Vigeant v. U.S.

• Decision Date: 19 October 2006
• Docket Number: C.A. No. 02-441S.
• Citation: 462 F.Supp.2d 221
• Parties: Robert A. VIGEANT and Concetta Pazienza, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Rhode Island

462 F.Supp.2d 221

Robert A. VIGEANT and Concetta Pazienza, Plaintiffs, v. UNITED STATES of America, Defendant.

C.A. No. 02-441S.

United States District Court, D. Rhode Island.

October 19, 2006.

Frederick A. Costello, Daniel K. Flaherty, Warwick, RI, for Plaintiff

Robin E. Feder, Assistant United States Attorney, Providence, RI, for Government.

DECISION AND ORDER

WILLIAM E. SMITH, District Judge.

Facts arising from a now defunct criminal case begot the civil action currently before the Court. On May 12, 1997, a contingent of federal agents raided Plaintiff Robert A. Vigeant's ("Vigeant" or "Plaintiff") home in Narragansett, Rhode Island. The search yielded two firearms and, ultimately, Vigeant's conviction by a jury for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Vigeant appealed, and was released after serving twenty-seven months of a 235-month sentence when the Court of Appeals vacated his conviction because the search warrant was obtained without probable cause. See United States v. Vigeant, 176 F.3d 565 (1st Cir.1999).

After his release, Vigeant filed this multi-count action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. Two of Vigeant's six original counts (Counts I and VI) were dismissed previously without objection; still viable are his claims of false arrest (Count II), malicious prosecution (Count III), false imprisonment (Count IV), and abuse of process (Count V). The Government has moved for summary judgment on all remaining Counts, and additionally has filed motions to dismiss Counts II, IV, and V based upon the FTCA's two-year statute of limitations.

For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED, and Defendant's motions to dismiss are DENIED as moot.

I. Facts and Procedural History

Vigeant's name first surfaced with federal law enforcement agencies¹ in connection with a 1995 investigation into a drug-dealing ring headed by Patrick Vigneau ("Vigneau"), an individual whom Vigeant has known since grammar school.² Vigeant, 176 F.3d at 566, (Def.'s Ex. B); see also United States v. Vigneau, 187 F.3d 70, 72 (1st Cir.1999). During the investigation into Vigneau, agents learned that Vigeant had a lengthy criminal record that included convictions for carrying a pistol without a license, extortion and blackmail, conspiracy, possession of arms after being convicted of a crime of violence, breaking and entering, and possession of a controlled substance. (See Def.'s Exs. C and D.) Eventually, as a result of the investigation, an indictment issued under seal charging Vigneau and others, but not Vigeant, with money laundering and drug distribution offenses. Vigeant, 176 F.3d at 567.

Although he was not indicted with Vigneau and company, Vigeant remained under investigation by federal authorities. On May 9, 1997, agents obtained a search warrant for Vigeant's residence at 24 Newport Lane in Narragansett, Rhode Island. The nine-page affidavit, prepared by Special Agent Robert Botelho, Jr., ("Agent Botelho") of the DEA,³ contended that previously seized materials, suspicious banking transactions, and the statements of a confidential informant created probable cause to believe that Vigeant had laundered money from illegal drug sales in violation of 18 U.S.C. § 1956. See id. at 567-68 (setting forth the affidavit in detail). Accordingly, the search warrant "authorized the agents to look for all `original bank records or copies' of Vigeant's business and personal accounts at Fleet Bank:" Id. at 568.

Federal agents executed the warrant in the early morning hours of May 12, 1997, first knocking on Vigeant's door, then waiting five to ten seconds, and finally breaking down the door with a battering ram. Id. Finding Vigeant asleep in an upstairs bedroom, the agents handcuffed him and placed him on a chair "for security reasons," (Def.'s Ex. G), while they continued to search the residence. The agents discovered a cornucopia of contraband and other questionable effects, including two handguns (one upstairs in a night stand and the other downstairs in a cabinet)⁴ with accompanying ammunition; approximately 184 grams of marijuana; a Fleet Bank transaction receipt in the amount of $5,000; a $9,000 cashier's check; two personal checks identifying Vigeant as the payor (one for $10,000 and the other for $20,000); and handwritten notes indicating, among other things, "for profit from $20,000 in pot."⁵ (Def.'s Exs. F, G, and H.) It is undisputed that, when asked during the search, Vigeant responded that both handguns belonged to him.⁶

