Case 3:14-cr-30018-TSH Document 106 Filed 02/13/15 Page 1 of 14

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA

V.
SHERAD THERRIEN,
Defendant.

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Criminal No. 14-30018-TSH

GOVERNMENTS RESPONSE TO DEFENDANTS MOTION

TO DISMISS BASED UPON EGREGIOUS
GOVERNMENT CONDUCT (DKT. 70)
The United States of America, by and through its
undersigned attorneys, hereby files the Governments Response to
Defendants Motion to Dismiss Based Upon Egregious Government
Conduct (Motion) (Dkt. 70).

The government moves that the Court

deny the Motion and relies on the following in support thereof.

The Motion contains allegations of outrageous government
conduct on the part of one of the governments agents assigned
to investigate this case, Hampden County Deputy Sheriff Jessica
Athas (Athas).

The Motion had as an attachment numerous text

messages from the defendants cellular phone between the

defendant and Athas.

The defendant moves for dismissal stating,

in essence, that Athas engaged in an inappropriate relationship

with the defendant and requested that he sell a firearm, cocaine
and cocaine base on the dates alleged in the Indictment and
promised him he would not get in trouble for doing so.

Simply

stated, the defendants allegation, that Athas would ask the

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defendant to sell a firearm, cocaine, and crack cocaine to a

Federal Bureau of Investigation (FBI) Gang Task Force (GTF)
cooperating witness (CW) knowing that the sales would result in
the defendants arrest, make no sense.

Further, his allegation

that he was entrapped is equally unavailing given the fact that

he had previously been convicted of illegal possession of a
firearm in state court demonstrating he was predisposed to
possess a firearm.
I.

Background.
The defendant has moved to dismiss on the grounds of

outrageous government misconduct and entrapment based upon his

alleged intimate relationship with Athas and her undue influence
over the much younger Therrien [who was 20 years old when they
met several years ago when he was incarcerated].

In particular,

Therrien claims that

In concert with the intimacy of the relationship,
Agent JA began to pressure ST to sell drugs and a gun
to the informant, [...]. 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. 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
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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 law-enforcement operation.
Exhibit 4. Her conduct is all the more outrageous
since it was meant to 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.
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 relationshipall
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 with her
hugs, attention, favorable treatment and intimacy
which included private meetings that went on for
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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 willand 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 pursue him
for gifts all while receiving titillating text
messages, while teasing him with her messages and
while engaging in improper close contactall 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 acquiesce to her wishes to
make the sales of the contraband with the informant
she selected, [...], after promising him he would not
have any consequences for what she was asking him to
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do. Exhibit 4, dated 9/3/2013. Above, there is no

documentation provided to defense by any of this.
Where are the governments documents?
Motion at 5-6; 10-14(footnotes omitted).
The defendant also argues that he was entrapped
The government cannot by its own conduct manufacture a
defendants 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.
Motion at 12(footnote omitted).
The defendant has attached to his Motion an affidavit
containing his allegations and supporting them with 98 attached
text messages between Athas and the defendant.
II.

Argument.
A.

Outrageous Government Misconduct.

Claims of outrageous government misconduct are frequently

made, but almost never successful.

See United States v.

Santana, 6 F.3d 1, 4 (1st Cir. 1993).

The government is unaware

of any case in the First Circuit in which an indictment has been

dismissed based on the doctrine.1

In United States v. Guzman,

282 F.3d 56, 59 (1st Cir.2002), the First Circuit noted the rare

In Santana the district court dismissed a portion of an indictment, but the dismissal
was reversed on appeal.
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circumstances in which government conduct could justify a

dismissal of an indictment.
In rare and extreme circumstances, a federal court has the
authority to dismiss criminal charges as a sanction for
government misconduct. But the law frowns on the
exoneration of a defendant for reasons unrelated to his
guilt or innocence, and, accordingly, the power to dismiss
charges based solely on government misconduct must be used
sparingly. It follows that the outrageous government
misconduct doctrine is reserved for the most appalling and
egregious situations. At the very least, the defendant must
show that the challenged conduct violates commonly accepted
norms of fundamental fairness and is shocking to the
universal sense of justice.
Id., quoted in United States v. Djokich, 693 F.3d 37, 43 (1st
Cir. 2012).
Two cases in which government misconduct justified
dismissal are United States v. Twigg, 588 F.2d 373, 375 (3d
Cir.1978), and Greene v. United States, 454 F.2d 783 (9th Cir.
1971).

In Twigg, the government established, stocked and ran an

illegal drug laboratory which produced six pounds of

methamphetamine.

The two defendants obtained approximately

$1,500 for expenses and provided the government agent with

minimal production assistance.

