US v. Therrien

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Norman H. Stahl, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1103]

Case: 16-1103

Document: 00117111148

Page: 1

Date Filed: 01/27/2017

Entry ID: 6065540

United States Court of Appeals
For the First Circuit
No. 16-1103
UNITED STATES OF AMERICA,
Appellee,
v.
SHERAD THERRIEN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]

Before
Lynch, Stahl, and Barron,
Circuit Judges.

Larry J. Ritchie for appellant.
Julie M. Karaba, Attorney, United States Department of
Justice, with whom Carmen M. Ortiz, United States Attorney, was on
brief, for appellee.

January 27, 2017

Case: 16-1103

Document: 00117111148

Page: 2

STAHL, Circuit Judge.

Date Filed: 01/27/2017

Entry ID: 6065540

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.

- 2 -

Case: 16-1103

Document: 00117111148

§ 922(g)(1).
indictment,

Page: 3

Date Filed: 01/27/2017

Entry ID: 6065540

Before trial, Therrien filed a motion to dismiss the
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.
to

a

prison

term

of

The trial judge then sentenced Therrien
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.
was

incarcerated

at

the

Hampden

Therrien met Athas while he
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

1

to

As part of this unit, Officer Athas
identifying each inmate's gang affiliation.

- 3 -

other

was

inmates

tasked

with

Case: 16-1103

Document: 00117111148

Page: 4

incarcerated at Hampden.2

Date Filed: 01/27/2017

Entry ID: 6065540

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.
these

transactions

would

Athas purportedly told Therrien

"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 statefederal task force with the Drug Enforcement Agency ("DEA") in
November

2013.

cooperating

with

Perez,
the

unbeknownst

Federal

around this time as well.

Bureau

to

Therrien,

also

of

Investigation

began

("FBI")

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.

2

Therrien claimed that Athas made sure he had light
supervisory details while he was in Hampden serving another
sentence, and later helped secure his move to another jail.
3

Athas, who Therrien called as a witness at trial, denied
Therrien's allegation that the pair had a sexual relationship.

- 4 -

Case: 16-1103

Document: 00117111148

Page: 5

Date Filed: 01/27/2017

Entry ID: 6065540

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

- 5 -

Case: 16-1103

Document: 00117111148

Page: 6

Date Filed: 01/27/2017

Entry ID: 6065540

him with materially exculpatory evidence as required under Brady
v. Maryland, 373 U.S. 83 (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

4

For the first time on appeal, Therrien puts forward a claim
that Athas's disposal of her work cell phone constituted a due
process violation under Arizona v. Youngblood, 488 U.S. 51, 58
(1988), which states that the government commits a due process
violation when, in bad faith, it destroys potentially exculpatory
evidence.
Therrien argues that the cell phone contained
exculpatory text messages which would have aided his defense.
5

At trial, Therrien's put forth an entrapment by estoppel
defense. Specifically, Therrien claimed that he had reasonably
relied on Athas's assurances that he would not be held responsible
for selling drugs, a firearm, and ammunition to Perez.

- 6 -

Case: 16-1103

Document: 00117111148

Page: 7

Date Filed: 01/27/2017

Entry ID: 6065540

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

further

for

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.
the phone off.

She then immediately had turned

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.

- 7 -

Case: 16-1103

Document: 00117111148

Page: 8

Date Filed: 01/27/2017

Entry ID: 6065540

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.
3E1.1(a).

See id. §

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.

- 8 -

Case: 16-1103

Document: 00117111148

Page: 9

Date Filed: 01/27/2017

Entry ID: 6065540

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 questions de novo,
any factual findings for clear error, and the court's 'ultimate
ruling' for abuse of discretion."

United States v. Parigan, 824

F.3d 5, 9 (1st Cir. 2016) (quoting United States v. Doe, 741 F.3d
217, 226 (1st Cir. 2013)).

