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 169 Peter Apicelli
O R D E R
Peter Apicelli was found guilty of manufacturing marijuana
in violation of 21 U.S.C. § 841(a)(1) as charged in the
indictment. He now moves for a judgment of acquittal pursuant
to Federal Rule of Criminal Procedure 29. The government
objects.
Standard of Review
In deciding a motion for judgment of acquittal under Rule
29, the court “examine[s] the evidence, both direct and
circumstantial, in the light most favorable to the jury’s
verdict.” United States v. Santos-Soto, --- F.3d ---, 2015 WL
50000659, at *5 (1st Cir. Aug. 24, 2015). The evidence is not
considered separately but instead is evaluated cumulatively, as
a whole, along with all plausible inferences that may be drawn
from the evidence. Id. Based on that analysis, “[t]he verdict
must stand unless the evidence is so scant that a rational factfinder could not conclude that the government proved all the
essential elements of the charged crime beyond a reasonable
doubt.” United States v. Flores-Rivera, 787 F.3d 1, 22 (1st
Cir. 2015).
Background
Apicelli rented property at 201 Mason Road, Campton, New
Hampshire, from Rene Dubois, beginning in May of 2012. He did
not move out until October of 2013. The property had wooded
parts, open areas, a tree farm, an apple orchard, and a house.
Apicelli was the only person renting the property.
The Campton police received a tip in early September of
2013 that there might be marijuana growing on the property. In
response to the tip, Sergeant Patrick Payer of the Campton
Police Department contacted Sergeant Nick Blodgett of the New
Hampshire Drug Task Force, and Blodgett contacted Detective
Piche of the New Hampshire State Police. On September 5, 2013,
Payer, Blodgett, Piche, and the person who provided the tip went
to the property to look for marijuana. They found a patch of
twenty to twenty-five marijuana plants growing just inside a
wooded area, next to a more open area, that was about 200 yards
from the house.
2 Payer learned that Rene Dubois owned the property and that
it was rented to Apicelli. Payer also saw two vehicles at the
property that were registered to Apicelli. He then looked up
information about Apicelli and viewed a photograph of him.
Detective Eric James, who is in the Grafton County
Sheriff’s Department, was contacted to set up a video camera to
record the area where the marijuana was growing. On September
6, Payer, James, and Blogett went back to the property and
installed the video camera. The officers checked the video
footage in the camera, which was triggered by motion, several
times during the next ten days, but did not see video footage of
a person tending the plants until September 16. Video footage
taken on September 14 showed a male with dark hair, wearing
khaki shorts and a hat tending the plants. In one segment, the
man was also wearing a red backpack, while tending the plants.
On September 17, Payer applied for and was granted a search
warrant for Apicelli’s home at 201 Mason Road. Payer, along
with another Campton police officer, James, Blodgett, and other
officers, executed the search warrant the same day. Once
inside, Payer noticed that the house smelled of marijuana. In
the course of the search of the house, the officers found, took
pictures of, and seized as evidence a red back pack, khaki
shorts, a piece of mail with Apicelli’s name on it, a grow
3 light, marijuana plants, packaged marijuana, scales, potting
soil, plastic bags, and a book titled Marijuana Grower’s
Insider’s Guide. They also seized marijuana plants that were
growing outside on the property.
Criminalist Shane Zeman, who works for the New Hampshire
State Police Crime Laboratory, testified at trial. Zeman
described the process he used to collect samples of the plants
seized from Apicelli’s property and to test the samples in the
lab. Zeman’s testing found that the plant samples were
consistent with marijuana.
Discussion
Apicelli contends, in support of his motion for judgment of
acquittal, that the circumstantial evidence presented at trial
did not sufficiently identify him to support the guilty verdict
and that the government failed to refute possible innocent
explanations for the circumstances. Apicelli also argues that
the government introduced and relied on improper and
inadmissible evidence. In addition, Apicelli contends that
judgment of acquittal is warranted because the jury deliberated
for a short time. The government objects, asserting that the
evidence is sufficient to support the conviction, that
Apicelli’s evidentiary challenges are not properly raised in a
Rule 29 motion, that the government was not required to disprove
4 Apicelli’s theories of innocence, and that the brevity of
deliberations does not undermine the verdict.
A. Evidentiary Challenges
Apicelli complains that some evidence was improperly
admitted at trial. In considering a motion for acquittal under
Rule 29, however, the court weighs all of the evidence that was
admitted at trial without considering whether any of the
evidence was improperly admitted. United States v. Diaz, 300
F.3d 66, 77 (1st Cir. 2002). Therefore, Apicelli’s evidentiary
challenges are inapposite to his Rule 29 motion.
B. Theories of Innocence
Contrary to Apicelli’s arguments, the government need not
refute all possible explanations for the marijuana and other
evidence found in Apicelli’s home and on his property. See
United States v. Trinidad-Acosta, 773 F.3d 298, 310-11 (1st Cir.
2014). A judgment of acquittal is necessary only when the
evidence, viewed in the light most favorable to the verdict,
supports theories of guilt and innocence equally or nearly
equally. See United States v. Lopez-Diaz, --- F.3d ---, 2015 WL
4187223, at *3 (1st Cir. July 13, 2015). As is explained below,
that is not the case here.