According to the Third Circuit,

the government, set him [the main defendant] up, encouraged

him, provided the essential supplies and technical expertise,
and when he . . . encountered difficulties in consummating the
crime, they assisted in finding solutions.

Id. at 381.

The

court of appeals held that the governments conduct violated

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fundamental fairness and reversed the defendants convictions.

Id.
The facts in Greene were similar to those in Twigg.

government agent undertook a bootlegging operation with the

defendants.

According to the Ninth Circuit, the agents

involvement in the bootlegging activities was not only extended

in duration, but also substantial in nature.
defendants] as partners.

He treated [the

He offered to provide a still, a still

site, still equipment and an operator.

thousand pounds of sugar at wholesale.

He actually provided two

Id. at 786.

In

addition, the government agent pressured the defendants into

production and he was their only customer.

Id. at 787.

Because

of these actions and others, the court of appeals found that the
governments conduct warranted reversal of the defendants
convictions.

Id.

As an initial matter the government believes that during

its investigation of the allegations made by the defendant in
his Motion that Athas was not truthful with investigators when
interviewed and as a result has severed ties with her and will
not be calling her as a witness in this case.

Athas was

interviewed for approximately two hours on January 6, 2015 and

for approximately six hours on January 9, 2015.
2

During these

Athas brought an attorney to the second meeting who did not participate in the
interview but was in an adjacent room and she was allowed to talk to him at any time.
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meetings she was read the defendants affidavit in support of

his Motion and the 98 text messages between her and the
defendant and asked to explain them.
Simply stated her responses, in large part, in the
governments opinion, are not worthy of belief.

For instance,

during the first meeting she was repeatedly asked if she ever
met with the defendant alone at any time since his release from
jail in the spring of 2013.

She repeatedly denied doing so

despite the fact that the text messages on July 30, 2013
appeared to indicate that they met near a business in West
Springfield, MA.

The final text sent by Athas that day to the

defendant was Nice to c u.

During the second meeting three

days later she admitted meeting with him on two occasions and
provided many specific details of the meetings including what
type of car the defendant was driving and what they discussed.
It is implausible that she would not remember these meetings on
January 6, 2015 but remember them in detail three days later.
Further, Athas said the 16 texts between 11:15 pm on June
15, 2013 and 1:05 am on June 16, 2013 during which she
repeatedly requested that the defendant meet her at a bar in the
Hall of Fame complex were all code for please call me.

Finally,

the many texts between August 1, and 8, 2013 which appear to be

requests by Athas that the defendant buy her a specific Michael
Kors watch which cost $550, including where my watch and Im
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going to dinner w my aunt sat and I wanna wear were all code
for Athass suggestion that the defendant purchase the watch for
his significant other, not Athas.
Athas denied ever asking the defendant to sell guns or
drugs to the CW and as well denied promising him he would not be
charged or otherwise get in trouble for selling guns and drugs
to the CW.

Athas also denied having sex with the defendant.

The defendants allegations that Athas engaged in an

inappropriate relationship with the defendant and for months
pleaded with the defendant to sell a CW guns and drugs makes no
sense for several reasons.

Preliminarily, there is no evidence,

other than the defendants allegations, that Athas requested for

months that he sell a gun and drugs to the CW.

The CW was not

even opened as a CW by the FBI until the middle of August of

2013.

The governments understanding is that that shortly after

the CW began cooperating with the FBI that the defendant was
suspected of participating in a shooting which resulted in an
individuals death.

A member of the Springfield Police

Department (SPD) homicide unit learned that the CW was able to

purchase drugs from the defendant.

SPD requested that the CW

ask the defendant if he would sell the CW a gun in hopes that

the firearm the defendant sold the CW could be tied by ballistic
examination to the gun recently used in the fatal shooting.

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The FBI began to make plans to have the CW buy crack

cocaine from the defendant in early September and a plan was
formed to attempt the purchase on or about September 4, 2103.
The local Bureau of Alcohol, Tobacco and Firearms (ATF) office
was also working with the same CW.

On September 3, 2013, an ATF

agent and Athas monitored a consensually recorded telephone call

by the CW to the defendant during which the defendant agreed to
sell the CW a handgun for $700.

The next day the FBI conducted

a controlled purchase of the firearm, cocaine and crack cocaine

by the CW from the defendant.

Athas could not possibly have

been asking the defendant to sell guns and drugs to the CW for
months prior to his becoming a CW.
Secondly, there is no evidence, other than the defendants
unsupported assertions, that if the defendant sold guns and
drugs to the CW that that would help Athass career; sometime
during the summer of 2013 she had been assigned to the local
Drug Enforcement Administrations (DEA) task force.

