U.S. v. Apicelli

                   UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE



United States of America

   v.                                 Criminal No. 14-cr-012-01-JD
                                      Opinion No. 

Peter Apicelli



                               O R D E R


    Peter Apicelli was found guilty of manufacturing marijuana

in violation of 

(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 ---, 

, 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.   

    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, 

 (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.




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    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



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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


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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, 

 (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, 

 (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 ---, 

, at *3 (1st Cir. July 13, 2015).    As is explained below,

that is not the case here.




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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., 

(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, 

 (7th Cir. 1997); see also United

States v. Barajas, 

, 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, 

 (4th Cir. 2014); United

States v. Aguilera, 

 (8th Cir. 2010) (citing

cases); see also United States United States v. Harris, 

 (N.D. Ohio 2014); United States v. Mzese, 

, at *3, n.4 (D. Md. June 19, 2014); United States v.



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Ward, 

, 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); 

(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.




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    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



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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




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