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United States v. Apicelli.

United States District Court, D. New Hampshire

June 4, 2015

United States of America
Peter Apicelli. Opinion No. 2015 DNH 112


JOSEPH DICLERICO, Jr., District Judge.

Peter Apicelli moves for reconsideration of the orders denying his motion to dismiss or quash and his motion to dismiss or compel discovery. See Order, May 27, 2015, document no. 69 and Order, May 28, 2015, document no. 70. In support, he argues that the court improperly failed to conduct evidentiary hearings, that his Sixth Amendment right to a speedy trial has been violated, that the government has not provided full discovery, that the government has violated the Fourth Amendment, and that he is the victim of selective prosecution. The government objects to the motion for reconsideration.


As has been explained in prior orders, reconsideration of an order is "an extraordinary remedy which should be used sparingly.'" Palmer v. Champion Mtg., 465 F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et al., 11 Federal Practice and Procedure ยง 2810.1 (2d ed. 1995)). For that reason, reconsideration is "appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust." United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009. Importantly, a motion for reconsideration cannot succeed when the moving party is attempting "to undo its own procedural failures" or "advanc[ing] arguments that could and should have been presented earlier." Id . A motion for reconsideration also is not "a mechanism to regurgitate old arguments previously considered and rejected." Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (internal quotation marks omitted).

A. Hearings

Apicelli faults the court for not holding evidentiary hearings on his motions to dismiss. He cites no authority in support of his assertion that he was entitled to an evidentiary hearing on a particular motion. To the contrary, "like other litigants, a criminal defendant has no absolute or presumptive right to insist that the district court take testimony on every motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990); accord United States v. Brown, 621 F.3d 48, 57 (1st Cir. 2010); United States v. Carmenatty, 2015 WL 404606, at *4 (D. Mass. Jan. 28, 2015) ("Criminal defendants are not entitled to evidentiary hearings as a matter of course."). Instead, a defendant seeking a hearing must "make a sufficient threshold showing that material facts [are] in doubt or dispute." Panitz, 907 F.2d at 1273.

By way of background, Apicelli requested an evidentiary hearing on his first motion to dismiss, document no. 24, and a hearing was held on March 26, 2015. In contrast, although Apicelli requested a hearing on his motion to dismiss based on the Speedy Trial Act, he did not request an evidentiary hearing or show that a hearing was necessary to resolve disputed material facts. The court concluded that a hearing was not necessary. Apicelli did not move to reconsider the order denying the motion without a hearing, and that issue cannot be raised now.

Apicelli did not request a hearing on his motion to suppress. Despite that omission, the court reviewed the record to determine whether a hearing should be held and concluded that grounds were lacking for a hearing. See Order, May 4, 2015, doc. No. 44 at 6-8. Therefore, the motion was decided without a hearing. On reconsideration, Apicelli acknowledged that he had not requested a hearing and stated his reasons for presuming a hearing would be held. In the order denying reconsideration, the court explained that no grounds had been presented initially or on reconsideration to support the need for a hearing. See, e.g., United States v. Cintron, 724 F.3d 32, 36 (1st Cir. 2013) ("A criminal defendant has no presumptive right to an evidentiary hearing on a motion to suppress.").

In his third motion to dismiss, which raised issues about discovery and disclosure, Apicelli stated "Hearing Requested" in the title of the motion but provided no showing that a hearing was necessary. The court denied the motion without a hearing because the evidence pertinent to the motion, the grand jury transcript and the email, had been submitted to the court and because Apicelli had not raised any grounds for granting a hearing. Similarly, the court denied Apicelli's fourth motion to dismiss without a hearing because Apicelli provided no grounds for a hearing.

Apicelli has not shown any basis for reconsideration based on the court's failure to hold evidentiary hearings on his third and fourth motions to dismiss.[1]

B. Speedy Trial

Apicelli contends that the court failed to conduct the appropriate analysis of his claim that delays in this case have violated his right to a speedy trial under the Sixth Amendment. In his fourth motion to dismiss, Apicelli focused on violation of the Speedy Trial Act, and the court addressed that argument. Apicelli raised the Sixth Amendment right to speedy trial in paragraph 7 but provided no developed argument as to how the circumstances of his case have violated that right. Although the court is not obligated to address an argument that was not properly developed, see Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010); Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999), Apicelli's Sixth Amendment right to a speedy trial is analyzed as follows.

Under Barker v. Wingo, 407 U.S. 514, 530-33 (1972), courts are to assess a claim of violation of the Sixth Amendment right to a speedy trial by weighing four factors. United States v. Carpenter, 781 F.3d 599, 608 (1st Cir. 2015). Those factors are: "the length of the delay, the reason for the delay, the defendant's assertion of the right to a speedy trial, and whether the defendant has been prejudiced by the delay." Id.

"The constitutional right to a speedy trial attaches upon arrest or indictment, whichever occurs first." United States v. Worthy, 772 F.3d 42, 48 (1st Cir. 2014). When a defendant is first arrested on state charges, however, the Sixth Amendment right does not attach until indictment. United States v. Kelley, 661 F.3d 682, 689 (1st Cir. 2011). Delay that exceeds one year is ...

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