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 109
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). He has filed a
motion for a jury view “at the scene of the searches and
seizures in this case” and a motion to dismiss the charge
against him or to compel additional discovery. The government
objects to both motions.
I. Motion for a View
At the end of his motion, Apicelli states that a hearing is
requested but provides no grounds for granting a hearing. See
LR 7.1(d). No need for a hearing is apparent. Therefore, the
motion is decided without a hearing.
In support of a view, Apicelli states that the government’s
recent production of a transcript of Campton Police Sergeant
Patrick Payer’s grand jury testimony and Payer’s email with an
attached map have made him realize that a view is necessary.1 He
states without explanation that a view would provide
“potentially exculpatory evidence” and that the view would
“serve to impeach one or more Government witnesses, if they
testify in harmony with prior statements, including the
previously mentioned grand jury testimony and email message.”
Apicelli also argues that because he recently received the
transcript and email he was “deprived [] of the opportunity to
prepare and present any substitute for the impeaching and
exculpatory aspects of the actual real estate involved in this
case.” He contends that “the actual scene is and was quite
different from that described in prior statements and sworn
testimony.”
“The decision to permit a view is entrusted to the sound
discretion of the trial court.” United States v. Crochiere, 129
F.3d 233, 236 (1st Cir. 1997). In deciding whether to conduct a
jury view of a crime scene, the court considers whether other
evidence, such as photographs, diagrams, or testimony, is
sufficient. Id.; see also United States v. Wilson,
579 F. App’x
338, 345 (6th Cir. 2014); United States v. Stuker,
545 F. App’x
1 Apicelli states that he was unable to request a view earlier
in the case because he only recently received the transcript and
email. Apicelli did not include in his motion a statement of
who would pay for a view, if it were allowed. LR 39.3.
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609, 612 (9th Cir. 2013); United States v. Scroggins, 648 F.3d
873, 874-75 (8th Cir. 2011). The court may also consider “such
factors as the orderliness of the trial, whether the jury would
be confused or misled, whether it would be time-consuming or
logistically difficult, and whether cross-examination [would be]
permitted regarding the details of the scene.” Crochiere,
129
F.3d at 236.
Apicelli has not provided sufficient grounds to demonstrate
that a view would be necessary or even helpful in this case.
His explanation of what information a view would provide is
vague at best. He has not shown that maps, diagrams,
photographs, and testimony cannot provide the jury with a
sufficient understanding of the property and house where
marijuana and evidence of manufacturing were found.2
The government points out that more than twenty months have
passed since the police found marijuana on Apicelli’s property
and in his house and that Apicelli no longer rents the property.
The police removed the marijuana plants from the house and
property in September of 2013, so they are no longer on the
property to be viewed. Given the passage of time and changed
2 Apicelli’s argument that he lacks time to prepare evidence
about the property is without merit. He has had the transcript
and the email since May 13 and 14 respectively. Evidence in the
trial will not begin until June 8, which gives Apicelli more
than enough time to prepare.
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circumstances, photographs taken at the time of the
surveillance, search of the property and house, and seizure of
the marijuana plants and related evidence, along with witness
testimony would provide a more accurate description of the area
at the time when Apicelli lived there.
The motion for a jury view is denied.
II. Motion to Dismiss or Compel Discovery
This is Apicelli’s fourth motion to dismiss filed in the
last four months. Each motion has been based on theories of
alleged discovery abuses or violation of the Speedy Trial Act.
In support of his current motion to dismiss or compel discovery,
Apicelli argues that the government has not complied with its
discovery obligations in a timely manner and that his waivers of
the Speedy Trial Act should be deemed invalid because they were
the result of the government’s delayed discovery.
As was explained in a previous order denying Apicelli’s
first motion to dismiss, sanctions are available if the
government fails to comply with its discovery obligations. Fed.
R. Crim. P. 16(d)(2). In deciding whether to impose sanctions,
the court will consider the seriousness of the discovery
violations and prejudice to the defendant. United States v.
Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996). Charges against a
defendant will not be dismissed as a sanction for discovery
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violations unless the discovery issues and prejudice to the
defendant cannot be addressed by any other means. United States
v. Soto-Beniquez, 356 F.3d 1, 30-31 (1st Cir. 2004).
A. Sanctions for Discovery Violations
Apicelli asserts in his current motion that “the Government
has repeatedly been remiss in meeting its discovery
obligations.” He states that he received the transcript of
Sergeant Payer’s grand jury testimony on May 13 and his email on
May 14, despite his demands for “such evidence.” He contends
that he was not provided with dispatch recordings from the
Campton police for all of the times when the police entered
Apicelli’s property and that the government has not disclosed
other instances when Robert Bain helped the police.
