United States v. Herrera, 11–2894.

• Decision Date: 09 January 2013
• Docket Number: No. 11–2894.,11–2894.
• Citation: 704 F.3d 480
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Clacy Watson HERRERA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

704 F.3d 480

UNITED STATES of America, Plaintiff–Appellee,

v.Clacy Watson HERRERA, Defendant–Appellant.

No. 11–2894.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 28, 2012.

Decided Jan. 9, 2013.

David E. Bindi, Arianna Kastanek (argued), Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Gabriel Fuentes (argued), Attorney, Jenner & Block LLP, Chicago, IL, for Defendant–Appellant.

Before POSNER, ROVNER, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

Two years ago, in response to a petition for a writ of mandamus filed by the government during the criminal trial of the defendant on drug charges, we ordered the district court to admit into evidence 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 that exhibit; and to allow testimony regarding comparison of the latent prints with patent fingerprints known to be the defendant's. In re United States, 614 F.3d 661 (7th Cir.2010). The judge had excluded the exhibit and related testimony because he suspected, though on the most tenuous of grounds, that the government had tampered with the fingerprint evidence. He threatened to grant the defendant's request for a mistrial on the ground of prosecutorial misconduct that was (the judge believed) intended to avert a likely acquittal, a ground that if sustained would have barred any further prosecution of the defendant as placing him in double jeopardy. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Catton, 130 F.3d 805, 807–08 (7th Cir.1997); see also United States v. Buljubasic, 808 F.2d 1260, 1265 (7th Cir.1987). We also ordered the case reassigned to another district judge. This was done and the trial, which had been interrupted by the mandamus proceeding, resumed, and ended shortly in the conviction of the defendant. The judge sentenced him to 340 months in prison for a variety of drug-related offenses. He appeals.

Many of his arguments repeat ones he made in the mandamus proceeding. (In effect he is asking us to rehear our previous decision—two years after the deadline for asking for rehearing expired.) The only such argument that we didn't discuss is based on Will v. United States, 389 U.S. 90, 96–97, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), which forbids the use of mandamus as a substitute for an appeal that is forbidden—and the government is not permitted to appeal an evidentiary ruling in a criminal case once the trial has begun. 18 U.S.C. § 3731. But the Court in Will held only that the court of appeals hadn't explained why the district court's ordering the government to give the defendant a bill of particulars was so “seriously disruptive of the efficient administration of criminal justice in the Northern District of Illinois” as to warrant mandamus. 389 U.S. at 104, 88 S.Ct. 269. The district judge's order in the present case was no run-of-the-mill mistaken procedural or evidentiary ruling. The order seriously disrupted the prosecution's case, and did so, as we are about to show, on the basis of utterly baseless but damaging imputations of grave (criminal, really) prosecutorial misconduct; involved the flouting of governing precedents; and would probably have resulted in a groundless acquittal. The order thus warranted correction by mandamus. See United States v. Vinyard, 539 F.3d 589, 591–92 (7th Cir.2008).

The chain of events that culminated in the mandamus proceeding had begun with 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. The heroin had been removed from the bag and placed in an evidence bag and then both it and the packaging (the tape and condoms) had been placed in another evidence bag and it was this second exhibit that was at issue. The district judge's ground for excluding it was his belief that the government hadn't adequately demonstrated the requisite “chain of custody”—hadn't demonstrated that there had been no opportunity to tamper with or otherwise mishandle the evidence between the time it was obtained and the trial. The judge made this ruling in the face of the government's having offered ten witnesses to establish that the chain of custody had remained intact.

The judge was disturbed because the exhibit had, according to an evidence log sheet, gained 20 grams in weight between May and September 2001. (Yet he attached no significance to its having gained 190 grams between September 2001 and the trial.) He thought the weight gain might have been attributable to federal officers' pressing a piece of adhesive tape containing the defendant's fingerprints (obtained elsewhere) onto the packaging of the heroin. That suspicion grew into a conviction, for which there was no rational basis, that government lawyers had lied about the chain of custody. To no avail the government explained 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 the illegal drug contained in it could be verified, and later closed up again, had been weighed together with other bags. The reported weight was the weight of the package containing all the bags, and thus there were more bags in it. Obviously the package would not have gained 210 grams (20 + 190)—almost half a pound—from replacing a piece of the tape in which one of the bags was wrapped by a piece of tape containing the defendant's fingerprints.

The judge acknowledged that his supposition of tampering was “speculative.” That was an understatement. For among other things the defendant had not been extradited to the United States 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. It's one thing to press your finger on the adhesive side of a tape and remove the finger, leaving a print, but another thing to press a piece of paper containing your fingerprint on the adhesive side of the tape—try removing the paper without destroying the print.

The defendant's petition, and amended petition, for rehearing did not defend the judge's conjecture that the weight discrepancy indicated tampering. We concluded that while the defendant could argue at trial that the jury should disregard the fingerprint evidence, there was no justification for excluding it in advance of trial on the “speculative” ground excogitated by the judge. Once the government presents evidence, as it did here (remember the ten witnesses), that adequate precautions had been taken to preserve the evidence challenged by the defendant, it has established admissibility, though at trial the defendant can challenge the adequacy of the precautions and present evidence of tampering. United States v. Lee, 502 F.3d 691, 697–98 (7th Cir.2007); United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir.1994); United States v. Brumfield, 686 F.3d 960, 965 (8th Cir.2012); see also Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). And that means by the way that even if our mandamus order was ultra vires it didn't undermine the fairness of the trial or the justice of the defendant's conviction. The fingerprint evidence should not have been excluded, and once admitted confirmed his guilt. We take up at the end of our opinion the defendant's distinct argument that the reassignment of the case to another judge prejudiced the jury, and show that that argument has no merit either.

The fresh issue relating to the fingerprint evidence is whether the prints of two fingers found on the adhesive tape were the defendant's. They were latent rather than patent fingerprints. Patent fingerprints are made by pressing a fingertip covered with ink on a white card or similar white surface, and are visible. Latent fingerprints are prints, usually invisible, left on a smooth surface when a person touches it with a finger or fingers. Laboratory techniques are employed to make a latent fingerprint visible so that it can be compared with other fingerprints. The latent prints on the adhesive tape on the bag of heroin in this case were found by a fingerprint examiner to match the defendant's patent prints made in the course of the criminal investigation, and the government therefore offered the match as evidence of the defendant's participation in the drug ring. The defendant argues that methods of matching latent prints with other latent prints or with patent prints have not been shown to be reliable enough to be admissible as evidence under the standard for reliability set forth in Fed.R.Evid. 702, 703; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The method the examiner used is called ACE–V and is the standard method for determining whether two fingerprints are from the same person. See Scientific Working Group on Friction Ridge Analysis, Study and Technology, “Standards for Examining Friction Ridge Impressions and Resulting Conclusions,” Sept. 13, 2011, www. swgfast. org/ documents/ examinations- conclusions/ 111026_ Examinations- Conclusions_ 1. 0. pdf (visited Jan. 4, 2013); Michele Triplett & Lauren Cooney, “The Etiology of ACE–V and Its Proper Use: An Exploration of the Relationship Between ACE–V and the Scientific Method of Hypothesis Testing,” 56 J. Forensic Identification 345, 346 (2006). The defendant is therefore mounting a frontal assault on the use of fingerprint evidence in litigation, an attack the courts have frequently...