Case 3:14-cr-30018-TSH Document 70 Filed 12/31/14 Page 1 of 14

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA )
)
v.
)
)
SHERAD THERRIEN,
)
Defendant.
)
)

CRIMINAL NO. 14-30018-TSH

DEFENDANTS MOTION TO DISMISS BASED UPON EGREGIOUS

GOVERNMENT CONDUCT:
AND
INCORPORATED MEMORANDUM OF LAW

NOW COMES the Defendant, Sherad Therrien, by and through counsel, and hereby
respectfully moves this Honorable Court pursuant to his constitutional right to due process, to
dismiss the Indictments against him based upon egregious government conduct. Specifically, the
government has failed to provide material, exculpatory discovery to defendant. Additionally, the
governments Agent has failed to provide materially exculpatory discovery to the government so
that it might in turn be provided to defendant. L.R. 116, F.R.Crim.P. 16, 26, Brady v. Maryland,
373 U.S. 83 (1963). Defendants motion is further based upon grounds of the violation of his
constitutional due process rights stemming from the unbelievably outrageous conduct of the
governments Agent, Jessica Athas, against the Defendant which can only be described as that
that "shocks the conscience" or constitutes the arbitrary exercise of the powers of the
government.1 The Agents egregious conduct, below, certainly implicates defendants due
process rights particularly where the relationship between the agent and the defendant remained

1

Jessica Athas is on the governments trial witness list (document #66), Paragraph 13.

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undisclosed to defense by the government and was only recently uncovered through defenses
exhaustive efforts right before trial. Russell v. United States, 411 U.S. 423, 431-32 (1962);
United States v. Batchelder, 442 U.S. 114 (1979); United States v. Luisi, 482 F.3d 43, 59 (1st
Cir. 2007).

I.

REQUEST FOR EVIDENTIARY HEARING

The Defendant requests an evidentiary hearing on the instant motion.

I. FACTUAL BACKGROUND
This unfortunate matter arises out of the escalation of shockingly intimate interactions
between the Defendant, ("ST"), and a Hampden County House of Correction/Sherriff
Department/DEA Agent, Ms. Jessica Athas ("JA). The relationship between ST and JA began
during defendants second incarceration, while he was a young man just turning twenty years of
age. Exhibit 1 at Paragraph 3-15. The relationship consisted of personal and increasingly
intimately private interactions with ST and JA while ST was held at the Hampden County House
of Corrections where JA wielded great power over all prisoners and over defendant particularly.
Id. 2 Ms. Athas is in charge of SRG (gang) classifications at the sheriffs Department and is
further responsible for prisoner movements. Id and Exhibit 2. During STs incarceration, he
received light duty while held and benefitted from favorable movements within the facilities.
See, Exhibit 1. Further and while held, ST met oftentimes privately at JAs office as well as in
the counselors office, behind closed doors for lengthy periods of time, directly in the prisoner
pod when other prisoners were nearby to take notice. Id. The private interactions at the jail
included intimate hugging, private meetings, lengthy calls and flirting. Id. As a young man, ST

2

Agent JA is a great deal older that defendant and had a position of authority within the facilitly.

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communicated his belief of agent JAs special interest in him to others. Id. Finally, the
informant, Nevid Perez, was placed in STs cell. Id.
Upon his release from incarceration, ST was given two telephone numbers by Agent JA
so that he could reach Agent JA personally and directly on her personal cell phone number and at
her direct line at work. Id and Exhbit 3 at line 95. There is an indication in the governments
discovery provided to defense that the government was also aware of some direct contact
between agent JA and ST and a reading of the provided reports indicates a curious level of
familiarity between the two. Exhibit 2. Indeed, the relationship between agent JA and ST
continued for quite some time. Exhibit 1, Exhibit 3. Thus and as indicated in the cellphone
records obtained by defense set forth through Exhibit 3, it is clear that the two were more than
friends, that they met frequently and the direct text messages indicate a spanned time period from
May, 2013, through August, 2013.
In contrast to the report of Agent JA in Exhibit 2 (dated March 20, 2014, and, December
12, 2013), it is clear from the Exhibit 3 telephone records that Agent JA had previously
provided her direct work telephone number to ST.3 It is further crystal clear from the direct text
messages sent and received from the parties that they frequently met.4 In addition, it is certain
that the relationship between the parties can only be described as more than friends. Thus, after
the two met at Mr. Tint, above, and approximately two hours later, ST sent a message to Agent
JA: damn u r soooooo fine. Just had to let u know. Agent JA responded: nice to c u. Id.

