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.
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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.
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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.
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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
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