The

defendants allegations that somehow Athas stood to gain from

the CW being able to purchase contraband from the defendant are
unsupported.
Finally, if the only reason that the defendant sold a
firearm to the CW on September 4, 2013 was because Athas
repeatedly requested for months that he do so, it makes no sense
that the defendant would brag during the recorded conversation
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of the March 28, 2013 deal that he had in his possession four or
five firearms which he intended to use to extract revenge on the
individuals who had shot his brother two days prior.

Why would

the defendant, who presumably would have been told by Athas that
the CW was recording their conversations, engage in a lengthy
inculpatory conversation with the CW about planning the murder
or attempted murder of the individuals who shot his brother.
Based on the foregoing the defendant has not demonstrated
that the defendants distribution of cocaine and crack cocaine
and possession of the firearm and ammunition were the result of
outrageous government conduct.
B.

Entrapment.

To be entitled to have the entrapment defense submitted to

the jury, the defendant will have to satisfy his initial burden
of showing both that he was induced to commit the crime by the
government or its agents and that he did not have the
predisposition to commit the crime with which he is charged.
United States v. Lafreniere, 236 F.3d 41, 45 (1st Cir.
1999)(entrapment requires showing of inducement and lack of
predisposition); e.g., United States v. Gamache, 156 F.3d 1, 9
(1st Cir. 1998)(entrapment requires: (1)improper government
inducement of the crime; and, (2) lack of predisposition on the
part of the defendant to engage in the criminal conduct).

The

government=s burden arises only once the defendant meets his

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initial burden of production.

334, 338 (1st Cir. 1995).

United States v. Acosta, 67 F.3d

The defendant=s initial burden Athough

modest, requires more than self-serving assertions.

The

defendant must adduce >some hard evidence= that >governmental

actors induced [him] to perform a criminal act that he was not
predisposed to commit=@.

United States v. Shinderman, 515 F.3d

5, 14 (1st Cir. 2008)(citations omitted).

Once a defendant has raised an entrapment defense in its
opening statement or through the cross-examination of government
witnesses, the government is entitled to introduce evidence of
predisposition or inducement during its case-in chief.

E.g.,

United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir. 1992)
(AWhen the entrapment defense is clearly raised in the defense's
opening statement ..., it is not error for the government to
present evidence of predisposition in its case-in-chief,
provided the evidence meets the standard of Rule 403"); Porter
v. United States, 394 F.2d 508 (5th Cir. 1968)(same).

See

generally Federal Rule of Evidence 611 (Court has reasonable

control over mode and order of interrogating witness so as to
make presentation effective and avoid needless consumption of
time).
The defendants entrapment defense is equally unavailing.
The government, through the CW, first asked the defendant to
sell him a gun on September 3, 2013 and first asked him to sell
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drugs at about the same time.

The defendant sold a loaded

handgun, one ounce of cocaine and approximately 7 grams of crack

cocaine to the CW on September 4, 2013.

Therefore, the

government did not improperly induce the defendant to sell drugs

or possess a firearm and ammunition.
The defendant was convicted for illegal possession of a
firearm in Hampden County Superior Court on May 12, 2011 and
sentenced to two and one half years in jail.

It was during this

incarceration that the defendant alleges that his relationship

with Athas blossomed.

Moreover, during the March 28, 2013 drug

deal the defendant brags about having four or five guns he is

planning on using to avenge his brothers recent shooting.

The

defendant refused to sell any of those guns to the CW when he

inquired.

Therefore, the defendant was clearly predisposed to

possess firearms.
Regarding the distribution of cocaine and crack, the
defendants predisposition is demonstrated by the fact that on
short notice he sold the defendant crack cocaine twice and
cocaine three times.

The defendant would not know where to

obtain the drugs or how much they were worth without being
predisposed to selling them.

Also, it is worthy of note that

during the September 4, 2013 deal, the defendant increased the

price of one ounce of cocaine from $1,000 to $1,150
demonstrating that he knew the value of the narcotics.
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Because the defendant cannot demonstrate lack of

predisposition and that the government induced him to commit the
crimes, he is not entitled to argue entrapment or have an
entrapment instruction given to the jury.
III. Conclusion.
Based upon the foregoing the defendants motion should be
denied.
Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
/s/ Todd E. Newhouse
TODD E. NEWHOUSE
Assistant United States Attorney
CERTIFICATE OF SERVICE
Hampden,

ss.

Springfield, Massachusetts
February 13, 2015

I, Todd E. Newhouse, Assistant U.S. Attorney, do hereby

certify that I have served a copy of the foregoing, via ECF to
all counsel of record.
/s/ Todd E. Newhouse
TODD E. NEWHOUSE
Assistant U.S. Attorney

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