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Date: 10-27-2021
Case Style:
United States of America v. John Creech
Case Number: 19-2417
Judge: Eugene Edward Siler Jr.
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Cincinnati, Ohio- Criminal defense lawyer represented defendant with a conspiring to possess with intent to distribute more than 100 grams of heroin charge.
Creech lived in California and sold drugs. But he did not limit his sales to California.
Beginning in May 2012, he cultivated a relationship with Craig Todd—a drug dealer in Detroit—
to sell cocaine and heroin outside the state. In furtherance of their business deal, Creech provided
Todd three kilograms of heroin on credit. The quality was so poor; however, Todd did not think
he could sell it. So, Creech called his supplier. After both men spoke to the supplier, Creech told
Todd that he would return in a few days. And he did.
Creech returned with a better batch of heroin a few days later. Despite the enhanced
quality, Todd’s sales came slowly. When Creech called to check in, Todd revealed that he had
only sold 100 grams. Creech returned to Todd’s house to collect the minimal proceeds. Creech
called his supplier, who instructed him to take back two kilograms of the product because Todd
was selling it too slowly.
Around the same time, Creech’s home life spiraled out of control. He learned his wife,
Chandrika Cade, was having an affair with Gavin Smith. People v. Creech, 2019 WL 1122691,
at *1-3 (Cal. Ct. App. Mar. 12, 2019). An enraged Creech confronted the couple in a parking lot
and killed Smith. Id. at 3.
Fearing lockup on a separate drug charge, Creech texted Todd to give the heroin proceeds
to Cade. He also asked Cade to collect the money Todd owed him, which Cade knew was a drug
debt.
Todd faced legal problems of his own. Before he could finish selling Creech’s heroin,
Todd was ensnared by the Drug Enforcement Agency (DEA) and worked for the DEA after August
14, 2012. Todd explained that Creech fronted him heroin to sell.
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While Creech was being detained on separate drug charges, Cade was still trying to collect
the drug money that Todd owed Creech. As part of the investigation, Todd went to California and
gave Cade $5,000 for the “H.” Todd next met with Creech in jail where he told Creech that he
had given $5,000 to Cade. In response, Creech held up a napkin with “$95” written on it—the
amount Todd still owed him in thousands. Creech explained that he still owed his supplier for the
heroin, who was holding Creech’s motorcycle until Creech was able to repay his debt. Creech
said that the supplier had tried to reach Todd but was unable to. Creech gave Todd his supplier’s
number and told him to pay him directly.
In late September 2013, the Government filed a criminal complaint against Creech. United
States v. Creech, 13-cr-30588, R. 1 (E.D. Mich. Sept. 24, 2013). The complaint charged him with
conspiring to possess with intent to distribute more than 100 grams of heroin. Id. That complaint
largely echoed the indictment filed four years later.
The discovery of Smith’s body brought yet more legal difficulties for Creech. California
charged him with first-degree murder. At trial in July 2017 a jury convicted him of voluntary
manslaughter.
On August 17, 2017, a federal grand jury indicted Creech for conspiring with intent to
distribute heroin. He moved to dismiss those charges as barred by the five-year statute of
limitations. The district court denied that motion.
Creech’s drug trial finally came. When Cade was called to testify, Creech sought to
exclude her testimony as confidential marital communications. The district court rejected that
motion and determined the privilege did not apply.
At trial, Creech also complained of a Brady violation. DEA Agent Bryan Sartori testified
that he had unsuccessfully attempted to forensically extract the contents of Creech’s phone. But
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Creech never received a forensic report of the failure. The Government, however, told the district
court that it did not have possession of a report and did not believe it existed. The district court
found no Brady violation.
At the close of evidence, Creech moved for judgment of acquittal based on the statute of
limitations. Again, the district court rejected the argument, relying on Creech’s continued pursuit
of payment. After his conviction, Creech moved for a new trial for the same statute of limitations
reason. The district court denied the motion. Creech was sentenced to 130 months, concurrent
with his state manslaughter sentence.
II
We review de novo whether sufficient evidence supported Creech’s conviction. United
States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011). We consider whether, “after viewing the
evidence in the light most favorable to the government, any rational trier of fact could have found
the elements of the crime beyond a reasonable doubt.” United States v. Beddow, 957 F.2d 1330,
1334 (6th Cir. 1992) (internal citations omitted).
