during the in women a hearing on that and the actually what was requested in and then the was that there be a full hearing on daubert after there was a very substantial documentary proffered by the defense that was denied later on judge factual interference there is in the analysis that is there's no difference in the exact same the exact same scientific principles underlying the exact same procedure is applied the only difference is that we are dealing with certain forensic context we're dealing with specimens that has some artifacts because of the way that they are produced and that thing that makes it a more difficult task but it doesn't change the underlying science it doesn't change the underlying principles on w to answer that's fine and i will not have an answer to my question above you will not be able to claim when this is it comes out that i didn't give you a chance to answer the question and so let me ask you the first third and last time he claimed they got fingerprints the conviction could be severed because there's not sufficient evidence that he is the right guy i believe so here i mean for three reasons i think they cannot possibly behind this even if the government had actually argued that in this grand the person who committed the crime it was it was heavily relied the identification was heavily disputed at trial and it was a heavily relied on by the government an argument that the fingerprint evidence as  described in several places in the argument is extremely important as being the government referred to there's the five pages of the government's argument is devoted to discussing the fingerprint evidence and in the finally in re debated in final argument and that's why it was critical here that there actually be a real lot a showing a reasonable determination that this evidence in fact was reliable it's not simply the extensive pro which was made a documentary proffer but in the second round here there were two instances where the judge failed to hold they have an entry hearing when the judge will and allow the board here on the expert can appear then on the record even though that wasn't totally within the scope of the qualifications what came out in the testimony was that there were two specific deviations from the acceptance standard protocol that has been discussed in all the case law in this particular case mr here's the expert that's true on but he also said he claimed in testimony that his technique his procedure his protocol was essentially the same as the latent print you saying that they were identical when in fact they weren't because it admitted the essential verification step a second substantial deviation from the accepted protocol was the fact that he said he does not go beyond level one detail every from what i can tell from the case law and from the technical literature every examiner uses at least level to detail and the f b i s protocol is to use level two in some level three ashfall the expert for the royal canadian mounted police has developed a technique he calls rejali jollity which only looks at level three s on the fact that there was not an allegation in the indictment of the thirteen twenty six b elements to wit the the date of the deportation i'm michel martin is rodriguez which do not consider the indictment question indictment failure of an indictment taurus argument correct that was part of that and was then a amendment to the presets report that was filed with the judge relied upon and referred to in the amendment was the fact that the the conviction documents in the lower court were attached records court our records department asked the the government to furnish whatever was was was at the judge that the judge looked upon and we were furnished with the documents that i wanted you to know that ok thanks very much  reasonable doubt did not address the an indictment claim which  role fingerprint expert what is your understanding of the record what i respectfully disagree with opposing counsel on this particular point the record in this case was that these were exemplar prints and there are couple reasons why you pinions from this circuit in some of the circu are not as many addressing exemplar prints and the science the reason that latent prints are generally not viewed with are viewed as being a little bit more skeptical than exemplar prints are because the the ridge detail eleven even his expert was talking about the difference between exemplar and latent prints and says that david asked the gentleman that opposing counsel for to the exemplar print is usually taken under ideal conditions and should have more clarity than the latent print and then counsel says this is argument having said that that is not always the case on occasion the latent print has more clarity than the exemplar so the press that we were dealing with are actually even more reliable than the prints that have routinely of how courts were adopting expert opinion and how they were reviewing it and it changed from this hard and fast rule to a more fluid concept where they would evaluate all the job of factors but more importantly in some cases and i think the quote was an expert's methods can ordinarily be taken for granted that's the ark ark i guess that's the perfect case for a court does not need to hold a job or hearing and in this case the court did not hold a formal d'albert hearing where the  the expert in this case was subjected to perhaps the best truth finding device that there is cross examination in which this court is routinely how it was one of the best ways to actually you know challenge the weight of the evidence which is really what fingerprint was of utmost importance certainly the government and i argued this case below i prosecute this case on behalf of the united states the government did rely on the fingerprint but it was all part of the big picture which really presented overwhelming evidence against mr  and in this passage that counsel referenced i