United States v. Vigneau

United States Court of Appeals
For the First Circuit

No. 02-1119

UNITED STATES,

Appellee,

v.

PATRICK M. VIGNEAU,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Judith H. Mizner for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Richard W.
Rose, Assistant United States Attorney, were on brief for appellee.

July 28, 2003
 BOWNES, Senior Circuit Judge. This is the third appeal that

defendant-appellant Patrick Vigneau ("Vigneau") has brought before

this court in relation to his March 1998 convictions on multiple

federal charges for his participation in a drug distribution

scheme. Vigneau argues that (1) there was an error in his

sentencing which resulted in an additional 38 months incarceration;

(2) the district court’s sentence exceeded the statutory maximum in

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3)

the district court erred in denying his motion for a new trial

based on newly discovered evidence. Because we find none of

Vigneau's arguments persuasive, we affirm.

I. BACKGROUND

In order to understand this appeal we present the relevant

facts which have been recited in greater detail in previous

opinions. See United States v. Vigneau, 187 F.3d 70, 72-74 (1st

Cir. 1999), cert. denied, 528 U.S. 1172 (2000) ("Vigneau I");

United States v. Vigneau, 2 Fed. Appx. 53 (1st Cir. 2001) (per

curiam) ("Vigneau II"). From February 1995 to the end of that

year, Vigneau and Richard Crandall ("Crandall") coordinated a drug

venture whereby Crandall shipped marijuana from Texas to Vigneau in

Massachusetts and Rhode Island. Vigneau, with the help of others,

redistributed the drugs to retail dealers in the Northeast.

Vigneau and others transmitted some of the proceeds of the drug

sales through Western Union money orders to Crandall in Texas. The

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transfers served the dual purpose of allowing Crandall to share in

the drug profits, as well as fund the purchase of more drugs. In

Texas, the money transfers were often received by Timothy Owens

("Owens"), who assisted Crandall in acquiring drugs. Owens would

cash the checks, and deliver the money to Crandall.

Vigneau and Crandall used a variety of methods to ship the

marijuana. The drugs were initially shipped through commercial

delivery services. In March 1995, Vigneau and Crandall purchased

two vans so that they could transport larger quantities of

marijuana themselves. One of the vans was registered in Vigneau's

name, the other in Crandall's name. In addition, they also began

using U-Haul trucks to transport the marijuana. The marijuana was

shrink-wrapped in plastic and hidden behind furniture, which was

then placed in the U-Haul trucks.

Authorities became aware of the drug smuggling venture. In

September 1995, the Drug Enforcement Administration intercepted an

Airborne Express package with several pounds of marijuana and some

steroids addressed to a "David Weiber" at 2 Lyon Avenue in East

Providence, Rhode Island, an address at which Vigneau's wife Donna

Vigneau ("Donna") was living. This lead to the acquisition of a

search warrant for the premises, as well as Vigneau's van which was

parked outside. Authorities seized incriminating evidence from the

residence, as well as a drug ledger from Vigneau's van. In

December 1995, the Missouri Highway Patrol stopped Owens and Randy

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Panahi ("Panahi") during a U-Haul delivery of marijuana to Vigneau.

As a result, both Owens and Panahi agreed to cooperate secretly

with the government. The government was also able to secure the

cooperation of Crandall, who organized a meeting with Vigneau on

December 28, 1995. At the meeting, which was recorded on videotape

by the Federal Bureau of Investigation, Vigneau discussed how the

authorities had discovered their U-Haul technique and made several

references to his brother Mark Vigneau ("Mark").

In May 1997, the grand jury issued a sealed indictment

charging Vigneau with numerous drug offenses. Also indicted were

Vigneau's brother Mark, his wife Donna, Owens, Panahi, Joseph

Rinaldi ("Rinaldi"), and Kyle Robson ("Robson"). Vigneau was tried

in the district court, along with codefendants Mark, Donna,

Rinaldi, and Robson. During the lengthy trial, the government

presented testimony from over twenty witnesses, including Owens and

Panahi who chronicled their dealings with Vigneau and the

particulars of the drug smuggling scheme. The government also

introduced physical evidence including seized marijuana, the

December 28, 1995, videotape, the drug ledger seized from Vigneau's

van, phone records revealing communications between the

coconspirators, and tax records establishing a lack of other

income. On January 13, 1998, upon motion by the government, the

district court dismissed the case against Donna. During the trial,

the only codefendant to testify on his own behalf was Robson. His

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testimony included evidence against Patrick Vigneau. The other

defendants did not testify.

