U.S. v. Vigeant
| Decision Date | 04 February 1999 |
| Docket Number | Nos. 98-1412,98-1819,s. 98-1412 |
| Citation | 176 F.3d 565 |
| Parties | UNITED STATES, Appellee, v. Robert A. VIGEANT, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
John A. MacFadyen, for appellant.
Richard W. Rose, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, was on brief, for appellee.
Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.
Defendant-appellant Robert A. Vigeant appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). For the reasons that follow, we vacate the conviction and remand to the district court for proceedings consistent with this opinion.
The following facts are largely undisputed. Vigeant, a convicted felon, lived primarily at 24 Newport Lane, Narragansett, Rhode Island. In March of 1995, he opened a personal bank account at Fleet Bank. On the application for the account, he listed his previous employer, but left blank the space calling for the name of his current employer. Fifteen months later, on June 12, 1996, Vigeant opened two business accounts at the same bank. He made an initial deposit of $19,000 into one of the accounts in a mix of large and small bills. He then immediately transferred $18,500 of this amount from one business account to the other. Vigeant promptly filed the Currency Transaction Report (CTR) required by the Treasury Department for currency transactions exceeding $10,000. On July 17, 1996, Vigeant deposited an additional $39,231.59 in the form of a cashier's check into one of the business accounts. He made no attempt to disguise the electronic or paper trail of either transaction.
Beginning some time in 1995, the government launched an investigation of a drug dealing ring headed by Patrick M. Vigneau. Although the government never did charge Vigeant in connection with the Vigneau conspiracy, Vigeant was a target of this investigation. On September 8, 1995, the government obtained a phone book belonging to Vigneau. The phone book contained a listing for Vigeant, who had known Vigneau since grammar school. Also in the phone book, there were several scrap pages on which names and initials--among them "Bobby V." and "B.V."--were listed alongside various numbers, apparently dollar figures. No dates accompanied the information. A confidential informant (CI), of whose criminal record and general unreliability the government was aware, informed the investigating agents inter alia, that the numbers and names memorialized drug deals, and that "B.V." and "Bobby V." referred to Vigeant. Subsequently, the government obtained an indictment under seal charging Vigneau and six others--but not Vigeant--with money laundering and drug distribution offenses.
On May 9, 1997, nearly a year after the Fleet Bank business account transactions and shortly before the sealed Vigneau indictment was to be made public, agents of the DEA, IRS and ATF obtained search warrants for Vigeant's residence at 24 Newport Lane, and for Vigneau's residence at 25 Kulas Road in West Warwick, Rhode Island. Both warrant applications were supported by the same nine-page affidavit prepared by Special Agent Botelho of the IRS. The vast majority of statements in the affidavit concerned activity related to Vigneau that had occurred two years earlier; approximately two pages' worth of information related to Vigeant, none of it more recent than seven months. Because this warrant is at the heart of Vigeant's appeal, we reproduce the portions of the supporting affidavit relevant to Vigeant in their entirety:
3 [Botelho avers that he is case agent in the investigation of the Vigneau drug distribution and money laundering conspiracy.] Charles ETHIER and Robert VIGEANT are subjects of the investigation but have not yet been charged. The investigation continues into ETHIER, VIGEANT, and others.
6 This affidavit is submitted in support of the application for warrants to search the following residences:
...
b. 24 Newport Lane, Narragansett, RI, a two-story, wooden, residential structure, brown in color. This home is the residence of Robert VIGEANT and business address of Versatile Investment Group, Inc. and City Wide, L.L.C.
7 The [Vigneau] indictment covers a marijuana and money laundering conspiracy which began in February 1995 and terminated in or about December 1995....
14 Among those listed in the drug ledger[, the phone book seized previously from Vigneau,] is Robert VIGEANT. THE CI has informed me that in August of 1995 he received $10,000 in cash from VIGEANT for payment of a load of marijuana. That transaction is one of those listed in the drug ledger maintained by Vigneau. VIGEANT is listed in at least one other transaction in the ledger.