Entry 95, dated 5/14/2013, 10:15 am is from 413-315-0121, Agent JA, to ST and says Call me at 858-0917). This
is Agent JAs direct line at the Hampden County Sheriffs Department.
4
See: Exhibit 3, lines 76-81 on 6/16/13, where Agent JA was with her sister and ST was on his way to meet her at
sams. See, also, lines 68, 70-71 where the two clearly met at mr tint on 7/30/13. On 8/1/2013, line 51, can I c u
first? and Agent JA responded I told already when remember at line 49.

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There were other messages indicating a much more than casual friendship or even a
professional one. 5
On August 1, 2013, Agent JA texted ST the details about a gift she wanted him to buy for
her. Exhibit 3. The price was $550. Exhibit 1 and Exhibit 3 at line 47. ST responded that the
cost was not bad. Id at 46. Agent JA indicted the cost was decent. Id at 45. ST responded
I got u. send me the link. Id at 44. Agent JA responded with the link, twice. Id at 41, 39.
The next day, August 2, 2013, ST sent a text to Agent JA: hey boo. Wyd today? Id. at
line 37.

Agent JA made further inquiry of the gift she wanted: U get it? Id. at line 34, at

7:25pm. ST immediately responded dont worry about it chumpGoing to Boston wanna

come? Id at line 32-33. Agent JA was persistent: I wanna know.You dont have a credit
card anywayIm gonna order it tmrw Id at line 30-31. ST responded chill chill. My mom
did iy [sic] for me. Im a have her send the confirmation number. Id at 30. Agent JA responded:
omg youre a mess. Ur going to boston.No but thanks,.Im gonna call u in a few. Id at
lines 26, 28. Much later in the evening, Agent JA followed up the earlier conversation and asked
how was Boston my phone died last nite. Id at line 25. Again, on August 8 at 6:27pm, Agent
JA asked ST where my watch. Id at ine 19. Finally, on August 8 at 7:59pm Agent JA stated
Im going to dinner w my aunt sat and I wanna wear the watch. Id at line 15.
In addition, it is clear that ST trusted, loved and believed Agent JA, and, that she
facilitated and fostered those feelings. Thus, on August 8, 2013, at 7:53 pm, she texted ST nah,
that was cause I care and I have a heart. :).Aww shuckslolu gotta soft side! Id at line 16,
18. ST responded that well I have a heart too..and u won it. So whateve. Id at line 17.

5

See: Exhibit 3, line 61 ST to JA on 8/1/13: hows your day?; From Agent JA to ST on 7/31/13: still tired what u
up to? with the almost immediate response long!! and a return message from ST to Agent JA: lol wanna hit the
spa? at line 59. A few hours later, ST texted Agent JA: wow!!! Swear to god was just thinking about u. at line 57.
Agent JA responded that she .went to pintus w my momIm omw home now. Lines 52-53. See also line 40,
xoxoxo.

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Finally and on August 8, 2013, at 8:05pm, cmon kid, my trust and loyalty is not even an iss.
Id at line 9. ST responded, thats y I love u. Id at line 7. Agent JA responded Thanks lil
buddy! Alrite Im gonna relax and go to.k. ttyl8r. Id at 4, 6.