Creech alleges his drug conspiracy conviction was barred by the five-year statute of
limitations. 18 U.S.C. § 3282(a). In general, however, a drug conspiracy continues until it is either
abandoned or it accomplishes its goal. United States v. Jimenez Recio, 537 U.S. 270, 275 (2003).
Creech does not claim that he withdrew from the conspiracy. Nevertheless, a conspiracy requires
more than one participant, Rogers v. United States, 340 U.S. 367, 375 (1951), and a government
informant cannot be a coconspirator. United States v. Hayden, 68 F. App’x 530, 532 (6th Cir.
2003). So, Creech claims the drug conspiracy ended after Todd turned government witness—five
years and three days before his indictment. But Todd was not Creech’s only coconspirator. To the
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contrary, enough circumstantial evidence supported the existence of a second coconspirator, the
unnamed supplier, and thus the conspiracy continued into the statute of limitations period.
Drug conspiracies often involve multiple tiers of drug dealers working in tandem. See
United States v. Henley, 360 F.3d 509, 513 (6th Cir. 2004). That is, dealers form a chain from
supplier to consumer. At the top, an unnamed supplier provided drugs to Creech. And Creech, in
turn, gave those drugs to Todd. At trial, Todd testified to both his relationship with Creech and
Creech’s relationship with the unnamed supplier. He detailed how: (1) Creech was able to
exchange poor quality heroin for better heroin for Todd to sell on consignment; (2) Todd heard
Creech update his supplier on the sales’ progress; (3) the supplier instructed Creech to take back
some heroin after Todd’s sales lagged; (4) Creech’s motorcycle was being held to satisfy a drug
debt; and (5) Creech instructed Todd to repay his supplier directly. That type of “delayed payment
or credit arrangement suggests more than a buyer-seller arrangement between the parties”; it
suggests a conspiracy. Id. at 514 (cleaned up).
Creech’s attacks on Todd’s credibility are misplaced. Todd testified to a common plan to
sell heroin. That is enough to establish a conspiracy. See United States v. Soto, 794 F.3d 636, 657
(6th Cir. 2015) (holding the testimony of a coconspirator is sufficient to establish a conspiracy).
Because Creech never abandoned the conspiracy with his supplier, the conspiracy continued into
the statute of limitations period.
Regardless of the statute of limitations, Creech also claims the pre-indictment delay
violated his Fifth and Sixth Amendment rights. Because Creech did not raise either argument in
the district court, we review these claims for plain error. United States v. Williams, 683 F. App’x
376, 382 (6th Cir. 2017). Here, there may be some overlap between the rights. The Fifth
Amendment governs pre-indictment delay. United States v. Schaffer, 586 F.3d 414, 424 (6th Cir.
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2009). And the Sixth Amendment governs post-accusation delay. Id. Usually, an accusation
comes in the form of an indictment, but Creech asserts that a criminal complaint is enough. While
the Government’s delay was admittedly long, Creech cannot show plain error.
Fifth Amendment. Creech alleges the pre-indictment delay violated his Fifth Amendment
rights. But the acceptability of a pre-indictment delay is typically measured by the statute of
limitations. Id. at 425. And Creech was indicted within the limitations period. Nonetheless, the
Fifth Amendment will protect him if he shows: (1) the government intentionally delayed the
indictment to gain a tactical advantage; and (2) substantial prejudice. Id. at 424. But the
Government had two valid reasons for the delay: (1) allowing California to finish its homicide
prosecution, and (2) waiting to see the results of that prosecution. United States v. Watford, 468
F.3d 891, 903 (6th Cir. 2006). Thus, his claim must fail. Schaffer, 586 F.3d at 426; see also United
States v. Greene, 737 F.2d 572, 575 (6th Cir. 1984) (declining to reach prejudice prong where
defendant failed to show that delay was an intentional device).
Sixth Amendment. The Sixth Amendment guarantees a defendant the right to a speedy trial.
Doggett v. United States, 505 U.S. 647, 651 (1992). That right is triggered by an “arrest,
indictment, or other official accusation.” Id. at 655. Creech claims that the criminal complaint—
filed in September 2013—started the speedy trial clock. But it is unclear whether a criminal
complaint counts as an official accusation. Indeed, on this point, the circuits are split (even from
within). See Rice v. Warden, Warren Corr. Inst., 786 F. App’x 32, 35 n. 2 (6th Cir. 2019)
(recognizing split authority on whether a felony complaint starts the speedy trial clock); Mann v.
