United States v. John Hoffman, A/K/A John Joseph, United States of America v. Bertsfield Smithen

Opinion for the court filed PER CURIAM.

John Hoffman and Bertsfield Smithen appeal their convictions by a jury for narcotics offenses. 1 Their appeals raise one issue that merits discussion: whether a defense lawyer must lay some evidentiary foundation before arguing in closing that the jury should infer, based upon the absence of fingerprint evidence, that such evidence could have been obtained and would have been exculpatory. We answer that question in the affirmative, and therefore we affirm the convictions.

I. Background

The facts of this case are straightforward and uncontested on appeal.…