In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2766

IN RE:

UNITED STATES OF AMERICA,

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.

SUBMITTED JULY 26, 2010—DECIDED JULY 27, 2010

OPINION JULY 30, 2010

Before POSNER, ROVNER, and SYKES, Circuit Judges.

POSNER, 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 comparison 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 government.) 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 exhibit “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 continuing 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 government had procured the mistrial because of its dissatisfaction 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 determination with regard to the other counts, if I determine

that Government Exhibit Roberson Seizure 2 is not admissible, I find that to be an intentional, purposeful statement 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 legitimate bounds of judicial power is a legitimate role for

mandamus when other mechanisms of review are unavailable, 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 mandamused 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 rehearing (we accepted his amended petition for filing

the next day). In it he argued that our ordering mandamus 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). Confusingly, 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 Committee 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 defendant’s motion to rehear our order, we have treated the

defendant’s motions, the judge’s request to file a response (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 responses, 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 appealed 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 evidence 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 defendant 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 excluding 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 indication of bad faith by the government and that the exclusion 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 government 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 unexpectedly 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 significance 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 fingerprints (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 concerning 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 repeatedly 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 mandamus 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 conduct 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 acknowledged 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 explained 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 defendant’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 possibility of tampering is not sufficient to render evidence

inadmissible”). So clear is this, and so manifest the excess of emotion demonstrated by the judge in excluding the evidence, that we can only conclude that

the exacting standard for the grant of a writ of mandamus, 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 courtroom, 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 influenced by his unreasonable fury toward the prosecutors.

We are satisfied that our order of July 27, as supplemented on July 28, was sound; and we deny the petition

for rehearing.

8-5-10