5 C. Brevity of Deliberations
Apicelli also contends that he is entitled to a judgment of
acquittal because of the brevity of the jury’s deliberations.
He cites no authority that a judgment of acquittal may be
granted based on brief deliberations.
The First Circuit has held that “[b]rief jury deliberation
is not, in itself, sufficient basis to support a new trial
motion.” Kearns v. Keystone Shipping Co., 863 F.2d 177, 182
(1st Cir. 1988). In the context of a motion for judgment of
acquittal, the issue is the sufficiency of the evidence, and the
length of a jury’s deliberations is not relevant absent some
reason to believe that “the jury in some way disregarded its
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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 169 Peter Apicelli
O R D E R
Peter Apicelli was found guilty of manufacturing marijuana
in violation of 21 U.S.C. § 841(a)(1) as charged in the
indictment. He now moves for a judgment of acquittal pursuant
to Federal Rule of Criminal Procedure 29. The government
objects.
Standard of Review
In deciding a motion for judgment of acquittal under Rule
29, the court “examine[s] the evidence, both direct and
circumstantial, in the light most favorable to the jury’s
verdict.” United States v. Santos-Soto, --- F.3d ---, 2015 WL
50000659, at *5 (1st Cir. Aug. 24, 2015). The evidence is not
considered separately but instead is evaluated cumulatively, as
a whole, along with all plausible inferences that may be drawn
from the evidence. Id. Based on that analysis, “[t]he verdict
must stand unless the evidence is so scant that a rational factfinder could not conclude that the government proved all the
essential elements of the charged crime beyond a reasonable
doubt.” United States v. Flores-Rivera, 787 F.3d 1, 22 (1st
Cir. 2015).
Background
Apicelli rented property at 201 Mason Road, Campton, New
Hampshire, from Rene Dubois, beginning in May of 2012. He did
not move out until October of 2013. The property had wooded
parts, open areas, a tree farm, an apple orchard, and a house.
Apicelli was the only person renting the property.
The Campton police received a tip in early September of
2013 that there might be marijuana growing on the property. In
response to the tip, Sergeant Patrick Payer of the Campton
Police Department contacted Sergeant Nick Blodgett of the New
Hampshire Drug Task Force, and Blodgett contacted Detective
Piche of the New Hampshire State Police. On September 5, 2013,
Payer, Blodgett, Piche, and the person who provided the tip went
to the property to look for marijuana. They found a patch of
twenty to twenty-five marijuana plants growing just inside a
wooded area, next to a more open area, that was about 200 yards
from the house.
2 Payer learned that Rene Dubois owned the property and that
it was rented to Apicelli. Payer also saw two vehicles at the
property that were registered to Apicelli. He then looked up
information about Apicelli and viewed a photograph of him.
Detective Eric James, who is in the Grafton County
Sheriff’s Department, was contacted to set up a video camera to
record the area where the marijuana was growing. On September
6, Payer, James, and Blogett went back to the property and
installed the video camera. The officers checked the video
footage in the camera, which was triggered by motion, several
times during the next ten days, but did not see video footage of
a person tending the plants until September 16. Video footage
taken on September 14 showed a male with dark hair, wearing
khaki shorts and a hat tending the plants. In one segment, the
man was also wearing a red backpack, while tending the plants.
On September 17, Payer applied for and was granted a search
warrant for Apicelli’s home at 201 Mason Road. Payer, along
with another Campton police officer, James, Blodgett, and other
officers, executed the search warrant the same day. Once
inside, Payer noticed that the house smelled of marijuana. In
the course of the search of the house, the officers found, took
pictures of, and seized as evidence a red back pack, khaki
shorts, a piece of mail with Apicelli’s name on it, a grow
3 light, marijuana plants, packaged marijuana, scales, potting
soil, plastic bags, and a book titled Marijuana Grower’s
Insider’s Guide. They also seized marijuana plants that were
growing outside on the property.
Criminalist Shane Zeman, who works for the New Hampshire
State Police Crime Laboratory, testified at trial. Zeman
described the process he used to collect samples of the plants
seized from Apicelli’s property and to test the samples in the
lab. Zeman’s testing found that the plant samples were
consistent with marijuana.
Discussion
Apicelli contends, in support of his motion for judgment of
acquittal, that the circumstantial evidence presented at trial
did not sufficiently identify him to support the guilty verdict
and that the government failed to refute possible innocent
explanations for the circumstances. Apicelli also argues that
the government introduced and relied on improper and
inadmissible evidence. In addition, Apicelli contends that
judgment of acquittal is warranted because the jury deliberated
for a short time. The government objects, asserting that the
evidence is sufficient to support the conviction, that
Apicelli’s evidentiary challenges are not properly raised in a
Rule 29 motion, that the government was not required to disprove
4 Apicelli’s theories of innocence, and that the brevity of
deliberations does not undermine the verdict.
