U.S. v. Apicelli

2015 DNH 101

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 14-cr-012-01-JD Opinion No. 2015 DNH 101 Peter Apicelli

O R D E R

Peter Apicelli moves for reconsideration of the order

denying his motion to suppress. In support, he argues that the

court should have held a hearing on his motion, that probable

cause was lacking to support the warrant for the search of his

house, and that the identification of him in surveillance video

footage should be excluded as unreliable. The government

objects to the motion.

Standard of Review

In criminal cases, neither a statute nor a rule provides

for reconsideration of a court order. United States v. Ortiz,

741 F.3d 288, 292 n.2 (1st Cir. 2014). Nevertheless, based on

common law, the court has inherent authority to reconsider its

interlocutory orders. United States v. Gonzalez-Rodriguez, 777

F.3d 37, 41 n.7 (1st Cir. 2015); United States v. LoRusso, 695

F.2d 45, 53 (2d Cir. 1985). In exercising that inherent

authority, the court may apply the standard for reconsideration used in civil cases. See United States v. Cintron, 724 F.3d 32,

36 n.5 (1st Cir. 2013); United States v. Allen, 573 F.3d 42, 53

(1st Cir. 2009); United States v. Fanfan, 558 F.3d 105, 106 (1st

Cir. 2009); United States v. Tsarnaev, 2015 WL 45879, at *3 (D.

Mass. Jan. 2, 2015); United States v. Torres-Moreno, 28 F. Supp.

3d 136, 137 (D.P.R. 2014).

Reconsideration of an order is “‘an extraordinary remedy

which should be used sparingly.’” Palmer v. Champion Mtg., 465

F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et

al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995)).

For that reason, reconsideration is “appropriate only in a

limited number of circumstances: if the moving party presents

newly discovered evidence, if there has been an intervening

change in the law, or if the movant can demonstrate that the

original decision was based on a manifest error of law or was

clearly unjust.” Allen, 573 F.3d at 53. Importantly, a motion

for reconsideration cannot succeed when the moving party is

attempting “to undo its own procedural failures” or “advanc[ing]

arguments that could and should have been presented earlier.”

Id. A motion for reconsideration also is not “a mechanism to

regurgitate old arguments previously considered and rejected.”

Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir.

2014) (internal quotation marks omitted).

2 Background

Based on a tip from a concerned citizen, who has been

identified as Robert “Butch” Bain, members of the New Hampshire

Drug Task Force; Sergeant Patrick Payer, who is a Campton police

officer; and Bain walked over Apicelli’s property looking for

marijuana. They found marijuana plants growing in a wooded area

near an orchard and had a surveillance camera installed to make

video recordings of that area. Videotape recordings taken by

the camera showed a man walking into the area and tending the

marijuana plants.

The police identified the man seen in the video as Apicelli

based on “police department, motor vehicle, and criminal

records.” Bain viewed the video footage and also identified the

man seen in the video as Apicelli “based on his attire,

mannerisms, and physical descriptors.”

Payer applied for a warrant to search Apicelli’s home and

submitted his affidavit in support of the application. The

affidavit described Bain’s tip, the resulting investigation of

Apicelli’s property, the discovery of marijuana growing on

Apicelli’s property, and the identification of Apicelli as the

person who was tending the marijuana plants. The search warrant

was granted on the day of the application.

3 Payer, along with members of the New Hampshire Drug Task

Force and a state trooper, searched Apicelli’s home pursuant to

the warrant. In the course of the search, the officers found

marijuana plants, growing equipment, evidence of marijuana

harvesting and use, and a red backpack that the man in the

surveillance video was wearing. The officers seized evidence

pertaining to marijuana.

Apicelli moved to suppress the evidence seized from his

home and Bain’s identification of him. Apicelli did not request

a hearing on his motion to suppress, and the court did not hold

a hearing both because Apicelli did not request one and because

the record did not show a material factual dispute that would

require a hearing. The court denied the motion to suppress,

concluding that Apicelli had not established a Fourth Amendment

violation to support suppression of the evidence seized in the

search of his home and did not establish a due process violation

in Bain’s identification of him from the video footage.

The court held a telephone conference with counsel on May

13, 2015. One issue that was discussed was the speed of the

surveillance video footage when Bain viewed the video and

identified Apicelli as the man seen in the video. The

government has confirmed, based on information from the Campton

4 Police Department, that Bain saw the video footage at a normal,

real-time, speed.

