UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 14-cr-12-01-JD Opinion No. 2015 DNH 139 Peter Apicelli
O R D E R
Peter Apicelli again moves to dismiss the charge against
him of manufacturing marijuana or, alternatively, to preclude
the government from using at trial any of the videotape evidence
taken by a surveillance camera on his property. The current
motion arises from the government’s disclosure, just before
trial was scheduled to begin, of four compact discs of
additional videotape footage. The government objects to the
motion.
The video footage taken by a surveillance camera on
Apicelli’s property has been addressed repeatedly in prior
orders.1 The footage that is the subject of the current motion
was discussed at a hearing held on June 8, 2015, and in the
order issued on June 16, 2015. That footage is the result of
1 Some of the video footage, which was disclosed to Apicelli before any issues about discovery arose, show a man tending marijuana plants on Apicelli’s property. The man was identified as Apicelli. weather or animals that triggered the motion detector on the
surveillance camera. Because this footage was not triggered by
suspicious activity, it is referred to as the “false trigger”
footage.2
A. Hearing
Apicelli requests a hearing on his motion. He cites no
authority to support his request. As the court has explained
previously, Apicelli has no right to a hearing on a motion to
suppress or on a motion to dismiss. United States v. Cintron,
724 F.3d 32, 36 (1st Cir. 2013); United States v. Brown, 621
F.3d 48, 57 (1st Cir. 2010); United States v. Panitz, 907 F.2d
1267, 1273 (1st Cir. 1990). Instead, the burden is on Apicelli
to “show that there are factual disputes which, if resolved in
his favor, would entitle him to the requested relief.” Cintron,
724 F.3d at 36 (internal quotation marks omitted); Panitz, 907
F.2d at 1273.
There appears to be no dispute about what the false trigger
videos show: a wooded area of Apicelli’s property near the
apple orchard where marijuana was growing. Apicelli argues that
the false trigger videos support his argument that the videotape
The four compact discs that the government produced on June 2
6, 2015, also included previously-disclosed footage of a man tending marijuana plants.
2 images from the surveillance camera are of low quality. He
contends that the poor quality of the images requires that all
of the video footage should be excluded from trial. The court
has reviewed the recently-produced compact discs. Apicelli has
not identified any factual issue that should or even could be
addressed by a hearing.
Therefore, because Apicelli has not carried his burden of
showing a hearing is necessary, no hearing will be held on his
B. Discovery
Apicelli asserts that the charge against him must be
dismissed or all video evidence must be suppressed due to “the
Government’s continued failure to honor his constitutional
rights to prompt and full discovery (including all potentially
exculpatory or impeaching material) which failure also violated
his statutory and constitutional rights to speedy trial and due
process.”3 As the court’s prior orders state, the government is
and has been aware of its discovery obligations and has provided
all of the discovery it was required to produce and some that it
Despite knowing that recordings had been made due to false 3
triggers of the surveillance camera, Apicelli never requested that footage.
3 was not required to produce.4 Therefore, because the government
has not violated its discovery obligations, no grounds exist to
impose sanctions. See Fed. R. Crim. P. 16(d)(2).
Even if the government had engaged in discovery abuses, the
imposition of sanctions depends on 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
States v. Jones, 620 F. Supp. 2d 163, 170-79 (D. Mass. 2009).
Further, 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).
Apicelli has had ample opportunity to review the four
compact discs of videotapes and to develop any defenses that
evidence might support. Therefore, the government’s decision to
produce four compact discs of videotaped just before trial,
which has been continued, is not grounds to dismiss the charge
or to suppress other videotape evidence.
4 Apicelli cites only a general boilerplate discovery request made to the state officials who handled this case before it was referred to the United States Attorney and the general discovery obligations under the Federal Rules of Criminal Procedure to show that the materials should have been disclosed. In the absence of any developed argument that the government was obligated to produce these compact discs, Apicelli has not shown that the government violated any discovery obligation.