Indeed, the relationship had

escalated to one of a sexual nature. Exhibit 1 at 28-29.

In concert with the intimacy of the relationship, Agent JA began to pressure ST to sell
drugs and a gun to the informant, Nevid Perez. Id at 28-35. ST had never sold drugs/guns
before, did not want to return to jail and was afraid to do so. Id. Agent JA, however, was
extremely persistent. Id. Finally, Agent JA indicated that ST would suffer no consequences if
he helped her with her DEA promotion and career. Id at 31, 35. Moreover, on August 31, 2013,
ST suffered a severe beating about the head which resulted in hospitalization and loss of
consciousness.6 As a result of the beating, ST suffers issues with memory and concentration. Id
at 37. Finally, due to Agent JAs persistence and his illness, ST facilitated the transactions at
Agent JAs behest which began on September 4, 2013. Id. Thus, he believed he did exactly what
Agent JA wanted him to do and that he would suffer no consequences as a result. Id. Finally a
preliminary investigation was begun by Agent JA on September 3, 2013, after ST finally
relented to her persistent requests to sell contraband to the informant she selected. Exhibit 4.
Thus, the charges against defendant were the result of a concerted and creative attempt by the
agent. Through her engagement of emotions, sex, sympathy, inducements, above, he was lured
into criminal acts he at first resisted. Here, a persons due process rights are violated when a law
enforcements conduct is outrageous, as was Agent JAs. U.S. v. Russell, 411 U.S. 423 at 431432. (1973). The apparent intent of Agent JA was to bring criminal charges against defendant in
order to further her career and she induced him to do so prior to the launch of her lawenforcement operation. Exhibit 4. Her conduct is all the more outrageous since it was meant to

6

Dr. Sherry is in the process of examination of the defendant and a report will be forthcoming.

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net, by any means necessary, charges to issue against defendant in a clear attempt to further her
career. As here, due process is violated when a law enforcement agent, without reasonable
suspicion based on articulable facts, approaches a citizen and provides or induces that person to
engage in criminal conduct. See: Jacobson v. U.S., 503 U.S. 540 549 (1992). What is even more
incredible and violative of due process rights are the facts here: Agent JA used all means at her
disposal to entice and lure the defendant into criminal conduct. For this reason alone, Mr.
Therriens due process rights have been trampled and dismissal must be the result.
IV. ARGUMENT
Here and as evidenced through discovery obtained through mandatory discovery from the
government to the defense, it is clear that the government did not reveal the personal nature of
the relationship between defendant and Agent JA and made no effort to discern what their true
relationship was. It is similarly certain that Agent JA did not divulge the full extent of her
relationship to the government in order that it could be disclosed to defense. In any event, the
relationship and communications were not disclosed to defense and it was only through
defenses own intensive efforts that the full effect of the egregious conduct by Agent JA was
discerned on the eve of trial. Finally, the actions of Agent JA are clearly egregious and would
necessarily shock the conscience of any one made aware of them. As such, dismissal must be
the only sanction.

A.
THE GOVERNMENT FAILED TO DISCLOSE EXCULPATORY MATERIAL
TO DEFENSE
It has long been held that a prosecutor must disclose any evidence which, "if made
available [to the defendant], would tend to exculpate him or reduce the penalty." Brady, 373 U.S.

