United States v. Blaine Peter Morin

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2137
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Blaine Peter Morin, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 6, 2002
Filed: November 26, 2002
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Before WOLLMAN, LAY, and LOKEN, Circuit Judges.
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PER CURIAM.
Blaine Peter Morin was convicted of distributing methamphetamine. The
district court1 denied Morin’s motion for judgment of acquittal and motion for a new
trial and entered judgment. Morin appeals, arguing that (1) an impermissibly
suggestive and unreliable procedure led to an irreparable misidentification, and (2)
his conviction was not supported by substantial evidence. We affirm.
1
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
On April 1, 2000, undercover officer Anthony Krogh was involved in a
controlled drug buy in Belcourt, North Dakota. He observed an unidentified man
deliver three bags of what was later determined to be methamphetamine. At trial,
Krogh testified that he had seen the man for approximately seven to ten minutes from
a distance of one to four feet. According to Krogh, he observed the man carefully,
as he knew he would need to identify the man at a later date. [Trial Transcript at
28:1-6] Krogh noted, in addition to other physical characteristics, a tattoo on the
man’s left hand. In his initial reports, as well as when testifying before the grand
jury, Krogh stated that the tattoo included the letters “AIM,” but that “the picture
[was] unidentified.” At trial, Krogh described the tattoo in greater detail, testifying
as to “what appeared to be like a six-pointed star or a turtle viewed from above.”
On appeal, Morin contends that Krogh’s testimony regarding the tattoo, as well
as his in-court identification, were the products of an unduly suggestive identification
procedure. Morin notes that at the time of his arrest, his left hand was photographed.
Krogh testified at trial that he had seen this photograph. Morin therefore concludes
that Krogh’s “enhanced and detailed [trial] testimony” regarding the tattoo was based
on his viewing of the photograph, and not his independent recollection.
Morin did not object to Krogh’s identification testimony at trial. Thus, we
review for plain error. United States v. McMurray, 34 F.3d 1405, 1411 (8th Cir.
1994). “Plain error review is extremely narrow and is limited to those errors which
are so obvious or otherwise flawed as to seriously undermine the fairness, integrity,
or public reputation of judicial proceedings.” United States v. Beck, 250 F.3d 1163,
1166 (8th Cir. 2001). “We will reverse under plain error review only if the error
prejudices the party's substantial rights and would result in a miscarriage of justice
if left uncorrected." United States v. Parker, 267 F.3d 839, 844 (8th Cir. 2001), cert.
denied, 122 S. Ct. 1592 (2002). After carefully considering the record, we discern
no such error. Krogh, an experienced law enforcement officer, had ample opportunity
to observe the physical characteristics of the individual involved in the controlled
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buy, and he was confident that the individual was Morin. See United States v.
Murdock, 928 F.2d 293, 297 (8th Cir. 1991). We also note that Krogh’s
identification testimony was attacked on cross-examination. See id. We therefore
see no basis for reversing on this issue.
Morin also challenges the sufficiency of the evidence connecting him to the
drug sale. Morin’s argument, however, hinges on the exclusion of Krogh’s
identification testimony. Finding no plain error in the admission of this testimony,
we reject Morin’s sufficiency-of-the-evidence claim. See United States v. Reed, 297
F.3d 787, 789 (2002) (standard of review).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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