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United States v. Creech

United States District Court, E.D. Michigan, Southern Division

July 6, 2018

JOHN CREECH, Defendant.



         Last August, a federal grand jury indicted defendant John Creech for a 2012 federal drug distribution conspiracy. Creech has filed a motion to dismiss the indictment, asserting a statute of limitations defense. He contends that the single charge of conspiracy is time-barred because the indictment was filed on August 17, 2017, but his alleged co-conspirator, Craig Todd, was arrested by government agents on August 14, 2012, gave a full confession about his involvement in the conspiracy, and then became a confidential informant for the government. Creech argues, therefore, that nothing he did after August 14, 2012 could have been part of any conspiracy, since a defendant cannot, as a matter of law, “conspire” with a government informant. However, the government contends that Todd may not be the sole co-conspirator, and Creech committed other conspiratorial acts within the five-year period of limitations. Because the government is entitled to prove those allegations at a trial, Creech's motion will be denied.


         The grand jury charged the following:

Beginning in or about May 2012 and continuing through at least November 2012, in the Eastern District of Michigan, Southern Division, and elsewhere, defendant JOHN CREECH, together with others known and unknown to the grand jury, did knowingly, intentionally and unlawfully combine, conspire, confederate and agree to commit an offense against the United States, that is, to possess with intent to distribute a controlled substance, specifically, 100 or more grams of a substance containing a detectable amount of heroin.

(Emphasis added).

         Before the case was presented to the grand jury, however, the government filed a criminal complaint against Creech, which contained a more expansive set of facts. From that document (which is not part of the record in this case), and from the government's discovery disclosures, Creech derives the following factual description of his own.

         On May 7, 2012, Creech met Craig Todd at a restaurant in Los Angeles, California where they talked about selling some drugs. Two weeks later, Creech called Todd from Chicago and asked if Todd could “move some heroin.” Later in May 2012, Creech went to Todd's home in Southfield, Michigan and dropped off 500 grams of heroin for Todd to sell. However, after the heroin was found to be of low quality, Creech returned to Todd's home a couple of days later and replaced it with 500 grams of higher quality heroin.

         On August 14, 2012, after a traffic stop, Todd was arrested by agents of the DEA, who found around 14 kilograms of cocaine and 300 grams of heroin in his car. Todd promptly confessed to the arresting agents and then was released. On August 20 and 24, 2012, Todd appeared at the DEA offices and proffered extensive information about his drug dealing. Todd then entered into a deal with the government to become a confidential informant.

         On November 6, 2012, Todd traveled to California to meet with Creech's wife, attempting to elicit incriminating information about Creech. On November 8, 2012, Todd visited Creech in jail to discuss the drug conspiracy, trying to elicit incriminating statements from him. Creech did not describe in his motion any of the substance of his interaction with Todd at the jail, but the government asserts in its response that transcripts of a recording from the jail and handwritten notes passed between Creech and Todd during their visit indicate that Creech and Todd discussed (1) the fact that Todd had given $5, 000 to Creech's wife; (2) problems with the quality of the heroin that Creech previously had supplied to Todd for sale; and (3) a debt of $95, 000 that Todd owed Creech for the prior deliveries of heroin that Todd was supposed to sell.

         Creech also asserts that the government recovered bank records from his bank under a subpoena, and that those records do not disclose any drug-related spending or any activity such as hotel or gas receipts relating to any travel to Southfield, Michigan on any dates after June 2012, which was well before August and November 2012.


         Creech has moved to dismiss the indictment. Under Federal Rule of Criminal Procedure 12(b)(1), “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Creech acknowledges that “[w]hether an indicted crime falls within the statute of limitations is a jury question.” United States v. List, 200 Fed.Appx. 535, 543 (6th Cir. 2006) (citing United States v. Brown, 332 F.3d 363, 372-74 (6th Cir. 2003)). But citing United States v. Crary, No. 13-35, 2013 WL 6054607 (D. Mont. Nov. 15, 2013), United States v. Rabhan, No. 06-124, 2007 WL 9627795 (N.D. Miss. June 28, 2007), and United States v. Thompson, 125 F.Supp.2d 1297 (D. Kan. 2000), in his supplemental brief, he states that where the indictment fails to allege an overt act within the period of limitations, it should be dismissed as a matter of law. Those cases, however, do not fit with the facts in Creech's case.

         Creech is charged with a drug conspiracy. The pertinent statute, 21 U.S.C. § 846, “criminalizes ‘conspir[ing] to commit any offense' under the Controlled Substances Act, including the knowing distribution of, or possession with intent to distribute, controlled substances, § 841(a)(1).” Smith v. United States, 568 U.S. 106, 111 n.3 (2013). “The statute of limitations for conspiracy is five years.” United States v. Baker,380 Fed.Appx. 465, 467 (6th Cir. 2010) (citing 18 U.S.C. § 3282). “The statute of limitations is satisfied if the government alleges and proves that the conspiracy continued into the limitations period.” It is well established that “as long as ...

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