United States v. Therrien
2017 U.S. App. LEXIS 1538
| 1st Cir. | 2017Background
- Sherad Therrien was indicted on five counts of distribution of cocaine/cocaine base and one count of being a felon in possession of a firearm; a jury convicted him and he was sentenced to 72 months' imprisonment.
- Therrien claimed a Hampden County officer, Jessica Athas (assigned to a joint task force), had a personal/sexual relationship with him and induced him to sell drugs and a gun to an informant (Perez); transactions were recorded on audio/video.
- Therrien argued Athas encouraged the crimes, misled supervisors, and withheld or destroyed exculpatory evidence (texts on Athas’s work phone), invoking outrageous government misconduct and Brady/Youngblood theories.
- During deliberations, jurors briefly viewed a text on Therrien’s cell phone that had been admitted into evidence; defense moved for mistrial claiming juror taint.
- At sentencing the court applied U.S.S.G. offense level 20 plus a 4-level enhancement for transferring a firearm, rejecting Therrien’s request for a 2-level acceptance-of-responsibility reduction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Outrageous government misconduct / entrapment by sex and inducement | Athas (and thus the government) used a sexual/personal relationship to induce crimes and withheld/excluded evidence, warranting dismissal | Government: Athas did not engineer the crimes, federal agents did not direct a sexual relationship, and Therrien was active in the offenses; no dismissal required | Court rejected the claim — conduct not so egregious to shock due-process conscience; allegations insufficient to dismiss indictment |
| Brady / destruction of evidence (Athas’s phone) | Athas disposed of a work phone containing exculpatory texts, violating Brady/Youngblood | Government: Therrien knew the essential facts of the relationship and had his own relevant texts; destroyed phone did not prejudice defense | No Brady/Youngblood violation shown; defendant had access to substantially similar evidence and did not prove material, unique exculpatory content |
| Jury taint from jurors viewing phone text during deliberations | Juror(s) read an un-redacted text on Therrien’s phone; defense sought mistrial and fuller inquiry/polling | Trial court isolated foreperson and juror who viewed phone, questioned them, admonished jury to disregard, and proceeded without polling whole jury | No abuse of discretion; trial court’s focused inquiry and admonitions were appropriate and curative; mistrial not required |
| Acceptance-of-responsibility (U.S.S.G. § 3E1.1) | Therrien argued he demonstrated acceptance of responsibility and deserved a 2-level decrease | Government and district court: his trial defense (entrapment by estoppel) denied personal culpability and was inconsistent with acceptance | Denial of credit affirmed — withholding reduction not clearly erroneous given Therrien’s contested defense at trial |
Key Cases Cited
- United States v. Luisi, 482 F.3d 43 (1st Cir. 2007) (outrageous government misconduct standard explained)
- United States v. Russell, 411 U.S. 423 (1973) (due-process limit on prosecutions for outrageous government conduct)
- United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (agent-engineered crimes may warrant dismissal)
- United States v. Sneed, 34 F.3d 1570 (10th Cir. 1994) (outrageousness not met by routine deceptive government tactics)
- United States v. Santana, 6 F.3d 1 (1st Cir. 1993) (police over-involvement and abuse claims analyzed)
- United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991) (sexual relationships as investigatory ‘‘weapon’’ standard)
- United States v. Dyess, 478 F.3d 224 (4th Cir. 2007) (adopting Cuervelo standard)
- United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998) (single sexual encounter insufficient for outrageousness)
- United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987) (informant’s deceptive sexual relationship not automatically government misconduct)
- Arizona v. Youngblood, 488 U.S. 51 (1988) (bad-faith destruction of potentially exculpatory evidence and due process)
- United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) (destroyed evidence not violative if replicable from other sources)
- United States v. Bradshaw, 281 F.3d 278 (1st Cir. 2002) (duty to investigate jury taint promptly)
- United States v. Boylan, 898 F.2d 230 (1st Cir. 1990) (assessing pervasiveness and prejudice from jury taint)
- United States v. Trinidad-Acosta, 773 F.3d 298 (1st Cir. 2014) (review denial of mistrial for clear prejudice)
- United States v. Dunbar, 553 F.3d 48 (1st Cir. 2009) (standards for mistrial review)
- United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005) (trial court discretion in juror inquiry)
- United States v. Balsam, 203 F.3d 72 (1st Cir. 2000) (curative instructions and jury prejudice)
- United States v. Arias-Montoya, 967 F.2d 708 (1st Cir. 1992) (cautionary instructions mitigate erroneous evidence)
- United States v. Turner, 501 F.3d 59 (1st Cir. 2007) (entrapment and acceptance-of-responsibility interplay)
- United States v. Bunnell, 280 F.3d 46 (1st Cir. 2002) (entrapment by estoppel elements)
- United States v. Mikutowicz, 365 F.3d 65 (1st Cir. 2004) (denial of acceptance credit where defendant contested willfulness)
- United States v. Stella, 591 F.3d 23 (1st Cir. 2009) (record can make sentencing rationale evident)