U.S. v. Lanoue
| Decision Date | 02 October 1995 |
| Docket Number | No. 95-1140,95-1140 |
| Citation | 71 F.3d 966 |
| Parties | UNITED STATES, Appellee, v. Lawrence M. LANOUE, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
David L. Martin, Providence, RI, for appellant.
Margaret E. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, and James H. Leavey, Assistant United States Attorney, Providence, RI, were on brief for appellee.
Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
Appellant Lawrence M. Lanoue (Lanoue) appeals his convictions and sentence for interstate transportation of a stolen motor vehicle, 18 U.S.C. Sec. 2312 (Count V), interstate transportation of a firearm with an obliterated serial number, 18 U.S.C. Sec. 922(k) (Count VI), and conspiracy to commit federal offenses, 18 U.S.C. Sec. 371 (Count I). Lanoue contends that he is entitled to a new trial on all counts because the trial court abused its discretion by refusing to declare a mistrial when the government cross examined a critical defense witness with Lanoue's own statements which were intercepted in violation of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Secs. 2510-2521 (Title III), and then withheld from him in violation of Fed.R.Crim.P. 16(a)(1)(A). Lanoue also contends that there was insufficient evidence to convict him of Counts I and VI, and that the trial court improperly enhanced his sentence based on conduct of which the jury had acquitted him.
We vacate Counts I and V and remand them for a new trial, affirm Count VI, and order a sentence on Count VI of 60 months imprisonment.
The government's theory at trial was that Lanoue and his co-defendant Albert Cole (Cole) stole a 1986 Oldsmobile Firenza, and that they and their co-defendant Patrick Meade (Meade) used the car in an attempted robbery of an armored car courier. The government's case consisted primarily of the testimony of fourteen of the approximately fifty FBI agents and Rhode Island State police officers who conducted a massive land and air surveillance of Lanoue and the Oldsmobile and assisted in his arrest.
On December 17, 1993, eight FBI agents attached a tracking device to a 1986 Oldsmobile Firenza located in the lot of American International Leasing in Worcester, Massachusetts. On December 19, 1993, Lanoue and Cole brought the Oldsmobile to a farm in Pascaog, Rhode Island. The farm's owner, Kenneth Gareau (Gareau), was a friend of Cole's who repaired cars. He testified that Cole asked him to repair the front end, that he said he could get to it in a week or so, that it "looked like" Cole took the license plate off the Oldsmobile and put it in the trunk, and that Cole and Lanoue then departed.
American International Leasing reported the Oldsmobile stolen on December 21, 1993. Agents conducting surveillance from an airplane observed Lanoue and Cole return to the farm on the morning of December 23, 1993, and drive the Oldsmobile to the Ames Plaza in Bellingham, Massachusetts, where they met Meade.
While the defendants were parked between a pizza parlor and a liquor store in a lot adjacent to the Ames lot, an unmarked armored car, that appeared to be an ordinary Ford Aerostar van, parked in front of the main entrance to the Ames store. A uniformed courier exited the van and entered the Ames store. Several minutes later, Lanoue and Cole drove from the adjacent lot to the Ames lot and parked. Lanoue was arrested as he walked towards the main entrance of the Ames store. He had a loaded 38 caliber Colt revolver with an obliterated serial number in his waistband. One of the arresting officers testified that Lanoue immediately said: 1 Another testified that when he asked Lanoue where the other vehicles were, he stated: Another agent testified that after Lanoue was taken into custody he said, "I wonder who the rat was on this job." And another agent testified that Lanoue said that he would die in prison no matter how long his sentence was because he was 72 years old.
Cole was arrested in the Oldsmobile, which bore a stolen license plate. The ignition was not "popped" and the keys were in it. Meade was arrested in his own car on the other side of the lot with a loaded Smith and Wesson 36 caliber revolver in his pocket.
Although the law enforcement witnesses did not offer to explain how they came to attach a tracking device to the Oldsmobile and follow its and Lanoue's movements thereafter, cross examination revealed that an informant had provided FBI Agent Brosnan, the case agent, with information that Lanoue and others planned to steal the car and use it in an armored car robbery.
