United States v. Therrien

847 F.3d 9

UNITED STATES of America, Appellee,

v.Sherad THERRIEN, Defendant, Appellant.

No. 16-1103

United States Court of Appeals, First Circuit.

January 27, 2017

Larry J. Ritchie , Bristol, RI, for appellant.

Julie M. Karaba , Attorney, United States Department of Justice, Washington, DC, with whom Carmen M. Ortiz , United States Attorney, was on brief, for appellee.

Before Lynch, Stahl, and Barron, Circuit Judges.

STAHL, Circuit Judge.

A jury convicted appellant Sherad Therrien on five counts of drug trafficking and one count of being a felon in possession of a firearm and ammunition. Therrien admits that he committed these offenses. However, on appeal he disputes the appropriateness of his convictions and resulting sentence based on events occurring before, during, and after his trial. Specifically, Therrien contends that (1) federal authorities engaged in outrageous misconduct during their investigation of him and withheld exculpatory evidence before trial, thus violating his due process rights; (2) the jury discovered and considered extraneous, unadmitted evidence during its deliberations, thereby violating his right to a fair trial; and (3) the district court misapplied the United States Sentencing Guidelines when it refused to decrease his offense level during sentencing, claiming he should have at least been sentenced within a range of 51 to 63 months rather than 63 to 78 months. After careful consideration, we reject Therrien's various claims of error and affirm his conviction and sentence.

I. Facts & Background

On June 19, 2014, a federal grand jury sitting in the District of Massachusetts issued an indictment charging Therrien with five counts of distribution of cocaine or cocaine base in violation of 21 U.S.C. § 841(a) and one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Before trial, Therrien filed a motion to dismiss the indictment, arguing that outrageous government misconduct by federal authorities and other violations of his due process rights mandated such a result. The district court denied that motion. United States v. Therrien, 89 F.Supp.3d 216 (D. Mass. 2015). Following that denial and after a six-day trial, a jury convicted Therrien on all counts. The trial judge then sentenced Therrien to a prison term of 72 months, followed by three years of supervised release, and ordered him to pay a $600.00 special assessment. On appeal, Therrien makes three arguments aimed at either negating these convictions or amending his sentence. We recite the relevant facts to each argument below.

A. Outrageous Government Misconduct Claims

The crux of Therrien's appeal centers on his relationship with Officer Jessica Athas, a former member of the Hampden County Sheriff's Department. Therrien met Athas while he was incarcerated at the Hampden County House of Correction ("Hampden"), where she was a member of the Gang Intelligence Unit.¹

In his original motion to dismiss, the facts of which he largely reiterates on appeal, Therrien alleged that he and Athas developed a close relationship, with Athas ensuring that Therrien received favorable treatment compared to other inmates incarcerated at Hampden.² He also claimed that after he was released from prison on February 15, 2013, Athas gave her phone number to him. Therrien asserted that the pair then engaged in intimate phone and text message conversations. This courtship of sorts also allegedly led to in-person meetings, gift exchanges, and a sexual relationship.³

Therrien also claimed that Athas eventually asked him to sell drugs and a gun to Perez. Athas purportedly told Therrien these transactions would "help her career," and in exchange allegedly agreed to help him get a driver's license and a job. At trial, Athas articulated a different view of their relationship, claiming that she had tried to "cultivate" both Therrien and Perez as informants. Athas admitted to communicating with both men after their release and after she had been assigned to a joint state-federal task force with the Drug Enforcement Agency ("DEA") in November 2013. Perez, unbeknownst to Therrien, also began cooperating with the Federal Bureau of Investigation ("FBI") around this time as well. In this capacity, he told the FBI, who later informed the task force, that he believed Therrien would sell him drugs and/or a gun.

To this end, Therrien claimed that Athas asked him to sell drugs to Perez on six to eight different occasions, either by phone or in person. He testified that he initially resisted, but relented once Athas assured him that he would not get in trouble. Thereafter, on four different occasions between September 4, 2013 and March 28, 2014, Therrien sold narcotics, and in one instance a 9–millimeter handgun, to Perez. Law enforcement captured all four of these transactions on audio and video recordings. Athas was present in a "backup" or "subsidiary" role for at least the first two deals.

