United States v. Creighton
2017 U.S. App. LEXIS 6190
| 10th Cir. | 2017Background
- Creighton was indicted for conspiracy to distribute 500+ grams of methamphetamine; prior felony drug convictions exposed him to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) if an § 851 information was filed.
- During plea negotiations the prosecutor emailed defense counsel urging Creighton to proffer cooperation and warned she would seek permission to file an § 851 information notifying the enhancement.
- Prosecutor informed defense counsel she obtained permission and filed the § 851 information shortly before trial; Creighton refused to cooperate or plead and elected a jury trial.
- A jury convicted Creighton; the district court, over objection, imposed life imprisonment based on the timely § 851 notice.
- Creighton appealed, arguing the § 851 filing and timing amounted to prosecutorial vindictiveness in violation of the Due Process Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s § 851 notice and timing constituted actual vindictiveness | Prosecutor’s threat and subsequent filing were retaliatory for Creighton’s refusal to cooperate and choice of trial | Prosecutor merely notified Creighton of an enhancement she was authorized to pursue and offered negotiation if he cooperated | No actual vindictiveness; Bordenkircher controls—prosecutor may present the choice of plea or greater charge when probable cause exists |
| Whether circumstances create a presumption of pretrial vindictiveness | Timing (threat during plea talks, filing after Creighton insisted on trial) creates appearance warranting a presumption | Pretrial charging decisions in plea negotiations don’t warrant a presumption absent unusual circumstances; Goodwin disfavored such a presumption | No presumption; Goodwin and Bordenkircher foreclose presumption in these ordinary plea-negotiation circumstances |
| Whether prosecutor’s conduct deprived Creighton of due process | Threatening enhancement coerced waiver of trial rights, so due process violated | No coercion beyond lawful plea negotiation tactics; defendant remained free to accept or reject offer | Due process not violated; lawful prosecutorial discretion and congressionally authorized enhancement applied |
| Whether any claimed error survives standard-of-review debate | Creighton urges de novo review; government urges plain error | Court finds standard dispute moot because claim fails on merits under even de novo review | Claim fails as a matter of law regardless of review standard |
Key Cases Cited
- Bordenkircher v. Hayes, 434 U.S. 357 (1978) (prosecutor may threaten more severe charge during plea talks if probable cause exists)
- United States v. Goodwin, 457 U.S. 368 (1982) (declines to apply presumption of vindictiveness in pretrial plea-negotiation context)
- United States v. Raymer, 941 F.2d 1031 (10th Cir. 1991) (defendant must show actual vindictiveness or realistic likelihood to trigger presumption)
- United States v. Sarracino, 340 F.3d 1148 (10th Cir. 2003) (applies Bordenkircher to reject vindictiveness claim based on charging change during plea negotiations)
- North Carolina v. Pearce, 395 U.S. 711 (1969) (presumption of vindictiveness in post-conviction resentencing context)
- Blackledge v. Perry, 417 U.S. 21 (1974) (presumption of vindictiveness when prosecutor increases charges after defendant exercises appellate rights)