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at 87-88. Above and in contrast, the nature of Agent JAs relationship with the defendant was
not disclosed to defense at all. Rather, defense was only given a copy of the agents self-serving
reports that indicated that defendant called her, to say hello. Exhibit 2, report of 3/20/14. In
her report of December 12, 2013, while Agent JA was in the presence of Detective Thomas
Scanlon, defendant called her work line again and statedhe was just checking in and hadnt
spoken to me in a long time. Exhibit 2, report of 12/12/13. Certainly in the agents own
professional report she recognized defendant as a target, but she did not divulge that she had
already been intimately involved with defendant or hounded him to commit the crimes she was
so willing to later investigate and charge him with along with other fellow officers. In fact, she
apparently later put on a show to fellow officers when she merely pretended that she barely knew
ST despite previously carrying on a long-term intimate relationship with him and getting him to
sell contraband to her informant.
Yet and yet, the government failed to disclose to defense the true relationship between
Agent JA and ST. Certainly it is well-settled that the government must disclose all exculpatory
and material evidence in its possession in order to protect the individuals due process rights.
Whether or not the prosecutor had personal knowledge of such exculpatory evidence is
irrelevant, as an "individual prosecutor has a duty to learn of any favorable evidence known to
the others acting on the governments behalf in the case, including the police." See: Kyles v.
Whitley, 115 S.Ct. 1555 (1995) see also Giglio v. U.S. 405 U.S. 150 at 154 (1972) ("[W]hether
the nondisclosure was a result of negligence or design, it is the responsibility of the
prosecutor."). See, also: U.S. v. Femia, 9 F.3d 990, 993 (1st Cir. 1993).
In this case, a close reading of Agent JAs reports set forth through Exhibit 2 strikes an
odd note. Why would a former inmate call the agents direct line and state he had not heard from

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her in a while? Why would a target call her much later at the jail to check in? How did he
get her direct number at the jail and why would he feel empowered enough to be familiar enough
to call her there? Why did he say he hadnt heard from her in a while? How did she know his
voice apart from the thousands of other inmates she met as part of her position? It is therefore
suggested that the government had at least more than the barest of inklings contained in its own
discovery that the relationship between the two was odd and it should have therefore made
inquiry concerning it. The government cannot turn a blind eye to exculpatory evidence which it
must disclose. The defense, however, was then placed in the position of having to obtain cell
records and spend inordinate efforts to receive exculpatory discovery that should have been
provided by the government early on. After all, the government has infinite resources and
mandatory discovery rules protect the due process rights of individuals specifically against such
inactions by the government.
Even where defendant, as here, has eventually obtained the discovery pursuant to his own
efforts, the delayed disclosure of material and exculpatory evidence can violate the Brady rule
and thus impact a persons right to due process. Thus, courts have recognized the importance of
such a rule, noting that it would "eviscerate the purpose of the Brady rule and encourage
gamesmanship were [courts] to allow the government to postpone disclosures to the last
minute[.]" See, e.g., U.S. v. Burke, 571 F.3d 1048, 1054, (10th Cir. 2009). As here, because the
material and exculpatory discovery has been withheld and thus delayed because it was defendant
that had the burden to obtain it, defendants rights have been violated as there may very well
have been loss of leads, loss of knowledge of percipient witnesses to interview and the like.
The duty of the prosecutor is to seek justice, not merely to convict," and the government can be
said to have undermined the possibility of a just trial by withholding some of the forensic

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evidence in this case. (See Criminal Justice Standards Comm., Am. Bar Ass'n, Standards for
Criminal Justice, Standard 3-1.2(c) (3d ed. 1993). As the government has failed to disclose
exculpatory material to defense (the relationship between JA and defendant/the manner in which
JA cultivated her intimate relationship with defendant, JAs egregious conduct which
culiminated in her proceeding to start an investigation after she did so with no documentation
of her past relationship to defendant, her promises to him, etc.), the indictments should be
dismissed. See: U.S. v. Chen, 605 F.2d 433 (9th Cir. 1979); U.S. ex rel Merrit v. Hicks, 492
F.Supp. 99 (D.N.J. 1980).

