354 F.3d 621 (7th Cir. 2003), 03-2459, U.S. v. Morgan

Docket Nº:03-2459
Citation:354 F.3d 621
Party Name:U.S. v. Morgan
Case Date:December 31, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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354 F.3d 621 (7th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Zan MORGAN, Defendant-Appellant.

No. 03-2459.

United States Court of Appeals, Seventh Circuit

December 31, 2003

Argued Dec. 1, 2003.

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Robert A. Anderson (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Jonas Bednarek (argued), Curtes & Bednarek, Mt. Horeb, WI, for Defendant-Appellant.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Zan Morgan was convicted by a jury of distributing crack cocaine and has been sentenced to 154 months' imprisonment. The evidence shows that Thomas Green called Morgan, requesting a delivery of cocaine, and that Dezel Jones delivered the drug to Green later that day. In order to convict Morgan, the jury had to conclude that Jones acted as his agent. To show agency, the prosecutor asked Green about his previous dealings with Morgan. Green testified that he bought cocaine from Morgan three or four times a week for an extended period, and that Jones frequently delivered the merchandise. Green also related the slang (or perhaps code) phrases he and Morgan had exchanged to reach their deals.

Morgan objected to these aspects of Green's testimony, calling it other-crime evidence offered to show propensity to

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commit new offenses. See Fed.R.Evid. 404(b); United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987). Whatever this evidence showed, however, it was not (exclusively) "other" crimes. The goal was to establish that Jones was acting as Morgan's agent, an essential step toward proving this crime. It is hard to see how agency could have been shown without demonstrating that Green and Morgan had an established business relation in which Morgan used a courier for delivery. Details such as the transacting parties' lingo and quantities were essential to lend verisimilitude to Green's claim. A tale bereft of narrative is hard either to follow or to credit. Perhaps the prosecutor went overboard, eliciting more than was necessary to flesh out Green's story. But there are no bright line rules for how much is too much, so we must rely principally on the good sense of district judges to keep things within appropriate bounds. That discretion was not here abused. A defendant who wants to curtail the use of facts that are simultaneously both vital and prejudicial...

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