The district court did not make any

express

and

factual

findings,

found

Therrien's

claim

to

be

deficient even if all his factual allegations were true. Therrien,
89 F. Supp. at 218.

We do as well.

A defendant's claim of outrageous government misconduct
faces a demanding standard, permitting the dismissal of criminal
charges "only in those very rare instances 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 (1973)).
holistically,

evaluating

the

We review these claims

"totality

6

of

the

relevant

For purposes of this opinion, we assume that Therrien's
allegations accurately describe the nature and extent of his and
Athas's relationship.

- 9 -

Case: 16-1103

Document: 00117111148

Page: 10

Date Filed: 01/27/2017

Entry ID: 6065540

circumstances" while recognizing that "outrageousness, by its
nature, requires an ad hoc determination" that cannot "usefully be
broken down into a series of discrete components."7

United States

v. Santana, 6 F.3d 1, 6-7 (1st Cir. 1993) (emphasis in original).
Though the defense is theoretically viable, see United States v.
Twigg, 588 F.2d 373, 380-81 (3d Cir. 1978), it is nonetheless
reserved "for only the most egregious circumstances" and should
not be "invoked each time the government acts deceptively or
participates in a crime that it is investigating," United States
v. Sneed, 34 F.3d 1570, 1577 (10th Cir. 1994) (quoting United
States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992)).
Therrien points to three categories of cases where the
defendant alleged a due process violation based on outrageous
government misconduct, and he claims that his case presents aspects
of each type.
these

Though almost no court evaluating cases in any of

categories

has

found

dismissal

appropriate,

Therrien

continues to suggest that his case presents a unique confluence of
misconduct warranting the doctrine's application.

We think not.8

7

In his brief, Therrien cites to and relies on multi-factor
tests used in other circuits to evaluate outrageous misconduct
claims. However, we have noted that this court's holistic approach
to outrageous-misconduct claims differs from other courts'
analyses, which use these multi-factor tests. United States v.
Rivera-Garcia, 527 Fed. App'x 11, 15 n.2 (1st Cir. 2013).
8

For this reason, we need not and do not decide whether an
indictment may be dismissed based on outrageous government
misconduct in the absence of prejudice.
See United States v.
Guzman, 282 F.3d 56, 59 (1st Cir. 2002) (recognizing that a showing
- 10 -

Case: 16-1103

Document: 00117111148

Page: 11

Date Filed: 01/27/2017

Entry ID: 6065540

First, Therrien cites cases where charges of outrageous
misconduct centered on the over-involvement of government agents
in the commission of a crime.
Santana, 6 F.3d at 5.

See, e.g., Luisi, 482 F.3d at 59;

These cases hold little persuasive weight

here since Athas merely encouraged Therrien to sell illicit goods
and did not "engineer[]" or "direct[] the criminal enterprise from
start to finish."

See Sneed, 34 F.3d at 1577.

Though Athas knew

of Perez's status as an FBI informant and personally spoke with
both Perez and Therrien before and after the sales took place, she
did not supply Therrien with the drugs or firearm, did not specify
the precise terms of the transactions, and was not physically
present when they took place.

See Twigg, 588 F.2d at 380-81

(outrageous misconduct barred conviction where a government agent
set up a drug lab, supplied the key ingredient to make the drugs,
purchased almost all of the other supplies, "was completely in
charge" of the operation, and "furnished all of the laboratory
expertise").

Indeed, Therrien's own active involvement in the

crime undermines his argument: he acquired the drugs and firearm
on his own and, importantly, only communicated with Athas twice
over the seven-month span when the sales took place.

See Luisi,

482 F.3d at 59 (noting that "an outrageousness claim might be

of prejudice is "of some moment" and noting that the alleged
misconduct at issue "did not compromise [the defendant's] defense
or prejudice his case").

