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United States v. Creech

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

May 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN CREECH, Defendant.

          OPINION AND ORDER GRANTING IN PART GOVERNMENT'S MOTION FOR ADMISSION OF EVIDENCE UNDER EVIDENCE RULE 404(B)

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         The grand jury charged defendant John Creech in a single count indictment with conspiring to possess with intent to distribute 100 or more grams of heroin, contrary to 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(i). The government filed a motion for a ruling allowing the admission at trial of certain “other acts” evidence that it contends forms “the res gestae” of the drug distribution conspiracy charged in this case, and which it also asserts is necessary to establish the defendant's intent, plan, and motive to carry out the drug distribution scheme, particularly in light of his proffered public authority defense. Since the motion was filed and argued, the defendant has withdrawn his public authority defense and will not seek a jury instruction on that defense. Nonetheless, some of the evidence the government seeks to offer is relevant to prove the elements of the charged offense. For the reasons discussed below, the motion will be granted in part and denied in part.

         I.

         The government alleges that Creech conspired with Craig Todd and others to transport heroin from California so that it could be sold in Michigan. According to a complaint filed before the indictment was returned, the government believes that 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.

         Based on motions filed in this case, it appears that Creech will present a defense that he had no intent to conspire with anyone to deliver controlled substances in 2012. Instead, he will say that he was working with a California police detective when he negotiated supposed “sham” drug deals, including the deal involving Todd.

         The government moved for an order allowing the introduction of evidence (1) that during the approximate timeframe of the conspiracy as charged, and extending as far back as occasions in 2008 and 2009, on multiple prior occasions, including occasions specific to Todd, defendant “fronted” and provided drugs to Todd and other individuals on a consignment basis with the intention to later collect and receive the proceeds from the sale of those drugs; (2) about statements by defendant and efforts by defendant to collect money from Todd and others prior to the charged timeframe of the instant conspiracy for drugs that defendant had previously “fronted” and provided on consignment; (3) that in furtherance of their drug trafficking relationship and as a means of further developing trust with one another as drug co-conspirators, Creech and Todd engaged in other drug activity, including meeting with yet other drug traffickers to whom Creech introduced Todd for the purpose of Todd obtaining drugs on a consignment basis, including a face-to-face meeting in the weeks surrounding the charged conspiracy that ultimately led to Todd's own arrest and cocaine-related drug conviction; and (4) that in 2012 the defendant was detained in custody, in a Los Angeles County jail, based on a 2010 California state drug arrest, and during a significant portion of the time that defendant was attempting to collect money from Todd, including recorded “jail calls” and “jail visits” with individuals whom the defendant solicited to help collect Todd's drug debt, and during those calls and visits the defendant discussed his underlying drug arrest, and, significantly, though vaguely, the defendant's connection to a murder for which he was later charged and convicted.

         The government argues that the evidence either is part of the story of the charged offense itself, or that it is admissible under Evidence Rule 404(b) to prove the defendant's “intent, plan, or motive.”

         The defendant concedes that evidence of his dealings with Todd in the course of their drug selling business properly may be admitted to “provide some relevant background evidence, ” but he contends that (1) “[t]he jury can understand the consignment-style arrangement the government describes without hearing specifics of what Creech may have done before, ” (2) the “[j]urors should have no trouble understanding that Creech and Todd had a prior relationship without delving into the details of alleged prior transactions, ” and (3) the jury does not “need to hear that Creech and Todd met with others to set up other drug deals in order to understand the government's claim that he did so in 2012.”

         The defendant also concedes that “[g]iven [his] proposed defense and the overall context of the evidence, it is unavoidable that the jury will hear that Mr. Creech was in the L.A. County Jail in the late summer and autumn of 2012.” But he contends that “[h]is status as a murder suspect is not relevant to any of the facts or elements in this case and is extremely prejudicial, ” “[t]here is no reason to play any portion of a jail call where the murder investigation is referenced, ” and “[t]o save time and avoid prejudice, only portions of the jail calls that do not refer to the murder investigation should be played.”

         II.

         Evidence of a defendant's criminal conduct other than the offense charged generally is not admissible to show that the defendant has a general disposition to commit crimes. United States v. Jackson, 918 F.3d 467, 483 (6th Cir. 2019); see also Fed. R. Evid. 404(a) (“Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”). However, when the evidence is admissible for another purpose, such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, ” it may be received if its probative value on the allowable purpose does not substantially outweigh the danger of unfair prejudice. Jackson, 918 F.3d at 483 (quoting Fed.R.Evid. 404(b)); see also Fed. R. Evid. 403. This catalog of permissible purposes is sometimes referred to as “exceptions” to the general prohibition against admitting other-acts evidence to prove a defendant's character as circumstantial evidence of conduct, because the evidence has a different purpose. See United States v. Foster, 376 F.3d 577, 591 (6th Cir. 2004). The list, however, was not intended to be exclusive. Ibid. (citing United States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000)); see also United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985).

         Courts generally employ a series of analytical steps when other acts evidence is offered and challenged. Initially, the proponent must offer enough evidence to establish “as a matter of preliminary fact” that the other act actually occurred. United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir. 1992); see also Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). Then, as with nearly all evidentiary issues, the next task is to identify the purpose for which the evidence is offered; and the burden of identifying a permissible purpose falls to the proponent of the evidence. United States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir. 1996) (“Upon objection by the defendant, the proponent of the evidence, usually the government, should be required to identify the specific purpose or purposes for which the government offers the evidence of “other crimes, wrongs, or acts.”). The proponent then must show that the stated purpose is “material, ” “that is, whether it is ‘in issue' in the case.” Id. at 1077. Sometimes, the answer to that question is not readily apparent when the trial begins. Ibid. (“It is true that whether 404(b) evidence is admissible for a particular purpose will sometimes be unclear until late in the trial because whether a fact is ‘in ...


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