Though Athas had disclosed some of her meetings, phone conversations, and text messages with Therrien to her supervisors, none of them knew the full extent of her and Therrien's personal relationship. In fact, once Therrien's allegations came to light, the task force launched an investigation which revealed that Athas had not been entirely truthful with respect to other of the pair's communications. For that reason, the Government decided not to call her as a witness at trial. The investigation also led to her demotion and, ultimately, her resignation.

Before trial, Therrien filed a motion to dismiss his indictment based on the federal government's "outrageous misconduct," claiming that Athas had "used sex and ‘feminine wiles' to induce him to sell drugs." Therrien, 89 F.Supp.3d at 218. He also claimed that the federal government had failed to provide him with materially exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which failure in his view was similarly "outrageous." Therrien again focused on Athas, arguing that she "withh[eld] the nature of [their] relationship" from the prosecutor, who in turn did not disclose the evidence to him or his lawyer. See Therrien, 89 F.Supp.3d at 219.⁴ The district court denied the motion without an evidentiary hearing, holding that even if it accepted all of Therrien's factual allegations as true, the allegations did "not rise to the level of egregiousness the law requires for dismissal of an indictment." Id. at 218.⁵

B. Jury Taint Claim

As part of his defense, Therrien put his personal cell phone into evidence, which was present in the jury room during their deliberations. Shortly after deliberations began, the jury foreperson sent a note to the district judge which read "[w]e (one juror) turned on [Therrien's] cell phone and read some text messages before realizing it might be wrong. Is that okay?" The judge quickly decided that he needed to "find out" whether the messages were relevant to the case. He summoned the entire jury back to open court and warned them to not read any more messages on the phone. He then dismissed the jury but kept the jury foreperson for further questioning about the incident. The foreperson explained that a juror had turned on a cell phone accompanying other evidence to see whether it was the same phone that Therrien had used to send text messages to Athas. He also noted that the juror who turned on the phone had seen a single text message, one between Therrien and Athas, and that he believed a transcript of the text had already been admitted into evidence.

The next day, the judge had the juror who turned on the phone brought into open court for individual questioning. The juror explained that after turning on the phone, she and one other juror had seen the text message. She then immediately had turned the phone off. Summoning all the jurors a second time, the judge again warned them not to turn on the phone. The judge then sent the jury back for further deliberations, but this time the juror who had turned on the phone stayed behind. The juror stated that she believed the text message she had seen was not already in evidence because it referred to a drug—"Molly"—that had not been discussed at trial. After hearing this, the judge once again told the juror to disregard the text message.

Therrien moved for a mistrial, arguing that the trial judge should have polled each juror individually since it was clear that more than one juror either saw or discussed the text message. Therrien's motion also contained a list of questions for the court to ask the jury regarding how it used the phone, but did not request a curative instruction. The judge denied the motion, noting that Therrien had offered the phone into evidence without limitation and that he "believe[d] the jury w[ould] follow [his] instruction not to further inquire into it," and gave no further instruction regarding the phone. Soon after, the jury found Therrien guilty on all charges.

C. Sentencing

At sentencing, the district court settled on a United States Sentencing Guidelines ("U.S.S.G.") range of 63 to 78 months. The court arrived at that range after assigning Therrien a Base Offense Level ("BOL") of 20 and then adding another four levels since Therrien "transferred a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." See U.S.S.G. § 2K2.1(b)(6)(B). Therrien sought a two-level reduction, arguing that he had accepted responsibility by admitting he made the charged sales. See id.§ 3E1.1(a). The district court rebuffed Therrien, sentenced him to a prison term of 72 months followed by three years of supervised release, and imposed a $600.00 special assessment.

II. Discussion

We deal with, and reject, each of Therrien's claims of error in turn.⁶

A. Outrageous Government Misconduct Claims

When reviewing a trial court's denial of a motion to dismiss an indictment, this court reviews "legal...