### I N THE



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________________________

No. 10–2766

I N 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 J ULY 26, 2010—D ECIDED J ULY 27, 2010

O PINION J ULY 30, 2010 *

__________________________

Before P OSNER

, R OVNER

, and S YKES

, Circuit Judges

.

P OSNER

, Circuit Judge

. On July 27, in response to the gov

‐

ernment’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 fin

‐ gerprints from that exhibit; and to allow testimony regarding

comparison of the latent prints with known fingerprints of the

* This opinion is being issued in typescript; printed version to follow.No. 10–2766 2

defendant. The judge had excluded the exhibit and related tes

‐ timony 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 re

‐ placement 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 ar

‐ ranging 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 con

‐ tinuing 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, before proceeding with the trial, to certify his or her fa

‐ miliarity 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 be

‐

fore we issued our order (which is why we were unable, for

lack of time, to issue a statement of reasons). We ruled in un

‐

avoidable haste because in apparent response to the govern

‐No. 10–2766 3

ment’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 addi

‐

tional 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 understand. 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 he told the prosecutors: “I find the govern

‐

ment’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 otherNo. 10–2766 4

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 character

‐

ized 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 crimi

‐

nal case.

The defendant responded to our order of the 27th seem

‐ ingly within minutes by filing a petition for rehearing (we ac

‐ cepted his amended petition for filing the next day). In it he ar

‐ gued 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). Con

‐ fusingly, this subsection of the rule refers to a response by the

“respondent,” and the respondent in a petition to 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 in

‐

vited 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 sus

‐ pend 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.No. 10–2766 5

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 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 gov

‐

erns appeals by the United States in criminal cases, does not au

‐

thorize 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 fur

‐

ther prosecution of him. The judge said that the evidence re

‐

lated 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 con

‐ spiracy charged in the other counts, and is made especially im

‐

portant 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 oc

‐

curred between 1996 and 1999, and the trial in 2010. The finger

‐ print evidence, unlike the memories of witnesses, had not dete

‐

riorated with the passage of time.No. 10–2766 6

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 ex

‐

clude evidence that two of the defendant’s fingerprints had

been recovered from a bag of heroin wrapped in tape and fur

‐

ther 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 exclu

‐

sion of highly probative fingerprint evidence was a dispropor

‐

tionate sanction for an innocent violation that had not preju

‐

diced the defendant.

A week into trial the district judge again ordered the evi

‐

dence excluded, this time because of his concern that the gov

‐

ernment hadn’t adequately demonstrated the requisite “chain

of custody”—that there had been no opportunity to tamper or

otherwise mishandle the evidence between when it was ob

‐

tained and the trial. Yet a challenge to chain of custody ordinar

‐ ily goes to the weight rather than the admissibility of the evi

‐

dence. E.g., United States v. Turner

, 591 F.3d 928, 934–35 (7th Cir.

2010); 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 peti

‐

tion 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 onNo. 10–2766 7

whether to exclude the evidence (though when he sustained the

defendant’s objection to the evidence he had given no indica

‐

tion that his ruling was tentative), we denied the petition with

‐

out prejudice.

Trial resumed on July 19, and three days later the judge de

‐ finitively 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 press

‐ ing 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

is 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 and hostility toward

the government that is in excess of any provocation that we can

find in the record. He repeatedly accused the government law

‐

yers 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 be

‐ yond 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 govern

‐

ment is delaying this case. Members of the jury, this case is be

‐ ing delayed by the government. It has been delayed by the gov

‐

ernment. 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 man

‐

damus Judge Holderman because he won’t allow us to callNo. 10–2766 8

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 ).

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 under

‐

statement. For among other things the defendant was not ex

‐

tradited 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 in addition 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 jus

‐

tice. A judge should not accuse anyone of a crime on the basisNo. 10–2766 9

of an implausible speculation. We note that the defendant’s pe

‐

tition 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 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 ex

‐

cess 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 Dis

‐

trict Court

, 542 U.S. 367, 380 (2004); In re Rhone

‐ Poulenc Rorer,

Inc.

, supra

, 51 F.3d at 1294–95 (7th Cir. 1995) (“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 reas

‐ signed 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 ini

‐

tial interlocutory appeal, the district judge without adequate

grounds accused the government of appealing for the sole pur

‐

pose 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 be

‐

gan, he told the jury that the government was responsible forNo. 10–2766 10

the numerous 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 reason

‐

able person would fail to perceive a significant risk that the

judge’s rulings in the case might be influenced by his unreason

‐

able 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.