US v. Vigneau

• Citation: 187 F.3d 70
• Decision Date: 08 June 1999
• Docket Number: No. 98-1664,98-1664
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. PATRICK M. VIGNEAU, DEFENDANT, APPELLANT. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 70

187 F.3d 70 (1st Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. PATRICK M. VIGNEAU, DEFENDANT, APPELLANT.

No. 98-1664

U.S. Court of Appeals, First Circuit

Heard June 8, 1999

Decided July 22, 1999

[Copyrighted Material Omitted] Roger W. Milne, by appointment of the court, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret C. Curran, United States Attorney, was on consolidated brief for the United States.

Before Boudin, Circuit Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.

Boudin, Circuit Judge.

Two brothers, Patrick and Mark Vigneau, were convicted after a lengthy trial on charges growing out of their participation in a drug distribution scheme. In this opinion, we consider Patrick Vigneau's claims of error; a companion decision in No. 98-1632 addresses Mark Vigneau's appeal. Based on its verdict, the jury apparently accepted the government's version of events, which we summarize at the outset. Patrick Vigneau does not challenge the sufficiency of the evidence.

From around February 1995 to at least the end of that year, Patrick Vigneau and Richard Crandall conducted a venture to acquire marijuana and steroids in the Southwest and resell them in the Northeastern United States. Crandall obtained the marijuana and steroids from suppliers in El Paso, Texas, and in Mexico, and sent the drugs to Patrick Vigneau in Rhode Island and southeastern Massachusetts. Patrick Vigneau, who distributed the drugs to retail dealers, used others to assist him, including his brother Mark Vigneau and one Joseph Rinaldi.

Some of the proceeds from these Northeastern sales had to be sent to Crandall in Texas so that he could pay suppliers and share in the profits. Patrick Vigneau transmitted funds to Crandall primarily through Western Union money orders. The money orders were sent by Patrick Vigneau or others, sometimes in the sender's true name but often using false or borrowed names. Timothy Owens, who assisted Crandall in acquiring drugs, frequently picked up the checks from Western Union, cashed them, and gave the money to Crandall.

Although some of the drugs were mailed from Texas to Rhode Island or sent through commercial delivery services, Patrick Vigneau and Crandall sought to transport larger quantities over the road. To this end, they purchased two vans in El Paso in March 1995, and registered one in Patrick's name and the other in Crandall's name. Shortly thereafter, Crandall and Owens used the van registered in Patrick's name to deliver marijuana to Rhode Island. They also used U-Haul trucks filled with cheap furniture and concealed the marijuana, which was shrink-wrapped in plastic, behind the furniture. Eventually the authorities gained some knowledge of the scheme.

In September 1995, the DEA 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 Patrick's wife Donna Vigneau (legally separated from him) was living and with which Patrick was otherwise connected. On September 8, 1995, law enforcement officers secured a warrant to search the first floor of 2 Lyon Avenue and Patrick's van, which was parked outside. The officers seized mildly incriminating materials from the residence, and more incriminating materials, including a pocket organizer/drug ledger, from the van. ¹

In December 1995, Owens and one Randy Panahi were making a U-Haul delivery of marijuana to Patrick Vigneau when they were halted by the Missouri Highway Patrol. After the Highway Patrol discovered the drugs, both men agreed to cooperate secretly with the DEA. Thereafter and perhaps as a result, the authorities secured Crandall's cooperation. He then arranged to meet with Patrick Vigneau in a Boston hotel on December 28, 1995. Federal agents recorded the meeting on videotape.

In this meeting with Crandall, Patrick Vigneau discussed with Crandall how to continue operations now that the authorities had discovered the U-Haul technique. Although Patrick Vigneau knew that Owens and Panahi were now cooperating with the agents, he did not know that Crandall was doing so as well. During the recorded Discussion, Patrick Vigneau referred to his brother Mark Vigneau on several occasions, reporting to Crandall Mark's supposed view that the "best . . . way is the train" and that Mark was "not out . . . I'd rather have him out." The recording was later introduced into evidence against both brothers at trial.