- 11 -

Case: 16-1103

Document: 00117111148

Page: 12

Date Filed: 01/27/2017

Entry ID: 6065540

defeated if a defendant has been 'too active himself'"(quoting
United States v. Bradley, 820 F.2d 3, 7 (1st Cir. 1987)); United
States v. Nunez, 146 F.3d 36, 38-39 (1st Cir. 1998) (denying an
outrageous

misconduct

requesting

pipe

claim

bombs

despite

from

the

the

government

defendant,

informant

government

agents

escorting the defendant to buy the raw materials for the bombs,
and the government supplying the money used to buy the bombs).
Second,

Therrien

points

to

cases

addressing

relations between defendants and government agents.

sexual

We have not

previously addressed whether, when, or to what extent a sexual
relationship could form the basis of a successful outrageous
misconduct claim.

The courts of appeals that have considered this

sort of claim in similar contexts, however, note that it would
succeed only if the government "consciously set out to use sex as
a weapon in its investigatory arsenal" or at least "acquiesce[d]
in such conduct for its own purposes upon learning that such a
relationship existed."

United States v. Cuervelo, 949 F.2d 559,

567 (2d Cir. 1991); accord United States v. Dyess, 478 F.3d 224,
235 (4th Cir. 2007) (adopting Cuervelo standard); United States v.
Nolan-Cooper,

155

F.3d

221,

233

(3d

Cir.

1998)

(rejecting

outrageous misconduct claim where only one incident of sexual
intercourse occurred between a law enforcement officer and the
defendant

which

"was

not

necessarily

intertwined

with

[the

defendant's] offense conduct"); United States v. Simpson, 813 F.2d

- 12 -

Case: 16-1103

Document: 00117111148

Page: 13

Date Filed: 01/27/2017

Entry ID: 6065540

1462, 1466 (9th Cir. 1987) (noting that "the deceptive creation
and/or exploitation of an intimate relationship," on its own, does
not constitute outrageous government misconduct).
Here, besides Therrien's own testimony, there was no
evidence that federal authorities directed Athas, a state law
enforcement officer, to start a sexual relationship with Therrien.
None of Athas's supervisors knew about the extent of her personal
relationship with Therrien, the alleged sexual relationship was of
a limited duration, and it is unclear whether Athas's motive for
entering

into

any

such

relationship

was

for

"investigatory"

reasons.

In other words, Therrien never alleged that the FBI or

any other investigative agency encouraged, or even "acquiesce[d]"
to, his and Athas's relationship.

See Cuervelo, 949 F.2d at 567.

Consequently, we cannot conclude that Athas's alleged conduct was
attributable to the federal government.
1467

(concluding

that

an

See Simpson, 813 F.2d at

informant's

"initial

decision

to

establish a deceptive sexual and emotional relationship" could not
"be used to characterize the government's conduct" as outrageous
(emphasis in original)).
Third, Therrien directs us to another set of cases
involving certain defendants' allegations that government agents
physically or psychologically abused them.

See, e.g., Santana, 6

F.3d at 4. Therrien specifically argues that Athas's age, position
of authority at Hampden, and repeated assurances that he would not

- 13 -

Case: 16-1103

Document: 00117111148

Page: 14

Date Filed: 01/27/2017

Entry ID: 6065540

get in trouble for selling illicit items to Perez constituted such
abuse.

Nevertheless, we do not see how this dynamic implicates

due process concerns since "feelings of 'betrayal' are not the
sort of injuries that constitute a violation of a defendant's
rights under the Due Process Clause."

See United States v. Chin,

934 F.2d 393, 399 n.4 (2d Cir. 1991); see also Simpson, 813 F.2d
at 1466 (concluding that the Due Process Clause "does not protect
[an individual] from voluntarily reposing his trust in one who
turns out to be unworthy of it").
Therrien's argument next ventures toward a different
type of outrageous government misconduct, claiming that Athas, and
therefore the federal government, violated his due process rights
after failing to disclose the true extent of her relationship with
Therrien to the prosecution and, in turn, to him.

See Brady, 373

U.S. at 87 ("[T]he suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the

evidence

is

material

either

to

guilt

or

to

punishment,

irrespective of the good faith or bad faith of the prosecution.").
The district court, however, correctly dismissed this argument out
of hand:
To constitute a Brady violation, the material
evidence at issue "must have been either willfully
or inadvertently suppressed by the government."
United States v. Alverio-Melendez, 640 F.3d 412,
424 (1st Cir. 2011). It is well established that
"[i]n general, 'evidence is not suppressed if the
defendant either knew, or should have known of the

- 14 -

Case: 16-1103

Document: 00117111148

Page: 15

Date Filed: 01/27/2017

Entry ID: 6065540

essential facts permitting him to take advantage of
any exculpatory evidence.'" Ellsworth v. Warden,
333 F.3d 1, 6 (1st Cir. 2003) (quoting United States
v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert.
denied, 459 U.S. 1174 (1983)).
Therrien, of
course, had actual knowledge of the nature of his
relationship with Athas. Because he knew of the
essential facts permitting him to take advantage of
the exculpatory information, there is no suppressed
evidence regarding the relationship that the
government was obligated to disclose.
Therrien, 89 F. Supp. 3d at 218.9
Finally, Therrien argues for the first time on appeal
that Athas's disposal of her work cell phone, which he claims
contained exculpatory text messages between him and Athas, also
constituted a due process violation.

See Youngblood, 488 U.S. at

58 (holding that the government commits a due process violation
when, in bad faith, it destroys "potentially useful evidence").
The argument, however, lacks merit.
Even assuming that Therrien has not forfeited the claim
and

that

Athas

destroyed

her

phone

in

bad

faith,

a

dubious

conclusion based on the record,10 Therrien remained a party to the
text message conversations between himself and Athas.

At best, it

9

We express no opinion regarding whether a Brady violation,
on its own, may in some cases meet the outrageous government
misconduct standard.
10

Athas, for her part, testified that she handed the phone
in to the Hampden Sheriff's Department for decommissioning after
it stopped working in late 2014, and that Hampden's informal policy
was such that Athas had to turn the phone in for disposal anyway
once the DEA, as opposed to the Sherriff's Department, became
responsible for paying her phone bill around the same time.

- 15 -

Case: 16-1103

Document: 00117111148

Page: 16

Date Filed: 01/27/2017

Entry ID: 6065540

remains unclear whether these text messages actually had any
exculpatory

value.

At

trial,

Therrien

introduced

extensive

evidence concerning his relationship with Athas, including her
testimony, his own testimony, and text messages from his own cell
phone.

He has not, however, shown on appeal how the text messages

on Athas's phone would differ from this considerable pool of
existing evidence.

See United States v. Sepulveda, 15 F.3d 1161,

1195 (1st Cir. 1993) (noting the government's destruction of
"potentially
Youngblood

exculpatory

if

the

evidence"

evidence

can

be

may

not

violate

"replicated

Brady

through

or

other

sources").
Considering everything raised by Therrien, the totality
of these circumstances does not present the rare case where any
government misconduct was sufficiently blatant, outrageous, or
egregious to warrant the dismissal of his indictment.
B. Jury Taint Claim
Therrien next maintains that the trial court did not
adequately inquire into the existence and extent of any prejudice
he suffered after at least two jurors viewed a text message on his
phone.

The trial court abused its discretion, he continues, by

denying Therrien's motion for a mistrial without conducting such
an inquiry.

We disagree.

Where "a colorable claim of jury taint surfaces during
jury deliberations, the trial court has a duty to investigate the

- 16 -

Case: 16-1103

Document: 00117111148

allegation promptly."

Page: 17

Date Filed: 01/27/2017

Entry ID: 6065540

United States v. Bradshaw, 281 F.3d 278,

289 (1st Cir. 2002).