On March 2, 1998, a jury found Patrick Vigneau guilty of:

engaging in a continuing criminal enterprise ("CCE"), in violation

of 21 U.S.C. § 848 (Count 1); possessing marijuana with the intent

to distribute, in violation of 21 U.S.C. § 841 (Counts 3 and 4);

attempting to possess with intent to distribute, in violation of 21

U.S.C. § 846 (Count 5); conspiring to distribute marijuana, in

violation of 21 U.S.C. §§ 846 & 846(a)(1) (Count 6); conspiring to

commit money laundering, in violation of 18 U.S.C. §§ 1956(h) &

1956(a)(1)(A)(i) (Count 7); and engaging in 21 individual counts of

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i)

(Counts 8-28).

Vigneau's brother Mark was found guilty of conspiracy to

distribute marijuana, conspiracy to commit money laundering, and

money laundering, and sentenced to 97 months in prison. Mark was

acquitted on eleven counts of money laundering. Mark appealed and

we vacated the judgment and sentence, and remanded for a new trial

if the government wished to pursue one. See United States v. Mark

Vigneau, 187 F.3d 82, 88 (1st Cir. 1999). The government declined,

and the district court dismissed the indictment against Mark. As

for the other codefendants in Vigneau's trial, Robson was found not

guilty, while Rinaldi was found guilty on all counts and sentenced

to 46 months in prison.

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 In Vigneau's first appeal, we affirmed his conviction on all

counts except the 21 individual money laundering convictions. We

vacated the money laundering convictions because they were based on

inadmissible hearsay and we remanded the case for resentencing.

See Vigneau I, 187 F.3d at 79, 82. Prior to resentencing, the

Probation Department issued a revised presentence report ("revised

PSR") that was identical to the original PSR except that it

referred to our decision in Vigneau I. At resentencing, Vigneau

stated that although he was "not trying to reargue the conviction

at this point," he might challenge his CCE conviction in a post-

conviction motion. Vigneau was sentenced and he filed a timely

notice of appeal.

In Vigneau's second appeal, he raised two arguments which he

renews in this appeal. Vigneau challenged for the first time the

revised PSR by arguing that he was incorrectly attributed one

criminal history point for convictions in Rhode Island state court

for assault and malicious destruction of property. Vigneau claimed

that these charges had actually been dismissed. We held that his

argument lacked merit and that he had waived all objections to the

revised PSR by failing to object to the contents of the PSR before

his original sentencing. Vigneau also challenged his sentences for

the marijuana offenses on Apprendi grounds. Among other things, he

argued that he should have been sentenced for violating 21 U.S.C.

§ 841(b)(4), which carries a maximum sentence of one year

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imprisonment. We disagreed, finding that he should have been

sentenced for violating 21 U.S.C. § 841(b)(1)(D), which carries a

maximum sentence of five years for offenses involving less than 50

kilograms of marijuana. Because Vigneau's sentence exceeded the

five year maximum sentence allowable by section 841(b)(1)(D), we

vacated his sentences on Counts 3-5 and remanded for resentencing.

Prior to his second resentencing, Vigneau filed a number of

intervening pro se motions. In these motions, Vigneau raised the

same arguments regarding Apprendi and his criminal history score

that we decided in his second appeal. Vigneau also argued that he

should receive a new trial because of newly discovered evidence in

the form of testimony from former codefendants as to whom charges

had ultimately been dismissed. At resentencing, the district court

denied all of Vigneau’s motions. Vigneau appeals the denial of

these motions.

II. DISCUSSION

We do not need to consider the merits of Vigneau's arguments

regarding Apprendi and his criminal history score, because this

court has discussed and decided them in the Vigneau II opinion and

they are therefore foreclosed under the "law of the case" doctrine.

This doctrine is a "prudential principle that 'precludes

relitigation of the legal issues presented in successive stages of

a single case once those issues have been decided.'" Field v.

Mans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Cohen v. Brown

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Univ., 101 F.3d 155, 167 (1st Cir. 1996)). One aspect of the law

of the case doctrine is the "mandate" rule, which requires a

district court to follow the decisions of a higher court. See

Ellis v. United States, 313 F.3d 636, 646 (1st Cir. 2002); see also

United States v. Rivera-Martinez, 931 F.2d 148, 150 (1st Cir. 1991)

("When a case is appealed and remanded, the decision of the

appellate court establishes the law of the case and it must be

followed by the trial court on remand." (emphasis in original)).

There are a variety of important policy reasons for this doctrine,

including promoting "proper working relationships between trial and

appellate courts and judicial economy." United States v.

Ticchiarelli, 171 F.3d 24, 28-29 (1st Cir. 1999); see also Ellis,

313 F.3d at 647 (examining in depth the policies behind the

doctrine and stating that "the presumption against reconsideration

is even stronger when the challenge arises on collateral attack of

a criminal conviction").

