United States District Court, D. New Hampshire
JOSEPH DiCLERICO, Jr., District Judge.
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.
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 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 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." 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.
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.
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 ...