United States District Court, D. Massachusetts
For Sherad Therrien, Defendant: Jeanne A. Liddy, LEAD ATTORNEY, Law Offices of Jeanne A. Liddy, Springfield, MA.
For USA, Plaintiff: Todd E. Newhouse, LEAD ATTORNEY, United States Attorney's Office, Springfield, MA.
ORDER AND MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (Docket No. 70)
TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE.
Defendant Sherad Therrien (" Therrien" ) has been charged with five counts of distribution of cocaine or cocaine base, and one count of felon-in-possession of a firearm. The charges arise out of sales that Therrien allegedly made to a cooperating witness between September 2013 and March 2014. Therrien has filed a motion to dismiss the indictment " based upon egregious government conduct," and requests an evidentiary hearing on the motion. (Docket No. 70). For the following reasons, the motion is denied.
Therrien's motion is based on allegations regarding his relationship with Officer Jessica Athas (" Athas" ) of the Hampden County Sheriff's Department. Therrien asserts that he met Athas while previously incarcerated at the Hampden County House of Corrections. Athas worked at the facility and was in charge of gang classifications of inmates. Therrien developed a friendship with Athas during his incarceration and upon his release she gave him her phone number. They remained in touch, and according to Therrien, they developed a flirtatious and sexual relationship. Therrien further alleges that, " in concert with the intimacy of the relationship," Athas began to pressure Defendant to sell drugs and a gun to a cooperating witness, telling him that it would advance her career with the DEA. Therrien asserts that because of Athas' use of
her " feminine wiles," he was induced to engage in a crime he was not predisposed to commit.
Therrien argues that these actions constitute outrageous government misconduct warranting dismissal of the indictment. He asserts two grounds for dismissal: (1) Athas' use of flirtation and sex to induce the target of a drug investigation to sell drugs; and (2) the government's failure to disclose the nature of the relationship between Athas and Therrien.
Therrien's allegations, even if true, do not rise to the level of egregiousness the law requires for 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." United States v. Guzman, 282 F.3d 56, 59 (1st Cir. 2002). This power must only be used " when the government's misconduct is so appalling and egregious as to violate due process by 'shocking the . . . universal sense of justice.'" United States v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007) (quoting United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)). Although theoretically viable, the doctrine has never been successfully invoked by a criminal defendant in the First Circuit. Id. One potential application of the doctrine operates " as a kind of supplement to the entrapment defense" in cases where the government becomes " so overinvolved in a felonious venture that [it] can fairly [be] said to have created the crime or to have coerced the defendant's participation in it." United States v. Santana, 6 F.3d 1, 5 (1st Cir. 1993). " While entrapment presents an issue of fact, outrageous misconduct based on government inducement presents a defense at law appropriately decided on a motion to dismiss." United States v. George, 839 F.Supp.2d 430, 438-39 (D. Mass. 2012).
Therrien first argues that the government engaged in outrageous misconduct because Athas used sex and " feminine wiles" to induce him to sell drugs. In United States v. Simpson, the Ninth Circuit upheld a government agent's use of sex with the target of a drug investigation on facts similar to those alleged by Therrien. 813 F.2d 1462 (9th Cir. 1987). In Simpson, the FBI had employed Helen Miller, a female informant who had an ongoing sexual relationship with the target of the investigation, Darrel Simpson. Id. at 1464. Miller introduced Simpson to " friends" interested in buying heroin. Id. The " friends" were undercover FBI agents. Id. Simpson sold the drugs to the undercover agents and was indicted on various drug charges. Id. In finding that this practice was not so shocking as to violate due process, the Ninth Circuit observed that " the deceptive creation and/or exploitation of an intimate relationship does not exceed the boundary of permissible law enforcement tactics." Id. at 1466. The court was not persuaded by the fact that the government had used sex--as opposed to some less physical means--to create the deceptive emotional ...