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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