                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                 Argued February 25, 2010
                                  Decided March 3, 2010

                                           Before

                            RICHARD D. CUDAHY, Circuit Judge

                            TERENCE T. EVANS, Circuit Judge

                            DIANE S. SYKES, Circuit Judge

No. 09-3717

UNITED STATES OF AMERICA,                           Appeal from the United States District
                Plaintiff-Appellant,                Court for the Northern District of
                                                    Illinois, Eastern Division.
       v.
                                                    No. 1:01-cr-01098-1
CLACY WATSON HERRERA,
             Defendant-Appellee.                    James F. Holderman, Chief Judge.



                                         ORDER

        One week before Clacy Watson Herrera’s trial was scheduled to begin, the
government announced that it intended to introduce fingerprint evidence. The district
court, finding the disclosure to be a violation of its discovery deadline, entered an order
excluding the evidence. The government brings this interlocutory appeal, under 18 U.S.C.
§ 3731, challenging the decision to exclude its fingerprint evidence.

       Herrera was charged in 2001 as the lead defendant in a 44-count indictment that
alleges a three-year international drug trafficking conspiracy involving over 40 individuals.
From 1996 to 1999, the conspirators, allegedly, imported large amounts of cocaine and
No. 09-3717                                                                           Page 2


heroin into the United States from Jamaica and Panama. Herrera, operating in Panama,
was alleged to be the conspiracy’s primary supplier. The conspirators recruited female
couriers in the United States, primarily in Chicago, to travel to Panama to receive drugs
from Herrera. Various methods were used to smuggle the drugs into the United States.
On some occasions, the organizers put the drugs in plastic wrap packaging, which the
couriers swallowed or inserted into their body cavities. The most popular method,
however, involved hiding the drugs inside baby formula cans. To avoid questions at
airport security, the conspirators paid parents in the United States to loan their infants to
the smugglers. The couriers traveled with the rented infants and baby formula cans to
Panama where the cans were filled with liquid cocaine for the return trip.

       Not only is this case complex given the size of the operation, but it is also unusual.
The indictment named 26 defendants, 22 of whom were convicted in 2002 and one was
convicted in 2004. Meanwhile, Herrera remained a fugitive from 2001 until June 2009 when
he was extradited from Panama, where he had been in custody on an unrelated narcotics
conviction.1 Herrera was arraigned in federal court in Chicago on June 25, 2009. At a
status hearing a few weeks later, on July 16, a November 9, 2009, trial date was set.

       Due to the passage of time between the indictment and trial, witnesses have been
hard to come by, let alone ones who remember events that occurred over a decade ago.
Accordingly, on August 14, 2009, the district court certified this matter as a complex case
under the Speedy Trial Act and entered an order requiring disclosure of expert testimony
by September 21.

        In early September, federal agents began gathering evidence from the old
investigation (such as drugs and drug packaging) that they believed was connected to
Herrera. The government advised him that it was submitting the evidence for fingerprint
analysis. Then on September 21, the government notified Herrera that it might call a
fingerprint expert, but, at that time, it had not received any results from the fingerprint
testing. On November 2, a week before trial, the government was informed that two
fingerprints matching Herrera’s had been found on drug packaging. The government
disclosed the results to Herrera along with a preliminary expert report. On November 3,
Herrera asked the district court to exclude the fingerprint evidence due to the
government’s tardiness. The court granted the motion.




       1
        Apparently Herrera either escaped or was released from custody in Panama
sometime in 2007. Subsequently, the government says, he was located in Colombia and
returned to Panama.
No. 09-3717                                                                           Page 3


        As an initial matter, the government argues that it did not violate the district court’s
discovery order because the September 21 deadline did not apply to fingerprint testing.
We review a district court’s discovery rulings for an abuse of discretion. United States v.
Stevens, 380 F.3d 1021, 1025 (7th Cir. 2004). The government notes that, at a hearing on
September 29, Herrera acknowledged the government’s ongoing fingerprint testing and
said he may need to obtain his own expert opinion. Therefore, the government argues
there was no understanding that the September 21 deadline applied to fingerprint
evidence. However, the government fails to cite any case law to support its claim. The
district court is entitled to great deference in construing its discovery order, and thus it was
not an abuse of discretion to find the government in violation of it.

       The district court went too far, however, in its choice of remedy. The punishment
simply does not fit the crime. We review a district court’s ruling on the admission or
exclusion of evidence for an abuse of discretion. United States v. Jumper, 497 F.3d 699, 703
(7th Cir. 2007). When considering a motion to exclude evidence, a district court should
take into account whether the government acted in bad faith and whether any unfair
prejudice to the defendant can be cured by a less severe alternative. See United States v. De
La Rosa, 196 F.3d 712, 717 (7th Cir. 1999). There is no showing here of either bad faith or
reckless foot-dragging by the government. Because the evidence is scientific, it has
immense probative value. This is a complex case where a great deal of time has passed, so
witnesses’ memories may be poor, making the scientific evidence all the more crucial.
Exclusion of the government’s fingerprint evidence was too drastic a remedy. A more
appropriate remedy might have been moving the trial ahead a few weeks to give the
defense a greater opportunity to study and confront the evidence. Of course, that would
have worked an imposition on the court’s calendar, but such is life. We think the district
court’s order was an abuse of discretion.

       We REVERSE and REMAND for further proceedings.