B.
THE AGENT, JA, DID NOT DISCLOSE EXCULPATORY MATERIAL TO THE
GOVERNMENT SO THAT IT MIGHT BE GIVEN TO DEFENSE

Further, the agent in this matter, Agent JA, did not disclose her relationship to the
government fully. There has been no discovery provided to defense that indicates or documents
the interactions Agent JA had with defendant prior to her beginning the initial investigation on
September 3, 2013. Exhibit 4. Thus, when ST made a personal telephone call to her on her
direct line while she was in the presence of Detective Scanlon, she appeared to pretend she did
not know him and she then merely stated in her report she wanted to end the conversation and
get off the phone so I told Sherad I was getting another call. Exhibit 3, report of 12/12/13. At
no time is it mentioned that Detective Scanlon was informed of the nature of their relationship,
or, Agent Lawrence of the FBI W.MA Gang Task Force, whom she also reported the contact
with. At no time were the explicit text messages given to the government and at no time did the
defense receive them from the government. Rather, the inference is that Agent JA wanted to

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keep the relationship secret and she wanted to pretend it did not exist. The inescapable
conclusion is that her unsavory conduct furthered her career and would be frowned upon.
Indeed, Agent JA never documented her relationship with ST. Agent JA, it appears,
merely wanted to further her career and she did not care, clearly, what she had to do to gain that
end. A reading of Exhibit 6 indicates that the Opening Report by law enforcement was
launched with Agent JA by way of a preliminary investigation on 9/3/2013- after she had been
carrying on with ST including having a sexual relationship with him- for a period of time. See
Exhibit 4, in contrast. Above and here, the matter must be dismissed where only defendants
own efforts revealed the disclosures on the eve of trial. As such, defendant has been prejudiced
by the lack of disclosure by the governments agent to the government so that it could not
disclose such exculpatory material to defendant. See: Leka v. Portuondo, 257 F.3d 89 (2d Cir.
2001)(limited disclosure of important evidence three days before trial was too little, too late).

C.
THE GOVERNMENTS AGENT, JA, ENGAGED IN EGREGIOUS CONDUCT
ON ITS FACE

Above, it is clear that Agent JA has engaged in egregious conduct with target ST where
she sought him out in a personal fashion, encouraged him, fostered his trust, encouraged his
feelings for her, became intimate with him, engaged in communications with him, met him in
person, had a sexual relationship with him and used her power to facilitate the relationship- all
while facilitating his path to crime at her behest. Certainly, ST, a very young man, was placed
in a position where an older woman of power paid attention to him and had the means and ability
to make his incarceration easier. Certainly, Agent JA preyed on this young man while he was
incarcerated whit her hugs, attention, favorable treatment and intimacy which included private

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meetings that went on for lengthy periods of time. The agent sought ST out, selected the
informant, carried on with defendant while he was held in a privately intimate fashion and then
proceeded to escalate the relationship into gift requests, flirting and sex after his release. It
should certainly shock the conscience that a professional government agent would engage with
a labeled target in the fashion in which she did. It must shock anyone that she used her power
to overtake STs will- and she apparently had no qualms about doing so. It is incredibly
shocking that she would pretend that her former target and paramour never existed in order to
open up a preliminary investigation one day before the first transaction and right after he
finally relented to her demands. Agent JAs shocking and incredible conduct was the use of her
feminine wiles to foster her career. Certainly, there is a nugget of truth in Defendants Affidavit
at paragraph 31: Ms. Athas told me she had just gotten a promotion into the DEA and she
needed my help to help her career out. Exhibit 1.
In fact, she continued to persist and persue him for gifts all while receiving titillating text
messages, while teasing him with her messages and while engaging in improper close contact
all for her need of a favor from him in helping her career by facilitating the informants need for
sales in guns and drugs which involved criminal activities that ST had not done before. Id.