4 C. Speedy Trial
Apicelli again argues that his right to a speedy trial
under the Speedy Trial Act and the Sixth Amendment has been
violated. He is mistaken. The issue of speedy trial was
addressed by the court in the orders issued on April 17, 2015,
and June 4, 2015. Subsequent continuances were granted to serve
the ends of justice, and Apicelli has not shown that the delay
has prejudiced his defense. See United States v. Tinklenberg,
131 S. Ct. 2007, 1010 (2011; United States v. Carpenter, 781
F.3d 599, 608 (1st Cir. 2015). Therefore, no violation of the
Speedy Trial Act or the Sixth Amendment has occurred.5
D. Suppression
The order issued on June 8, 2015, set a schedule for, among
other things, Apicelli to file “any motion related to the newly
disclosed videotape footage.” Despite that limitation, Apicelli
revisits the order issued on May 4, 2015, that denied his motion
to suppress the evidence seized during the search of his house.
He now argues that he should be allowed to make new arguments
based on the grand jury testimony of Sergeant Payer, which was
provided to Apicelli more than two months ago. Apicelli’s
To the extent Apicelli urges the court to revisit the 5
analyses and holdings in prior orders pertaining to the Speedy Trial Act and the right to a speedy trial under the Sixth Amendment, his request for reconsideration comes too late, and in any case, is unpersuasive.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 14-cr-12-01-JD Opinion No. 2015 DNH 139 Peter Apicelli
O R D E R
Peter Apicelli again moves to dismiss the charge against
him of manufacturing marijuana or, alternatively, to preclude
the government from using at trial any of the videotape evidence
taken by a surveillance camera on his property. The current
motion arises from the government’s disclosure, just before
trial was scheduled to begin, of four compact discs of
additional videotape footage. The government objects to the
motion.
The video footage taken by a surveillance camera on
Apicelli’s property has been addressed repeatedly in prior
orders.1 The footage that is the subject of the current motion
was discussed at a hearing held on June 8, 2015, and in the
order issued on June 16, 2015. That footage is the result of
1 Some of the video footage, which was disclosed to Apicelli before any issues about discovery arose, show a man tending marijuana plants on Apicelli’s property. The man was identified as Apicelli. weather or animals that triggered the motion detector on the
surveillance camera. Because this footage was not triggered by
suspicious activity, it is referred to as the “false trigger”
footage.2
A. Hearing
Apicelli requests a hearing on his motion. He cites no
authority to support his request. As the court has explained
previously, Apicelli has no right to a hearing on a motion to
suppress or on a motion to dismiss. United States v. Cintron,
724 F.3d 32, 36 (1st Cir. 2013); United States v. Brown, 621
F.3d 48, 57 (1st Cir. 2010); United States v. Panitz, 907 F.2d
1267, 1273 (1st Cir. 1990). Instead, the burden is on Apicelli
to “show that there are factual disputes which, if resolved in
his favor, would entitle him to the requested relief.” Cintron,
724 F.3d at 36 (internal quotation marks omitted); Panitz, 907
F.2d at 1273.
There appears to be no dispute about what the false trigger
videos show: a wooded area of Apicelli’s property near the
apple orchard where marijuana was growing. Apicelli argues that
the false trigger videos support his argument that the videotape
The four compact discs that the government produced on June 2
6, 2015, also included previously-disclosed footage of a man tending marijuana plants.
2 images from the surveillance camera are of low quality. He
contends that the poor quality of the images requires that all
of the video footage should be excluded from trial. The court
has reviewed the recently-produced compact discs. Apicelli has
not identified any factual issue that should or even could be
addressed by a hearing.
Therefore, because Apicelli has not carried his burden of
showing a hearing is necessary, no hearing will be held on his
B. Discovery
Apicelli asserts that the charge against him must be
dismissed or all video evidence must be suppressed due to “the
Government’s continued failure to honor his constitutional
rights to prompt and full discovery (including all potentially
exculpatory or impeaching material) which failure also violated
his statutory and constitutional rights to speedy trial and due
process.”3 As the court’s prior orders state, the government is
and has been aware of its discovery obligations and has provided
all of the discovery it was required to produce and some that it
Despite knowing that recordings had been made due to false 3
triggers of the surveillance camera, Apicelli never requested that footage.
3 was not required to produce.4 Therefore, because the government
has not violated its discovery obligations, no grounds exist to
impose sanctions. See Fed. R. Crim. P. 16(d)(2).
Even if the government had engaged in discovery abuses, the
imposition of sanctions depends on 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
States v. Jones, 620 F. Supp. 2d 163, 170-79 (D. Mass. 2009).