As stated previously, Vigneau's arguments concerning his

criminal history category and the alleged Apprendi violation have

been heard and rejected by this court before. See Vigneau II, 2

Fed. Appx. at 53. In Vigneau II, we held that his arguments on

these points lacked merit. Because this court has previously

decided against Vigneau on the same issues, "the law of the case"

doctrine applies, and the district court was correct in not

revisiting these claims.

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 The law of the case doctrine is, however, not an absolute bar

to reconsideration and may "tolerate a 'modicum of residual

flexibility' in exceptional circumstances." United States v. Bell,

988 F.2d 247, 251 (1st Cir. 1993) (quoting Rivera-Martinez, 931

F.2d at 151). Because the mandate rule is a specific application

of the law of the case doctrine, it is subject to the occasional

exception when justice requires. Id. This is true "even within

the particular strictures of a remand for resentencing."

Ticchiarelli, 171 F.3d at 29. For a court to resurrect an issue on

remand, the proponent of reopening an already decided matter must

accomplish one of three things: "show that controlling legal

authority has changed dramatically; proffer significant new

evidence, not earlier obtainable in the exercise of due diligence;

or convince the court that a blatant error in the prior decision

will, if uncorrected, result in a serious injustice." Bell, 988

F.2d at 251; Rivera-Martinez, 931 F.2d at 151.

Vigneau attempts to fit his challenge to his criminal history

category within the exception to the law of the case doctrine for

blatant errors that result in serious injustice.1 Specifically,

Vigneau argues that the revised PSR incorrectly attributed one

criminal history score point to him for convictions in Rhode Island

1
Vigneau has not claimed that his Apprendi argument fits
within any of the exceptions to the law of the case doctrine.
Therefore this claim has been waived. See United States v.
Chapdelaine, 23 F.3d 11, 13 (1st Cir. 1994).

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State Court of assault and malicious destruction of property that

he claims were actually dismissed. Vigneau argues that with the

addition of this criminal history score point, he was placed in

criminal history category III instead of criminal history category

II, and thereby received an additional 38 months imprisonment. To

support his claim, Vigneau points to a paragraph of the revised PSR

that appears to show that the charges were dismissed. He also

offers a computer print-out of a motion filed by the State of Rhode

Island which appears to indicate that these charges were dismissed.

We are not persuaded by Vigneau's arguments relating to the

print-out and the paragraph in the revised PSR which he alleges

prove that the charges were dismissed. On its face, it appears

that the print-out would support Vigneau's contention. The key

text of the motion to dismiss, however, was written in hand and did

not appear in the version of the computer print-out submitted to

the court by Vigneau. This handwritten motion clearly established

that Vigneau was convicted of the charges at issue, but that the

prosecution dismissed a third related charge that is not relevant

to this appeal. The defendant used the incomplete print-out to

support his claim that he was entitled to a criminal history

category of II rather than III which was used. Under the evidence

that applied, no blatant error or any error was made.

We now turn to Vigneau's argument that the district court

erred in denying his motion for a new trial based on newly

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available evidence. See Fed. R . Crim. P. 33. Vigneau argues that

he is entitled to a new trial based on newly available testimony

from former codefendants who were unable to testify at trial.

Vigneau asserts that this testimony would demonstrate an absence of

evidence that he organized, managed or supervised five or more

people as required to support a CCE conviction. See 21 U.S.C. §

848(c)(2)(A).

Before addressing the merits of Vigneau's claim, we note that

Vigneau unsuccessfully challenged his CCE conviction in a prior

appeal. In Vigneau II, the appellant challenged his CCE conviction

on sufficiency of evidence grounds. Vigneau claimed that the

disposition of his accomplices' cases required the court to reverse

his sentence because it established that he did not organize,

manage or supervise the number of people required to support a CCE

conviction. We affirmed his CCE conviction, holding that "the

evidence was sufficient to establish that Vigneau acted in a

supervisory position with respect to at least five participants.

This is so even if the court does not count those individuals not

convicted." Vigneau II, 2 Fed. Appx. 53.

Although Vigneau challenges his CCE conviction again in this

appeal, his contentions regarding newly discovered evidence are

novel and invoke different legal standards than the ones relied on

in Vigneau II. A defendant seeking a new trial based on newly

discovered evidence must show that: "(1) the evidence was unknown

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or unavailable to the defendant at the time of trial; (2) failure

to learn of the evidence was not due to lack of diligence by the

defendant; (3) the evidence is material, and not merely cumulative

or impeaching; and (4) it will probably result in an acquittal upon

retrial of the defendant." United States v. Wright, 625 F.2d 1017,

1019 (1st Cir. 1980); see also United States v. Colon-Munoz, 318

F.3d 348, 358 (1st Cir. 2003). A motion for a new trial must be

denied if the proponent fails to meet any one of these factors.

