United States v. Morgan, Zan

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-2459
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ZAN MORGAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-CR-141-C-02—Barbara B. Crabb, Chief Judge.
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ARGUED DECEMBER 1, 2003—DECIDED DECEMBER 31, 2003
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Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
EASTERBROOK, Circuit Judge. Zan Morgan was convicted
by a jury of distributing crack cocaine and has been sen-
tenced 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
2 No. 03-2459
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
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 should approach the prosecutor with a
proposal that the parties stipulate to the fact in question
(here, that Jones was acting on Morgan’s behalf). See Old
Chief v. United States, 519 U.S. 172 (1997). Morgan did not
make such an offer, likely because the stipulation would
have been no less damning than Green’s actual testimony.
There is accordingly no reason to upset the verdict.
As for the sentence: Morgan received criminal history
points on account of two convictions for continuing to drive
after his license had been revoked. These points increased
his criminal history level and sentencing range. Morgan
contends that the two convictions were “related” and should
have been counted only once. See U.S.S.G. §4A1.2(a)(2).
Application Note 3 to that section contains this definition of
No. 03-2459 3
“related” cases:
Prior sentences are not considered related if they
were for offenses that were separated by an inter-
vening arrest (i.e., the defendant is arrested for the
first offense prior to committing the second offense).
Otherwise, prior sentences are considered related if
they resulted from offenses that (A) occurred on the
same occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for trial or
sentencing.
The district court found that Morgan’s two offenses were
separated by an “intervening arrest”—which is to say, his
initial arrest and citation on May 5, 1999. (The second
occurred 15 days later.) The idea behind the relatedness
rule is that a single criminal episode may give rise to mul-
tiple convictions (for example, conspiracy to distribute drugs
plus possessing drugs with intent to distribute plus actual
distribution) and should count only once no matter how the
prosecutor drafts the charges; but a defendant who commits
a crime, is arrested for that offense, and then commits
another crime is a recidivist whose criminal record should
be tallied in full. See United States v. Coleman, 38 F.3d 856,
860 (7th Cir. 1994).
According to Morgan, however, he was not “arrested” on
May 5 but was just “stopped.” The officer issued a citation
requiring him to appear in court and did not escort him to
jail. Only a visit to a jail cell counts as an “arrest” for pur-
poses of Application Note 3, Morgan insists. Yet it is hard
to see why this should be so. No matter what word is used,
Morgan was caught red handed, driving after his license’s
revocation. He went right on committing that offense.
Clever charging practices did not multiply his convictions;
his failure to adhere to the law following his initial appre-
hension is the root cause. Calling the traffic stop an “arrest”
implements the Sentencing Commission’s goal. At all
4 No. 03-2459
events, there is no ambiguity. A traffic stop is an “arrest” in
federal parlance. See Whren v. United States, 517 U.S. 806
(1996); United States v. Childs, 277 F.3d 947 (7th Cir. 2002)
(en banc). Cf. California v. Hodari D., 499 U.S. 621 (1991).
Morgan was halted and prevented from leaving until the
officer released him. (This process differs from filing a
complaint, which unlike an arrest does not require probable
cause and does not entail even brief custody. See United
States v. Joseph, 50 F.3d 401 (7th Cir. 1995).) Morgan could
have been taken to the stationhouse, converting a street
arrest to a full custodial arrest. See Atwater v. Lago Vista,
532 U.S. 318 (2001). That a simple arrest did not become a
full custodial arrest does not matter for the Guidelines’
purpose; Note 3 refers to “arrest” rather than to extended
custody because it is the apprehension followed by a new
offense that identifies the recidivist. Morgan’s sentence was
calculated correctly.
AFFIRMED
No. 03-2459 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-31-03