In May 1997, the grand jury issued a sealed indictment charging Patrick and Mark Vigneau with numerous offenses. Also indicted were Donna Vigneau, Timothy Owens, Joseph Rinaldi, Randy Panahi and one Kyle Robson. Patrick Vigneau was charged with participation in a continuing criminal enterprise, various marijuana offenses, two conspiracies to distribute drugs, and to launder the proceeds, and numerous individual money laundering counts. In due course, the indictment was unsealed and various suppression motions were heard in 1997 and early 1998.

In early 1998, Patrick Vigneau was tried with Mark Vigneau and others in a lengthy trial. Panahi and Owens pled guilty to conspiracy to distribute marijuana and testified for the government. The government dismissed a similar charge against Donna Vigneau. The jury convicted Patrick Vigneau, Mark Vigneau and Joseph Rinaldi (who has chosen not to appeal) on various counts, and acquitted Kyle Robson. Crandall separately pled guilty to a marijuana conspiracy charge, and his sentence was later upheld. United States v. Crandall, 181 F.3d 80 (1st Cir. 1999).

At trial, the government relied on the testimony of over 20 witnesses, including Owens and Panahi (who described at length the scheme and their dealings with Patrick Vigneau), and on physical evidence, including seized drugs, the December 1995 videotape, Western Union money transfer records, telephone records revealing much communication between the coconspirators, tax records establishing a lack of other income, and various items seized in the September 1995 search of the 2 Lyons Avenue apartment and white van, including the drug ledger. Crandall was not called to testify. The defendants cross-examined witnesses but did not put on evidence of their own, save for Robson, who testified in his own defense and gave evidence against Patrick Vigneau.

The jury convicted Patrick Vigneau of participating in a continuing criminal enterprise, 21 U.S.C. § 848; possession of marijuana and attempted possession of marijuana (both with intent to distribute) and conspiracy to distribute marijuana, id. §§ 841, 846; and 21 counts of money laundering on specific occasions and conspiracy to launder money, 18 U.S.C. § 1956. Patrick Vigneau was later sentenced to 365 months in prison. He now appeals, challenging his conviction but not his sentence.

On this appeal, Patrick Vigneau's strongest claim is that the district court erred in allowing the government to introduce, without redaction and for all purposes, Western Union "To Send Money" forms, primarily in support of the money laundering charges. These forms, as a Western Union custodian testified, are handed by the sender of money to a Western Union agent after the sender completes the left side of the form by writing (1) the sender's name, address and telephone number; (2) the amount of the transfer; and (3) the intended recipient's name and location. The Western Union clerk then fills in the right side of the form with the clerk's signature, date, amount of the transfer and fee, and a computer-generated control number; but at least in 1995, Western Union clerks did not require independent proof of the sender's identity.

Western Union uses the control number affixed by the clerk to correlate the information on the "To Send Money" form with the corresponding "Received Money" form and with the canceled check issued by Western Union to pay the recipient. The original forms are usually discarded after six months, but the information provided by the sender, as well as the information from all records associated with the money transfer, are recorded in a computer database. In this case, for some transfers the government had the forms completed by the sender, but for most it had only the computer records.

The government introduced over 70 records of Western Union money transfers. Patrick Vigneau's name, address and phone number appeared as that of the sender on 21 of the "To Send Money" forms (11 other names, including fictional names and those of Mark Vigneau and of other defendants, appeared as those of the senders on the other forms), and those 21 forms corresponded to the 21 specific counts of money laundering on which Patrick Vigneau was ultimately convicted by the jury. Patrick Vigneau's most plausible objection, which was presented in the district court and is renewed on appeal, is that his name, address and telephone number on the "To Send Money" forms were inadmissible hearsay used to identify Patrick Vigneau as the sender.

Hearsay, loosely speaking, is an out-of-court statement offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Whoever wrote the name "Patrick Vigneau" on the "To Send Money" forms was stating in substance: "I am Patrick Vigneau and this is my address and telephone number." Of course, if there were independent evidence that the writer was Patrick Vigneau, the statements would constitute party-opponent admissions and would fall within an exception to the rule against hearsay, Fed. R. Evid. 801(d)(2) (the rule says admissions are "not hearsay," but that is an academic refinement). However, the government cannot use the forms themselves as bootstrap-proof that Patrick Vigneau made the admission. ²

Instead, the government argues that the "To Send Money" forms and the computerized information reflecting those forms and the correlated material were admissible under the...