would just note that when we're talking about that and warn of deportation the government does say that the fact that there may be fingerprints on your show that the that are the defendants in that he was the one who was deported the cost of goes on to mention it has got his name right there it's got his a number right there in the warrant has his picture and they all match up so there was lots of other evidence supporting the fact that this gentleman was the one who was from the united states which is the element that opposing counsel was relying yester on the one of the ports nation that's correct which was found in the a file which also matched up with other photographs of the defense of the defendant and they were all based on his a number so i respectfully submit that even if there were some problem with the fingerprint evidence which there was not in this case the evidence was overwhelming against the defendant and certainly any purported error in admitting the fingerprint evidence would not have in any way the fact of the verdict  just three points i'd like to make to advance the government's position the first is that the recent case of lopez makes it clear that when this court decided to steer rovera in basically seeing that that that is the case that controls but more importantly that there are two other reasons why in this case there really is no question that there was any error in the first is that this case present the and the government had to prove that the defendant was deported as one of the elements of the offense the jury came back with a guilty verdict and as the court said in martinez that's not even a player case that's a no error case because in this situation the jury has inherently determined beyond a reasonable doubt that when the date of the deportation is and because the defendant did not dispute and there is no dispute that his aggravated felony came before that in one thousand nine hundred seven i believe it was a forcible rape conviction in  in this this does not make any public policy sense what we have in this situation is overwhelming evidence that the defendants were involved in a vast drug conspiracy and in that type of situation the court can apply the harvest standard  say even though this wasn't included in the indictment there's no there's no others no error we can't reverse in the situation in the public policy grounds for that make a lot of sense and i think the quote from the court really s in evaluating the heart the harmless error standard the planers car community yes the history who the real threat to the fairness integrity or public reputation of judicial proceedings would be if the respondents despite overwhelming uncontroverted evidence that they were involved in a vast conspiracy were to receive a sentence prescribed for those who commits a substantially less of a drug offense because of the error was not because there was not objective to a trial and that makes a lot of sense we want to encourage people to be objecting when they need to and so you encourage effective admission here is where the record throw you out of there was never raised in this case i respectfully disagree with mr f both i cannot find anywhere in the papers where he specifically alleges that the date was not included in or that the court found the date of his deportation and with regard to the indictment which i believe is around a specific question he never moved to dismiss alleged invasion of inspection and the court heard argument on those motions and deny them but that's really the twofold reason why in this case it's just the argument lacks merit because not only did it did he not object but the supreme court's reasoning  why those types of errors should not be structural when there's overwhelming evidence really make makes policy sense as well and i believe that we send as concert ponces actually right now and search your with the supreme court  so you know particularly in this kind of case where there is no objection below it doesn't really make sense to strike of course on the indictment and again when the laws and fluffs and you know even if you were to apply that that plane air standard  under kovi and you know applying a plane or analysis in this case to not that is not included in the indictment but the fact that it was the defense argues that it was determined by the court again that's not really accurate because in this case it was proved to a here if we if we go with your argument that the jury was presented with discrete facts about one date of deportation and one date of of conviction and the timing of those went to the jury and if they could only gone one way it all this evidence went in i'm might be missing some but you think this is supreme court cases clean it up anyway why i think so and i think it certainly will when resendiz is ruled on in the second answering we should write for a reason there's are your case can go before well i don't think it's necessary to reach that issue in this case because there were no objections and because the jury reached a verdict it's in essentially found beyond a reasonable doubt that the defendant was removed on this day because it was the only did that was present that that's my that's as as counsel went through the specific objections he was making before sentencing after the amendment was and i don't remember that objection that's true i believe that the trial counsel just raised the general a specifically where the indictment issue was raised and there was raised in general as part of the frenzy rights and then was specifically stated that although you read that and our stories conceivably addressed the indictment if you ask you the prior conviction nonetheless that  conviction exceptions there is no prior deportation exception to oppression and that's exactly the problem here the district court found that there was a sequence of a prior deportation with the prior conviction that was not presented in the indictment