To sweeten the deal, she teased defendant, led him on, flirted with him, was intimate with
him and persisted in her pursuit of getting him to engage in criminal conduct to help her career
out. Id. Agent JA even suggested all he had to do was a favor for a favor and if he would just
help her career out she would get him his drivers license.
Sadly, she began a preliminary investigation with law enforcement into ST only after
she had carried on with him for a period of time and only after she had finally persuaded him to

7

The informant was supposedly interested in getting into a gang and Agent JA needed to further her career. Ex 1
at 30-31

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acquiesce to her wishes to make the sales of the contraband with the informant she selected,
Nevid Perez, after promising him he would not have any consequences for what she was asking
him to do. Exhibit 4, dated 9/3/2013. Above, there is no documentation provided to defense by
any of this. Where are the governments documents?
The First Circuit has held that "[e]ntrapment occurs when the offense for which a
defendant is being prosecuted was instigated by law-enforcement officers and the defendant had
no previous disposition to commit it. United States v. Caron, 588 F.2d 851 n.3 (1st Cir. 1978).
Here, it can only be considered a brazen violation of the Defendant's due process rights to force
him to stand trial for the misrepresentations and beguiling egregious conduct of the Agent.
Certainly the Agent induced defendant to commit crimes by all shocking means at her disposal.
See, U.S. v. Luisi, supra.

The Indictment should be dismissed based upon the outrageous and

shocking conduct of Agent JA. United States v. Luisi, 482 F.3d at 59. 8

JAs conduct is so

outrageous it "shocks the conscience" or constitutes the arbitrary exercise of the powers of
government." Russell v. United States, 369 U.S. at 431-32; United States v. Luisi, 482 F.3d at
59. The government cannot by its own conduct manufacture a defendant's predisposition.
United States v. Alzate, 70 F.3d 199, 201 (1st Cir. 1995) (citing Jacobson v. United States, 503
U.S. 540, 549 & n.2 (1992). It was only the persistence by any Machiavellian through all means
necessary by Agent JA, that facilitated the crime and manufactured the events leading to the
indictments charged against defendant.9

8
The First Circuit has recognized the obvious distinction between clearing the pathway for criminal conduct to be
committed by a defendant and "pushing the defendant down a pathway to commit crime." United States v. Guevera,
706 F.3d 38, 47 (1st Cir. 2013). These efforts by JA amount to far more than the mere clearing of a pathway for the
Defendant to commit the crime. Rather, JA pushed him towards the criminal activity. United States v. Guevera, 706
F.3d at 47.
9
The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that
function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are
necessary weapons in the arsenal of the police officer. However, A different question is presented when the
criminal design originates with the officials of the Government, and they implant in the mind of an innocent person

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V. CONCLUSION
Above, the governments conduct was so egregious that it can only be said to have
violated the `fundamental fairness, shocking to the universal sense of justice,' mandated by the
Due Process Clause of the Fifth Amendment. Kinsella v. U.S. ex rel Singleton, 361, U.S. 234,
246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960) and as a result, the Defendant respectfully urges
that this Honorable Court dismiss the Indictments against him.
The Defendant,
By His Attorney,
/s/ Jeanne A. Liddy, Esq.
Jeanne A. Liddy, Esq.,
LAW OFFICE OF JEANNE A. LIDDY
1380 Main Street, Suite #404
Springfield, MA. 01144
Tel. (413) 781-7096
BBO# 646478
Dated: December 31, 2014
CERTIFICATE OF SERVICE
I, Jeanne A. Liddy, Esq., do hereby certify pursuant to L.R. 5.2(b) that on this date, I have
filed the above Motion to Dismiss and attendant Affidavit of Defendant in Support of Motion to
Dismiss and Incorporated Memorandum of Law using the CM/ECF to all registered participants
as identified on the Notice of Electronic Filing (NEF) including Todd Newhouse, Esq., United
States Attorneys Office, United States Courthouse, 300 State Street, Suite 230, Springfield, MA
01105-2926, (413) 785 0109
/s/Jeanne A. Liddy, Esq.
Dated: December 31, 2014

the disposition oto commit the alleged offense and induce its commission in order that they may prosecute.
Sherman v. U.S. 356 U.S. at 372, 78 S.Ct., at 820, quoting Sorrels v. U.S. 287 U.S. at 442, 53 S.Ct. at 212.

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