Further, 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).
Apicelli has had ample opportunity to review the four
compact discs of videotapes and to develop any defenses that
evidence might support. Therefore, the government’s decision to
produce four compact discs of videotaped just before trial,
which has been continued, is not grounds to dismiss the charge
or to suppress other videotape evidence.
4 Apicelli cites only a general boilerplate discovery request made to the state officials who handled this case before it was referred to the United States Attorney and the general discovery obligations under the Federal Rules of Criminal Procedure to show that the materials should have been disclosed. In the absence of any developed argument that the government was obligated to produce these compact discs, Apicelli has not shown that the government violated any discovery obligation.
4 C. Speedy Trial
Apicelli again argues that his right to a speedy trial
under the Speedy Trial Act and the Sixth Amendment has been
violated. He is mistaken. The issue of speedy trial was
addressed by the court in the orders issued on April 17, 2015,
and June 4, 2015. Subsequent continuances were granted to serve
the ends of justice, and Apicelli has not shown that the delay
has prejudiced his defense. See United States v. Tinklenberg,
131 S. Ct. 2007, 1010 (2011; United States v. Carpenter, 781
F.3d 599, 608 (1st Cir. 2015). Therefore, no violation of the
Speedy Trial Act or the Sixth Amendment has occurred.5
D. Suppression
The order issued on June 8, 2015, set a schedule for, among
other things, Apicelli to file “any motion related to the newly
disclosed videotape footage.” Despite that limitation, Apicelli
revisits the order issued on May 4, 2015, that denied his motion
to suppress the evidence seized during the search of his house.
He now argues that he should be allowed to make new arguments
based on the grand jury testimony of Sergeant Payer, which was
provided to Apicelli more than two months ago. Apicelli’s
To the extent Apicelli urges the court to revisit the 5
analyses and holdings in prior orders pertaining to the Speedy Trial Act and the right to a speedy trial under the Sixth Amendment, his request for reconsideration comes too late, and in any case, is unpersuasive.
5 arguments are inapposite to the limited scope of the motion
allowed, are untimely, and provide no cognizable basis to
reconsider, again, the order denying his motion to suppress the
evidence seized during the search of his house.6
Apicelli argues that all of the videotape footage from the
surveillance camera must be suppressed because the images are of
poor quality. Apicelli submitted the four compact discs of
video footage that were produced on June 6, 2015. The clips
show the wooded area where the surveillance camera was focused,
with varying amounts of light, sometimes with wind blowing or
rain falling. The first clip on Exhibit 2 shows a bearded man,
identified as Detective Blodgett, moving in the area as he was
setting up the camera. Another clip shows a deer moving through
the area. The last clips on Exhibit 4 show a man, who was later
identified as Apicelli, tending the plants.
In the context of Apicelli’s previous motion to suppress,
the court reviewed the footage showing a man, later identified
as Apicelli, tending the plants. The court ruled, in denying
Apicelli’s motion to suppress, that Apicelli had not shown that
6 Apicelli contends that Bain was acting as a police agent when he participated in the search of Apicelli’s property with Campton police officers and the New Hampshire Drug Task Force. As has been explained in prior orders, that search involved areas outside the curtilage. Therefore, Bain’s status is not relevant to the legality of the search.
6 Bain’s identification of him in the videotape footage was so
unreliable as to be inadmissible.7 Apicelli now argues that the
false trigger videos bolster his argument that the videotape is
too indistinct to support an identification and argues further
that all of the videotape footage should be excluded from trial.
Apicelli refers generally to the four discs of footage
without citing any specific part as particularly probative of
his theory that the footage is of poor quality. Based on the
court’s own viewing of the footage, the video footage is not of
such poor quality that it must be excluded. Therefore, no
grounds have been shown to preclude the government from using
the videotape evidence at trial.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss or, in the alternative to exclude certain evidence from
trial, (document no. 79) is denied.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
July 17, 2015 cc: Sven D. Wiberg, Esq. Charles L. Rombeau, Esxq.
7 In addition, this may be a moot point as the government has indicated that it will not call Bain to identify Apicelli.
7 Donald A. Feith, Esq. United States Marshal United States Probation