Vigeant was placed under arrest and charged with two counts of being a felon in possession of a firearm and one count of possession of ammunition. United States v. Vigeant, No. 97-42-L, Indictment (D.R.I. May 21, 1997.) Before trial, Vigeant moved (1) to suppress the seized guns and ammunition, arguing that the search warrant was defective for failing to establish probable cause, and (2) for a Franks hearing to challenge the truthfulness of Agent Botelho's affidavit. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The District Court denied both motions. After a jury trial, Vigeant was convicted of possessing the downstairs firearm and the ammunition, but acquitted of possessing the upstairs firearm. Upon government motion, the District Court dismissed the ammunition count as duplicative and, on April 3, 1998, sentenced Vigeant to a 235-month term of imprisonment on the remaining count. Vigeant appealed.

On May 14, 1999, the First Circuit vacated Vigeant's conviction, holding that the affidavit Agent Botelho submitted to support the warrant application failed to establish "probable cause to believe that Vigeant had committed the crime of laundering drug proceeds in violation of 18 U.S.C. § 1956." Vigeant, 176 F.3d at 569, 570-71. Moreover, focusing on affiant and warrant-applicant Botelho, the Court of Appeals held that the good faith exception to the exclusionary rule was inapplicable to the case before it because Agent Botelho had made "numerous omissions of material facts [that] were at least reckless" and a reasonable officer in Agent Botelho's position who possessed the omitted information would have known that he should not have applied for the warrant. Id. at 573.

On May 11, 2000, Vigeant filed a federal action, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that Agent Botelho and several other unknown federal agents had violated his right under the Fourth Amendment to be free from unreasonable searches and seizures. (Vigeant v. Botelho et al., No. 00-236-T, Compl. (D.R.I. May 11, 2000).) However, Vigeant's attempts to serve the defendants in a timely manner repeatedly failed, and his claim ultimately languished. After granting two enlargements of time in which to serve the defendants, the District Court denied the third such motion. Vigeant filed an interlocutory appeal; however, upon motion, the First Circuit dismissed the appeal pursuant to Fed. R.App. P. 42(b). (Vigeant v Botelho et al, No. 01-1020, Judgment (1st Cir. February 20, 2001).) After receiving the First Circuit's mandate dismissing the appeal, the District Court granted yet another extension to effect service; when that deadline came and went, the Court dismissed the case for lack of prosecution on May 17, 2001.

Taking a different tack, Vigeant filed an administrative claim against the DEA, ATF, and IRS on May 11, 2001, requesting more than $18 million in damages.⁷ Vigeant's grandmother and investor in several of his businesses, Concetta Pazienza ("Pazienza"), filed a separate administrative claim. Both claims were denied on April 17, 2002. Thereafter, on October 9, 2002, Vigeant and Pazienza initiated the instant action, alleging unlawful search and seizure (Count I), false arrest (Count II), malicious prosecution (Count III), false imprisonment (Count IV), abuse of process (Count V), and various damages resulting from Pazienza's inability to manage Vigeant's businesses (Count VI). Defendant moved to dismiss all but the malicious-prosecution count.

The motion was referred to a Magistrate Judge, who, on May 6, 2004, issued a Report and Recommendation that Defendant's motion to dismiss concerning Counts I and VI be granted, but denied as to Counts II, IV, and V. The Magistrate Judge reasoned that Count I was barred by sovereign immunity and Count VI failed to state a cause of action (and, to the extent Count VI was an attempt to plead tortious interference with contract, was barred by 28 U.S.C. § 2680(h)).⁸ Applying to Counts II and IV the rule of Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Magistrate Judge concluded that Vigeant's claims did not accrue until his conviction was vacated on May 14, 1999, and thus were timely filed under FTCA's two-year statute of limitations. Finally, concerning Count V, the Magistrate Judge posited that, based on the allegations in Vigeant's Complaint, one could infer that the federal agents executed the search warrant "to frighten, intimidate, and humiliate Vigeant," and to search for contraband for which no probable cause otherwise existed; dismissal was therefore inappropriate. On October 1, 2004, over Defendant's objection, the District Court adopted the Report and Recommendation with the caveat that a more fully developed record might support a future dispositive motion. (See Dkt. No. 21.)

This writer became involved in the case on October 18, 2004, after two judges of the District Court recused themselves. Defendant filed its pending Motion for Summary Judgment and Motion to Dismiss on October 31, 2005, but extensions of time delayed the completion of briefing until March 10, 2006. At oral argument, Defendant argued that Count V should also be dismissed as time barred. Because the parties previously had not explored...