See United States v. Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir.

2001).

We review a district court's denial of a motion for a new

trial for a manifest abuse of discretion. See Colon-Munoz, 318

F.3d at 357; United States v. Montilla-Rivera, 115 F.3d 1060, 1064

(1st Cir. 1997). "We give considerable deference to the district

court's broad power to weigh the evidence and assess the

credibility of both the witnesses who testified at trial and those

whose testimony constitutes 'new' evidence." United States v.

Falu-Gonzalez, 205 F.3d 436, 443 (1st Cir. 2000) (citation and

quotation marks omitted).

Even if we assume that Vigneau can meet the first three Wright

factors, we are not convinced that any of the new evidence proposed

by Vigneau would probably result in an acquittal if he was retried.

We note that satisfying the fourth prong of the Wright test is not

an easy task for defendants. To prevail on the fourth prong,

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defendants must show an "actual probability that an acquittal would

have resulted if the evidence had been available." Gonzalez-

Gonzalez, 258 F.3d at 20.

In his appellate brief, Vigneau makes only general claims that

the district court erred in denying his motion. While we can

assume the witnesses who would provide testimony are those persons

whose charges were dropped or whose convictions were ultimately

reversed, the only specific codefendant whom Vigneau names is Donna

Vigneau. However, Vigneau himself says that her testimony "could

be relevant," but he does not indicate what her purported testimony

would be. These sort of general statements, unsupported by any

developed factual allegations do not support a finding that the

expected testimony would probably have resulted in Vigneau's

acquittal. See United States v. Natanel, 938 F.2d 302, 314 (1st

Cir. 1991) (stating that a new trial based on newly discovered

evidence cannot be based on "wishful thinking, rank conjecture, or

unsupportable surmise").

While Vigneau's appellate brief does not specifically mention

his brother Mark as a person who could provide new testimony,

Vigneau argued this point in front of the district court at

resentencing. Mark signed an affidavit in which he swears that he

was advised by his attorney not to testify at trial. He further

states that at no time was he ever "managed, controlled, directed,

supervised or organized, by, Patrick Vigneau, in any activity,

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including money laundering, drug distribution, etc."

We do not believe that Mark's testimony is enough to overcome

the abundance of evidence that was presented against Vigneau at

trial. First, Mark's statement only indicates that Vigneau never

directly supervised him. Absent from his affidavit is any

statement that suggests that Vigneau never managed, controlled, or

supervised others. In addition, we stated in Vigneau I that there

was "extensive direct and corroborating evidence that Patrick

Vigneau was engaged in a drug smuggling scheme." 187 F.3d at 78.

This evidence included testimony from Owens and Panahi who had both

participated in the drug smuggling scheme with Vigneau. Moreover,

the trial evidence linked Vigneau to at least nine other

coconspirators. Of these, four plead guilty, one was found guilty

by a jury, and one was never charged. The fact that charges

against Donna and Mark were dismissed does not necessarily mean

that a jury would likely acquit Vigneau. See United States v.

Rogers, 121 F.3d 12, 16 (1st Cir. 1997) ("A not guilty verdict

against one co-conspirator is not the equivalent of a finding that

the evidence was insufficient to sustain the conspiracy conviction

of a second co-conspirator."). Furthermore, in Vigneau II we held

that the evidence against Vigneau was sufficient to support his CCE

conviction even if the court did not include the individuals not

convicted. 2 Fed. Appx. 53. In light of the weight of the

evidence presented against Vigneau at trial, we cannot say that the

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district court abused its discretion in denying Vigneau's motion

for a new trial.

Finally, we reject Vigneau's argument that he was at least

entitled to an evidentiary hearing before the district court denied

his motion. Requests for evidentiary hearings are granted at the

discretion of the trial court. See Colon-Munoz, 318 F.3d at 358.

Evidentiary hearings upon motions in a criminal case are the

exceptions not the rule. See United States v. Alicea, 205 F.3d

480, 487 (1st Cir. 2000). For a district court to grant such a

motion, "the party seeking a hearing must make 'a sufficient

threshold showing that material facts [are] in doubt or dispute.'"

Id. (quoting United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.

1990)). Here Vigneau's motion and brief spoke only in general

terms about the new evidence available to him, and therefore, the

district court acted within its discretion when it decided the

motion without an evidentiary hearing.

Vigneau's appellate journey has ended. The decisions of the

district court are AFFIRMED.

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