Beard, 649 F. App’x 392, 393 (9th Cir. 2016) (acknowledging an intra-circuit split on whether a
complaint triggers the speedy trial clock); United States v. Richardson, 780 F.3d 812, 813 (7th Cir.
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2015) (federal complaint and detainer do not start the speedy trial clock). Creech, therefore, cannot
show plain error. United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015).
Creech further complains that his ex-wife’s testimony was improperly admitted
confidential marital communications. Unlike the adverse spousal privilege, the confidential
marital communications privilege is held by both spouses. United States v. Underwood, 859 F.3d
386, 390 (6th Cir. 2017). To claim the privilege, Creech must show: (1) a legally valid marriage
at the time of the communication; (2) the utterance or expression was intended to convey a message
from one spouse to another; and (3) the communication was made in confidence. Id. Both parties
agree that test is met. But even then, there are exceptions. The Government believes two apply:
(1) the joint criminal exception and (2) the permanent separation exception. See id. The
Government is correct that both apply here.
Creech directed Cade to collect his drug debts. Creech’s request, therefore, pertained to
joint criminal activity. United States v. Gray, 71 F. App’x 485, 489 (6th Cir. 2003). As a result,
the “confidential marital communications are not protected.” United States v. Sims, 755 F.2d 1239,
1241 (6th Cir. 1985).
Unsurprisingly, the marriage was on the rocks. Creech had murdered Cade’s paramour
and threatened her life, after all. But the confidential marriage privilege continues until permanent
separation. United States v. Porter, 986 F.2d 1014, 1019 (6th Cir. 1993). So, were Creech and
Cade permanently separated? In many ways, Creech and Cade acted that way: (1) Creech took off
his wedding ring; (2) he agreed they were “completely done”; (3) Creech began a romantic
relationship with another woman; (4) Creech and Cade slept in separate rooms; and (5) they had
plans for divorce. This court has found permanent separation under similar circumstances. See
United States v. Cannon, 552 F. App’x 512, 514 (6th Cir. 2014). Moreover, their separation was
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permanent in hindsight. Porter, 986 F.2d at 1019. The district court did not abuse its discretion
in finding that the couple was permanently separated and thus the confidential marriage privilege
did not apply. Cannon, 552 F. App’x at 514.
Finally, Creech alleges that the prosecutor impermissibly failed to disclose a forensic
search report of Todd’s cellphone. To succeed, Creech must show that the report was:
(1) suppressed; (2) favorable (exculpatory or impeaching); and (3) material. Strickler v. Greene,
527 U.S. 263, 281-82 (1999). Creech clears the first two hurdles. First, the Government did not
disclose the report before trial.1
Instead, an agent gave testimony about the report’s findings on
redirect examination. Second, the report contained potential impeachment evidence. The agent
testified that he downloaded the contents of Todd’s cellphone. After reviewing the messages, the
agent did not find a text from Creech about heroin. Recall, however, that Todd alleged Creech
sent him a text message about the drugs. Creech could have used the absence of the text message
to impeach Todd’s testimony.
But Creech cannot demonstrate the report was material. That is, he cannot show that “there
is a reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. at 280 (quoting United States v. Bagley, 473 U.S. 667,
682 (1985). For Creech, the value in the report was in the absence of proof. In other words, the
report did not show that a text about heroin had not been sent; it showed only that such a text could
not be found. And that evidence came out at trial. Creech says he was prejudiced because he
could not cross examine Todd about the report. Yet Creech does not explain what value that would
have added to his defense. See United States v. Howard, 516 F. App’x 409, 410 (6th Cir. 2013)
(“Prejudice is more difficult to prove when the evidence comes to light at trial.”). The jury already
1
In fact, the Government claims that it did not have a report.
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knew they could only take Todd’s word for the existence of the text message. Certainly, whatever
harm Creech suffered from the late disclosure does not undermine confidence in the verdict. See
United States v. Smith, 706 F. App’x 241, 244-45 (6th Cir. 2017).
Outcome: AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: