Conviction and Sentence in Drug Case Affirmed

U.S. v. Lauder, 2005 WL 1349974 (6/8/05) - There was sufficient evidence of a nexus between the drugs found in a house and the defendant who was staying there. The defendant had access to the drugs and his clothing and fingerprints tied him to the drugs. Testimonial reference to the defendant 's exercise of his right to remain silent was improper but harmless beyond a reasonable doubt. The government did not use the testimony as substantive evidence of guilt, the prosecution did not prompt the testimony, there was only one reference, the judge gave a curative instruction and the evidence of guilt was overwhelming. The Live-Scan fingerprint [taken by a digital camera, instead of using ink] was properly authenticated as the defendant's, even though the witness could not describe how the process worked. Daubert was not relevant to the authentication issue; how the scanner worked did not have to be explained. The court properly determined the amount of drugs involved. The constitutional Booker plain error did not merit reversal, even though the violation resulted in a substantial sentence increase, because the court sentenced above the bottom of the guideline range, uncontested evidence supported the enhancements and the judge's statements indicated the judge would impose the same sentence on remand.