on whether to exclude the evidence
(though when he sustained the defendant’s objection to
the evidence he had given no indication that his ruling
was tentative), we denied the petition without prejudice.
Trial resumed on July 19, and three days later the
judge definitively excluded the fingerprint evidence on
suspicion of tampering. He was disturbed by the fact
that the exhibit had gained 20 grams in weight between
May and September 2001. (Oddly, he attached no signifi-
cance to the fact that it had gained 190 grams between
September 2001 and the trial.) He thought the weight
gain might have been due to federal officers’ pressing a
piece of adhesive tape containing the defendant’s finger-
prints (obtained elsewhere) onto the packaging of the
heroin found in the drug courier’s rectum. Again he
stayed the trial to enable the government to renew its
quest for mandamus, and it was the government’s
renewed petition that we granted on July 27.
The transcript of the district judge’s remarks con-
cerning the evidentiary issue reveals a degree of anger
No. 10-2766 9
and hostility toward the government that is in excess of
any provocation that we can find in the record. He re-
peatedly accused the government lawyers of lying. He
said, for example: “I don’t believe you when you say
just about anything anymore because I know that you
will lie to a court any time it helps you. I know that. I saw
you do it. I know you will do that. You have proven that
to me beyond a reasonable doubt.” He said: “I am going
to bring the jury out, and I am going to tell them the
government has failed, once again, to have witnesses
ready to proceed. The government is delaying this case.
Members of the jury, this case is being delayed by the
government. It has been delayed by the government. Your
time has been wasted by the government.” He said:
“I would like you [the government lawyers] to go back
to the Court of Appeals and tell them, gee, we would
like to mandamus Judge Holderman because he won’t
allow us to call more witnesses or prove our chain of
custody that we asked you, the Court of Appeals, last
week to order him to present in the evidence in the
case, to admit the document, to admit the exhibit into
evidence. We now want to call more witnesses to lay the
foundation, witnesses that Judge Holderman has pointed
out we need. We now agree with Judge Holderman,
and we were wrong last week when we tried to man-
damus him. I would like you to go to the Court of
Appeals and you tell them that. Will you do that?. . . Will
you do that? Will you go to the Court of Appeals and
admit that you lied to them . . . .” He threatened to con-
duct hearings concerning misconduct by the prosecutors
(shades of the conduct that led to the issuance of the
writ of mandamus in In re United States, supra).
10 No. 10-2766
The government had explained to the judge that the
reason for the increase in weight was that the bag with the
fingerprints, after being opened so that the presence and
amount of an illegal drug could be determined, and later
closed up again, had been weighed together with other
bags. The reported weight was the weight of the package
containing the several bags, and there were more bags in
it when it was weighed later. Obviously the package
did not gain 210 grams (330 + 20 + 190 = 540)—almost
half a pound—because a piece of the tape in which one
of the bags was wrapped was replaced by a strip of tape
containing the defendant’s fingerprints. The judge ac-
knowledged that his supposition of tampering was
“speculative,” which is an understatement. For among
other things the defendant was not extradited from
Panama until long after the alleged tampering, and until
he was extradited the government did not have a set
of fingerprints known to be his. And no one has ex-
plained how fingerprints on another piece of material
could have been transferred to the adhesive side of
the tape, which was where they were found.
Any such tampering would be a criminal obstruction of
justice. A judge should not accuse anyone of a crime
on the basis of an implausible speculation. The de-
fendant’s petition and amended petition for rehearing
do not defend the judge’s theory.
The defendant will be able at trial to argue that
the jury should disregard the evidence, but there is no
justification for excluding it on the “speculative” ground
excogitated by the judge. United States v. Prieto, 549 F.3d
No. 10-2766 11
513, 524-25 (7th Cir. 2008); United States v. Kelly, 14 F.3d
1169, 1175 (7th Cir. 1994); United States v. Harrington, 923
F.2d 1371, 1374 (9th Cir. 1991) (“merely raising the possi-
bility of tampering is not sufficient to render evidence
inadmissible”). So clear is this, and so manifest the ex-
cess of emotion demonstrated by the judge in ex-
cluding the evidence, that we can only conclude that
the exacting standard for the grant of a writ of man-
damus, Cheney v. United States District Court, 542 U.S. 367,
380 (2004); In re Rhone-Poulenc Rorer, Inc., supra, 51
F.3d at 1294-95 (“irreparable injury is not sufficient for
mandamus; there must also be an abuse of discretion
that can fairly be characterized as gross, very clear, or
unusually serious”); United States v. Spilotro, 884 F.2d
1003, 1006-07 (7th Cir. 1989), has been satisfied.
A word finally about our decision to order the case
reassigned to another judge. As explained in In re United
States, 572 F.3d 301, 308 (7th Cir. 2009) (a different case
from the In re United States cited earlier), the recusal of
a judge is required “when a reasonable person perceives
a significant risk that the judge will resolve the case on
a basis other than the merits.” See 28 U.S.C. § 455(a);
Reserve Mining Co. v. Lord, 529 F.2d 181, 188-89 (8th Cir.
1976) (en banc). When the government filed its initial
interlocutory appeal, the district judge without adequate
grounds accused the government of appealing for the
sole purpose of delaying the trial, and implied, again
without basis in the record, that the government had
acted in bad faith by not complying with the judge’s
discovery order. After the trial began, he told the jury
that the government was responsible for the numerous
12 No. 10-2766
delays in the case and he threatened to tell the jury that
it “should consider the case based upon everything that
has happened in the courtroom, presented in the court-
room, including the delays that have taken place.” No
reasonable person would fail to perceive a significant
risk that the judge’s rulings in the case might be influ-
enced by his unreasonable fury toward the prosecutors.
We are satisfied that our order of July 27, as supple-
mented on July 28, was sound; and we deny the petition
for rehearing.
8-5-10