21 The evidence indicates that Robert VIGEANT has created front companies to personally launder his profits. In March 1995, Robert VIGEANT opened a personal bank account at Fleet Bank. He listed his occupation as unemployed. Also during 1995, as stated above, VIGEANT was engaged in drug trafficking. VIGEANT has not filed tax returns for 1995 and 1996.
22 On June 12, 1996, VIGEANT opened two business bank accounts. One was in the name of Versatile Investment Group, Inc., and the other was in the name of City Wide L.L.C. ROBERT VIGEANT lists himself as the President of both companies. The business address is listed as 24 Newport Lane, Narragansett, RI. The bank records are mailed each month to this business address.
23 On June 12, 1996, VIGEANT deposited $19,000 in cash into a newly opened account in the name of Versatile Investment Group. The cash was in small bills. On the same day, June 12, 1996, he transferred $18,500 from the Versatile Investment Group, Inc. account to the City Wide L.L.C. account. This appears to have been a layering transaction, with no apparent benefit for breaking the transaction into two transactions. In addition to the $19,000 cash deposit, VIGEANT deposited a cashier's check on July 17, 1996. The cashier's check was in the amount of $39,231.59.
24 Within two months of opening these accounts, VIGEANT invested $25,000 of the funds. He made a down payment on a 42-foot pleasure boat, and he made a down-payment on a piece of investment real estate.
25 Based on the foregoing, there is probable cause to believe that Robert VIGEANT has laundered drug profits in violation of 18 U.S.C. § 1956 by concealing assets derived from illegal drug sales and evidence of this concealment ... will be found at VIGEANT's home and business address at 24 Newport Lane, Narragansett, RI, 02882.
The warrant authorized the agents to look for all "original bank records or copies" of Vigeant's business and personal accounts at Fleet Bank.
Based on this warrant, the agents raided Vigeant's home at dawn on May 12, 1997. They knocked, waited five to ten seconds, and then used a battering ram to break down the door. Vigeant was handcuffed and placed half-naked in a chair in his bedroom. During their search, agents found a pistol in the night stand and another weapon located behind a downstairs liquor cabinet. Though he was never charged with either money laundering or drug conspiracies, Vigeant was indicted on two counts of being a felon in possession of a firearm (the pistol and the second weapon, respectively) and one count of possessing ammunition (in the loaded guns).
On July 10, 1997, Vigeant filed a motion to suppress the seized guns and ammunition because the search warrant was defective for failing to have established probable cause. The district court denied the motion. The court acknowledged that there was very little and perhaps no evidence of a continuing drug conspiracy. Nevertheless, because the bank records were potential evidence of money laundering, and because the affidavit stated in a general way that criminals engaged in money laundering tend to keep such records, and because the records were continuously mailed to Vigeant in the two years' elapsed time between the drug evidence and the search, the court found that the warrant established probable cause that the bank records the government sought were still in the house.
On September 2, 1997, Vigeant filed a motion for a hearing under Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (). Vigeant alleged that the affidavit contained false and misleading information supplied by affiant Botelho in reckless disregard for the truth. The motion was denied. The district court found that there was independent corroborating evidence of the CI's information regarding Vigneau, which made his unreliable record unimportant. The court also found that all of the facts regarding the "front companies" were true, though scanty. After a change in Vigeant's counsel, a motion to reconsider was filed, which was also denied.
A jury convicted Vigeant of possessing the downstairs weapon and the ammunition, but not the pistol from the bedside table. The government then moved to dismiss the ammunition count as duplicative. Vigeant was sentenced to a lengthy prison term.
After the sentence and a timely appeal, Vigeant's counsel spoke with the CI, who recanted substantial portions of what he had told the affiant. On the basis of this new information, Vigeant filed a "Motion for Further Franks Hearing Based on Newly Discovered Evidence." The district court treated the filing as a motion for a new trial, which it denied. Vigeant appealed the denial pro se. The two appeals were consolidated in the present action.
Vigeant argues that the affidavit offered in support of the application for a...
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