U.S. v. Apicelli

2015 DNH 123

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 123 Peter Apicelli

O R D E R

Peter Apicelli is charged with one count of manufacturing

marijuana in violation of 21 U.S.C. § 841(a)(1). When the

government produced certain videotape footage after the jury had

been drawn for trial and only two days before evidence was to

begin, Apicelli moved to dismiss the indictment due to perceived

discovery abuses, or in the alternative to continue the trial

and compel discovery. The trial has been continued, and the

court has denied the motion to compel additional discovery. The

government objects to the motion to dismiss.

Background

On September 5, 2013, based on a tip, Sergeant Patrick

Payer of the Campton police department, members of the New

Hampshire Drug Task Force, and the person who provided the tip

walked over Apicelli’s property looking for marijuana plants.

They found marijuana plants growing on the property. Payer, Detective Eric James of the Grafton County Sheriff’s Department,

and Detective Nicholas Blodgett of the New Hampshire Drug Task

Force returned the next day to install a surveillance camera

that operated based on a motion detector.

Blodgett explained in his report that the officers had

returned to check the camera every few days. When the camera

was checked on September 9, the recordings did not show any

suspects, and the officers assumed that wind had triggered the

camera. The officers checked the camera again on September 12

and again found no suspects shown on the recordings but noted

that it appeared animals had triggered the camera. The camera

was checked again on September 16 and, this time, the recordings

showed a person who appeared to be carrying a red backpack. The

person was later identified as Peter Apicelli.

Payer applied for and was granted a warrant to search

Apicelli’s house. In the course of the search on September 17,

2013, marijuana and other related items were found and taken

from the house. The case was referred to the United States

Attorney’s Office in December of 2013. The indictment was filed

on January 22, 2014.

The trial was continued several times at Apicelli’s

request. In February of 2015, Apicelli moved to dismiss the

indictment or, in the alternative, to compel the government to

2 provide discovery. Following a hearing, the court concluded

that the government had not failed in any material respect to

comply with discovery requirements or requests. The motion to

dismiss was denied as there were no grounds for sanctions.

Apicelli then moved to dismiss the charge against him based

on a violation of the Speedy Trial Act. The court denied the

motion, finding that no violation of the Speedy Trial Act had

occurred. Trial was scheduled to begin on May 19, 2015.

Appicelli moved to suppress the evidence taken in the

search of his house. The motion was denied. Apicelli moved for

reconsideration of that order, which was denied on May 14, 2015.

The day before trial, Apicelli moved to dismiss based on

the government’s disclosure, the week before, of Payer’s grand

jury testimony and an email from Payer to the Assistant United

States Attorney (“AUSA”) who was handling the case at that time.

After a telephone conference and with the assent of counsel, the

trial was continued to allow time for consideration of the

motion to dismiss and for certain additional filings. The trial

was rescheduled for June with the jury to be drawn on June 2 and

opening statements and evidence to begin on June 8.

Apicelli’s motion to dismiss based on allegations of

prosecutorial misconduct was denied on May 27, 2015, and his

motions for a jury view and to dismiss or compel discovery were

3 denied on May 28, 2015. Apicelli moved for reconsideration of

the order denying his motion to dismiss or compel discovery on

June 1, the day before the jury was scheduled to be drawn.

In support of his motion for reconsideration, Apicelli

argued in part that the government had not provided

“discoverable material,” including “other recordings made on the

property.”1 The government responded to that issue by stating

that “the only other recordings known to the government are the

false triggers of the motion-detected camera as detailed in the

report of Detective Nicholas Blodgett.” The government

represented that the recordings made by “false triggers of the

motion detected camera . . . are of no evidentiary value.” The

government also represented that the AUSA in the case had

contacted James, who set up the camera, to see if “these videos

of nothing even remain available” and had not had a response

when the objection was filed. In the order denying the motion

for reconsideration, the court relied on the government’s

representation about the evidentiary value of the recordings

made by false triggers to conclude that Apicelli had not been

denied discoverable video footage.

1 There is no dispute that the government provided, in a timely manner, the videos in which a person identified as Apicelli is shown tending plants and carrying a red backpack.

4 The jury was drawn as scheduled on June 2. Opening

statements and evidence were scheduled to begin on June 8. On

Sunday, June 7, Apicelli filed the current motion to dismiss

after the government sent defense counsel four compact disks of

the “false trigger” video footage on Saturday, June 6. Defense

counsel sought dismissal, charging the government with discovery

violations, and alternatively sought to continue the trial and

to compel the government to provide additional discovery.2

A hearing on the motion was held on Monday morning, June 8,

while the jury waited for trial to begin. Defense counsel

stated that the compact disks comprised four to six hours of

video footage. Counsel argued that he could not begin the trial

without having an opportunity to review the footage with

Apicelli and to evaluate the videos to determine whether and how

they might affect the defense.

The AUSA stated that the compact disks had forty-one videos

that were taken when the camera was triggered by weather or

animals, false triggers, and agreed that the disks comprised

four to six hours of footage.3 The AUSA again characterized the

2 Apicelli sought recordings of police dispatch communications for other days when there were video recordings.

3 In its objection to the motion to dismiss, the government represents that the disks comprise just over four hours of video footage.

5 footage as videos of nothing and videos of rain falling on

leaves with no evidentiary value. In support of that deter-

mination, the AUSA stated that in the court’s June 4, 2015,

order denying Apicelli’s motion for reconsideration the court

“said these videos are of no evidentiary value and that [the

government was not] under an obligation to turn them over

. . . .”4 To avoid a continuance, the government suggested that

the defense could review the videos that afternoon, after the

government’s witnesses had testified, and that the defense could

then recall any witnesses as necessary.

4 The court actually found that “Apicelli has not shown that the government failed to provide him discovery that he was entitled to have.” In a footnote, the court stated: “The government also explained in its objection that contrary to Apicelli’s assertions, there is no undisclosed surveillance footage of Apicelli, just false triggers of the camera by the motion detector, . . . .” Order, June 4, 2015, doc. no. 73, at 7, n.3. The court did not find that the videos were of no evidentiary value or find that the government had no obligation to disclose the videos. Instead, the court noted the government’s representation as to the evidentiary value of the video footage, and based on that representation and the lack of support provided by Apicelli, denied the motion. Later in the June 8 hearing, the court explained that it could not take the government’s representation about the evidentiary value of the videos. In response, the AUSA stated: “These videos were highlighted in the Court’s June 4th decision last week in which the Court referenced that these false trigger videos in footnote 3, you know, that -- and again, taking us at our word that these are false trigger videos and denying [defense counsel’s] motion to the extent that it sought production of those. So our view was that we were under no obligation to disclose these . . . .”

6 The court concluded that defense counsel could not be

expected to consider the videos and fashion the defense after

openings and after the government had presented its witnesses.

As a result, the trial was continued to allow adequate time for

defense counsel to evaluate the video footage. In making that

decision, the court noted that it was unfortunate that the

government had waited until after the jury had been drawn to

disclose the false trigger recordings.5 The trial is now

rescheduled for July. The jury will be drawn on July 21, and

opening statements and evidence will begin on July 28, 2015.

Discussion

Apicelli moves to dismiss the indictment, charging the

government with providing additional surveillance camera video

footage at the last minute and failing to provide police

dispatch recordings for all of the days when the camera recorded

video footage.6 As he has done in the past, Apicelli asserts

that the government “has been remiss in meeting its discovery

5 The jury had not yet been sworn, however.

6 At the June 8 hearing, defense counsel also suggested that the person who provided the tip to the police, about marijuana growing on Apicelli’s property, led the police when they walked over the property and that the police had a much earlier tip about marijuana growing there. Those matters were not raised in the motion to dismiss, do not appear to be material to the motion, and are not considered for purposes of the motion.

7 obligations.”7 The government objects to the motion to dismiss,

contending that the disclosure of the video footage does not

provide grounds for dismissal and that all of the requested

dispatch recordings have been provided.

“Upon a defendant’s request, the government must permit the

defendant to inspect and to copy or photograph . . . documents,

data, photographs . . . if the item is within the government’s

possession, custody, or control and: (i) the item is material to

preparing the defense; . . . .” Fed. R. Crim. P. 16(a)(1)(E).

If the government fails to comply with discovery requirements

imposed by Federal Rule of Criminal Procedure 16, the court may

order that the discovery be produced, grant a continuance,

preclude the undisclosed evidence from trial, or enter an order

“that is just under the circumstances.” Fed. R. Crim. P.

16(d)(2).

Important considerations in whether sanctions are

appropriate for discovery abuse are the seriousness of the abuse

and whether the defendant was prejudiced. United States v.

Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996); see also United

7 Contrary to Apicelli’s characterization of the government’s conduct, the court has concluded in past orders, after considering Apicelli’s motions to dismiss based on alleged discovery abuses, that no discoverable materials had been withheld and that any delay in disclosure had not prejudiced Apicelli. See documents nos. 32, 40, 69, 70, 73, & 75.

8 States v. Jones, 620 F. Supp. 2d 163, 170-79 (D. Mass. 2009).

When discovery materials are produced late, “the critical

inquiry is not why disclosure was delayed but whether the

tardiness prevented defense counsel from employing the material

to good effect.” United States v. Delgado-Marrero, 744 F.3d

167, 199 (1st Cir. 2014) (internal quotation marks omitted).

The “drastic remedy of dismissal” is not available when

discovery problems can be addressed by other means that mitigate

any prejudice to the defendant. United States v. Soto-Beniquez,

356 F.3d 1, 30-31 (1st Cir. 2004); see also United States v.

Luisi, 482 F.3d 43, 59 (1st Cir. 2007).

A. Additional Video Footage

Apicelli faults the government for not producing the false

trigger video footage until the weekend before openings and

evidence were scheduled to begin. The government argues that it

was not required to produce the additional false trigger videos

because the defense did not request them in a timely or proper

manner and because those videos do not show anything that is

“material” to preparing the defense. Fed. R. Crim. P.

16(a)(1)(E). Despite that evaluation of the videos, the

government did produce them because it “thought disclosure would

9 resolve any possible questions raised by defendant about the

videos.” Gov. Mem. Doc. No. 76 at 2.

1. Request

The government represents that the defense has been aware

of the false trigger video footage since March of 2014 when

Detective Nicholas Blodgett’s report of the investigation was

produced.8 Despite the early notice, the government contends,

Apicelli did not raise the false trigger footage until June 1,

2015, when he moved for reconsideration of the denial of the

previous motion to dismiss.9 Apicelli does not explain why he

waited until June 1, 2015, in the context of a motion for

reconsideration, to raise an issue about the false trigger video

footage, stating only “there are other recordings made on the

property . . . (as partially disclosed only recently when the

Government made its extremely late disclosure of the Grand Jury

transcript).” Def. Mot. Doc. 71, at 2.

8 In the report, Blodgett describes the times that officers checked the surveillance camera on Apicelli’s property and found that weather or animals had triggered the motion detector causing the camera to record video of the area without any human subjects present.

9 Specifically, the government notes that Apicelli did not raise the false trigger video footage in his motion to dismiss or compel discovery filed in February of 2015, at the hearing on that motion held on March 26, 2015, or in subsequent motions addressing alleged discovery problems.

10 A motion for reconsideration is not an appropriate vehicle

to raise an issue for the first time. See United States v.

Allen, 573 F.3d 42, 53 (1st Cir. 2009). Despite the

deficiencies in Apicelli’s request for the false trigger video

footage, the government did produce it. The government explains

that it made arrangements as soon as was possible to obtain the

footage and provide it to defense counsel. The government’s

reasons for late disclosure, however, are not as important as

the question of whether the tardiness prejudiced the defendant.

Delgado-Marrero, 744 F.3d at 199.

2. Prejudice

Defense counsel represented to the court during the hearing

that based on his initial review of the videos he expected that

they would contain information helpful to the defense. Given

this representation, the trial has been continued to allow the

defense an additional six weeks to prepare, which is more than

adequate time to consider the videos. Defense counsel agreed

that the time allowed by the continuance was sufficient to

address the videos. Therefore, the late disclosure of

additional videos does not provide grounds to dismiss the charge

against Apicelli.

11 B. Dispatch Recordings

In response to Apicelli’s motion to dismiss or compel

discovery that was filed on February 7, 2015, the government and

Apicelli agreed to a protective order to allow the government to

provide a cd-rom of dispatch recordings for the days when the

police entered Apicelli’s property. There is no dispute that

the dispatch recordings were produced.

Based on the additional video footage from the surveillance

camera, however, Apicelli now contends that the government did

not provide all of the dispatch recordings because there are no

dispatch recordings for some of the days when the surveillance

camera recorded video footage. During the status conference

that followed the hearing on June 8, the AUSAs explained to

defense counsel that the police did not visit the surveillance

camera every day that video footage was recorded. Instead,

officers checked the camera every few days, and dispatch

recordings have been provided for all of those days.

Therefore, any issue about missing dispatch recordings has

been resolved and does not provide grounds to dismiss the

indictment.

12 Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 74) is denied.

SO ORDERED.

_________________________ Joseph DiClerico, Jr. United States District Judge

June 16, 2015

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