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United States v. Apicelli

United States District Court, D. New Hampshire

May 28, 2015

United States of America
Peter Apicelli Opinion No. 2015 DNH 109


JOSEPH DICLERICO, Jr., District Judge.

Peter Apicelli is charged with one count of manufacturing marijuana in violation of 21 U.S.C. ยง 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.Appx. 338, 345 (6th Cir. 2014); United States v. Stuker, 545 F.Appx. 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 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 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 ...

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