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United States v. Apicelli

United States District Court, D. New Hampshire

May 27, 2015

United States of America
Peter Apicelli Opinion No. 2015 DNH 108


JOSEPH DICLERICO, Jr., District Judge.

Peter Apicelli moves to dismiss the indictment against him, asserting that prosecutorial misconduct resulted in "material misrepresentations, omissions, and falsehoods" in the evidence presented to the grand jury. Apicelli also argues that the charge against him should be dismissed because the government has not complied with its discovery obligations and that evidence seized from his home should be suppressed because grand jury testimony contradicts the affidavit submitted in support of the search warrant application. The government objects to the motion.


Additional background information is provided in the order denying Apicelli's motion to suppress, document no. 44, and will not be repeated fully here.

The indictment charges Apicelli with manufacturing marijuana in violation of 21 U.S.C. ยง 841(a)(1). In 2013, the Campton police received a tip from a "concerned citizen, " who was identified as Robert Bain, that marijuana might be growing on Apicelli's property. On September 5, 2013, Sergeant Patrick Payer of the Campton police department, members of the New Hampshire Drug Task Force, and Bain (the concerned citizen) then walked over Apicelli's property looking for marijuana plants. When they found marijuana plants growing in a wooded area on the property, they installed a surveillance camera. Videotape recordings from the camera showed a man, who was identified as Apicelli, tending the plants.

Payer applied for and was granted a warrant to search Apicelli's house. In the course of the search, marijuana and other related items were 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 provide discovery. Prior to the hearing on Apicelli's motion, the court directed counsel to meet and confer to resolve or narrow the discovery issues and to be prepared at the hearing to document discovery requests and discovery provided. At the hearing, Apicelli presented three items of outstanding discovery, which were resolved. The court found 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 of any kind.

Apicelli then moved to dismiss the charge against him, arguing 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. He argued that the warrant was invalid because the investigation was the result of trespassing on his property and because Payer's affidavit in support of the warrant application was selective and deceptive. He also sought to suppress Bain's identification of him.

In the order denying the motion to suppress, the court explained that Apicelli did not request a hearing and that grounds did not exist to grant a hearing. The court concluded that Bain was not acting as a police agent when he walked on Apicelli's property and provided the tip to the police, that no illegal search in violation of the Fourth Amendment had occurred, that the affidavit provided with the warrant application was based on the investigation, not on Bain's tip, so that additional information about Bain was not material, and that Bain's identification of Apicelli in the video footage did not violate due process.

Apicelli moved for reconsideration of that order. The court set a shortened response time because of the proximity of trial, which was scheduled to begin on May 19, 2015. The motion for reconsideration was denied on May 14, 2015.

The day before trial, Apicelli moved to dismiss the indictment based on the government's disclosure of Payer's grand jury testimony and an email from Payer to the Assistant United States Attorney who was handling the case at that time. The court held a telephone conference about scheduling issues caused by the motion to dismiss. 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 jury will be drawn on June 2 and opening statements and evidence will begin on June 8, 2015.


Apicelli asserts that the government delayed disclosure of Payer's grand jury testimony and Payer's email in violation of its discovery obligations. He also asserts Payer's testimony included material misrepresentations, omissions, and falsehoods, which constitute prosecutorial misconduct requiring dismissal of the indictment. Alternatively, Apicelli contends that Payer's grand jury ...

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