Discussion

Apicelli argues that a hearing was necessary on his motion

to suppress because material factual disputes exist about the

reliability of Bain’s tip and his identification of Apicelli in

the video footage. He also argues that the evidence seized from

his home should be suppressed because Bain’s tip did not provide

probable cause for the search warrant and because newly

discovered evidence supports his theory that Bain was motivated

to identify Apicelli in order to retaliate against him. The

government objects to the motion for reconsideration.

A. Hearing

Apicelli acknowledges that he did not request a hearing on

his motion to suppress. His counsel states that he presumed a

hearing would be held. Counsel also states that he intended to

check a box for a hearing when he electronically filed the

motion and that his failure to do so was an oversight.

As is explained above, a motion for reconsideration cannot

be granted to undo the moving party’s procedural errors or to

allow the moving party to make arguments that could and should

have been made before the order issued. That is what Apicelli

5 is attempting to do here. For that reason alone,

reconsideration of whether a hearing should have been granted is

inappropriate. Even if a request for a hearing had been made,

however, Apicelli did not then and does not now meet the

standard for holding a hearing on his motion to suppress.

1. Identification

Apicelli moved to suppress Bain’s identification of him as

the man in the video footage and to prevent Bain from

identifying him in court. In support of reconsideration,

Apicelli argues that a material factual dispute exists about the

validity of Bain’s identification of him in the video footage.

He contends that the video footage could not support a reliable

identification.

As was stated in the order denying the motion to suppress,

“[a] criminal defendant has no presumptive right to an

evidentiary hearing on a motion to suppress.” Cintron, 724 F.3d

at 36. To carry his burden for a hearing, “the defendant must

show that there are factual disputes which, if resolved in his

favor, would entitle him to the requested relief.” Id.

(internal quotation marks omitted).

The relief Apicelli requested in the motion to suppress was

to exclude Bain’s identification of Apicelli in the video

footage. The Due Process Clause is violated and an

6 identification of a suspect must be suppressed only if the

procedure was both suggestive and unnecessary and, under all of

the circumstances, there is a “substantial likelihood of

misidentification.” Perry v. New Hampshire, 132 S. Ct. 716, 724

(2012).

Apicelli contends that the court misunderstood the import

of the two prints of a single frame from the video footage that

he submitted with his motion to suppress. One print shows a

wooded area and the other is a blow up of that frame and is

unrecognizable.1 Apicelli argues that the prints show a moving

person near the center.2 Apicelli further argues that because

the blow up is unclear, as the court noted in the order denying

the motion to suppress, that establishes a material factual

dispute about the reliability of Bain’s identification.

Apicelli does not represent that Bain identified him based

on the single frame that was printed from the video footage or

that Bain ever saw the prints of the single frame. Instead,

Bain made his identification of Apicelli based on viewing the

surveillance video footage. Therefore, it is unclear what

purpose the single frame and blurry blow up prints, which

1 Apicelli represents that the blow up was made from the single frame.

2 The still frame, of course, does not show movement.

7 Apicelli made and submitted with his motion to suppress, were

intended to serve. Neither raises a factual dispute about

Bain’s identification that would require a hearing.

In support of his motion for reconsideration, Apicelli has

submitted disks of the video footage taken by the surveillance

camera that was shown to Bain. The video footage is not newly

discovered evidence, and Apicelli appropriately does not argue

that it is. He provides no reason for not submitting the video

footage with his motion to suppress.

Nevertheless, the court has undertaken a careful review of

the video footage that Apicelli submitted to determine whether

it creates a material factual dispute about the reliability of

Bain’s identification that would require a hearing. When the

court first played the CDs on its computer, they ran at a high

speed making them very difficult to watch and assess. With the

assistance of a technician, the court was able to view the

videos using VLC Media Player on its computer, and this resulted

in the videos being played in real time. The video footage

provides ample opportunity for Bain, who was familiar with

Apicelli from prior experience, to identify him. Therefore, the

videos do not raise a factual dispute about the reliability of

Bain’s identification that would require a hearing to determine

whether they must be excluded from trial.

8 2. Search Warrant

Apicelli argued in support of his motion to suppress that

the warrant application affidavit was deficient because it

omitted information about Bain that would show his vindictive

motive toward Apicelli. A hearing on a challenge to an

affidavit used to obtain a search warrant will be granted only

if the defendant shows “(1) that a false statement or omission

in the affidavit was made knowingly and intentionally or with

reckless disregard for the truth; and (2) the falsehood or

omission was necessary to the finding of probable cause.”

United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012).

Apicelli has submitted “newly discovered evidence” that he

contends provides more proof that Bain could have implicated him

in criminal activity because of Bain’s ill will toward Apicelli.