The defense theory was that the informant was Richard Laraviere (Laraviere), and that the information he provided and upon which the investigation and prosecution rested, was false. According to the defense, Lanoue bought the Oldsmobile from Laraviere, who then falsely informed the FBI that Lanoue was planning to steal the car and use it in an armored car robbery in order to obtain favorable treatment on theft charges pending against him in Massachusetts. The defense suggested that the government was eager to believe Laraviere and assemble a small army to arrest Lanoue because Lanoue had been found not guilty in a case tried by the same prosecutor in 1991. The defense emphasized that the government had not called Laraviere to testify, although he was the only witness who could corroborate its theory that Lanoue stole the Oldsmobile.
Lanoue testified and called Charles Carron (Carron) as a witness to corroborate his own testimony. They both testified in effect as follows. On December 17, 1993, Lanoue was helping Carron remove debris from his house when Laraviere arrived. Laraviere was a millionaire who owned real estate and had once owned a used car dealership. He previously had offered to sell Lanoue a car which Lanoue declined to buy. On this occasion, Lanoue mentioned that he wanted to buy a car for his daughter. Laraviere responded that one of his tenants had abandoned an Oldsmobile that he wanted to sell and said that it was located at American International Leasing in Worcester, which he implied he owned or partially owned. The three drove to American International Leasing, Laraviere obtained the keys from an employee there, and they took the Oldsmobile for a test drive.
Carron testified that upon their return to the lot, he observed Lanoue and Laraviere having a discussion and then saw Lanoue remove money from his wallet and hand it to Laraviere. Lanoue testified that he and Laraviere agreed on a price of $500, that he gave Laraviere a down payment of $200, and that they agreed that Lanoue would pay the balance and take the car on Sunday, December 19.
Lanoue testified that on December 19, he and Cole drove to American International Leasing in Lanoue's truck, that he paid Laraviere the $300 balance and then drove off in the Oldsmobile with Cole following in the truck. Lanoue testified that as he drove the Oldsmobile back to Rhode Island, he noticed that there was something wrong with the front end. He and Cole therefore took the Oldsmobile to Gareau to be repaired. On December 23, Lanoue and Cole picked up the car on the way to the Ames Plaza where they planned to go Christmas shopping. Lanoue soon found out that Gareau had not worked on the car and took it to another garage, but the person he wanted to look at it was not there. He and Cole then proceeded to the Ames Plaza where they met Meade. As Lanoue walked towards the Ames store where he planned to buy a watch, he was arrested. After Lanoue rested, Cole testified in his own behalf, confirming Lanoue's account of events on December 19 and 23.
Lanoue testified that he carried a gun for protection, explaining that his life had been threatened before and that the police had laughed when he reported it because he had a criminal record. Lanoue acknowledged that he had cleaned the revolver, denied that he had obliterated its serial number, but did not deny that he knew it was obliterated. Lanoue admitted to stating, "I have a piece on me," and that when an agent asked him who was with him he responded that he was alone, meaning that he was alone when he was arrested. He denied making the other statements government witnesses attributed to him.
Lanoue and Carron also gave testimony indicating that Laraviere provided false information in this case in order to gain favorable treatment on pending criminal charges. Carron testified that Laraviere had once stored boating equipment in his garage. When Carron later learned that it was stolen, he reported it to the police, who removed the property and told him that Laraviere had a reputation for claiming that property he had stolen had been stolen by someone else.
Lanoue testified that Laraviere had told him shortly before his own arrest that he had been indicted on fifty-seven counts of theft in Massachusetts, and that he would soon have to begin serving a two-year sentence for those charges pursuant to a plea, unless he could do something to avoid it. To that end, Laraviere offered to pay Lanoue to frame the witness against him in that case. Lanoue testified that he believed Laraviere had not gone to jail because he falsely informed the government that Lanoue planned to steal the Oldsmobile and rob an armored car.
Carron testified that he had visited Lanoue once after his arrest while Lanoue was awaiting trial at the Donald W. Wyatt Detention Center in Central Falls, Rhode Island. Shortly thereafter, two FBI agents and a state police detective visited him, refused to leave his home, subpoenaed him to testify at Lanoue's trial, and threatened that if he did not...
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