In these circumstances, the trial court is

tasked with determining whether a taint-producing event actually
occurred and, if so, the extent or pervasiveness of the resulting
prejudice.

See United States v. Boylan, 898 F.2d 230, 258 (1st

Cir. 1990).

If the trial court finds both a taint-producing event

and a significant potential for prejudice, it must then consider
possible measures to alleviate that prejudice.

Bradshaw, 281 F.3d

at 289. If the potential for prejudice remains too high even after
the trial court's best efforts, then the court must grant any
resulting motion for a mistrial.

Id.

Granting a defendant's request for a mistrial is "a last
resort,

only

to

ineradicable."

be

implemented

if

the

Sepulveda, 15 F.3d at 1184.

[jury]

taint

is

When reviewing the

denial of a mistrial request, we therefore "consider the totality
of

the

circumstances

to

determine

whether

the

defendant

has

demonstrated the kind of clear prejudice that would render the
court's denial of his motion for a mistrial a manifest abuse of
discretion."

United States v. Trinidad-Acosta, 773 F.3d 298, 306

(1st Cir. 2014) (quoting United States v. Dunbar, 553 F.3d 48, 58
(1st Cir. 2009)).

The trial court enjoys similar discretion

regarding how it conducts its inquiry into claims of jury taint.
See United States v. Yeje-Cabrera, 430 F.3d 1, 11 (1st Cir. 2005).

- 17 -

Case: 16-1103

Document: 00117111148

Page: 18

Date Filed: 01/27/2017

We discern no abuse here.

Entry ID: 6065540

Therrien primarily attacks

the trial court's procedural choices, arguing that it should have
(a) polled the entire jury to determine who saw the text message
and assess the degree of any resultant prejudice, or (b) issued a
curative instruction or discharged the juror who viewed the text
message.

Nonetheless, these procedures are usually reserved for

far graver and pervasive claims of jury taint.11
court,

after

learning

about

the

incident,

Here, the trial

isolated

both

the

foreperson and the juror who turned on the cell phone, questioned
each of them about what they had seen on the cell phone and who
else had seen it, and then repeatedly told the jury to disregard

11

See United States v. Lara-Ramirez, 519 F.3d 76, 86 (1st
Cir. 2008) (concluding that the trial court abused its discretion
by granting a motion for a mistrial where, after learning that
some members of the jury may have been consulting a Bible not
entered into evidence during deliberations, the judge did not
ascertain whether any specific portions of the Bible had actually
been read, referred to, or discussed by the jurors); Bradshaw, 281
F.3d at 282, 290-92 (affirming as appropriate, after an unredacted
copy of an indictment charging the defendant with three severed
counts involving "serious malefactions" found its way into the
jury room, the trial court's individual voir dire of each juror,
its dismissal of one juror, and its issuance of a curative
instruction); United States v. Gaston-Brito, 64 F.3d 11, 13 (1st
Cir. 1995) (stating the trial court abused its discretion after it
denied a mistrial motion without conducting any investigation into
whether a non-witness had made an impermissible hand gesture or
whether the jury had seen it); see also Jackson v. United States,
97 A.3d 80, 82-83 (D.C. 2014) (endorsing, after the entire jury
had perused emails, texts, call logs, and contact lists on a cell
phone not admitted into evidence, the trial court's denial of a
mistrial since the judge had assembled and questioned the entire
jury three times to assess existence, extent, and prejudicial
effects of the taint-producing event).

- 18 -

Case: 16-1103

Document: 00117111148

Page: 19

Date Filed: 01/27/2017

the texts and not turn the cell phone on again.