As Apicelli acknowledges in his motion, the discovery
issues in this case were addressed two months ago when the court
held a hearing on his first motion to dismiss and then denied
the motion. See Order, March 31, 2015, document no. 32. The
court concluded at that time that “the government [had been]
actively engaged in fulfilling its discovery obligations” from
the time it took over the case through the time of the motion
and that “Apicelli [had] not shown that the government failed in
any material respect to comply with discovery requirements or
his requests.”
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The timing of the government’s disclosure of Payer’s grand
jury testimony and Payer’s email is addressed in the court’s
order denying Apicelli’s third motion to dismiss, document no.
69, and will not be repeated here. To the extent those
materials were disclosed late, Apicelli suffered no prejudice.
Therefore, no sanction or other relief is warranted based on the
timing of those disclosures.
Apicelli asserts that he was not provided dispatch
recordings for every time the police entered his property.3 With
its objection, the government filed a copy of an email dated
February 19, 2015, from the Assistant United States Attorney
(“AUSA”), who was then handling the case, to Apicelli’s counsel
with six PDF files of the dispatch logs for September 5, 6, 9,
12, 16, and 17, 2013. The AUSA invited defense counsel to
review the cd-rom of the recordings. The matter was resolved
with a protective order that allowed the government to provide
the cd-rom of the dispatch recordings to defense counsel.
Apicelli does not provide any specific information about
what dispatch recordings or logs were not provided to him. He
does not explain why he thinks any recordings are missing or
when the additional entries onto his property were made. The
3 Although far from clear, Apicelli apparently interprets
Payer’s email and the attached map with notations to show that
the police entered his property at additional times.
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government represents that it provided the dispatch recordings
for all of the dates involved in the investigation. Based on
the record presented, the government has fulfilled its discovery
obligation with respect to the dispatch recordings.
Apicelli also contends that the government has not provided
him with information about Bain’s involvement in the police
investigation of his case and in Bain’s role in helping the
police in other cases. As the government points out, Apicelli
has not shown that additional information about Bain is material
to any issue in this case or that the government has any
obligation to provide such information. See Fed. R. Crim. P.
16(a)(1). Further, in response to Apicelli’s specific inquiries
about Bain’s activities, the government contacted the Thornton
Police Chief, who said Bain had not provided that office with
tips about marijuana growing, and contacted the Campton Town
Administrator, who said that no other complaints about Bain had
been filed other than the petition already known to defense
counsel. The government provided that information to Apicelli.
Apicelli has not shown that the government has withheld or
unreasonably delayed disclosure of discovery.
B. Speedy Trial Act
Based on alleged discovery deficiencies, Apicelli argues
that his prior waivers of the Speedy Trial Act should be deemed
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invalid. Without the waivers, he contends, the time since
indictment exceeds the time allowed under the Act. As is
explained above, the government has fulfilled its discovery
obligations, and, to the extent any discovery was delayed,
Apicelli has not shown that he suffered prejudice. In addition,
the delays in this case were not caused by the government.
As is provided in detail in the order denying Apicelli’s
motion to dismiss based on the Speedy Trial Act, document no.
40, Apicelli sought continuances and filed waivers of the Speedy
Trial Act on five occasions to pursue a plea agreement and to
accommodate his counsel’s schedule. To the extent that
discovery issues required continuances of the trial, the
government was not at fault, as the court previously found.
Therefore, Apicelli’s characterization of the government’s
conduct as unfair and unreasonable is meritless.
This case does not involve discovery abuses, delay, or
other measures employed by the government that could implicate
the Speedy Trial Act or the Sixth Amendment right to a speedy
trial. See, e.g., United States v. Richardson, 421 F.3d 17, 29
(1st Cir. 2005); United States v. Salimonu,
182 F.3d 63, 69 (1st
Cir. 1999); United States v. Hastings,
847 F.2d 920, 926 (1st
Cir. 1988).
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C. Motion to Compel
As an alternative to dismissing the charge against him,
Apicelli asks the court “to compel full discovery.” Apicelli
does not explain what discovery he is seeking. Based on the
record provided to date, it appears that the government is very
much aware of its obligations and has provided all of the
discovery it is required to produce. The government also has
gone beyond its discovery obligations. Apicelli does not ask
for specific materials or information to be produced, and a
blanket order is not appropriate or justified.
Conclusion
For the foregoing reasons, the defendant’s motion for a
view (document no. 64) and motion to dismiss or compel (document
no. 65) are denied.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
May 28, 2015
cc: Donald A. Feith, Esq.
Charles L. Rombeau, Esq.
Sven D. Wiberg, Esq.
United States Marshal
United States Probation
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