11-5455-cr
United States v. Theriault

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 3rd day of December, two thousand twelve.
PRESENT:    ROBERT D. SACK,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
- - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA,
                     Appellee,
            -v.-                                          11-5455-cr
DANNY THERIAULT, AKA VINNY, DAVID SUNDAY,
AKA SNOOKTY, DENNY THERIAULT, JOSHUA
SPAULDING, AKA SPANK, CHAD E. FELLERS,
JARED CALLAHAN, AKA ROO,
                     Defendants,
JACKALEEN THERIAULT, AKA MA,
                     Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - -x

FOR DEFENDANT-APPELLANT:              Malvina Nathanson, New York, New
                                      York.
FOR APPELLEE:                         Brenda K. Sannes, Carl G. Eurenius,
                                      Assistant United States Attorneys,
                                      for Richard S. Hartunian, United
                                      States Attorney for the Northern
                                      District of New York, Syracuse, New
                                      York.
           Appeal from a judgment of the United States District

Court for the Northern District of New York (Sharpe, C.J.).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

           Defendant-appellant Jackaleen Theriault appeals from

the district court's judgment, entered August 19, 2009, following

a jury trial, convicting her of conspiracy to possess with intent

to distribute and distribution of over 100 kilograms of

marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(B).    She was sentenced principally to 97 months’

imprisonment, 10 years’ supervised release, and a fine of

$15,000.   We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues

presented for review.

           Theriault challenges her conviction in two respects.

First, she argues that the district court erroneously admitted

certain evidence at trial.    Second, Theriault argues that the

district court erred in applying a two-level enhancement to her

U.S. Sentencing Guidelines offense level for possession of a

dangerous weapon based on her use of gasoline to set her co-

defendant's car on fire.    See U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1).    Because, as she concedes, Theriault did not

object in either respect before the district court, we review

both claims for plain error.    See Fed. R. Crim. P. 52(b); United
States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010), cert denied,


                                 -2-
_ U.S. _, 131 S. Ct. 1698 (2011); United States v. Snype, 441

F.3d 119, 138 (2d Cir. 2006).     We may only review a ruling not

challenged in the district court if it was error, the error was

plain, it affects substantial rights, and it has a serious effect

on the fairness or integrity of the proceedings.     United States

v. Logan, 419 F.3d 172, 177 (2d Cir. 2005).
A.   The Evidentiary Rulings

          We conclude that none of the challenged evidentiary

rulings resulted in plain error.     "[T]o have impacted [the

defendant's] substantial rights and the fairness, integrity or

public reputation of the judicial proceedings, the overall effect

of the [alleged] error must have been sufficiently great such

that there is a reasonable probability that the jury would not

have convicted [her] absent the error."     United States v. Marcus,
628 F.3d 36, 42 (2d Cir. 2010).    "In making this determination,

we consider principally whether the government's case against the

defendant was strong; whether the evidence in question bears on

an issue that is plainly critical to the jury's decision, . . .;

whether the evidence was emphasized in the government's

presentation of its case and in its arguments to the jury; and

whether the case was close."    United States v. Jean-Baptiste, 166
F.3d 102, 108-09 (2d Cir. 1999) (citations and internal quotation

marks omitted); see also United States v. Riggi, 541 F.3d 94,

102, 105-08 (2d Cir. 2008) (considering these factors in plain

error analysis).




                                  -3-
          Applying this standard, we conclude that there was no

reasonable probability that the purported evidentiary errors

affected the outcome of the trial.    The investigating agent's

purportedly hearsay testimony was cumulative of other clearly

admissible evidence offered to prove the truth of the underlying

facts asserted.   The agent's lay opinion that a co-defendant's

instruction to "keep my place safe" meant to "keep his

possessions safe" was not unfairly prejudicial to Theriault.      The

investigating agent's testimony that a person identified in a

recorded call was under investigation for drugs and owned the

vehicle Theriault was driving when she was pulled over and about

the circumstances of a co-defendant's arrest did not bear "on an

issue that is plainly critical to the jury's decision."    Jean-

Baptiste, 166 F.3d at 108 (quotation omitted).    Furthermore, the

government did not refer to any of this challenged testimony in

its summation.

          In light of the strength of the government's other

evidence, we cannot conclude that the jury would have reached a

different decision in the absence of these alleged errors.    The

evidence against Theriault included co-conspirator Jared

Callahan’s testimony regarding her distribution of marijuana to

him on numerous occasions; intercepted phone calls corroborating

his testimony and recording her engaging in sales of marijuana to

others; seizures of marijuana and money, including from a vehicle

she was driving; and her admission that she poured gasoline on

Callahan’s vehicle, which was set on fire.    Given this record,

any inadmissible testimony, "viewed in relation to the

                                -4-
prosecution’s formidable array of admissible evidence, was merely

corroborative and cumulative."    United States v. Dukagjini, 326

F.3d 45, 62 (2d Cir. 2003).   Therefore, defendant failed to show

any plain error affecting her substantial rights or the fairness

of the proceedings.
B.   The Sentencing Enhancement

          We conclude that Theriault has failed to identify any

error, much less plain error, in the district court’s

determination that her use of gasoline was connected to the

marijuana conspiracy.   The district court was required to find

the facts relevant to a sentencing enhancement by a preponderance

of the evidence.   See United States v. Hertular, 562 F.3d 433,
447 (2d Cir. 2009) (citing United States v. Garcia, 413 F.3d 201,

220 n.15 (2d Cir. 2005)) (assessing whether evidence was

sufficient to find that defendant "more likely than not"

possessed a dangerous weapon in connection with the crime).

Theriault set fire to Callahan's car hours after he took

marijuana from her without paying.      The next day, Theriault's son

and co-conspirator told another co-conspirator that "my mom burnt

[Callahan's] car last night" and he intended to burn down

Callahan's house because "I want my money."     (A 46-47).   The

determination that Theriault's act of arson was in response to

the theft of marijuana and was intended to send a threat to the

drug thief was entirely reasonable.     Thus, the district court did

not err in finding that Theriault's use of gasoline was more

likely than not in furtherance of the drug conspiracy.



                                  -5-
          We have considered Theriault’s remaining arguments and

conclude that they are without merit.   Accordingly, we hereby

AFFIRM the judgment of the district court.


                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               -6-