Entry ID: 6065540

Given the

circumstances, we are reassured that the trial court's inquiry and
repeated warnings effectively ascertained the extent and degree of
any prejudice suffered by Therrien, mitigated the effects of that
prejudice, and was "appropriate and reasonable." See United States
v. Balsam, 203 F.3d 72, 86 (1st Cir. 2000); see also United States
v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992) (concluding it
was "highly probable" that the erroneous admission of a defendant's
prior conviction "did not contribute to the verdict against him"
and that the trial court "properly cautioned the jury as to the
limited weight to be given the prior conviction") (emphasis in
original).12
C. Sentencing
Therrien's final argument, that he is entitled to a
reduction

in

his

sentence

because

he

"clearly

demonstrate[d]

acceptance of responsibility for his offense," see U.S.S.G. §
3E1.1(a), also lacks merit.

Therrien bears the burden of proving

his entitlement to an acceptance-of-responsibility credit, and
"the sentencing court's determination to withhold the reduction
will be overturned only if it is clearly erroneous." United States
v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000) (quoting United

12

Because we conclude that the trial court's procedures were
appropriate and reasonable, we need not address the Government's
threshold argument that the incident was not clearly prejudicial.

- 19 -

Case: 16-1103

Document: 00117111148

Page: 20

Date Filed: 01/27/2017

Entry ID: 6065540

States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993)); see also
United States v. Marino, 833 F.3d 1, 8 (1st Cir. 2016) (stating
that clear error "means the judge got things 'wrong with the force
of a 5 week old, unrefrigerated, dead fish'") (quoting In re
O'Donnell, 728 F.3d 41, 46 (1st Cir. 2013)).
Therrien rightly points out that § 3E1.1's commentary
suggests that these determinations "will be based primarily upon
pre-trial statements and conduct."
Similarly,

the

commentary

U.S.S.G. § 3E1.1 cmt. n.2.

recognizes

that

in

some

"rare

situations" a defendant may stand trial and still receive an
acceptance of responsibility reduction.

Id.

But while it is

"remotely conceivable . . . that a defendant who goes to trial
with an entrapment defense might still be entitled to such a
reduction,"

Therrien's

"decision

to

defend

himself

at

trial

through a weak claim of entrapment in no way places him in this
narrow theoretical category."

See United States v. Turner, 501

F.3d 59, 74 (1st Cir. 2007); see also United States v. Sánchez–
Berríos,

424

F.3d

65,

79

(1st

Cir.

2005);

United

States

v.

Capleton, 350 F.3d 231, 245 (1st Cir. 2003).
Therrien argues that our previous decisions involved
traditional

entrapment

claims

and

that

his

"entrapment

estoppel" defense somehow warrants a different outcome.

by
This

latter defense, however, only requires that the defendant admit
"that he had been told by a government official that his behavior

- 20 -

Case: 16-1103

Document: 00117111148

Page: 21

Date Filed: 01/27/2017

was legal and that he reasonably relied on that advice."
States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002).

Entry ID: 6065540

United

Though it may

acknowledge that a defendant committed an unlawful act, the defense
still renounces any notion of personal responsibility for those
acts and redirects it to law enforcement.

See United States v.

Mikutowicz, 365 F.3d 65, 76-77 (1st Cir. 2004) (holding that
acceptance of responsibility reduction was improper where the
defendant contested the willfulness of his conduct, an "essential
factual element[] of guilt" (quoting U.S.S.G. § 3E1.1 cmt. n. 2)).
For these reasons, we conclude that the district court did not
commit any error, let alone clear error, in denying Therrien a
sentencing reduction for acceptance of responsibility.13
III. Conclusion
Therrien's conviction and his resulting sentence are
AFFIRMED.

13

Therrien suggests that the district court also erred by not
stating why it declined to apply the acceptance-of-responsibility
credit. The answer to this question, however, is clear from the
record: at the sentencing hearing, the district court pointed out
that the "theory of [Therrien's] case" was inconsistent with "what
the jury [had] found." See United States v. Stella, 591 F.3d 23,
28 (1st Cir. 2009) (stating that the district court did not need
to go into detail regarding why it imposed a sentencing enhancement
because "the reason [was] evident from the record").

- 21 -