Harmless Error in Admitting Hearsay Fingerprint Testimony

U.S. v. Resendiz-Patino, 2005 WL 2050269 (8/26/05) - A bad case for those trial attorneys who love to rely on the lack of fingerprint analysis on some incriminating item or other. The 10th found harmless any error in admitting hearsay testimony that the battery containing cocaine was not tested for fingerprints because police have been unsuccessful in obtaining prints from items like that. The 10th found that none of the inferences from the lack of fingerprinting would have been particularly helpful, i.e., (1) there were no recoverable prints on the battery; (2) there were recoverable prints that were the defendant's: and (3) there were recoverable prints that did not belong to the defendant. The latter inference would not exclude the defendant from being in league with the person whose prints were on the battery.

With respect to the Booker issue, the d.ct. committed only non-constitutional error because he stipulated at trial to the drug amount. For the usual reasons, the defendant did not meet the 4th prong of the plain error reversal test.