Case Information
*1 Before P OSNER R OVNER , S YKES , Circuit Judges . P OSNER Circuit Judge
. On response gov ernment’s renewed writ mandamus, issued granting directing admit into Herrera criminal trial Clacy Watson Herrera drug charges, labeled “Roberson Seizure 2”; allow recall Stephen Koop testify about recovery latent fin gerprints exhibit; allow testimony regarding comparison latent prints known fingerprints [*] This opinion being issued typescript; printed version follow. defendant. judge had excluded related tes timony because he suspected government, on most tenuous grounds, of having tampered with evidence, threatened grant a mistrial bar any further prosecution virtue constitutional prohibition against placing a person in double jeopardy.
Our order further stated: “The case shall reassigned district judge who immediately available preside, trial shall resume soon as possible.” (The trial had begun July been interrupted for several days because rulings gave rise two petitions for mandamus filed government.) We were troubled learn placement judge designated until afternoon owing unaccountable delay in appointing an acting chief judge substitute Chief Judge Holderman (the presiding in case whom we ordered recused) in ar ranging reassignment.
In supplemental order issued 28th, we noted Fed. R. Crim. P. 25(a) provides in which “death, sickness, or disability” prevents trial con tinuing preside trial, who replaces him must certify his familiarity with record before proceeding. “The term ‘other disability’ Rule 25(a) includes disability reason recusal.” Sartori 1984). And so our supplemental order directed new judge, before proceeding with trial, certify her fa miliarity record.
We said our order 27th we issue opinion explaining it. This opinion; also deny rehear our order. filed just one day fore issued (which why were unable, lack time, issue statement reasons). ruled un avoidable haste apparent response govern *3 No. 10–2766 3 ment’s defendant had moved declare a mistrial—and had already stated open if he granted a mistrial it would have double jeopardy effect entire even though, he said, ex hibit “relates one count, Count very last count…. What will remain are 14 counts…of which multiple witnesses have testified about involvement. And if grant a mistrial, if a mistrial is granted, every one those counts potentially could dismissed from standpoint double jeopardy will attach each every one those addi tional counts.” And he invited jurors provoke a mistrial telling them: “I certainly understand if you are available, you have served your term, more than your term, 4 mechanisms review are unavailable, United States v. Vinyard , 539 F.3d 589 (7th Cir. 2008); United States v. Amante , 418 F.3d 222 (2d Cir. 2005); United States v. Wexler , 31 F.3d 117, 128 (3d Cir. 1994); United States District , 858 F.2d 537 (9th Cir. 1988); see generally In re Rhone ‐ Poulenc Rorer, Inc. 51 F.3d 1295 (7th Cir. 1995). We regret to say ruling this can only character ized thus. note this judge was mandamused In 398 F.3d 615 (7th Cir. 2005) (per curiam), he became wrathful toward federal prosecutors another crimi nal case. defendant responded to our order 27th seem
ingly within minutes by filing petition for rehearing (we ac cepted amended petition filing next day). In ar gued our ordering mandamus was improper because given neither him nor chance to respond to petition, required (he claims) Fed. R. App. P. 21(b). Con fusingly, subsection rule refers response “respondent,” respondent petition 10–2766 5 Witco Corp. , 166 F.3d 581, 587 (3d Cir. 1999). Good cause was. But now, in deciding deny the defendant’s motion rehear order, treated motions, judge’s request file response (which not received before granted mandamus), along with transcript pertinent remarks in court, as responses, pursuant Fed. R. App. P. 21(b), mandamus.
The defendant points out 18 U.S.C. § 3731, which gov ‐ erns appeals United States criminal cases, does au thorize appeal from an excluding evidence if order issued after 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 813– 14 (7th Cir. 2001); United States Brooks , 145 F.3d 453 n. (1st Cir. 1998). But has appealed order; sought mandamus, which is typically directed against nonappealable orders, otherwise appeal would do. “There is need issue writ if normal procedures error correction would suffice.” United States Vinyard supra 591. They case; were defendant acquitted exclusion fingerprint evidence, double jeopardy bar any fur ther prosecution him. The said evidence lated only one count indictment, but is wrong. Herrera Fed. App’x 2010). key linking defendant con spiracy charged counts, made especially im portant long delay (attributable difficulty locating bringing him back trial) between crimes with which charged, which oc curred between 2010. finger print evidence, unlike memories witnesses, dete riorated passage time. 10–2766
The trial, we said, began on 6. Before then, March, government’s appeal from an excluding evidence before trial had reversed district judge’s decision ex ‐ clude evidence that two of fingerprints had been recovered from a bag heroin wrapped tape and fur ‐ ther encased condoms and found a drug courier’s rectum. United States Herrera supra . The heroin had been removed bag and placed evidence bag (Roberson Seizure 1) and then both it and packaging (the tape and condoms) had been placed another evidence bag (Roberson Seizure 2), and it was this second was issue. district judge’s ground excluding it was government’s having violated discovery deadline, ruled there was no indication bad faith government exclu ‐ sion highly probative fingerprint evidence was dispropor tionate sanction innocent violation had preju diced defendant.