The new evidence is a copy of a “PETITION” that states that an

unidentified “Road Agent” in Campton, who apparently is Bain,

“has Threatened members of the Community that did not Vote for

him.” The petition is dated March 30, 2015, and asks for the

road agent’s “Removal or Resignation.”

The petition that Apicelli submitted did not exist when

Payer applied for the search warrant and, therefore, was not an

“omission” from the affidavit. Apicelli provides no evidence or

argument that Payer omitted any other information about Bain

9 knowingly, intentionally, or with reckless disregard for the

truth. Most importantly, as explained in the order denying the

motion to suppress, the information Apicelli cites to show

Bain’s ill will would not affect the probable cause

determination. Probable cause for the warrant was based on the

results of the investigation conducted by the police and the New

Hampshire Drug Task Force, including the surveillance videotape,

not on Bain’s tip.

Therefore, Apicelli has not shown grounds for a hearing on

his motion to suppress.

B. Merits

Apicelli contends that the order denying his motion to

suppress requires reconsideration because it was based on errors

and because new evidence supports the motion. Apicelli argues

that the court erred in stating that Bain’s tip was based on

seeing marijuana growing on Apicelli’s property, that the court

misunderstood the point made by the blurry blow-up print, and

that newly discovered evidence undermines Bain’s credibility and

the reliability of his identification. The government objects

on the grounds that none of Apicelli’s arguments warrants

reconsideration.

10 1. Bain’s Tip

As the court has previously stated, the search warrant was

not obtained based on probable cause provided by Bain’s tip.

Instead, based on Bain’s tip, the police and the New Hampshire

Drug Task Force undertook an investigation to determine whether

marijuana was being grown on Apicelli’s property. Part of the

investigation was the installation of the surveillance camera.

Payer and others saw marijuana growing on Apicelli’s property,

viewed the surveillance video, and identified Apicelli as the

man seen in the video. Whether Bain reported to the police that

he saw marijuana growing or suspected marijuana was growing on

Apicelli’s property or that he had other suspicions about

Apicelli or activities on his property is not material to the

probable cause determination for the search warrant.

Therefore, the court’s characterization of Bain’s tip in

the order denying Apicelli’s motion to suppress is not relevant

to the decision.

2. Videotape and Prints

Apicelli argues that the blurry blow-up print shows a man

moving in the center of the frame. Because the court could not

recognize what was shown in the print, Apicelli contends, Bain’s

identification of Apicelli as the man in the video footage is

unreliable. As is discussed above, Bain identified Apicelli

11 based on viewing the video footage, not the prints that Apicelli

submitted for purposes of the motion to suppress. Therefore,

the prints are not relevant to determining whether Bain’s

identification was reliable.

As was explained in the order denying the motion to

suppress, the police did not rely exclusively on Bain’s

identification of Apicelli for purposes of the search warrant

application. Instead, the police independently identified

Apicelli as the man shown in the video footage. Therefore, any

dispute about Bain’s ability to identify Apicelli in the video

footage is not relevant to the validity of the search warrant.

In addition, as stated above, the court has reviewed the

videotape footage that Apicelli submitted in support of the

motion for reconsideration. The video shows a man walking into

the area where marijuana plants are growing and tending the

plants. At times, the man is wearing a red backpack. The video

shows long sequences with different views of the man, including

his face and his profile, and shows him walking, standing,

bending, crouching, and engaged in activities with the plants.

Bain identified Apicelli based on his relationship with him over

two years and his knowledge of Apicelli’s “attire, mannerisms,

and physical descriptors.”

12 The videos were sufficiently clear to provide Bain with

ample opportunity to identify Apicelli and provide no basis to

exclude the identification from evidence at trial. Of course,

during the trial, Apicelli will have the opportunity to

challenge the reliability of the identification through cross

examination.

4. Newly Discovered Evidence

Apicelli contends that the March 2015 petition by Campton

residents in support of the removal or resignation of the

Campton road agent shows that Bain is capable of vindictive

behavior. Because the search warrant was not based on Bain’s

tip or on his identification, alone, Bain’s vindictive motives

are not relevant to the motion to suppress the evidence seized

as a result of the search. Taken in the totality of the

circumstances, the petition also does not undermine the

reliability of Bain’s identification of Apicelli in the

videotape.

Therefore, the petition does not provide grounds for

reconsideration of the denial of the motion to suppress.

13 Conclusion

For the foregoing reasons, the defendant’s motion for

reconsideration (document no. 46) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

May 14, 2015

cc: Donald A. Feith, Esq. Charles L. Rombeau, Esq. Sven D. Wiberg, Esq. United States Marshal United States Probation