A. Evidentiary Challenges
Apicelli complains that some evidence was improperly
admitted at trial. In considering a motion for acquittal under
Rule 29, however, the court weighs all of the evidence that was
admitted at trial without considering whether any of the
evidence was improperly admitted. United States v. Diaz, 300
F.3d 66, 77 (1st Cir. 2002). Therefore, Apicelli’s evidentiary
challenges are inapposite to his Rule 29 motion.
B. Theories of Innocence
Contrary to Apicelli’s arguments, the government need not
refute all possible explanations for the marijuana and other
evidence found in Apicelli’s home and on his property. See
United States v. Trinidad-Acosta, 773 F.3d 298, 310-11 (1st Cir.
2014). A judgment of acquittal is necessary only when the
evidence, viewed in the light most favorable to the verdict,
supports theories of guilt and innocence equally or nearly
equally. See United States v. Lopez-Diaz, --- F.3d ---, 2015 WL
4187223, at *3 (1st Cir. July 13, 2015). As is explained below,
that is not the case here.
5 C. Brevity of Deliberations
Apicelli also contends that he is entitled to a judgment of
acquittal because of the brevity of the jury’s deliberations.
He cites no authority that a judgment of acquittal may be
granted based on brief deliberations.
The First Circuit has held that “[b]rief jury deliberation
is not, in itself, sufficient basis to support a new trial
motion.” Kearns v. Keystone Shipping Co., 863 F.2d 177, 182
(1st Cir. 1988). In the context of a motion for judgment of
acquittal, the issue is the sufficiency of the evidence, and the
length of a jury’s deliberations is not relevant absent some
reason to believe that “the jury in some way disregarded its
instructions or otherwise failed in its duty.” United States v.
Cunningham, 108 F.3d 120, 124 (7th Cir. 1997); see also United
States v. Barajas, 2011 WL 5999024, at *2 (D. Kan. Nov. 30,
2011). Other courts have held that brief deliberations were not
a basis for reversing a conviction or for a new trial and, at
most, could be considered along with other factors. United
States v. Saoud, 595 F. App’x 182, 192 (4th Cir. 2014); United
States v. Aguilera, 625 F.3d 482, 487 (8th Cir. 2010) (citing
cases); see also United States United States v. Harris, 301
F.R.D. 272, 277 (N.D. Ohio 2014); United States v. Mzese, 2014
WL 2804001, at *3, n.4 (D. Md. June 19, 2014); United States v.
6 Ward, 2008 WL 2485587, at *5 (W.D. N.C. June 17, 2008).
The evidence in this case was simple and straightforward
and was presented on two consecutive days, with the jury
reaching its verdict on the following day while the evidence was
fresh in the jurors’ memories. Although the jury’s
deliberations were brief, the time spent was consonant with the
nature of the case and the evidence presented. Further, as
explained below, the evidence was sufficient to support the
verdict.
D. Sufficiency of the Evidence
Apicelli was charged with manufacturing marijuana in
violation of § 841(a)(1). The elements of the crime are that
the defendant knowingly or intentionally manufactured marijuana
by the “production, preparation, propagation, compounding, or
processing of” marijuana. § 841(a)(1); 21 U.S.C. § 802(15).
The evidence presented at trial established that Apicelli
rented the property at 201 Mason Road in Campton and that he
lived in that house during the relevant time period. The
evidence also showed that marijuana plants were growing on
Apicelli’s property and that marijuana and materials and
equipment for growing and processing marijuana were found in his
home.
7 In addition, the video showed a man tending marijuana
plants on Apicelli’s property who was wearing khaki shorts and
carrying a red back pack. A few days later, a red back pack was
found in Apicelli’s kitchen, khaki shorts were found in his
bedroom, and marijuana and marijuana growing and processing
apparatus were found in his home. Therefore, the government
presented evidence that Apicelli grew marijuana plants on the
property he rented in Campton and that he processed those plants
inside the house where he lived.
Despite the substantial circumstantial evidence of
Apicelli’s marijuana manufacturing activities, Apicelli points
to the lack of direct evidence linking him with the marijuana
found growing on his property and in his home. Specifically, he
contends that the lack of direct evidence that identifies him as
the man in the video tending marijuana plants and as the person
who processed marijuana in his house undermines the verdict. He
argues that he might not have been living at the house during
that time and that someone else might have been growing
marijuana on his property and processing it in his home.
There was no evidence or even a suggestion at trial that
any other adult lived in the house or tended the marijuana
plants on Apicelli’s property. In contrast, the evidence from
Rene Dubois and the police officers who searched the house was
8 that no other adult lived there. Further, Apicelli’s cars were
seen in the driveway and a piece of mail addressed to him at a
post office box in Campton was found in the kitchen.
The evidence and plausible inferences, taken in the light
most favorable to the verdict, are more than sufficient to show
that the jury could conclude beyond a reasonable doubt that
Apicelli manufactured marijuana on the property at 201 Mason
Road. For that reason, no ground exists to enter a judgment of
acquittal.
Conclusion
For the foregoing reasons, the defendant’s motion for
judgment of acquittal (document no. 98) is denied.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
September 2, 2015
cc: Sven D. Wiberg, Esq. Charles L. Rombeau, Esq. Donald A. Feith, Esq. United States Marshal United States Probation