A week into trial again ordered evi dence excluded, time concern gov ernment hadn’t adequately demonstrated requisite “chain custody”—that had been opportunity tamper otherwise mishandle between it ob tained trial. Yet challenge chain custody ordinar ily goes weight rather than admissibility evi dence. E.g., Turner F.3d 934–35 (7th Cir. 2010); Lee 2007). And already end first week trial offered nine witnesses—and added tenth before filing second petition—to establish chain intact thus assuage concerns. stayed enable peti tion mandamus. granted brief further stay while considered petition, but upon being unexpectedly advised hadn’t yet made final decision whether to exclude the evidence (though when he sustained the defendant’s objection to the evidence he had given no indica ‐ tion that ruling was tentative), we denied ‐ out prejudice.
Trial resumed on July and three days later de ‐ finitively excluded fingerprint suspicion tampering. He disturbed by fact gained grams weight between May and September 2001. (Oddly, he attached significance to fact it gained grams between September and trial.) He thought weight gain might have been due to federal officers press ing piece adhesive tape containing finger prints (obtained elsewhere) onto packaging heroin found drug courier’s rectum. Again he stayed enable government renew quest mandamus, it is government’s renewed granted 27. transcript remarks concerning
evidentiary issue reveals degree anger hostility toward government excess any provocation can find record. He repeatedly accused government law yers lying. He said, example: “I don’t believe you you say just about anything anymore because I know you will lie any time helps you. I know that. I saw you do it. I know you will do that. You have proven me yond reasonable doubt.” He said: “I am going bring out, I am going tell them has failed, once again, witnesses ready proceed. govern ment delaying case. Members jury, this ing delayed government. It has been delayed gov ernment. Your time wasted government.” He said: “I like you [the lawyers] go back Appeals tell them, gee, like man damus Judge Holderman won’t allow us call more witnesses prove chain of custody that we asked you, the Court of Appeals, last week to him to present in the case, to admit the document, to admit the into evidence. We now want call more witnesses lay foundation, witnesses Judge Holderman has pointed out need. now agree with Judge Holderman, and were wrong last week when tried mandamus him. I like you go Court of Appeals and you tell them that. Will you do that?... Will you do that? Will you go of Appeals and admit you lied them….” He threatened conduct hearings concerning misconduct prosecutors (shades of conduct led issuance of writ of In supra ).
The explained reason increase weight was bag with fingerprints, after being opened so presence and amount of illegal drug could be determined, later closed up again, been weighed together other bags. reported weight was weight of package containing several bags, were more bags it was weighed later. Obviously package did gain grams (330 + + = 540)—almost half pound—because piece tape which one bags was wrapped was replaced strip tape containing fingerprints. acknowledged supposition tampering was “speculative,” which under statement. For among things was ex tradited Panama until long after alleged tampering, until was extradited did have set fingerprints known his; addition one ex plained how fingerprints another piece material could transferred adhesive side tape, which where they were found.
Any such tampering criminal obstruction jus tice. A should accuse anyone crime basis 10–2766 9 implausible speculation. note that the pe tition amended for rehearing do defend the judge’s theory. will be able at trial argue jury
should disregard evidence, but there is justification for excluding “speculative” ground excogitated 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 possibility tampering is sufficient render inadmissible”). So clear this, so manifest ex cess emotion demonstrated judge excluding evidence, can only conclude exacting standard grant writ mandamus, Cheney United States Dis trict , 542 U.S. 380 (2004); In re Rhone ‐ Poulenc Rorer, Inc. , supra , 51 F.3d 1294–95 (7th Cir. 1995) (“irreparable injury sufficient mandamus; must also be abuse discretion can fairly characterized gross, very clear, unusually serious”); United States Spilotro 884 F.2d (7th Cir. 1989), satisfied.
A word finally about decision case reas signed another judge. As explained In re 572 F.3d (7th Cir. 2009) (a different case In cited earlier), recusal required “when reasonable person perceives significant risk will resolve basis than merits.” See U.S.C. § 455(a); Reserve Mining Co. Lord 188– 1976) (en banc). When government filed ini tial interlocutory appeal, without adequate grounds accused government appealing sole pur pose delaying trial, implied, again without basis record, acted bad faith complying discovery order. After gan, told responsible numerous delays case threatened tell “should consider case based upon everything happened courtroom, presented room, including delays taken place.” No reason able person fail perceive significant risk rulings might influenced unreason able fury toward prosecutors. are satisfied July supplemented sound; deny rehearing. as jurors”—a remark precipitated notes from several jurors expressing concern about continuing serve. accused government lying other misconduct wanting jury decide case. second accusation is difficult understand. Double jeopardy bar a retrial if procured mistrial because dissatisfaction with jury, even if motion mistrial made defendant, as was. Oregon Kennedy 456 U.S. (1982) (goading into moving mistrial); Dinitz U.S. 611 (1976) (same); Warren 2010) (same). Yet told prosecutors: “I find govern ment’s conduct seeking preclude this jury making determination regard other counts, if I determine Government Exhibit Roberson Seizure is admissible, I find intentional, purposeful statement you don’t want determination jury this case…. [W]hat wants decide this case.” To prevent double jeopardy ruling so patently unsound exceed legitimate bounds judicial power legitimate role
judge. But Rule 21(a)(1) Committee Notes 1996 Amendments Rule 21 make clear “respondent” (b)(1) refers just parties, not judge. Indeed may not respond unless invited or ordered court appeals, Fed. R. App. P. 21(b)(4), wanting delay resumption ordered or vited him reply. And time us order await response either or before granting petition, absence such did preclude granting mandamus. Rule appellate rules authorizes appeals its own initiative sus pend any those rules are jurisdictional if necessary “to expedite decision good cause.” See Alva Teen Help n. 2006); Lazy Oil Co.