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United States v. Apicelli.

United States District Court, D. New Hampshire

July 17, 2015

United States of America,
v.
Peter Apicelli. No. 2015 DNH 139

ORDER

JOSEPH DiCLERICO, Jr., District Judge.

Peter Apicelli again moves to dismiss the charge against him of manufacturing marijuana or, alternatively, to preclude the government from using at trial any of the videotape evidence taken by a surveillance camera on his property. The current motion arises from the government's disclosure, just before trial was scheduled to begin, of four compact discs of additional videotape footage. The government objects to the motion.

The video footage taken by a surveillance camera on Apicelli's property has been addressed repeatedly in prior orders.[1] The footage that is the subject of the current motion was discussed at a hearing held on June 8, 2015, and in the order issued on June 16, 2015. That footage is the result of weather or animals that triggered the motion detector on the surveillance camera. Because this footage was not triggered by suspicious activity, it is referred to as the "false trigger" footage.[2]

A. Hearing

Apicelli requests a hearing on his motion. He cites no authority to support his request. As the court has explained previously, Apicelli has no right to a hearing on a motion to suppress or on a motion to dismiss. United States v. Cintron, 724 F.3d 32, 36 (1st Cir. 2013); United States v. Brown, 621 F.3d 48, 57 (1st Cir. 2010); United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990). Instead, the burden is on Apicelli to "show that there are factual disputes which, if resolved in his favor, would entitle him to the requested relief." Cintron, 724 F.3d at 36 (internal quotation marks omitted); Panitz, 907 F.2d at 1273.

There appears to be no dispute about what the false trigger videos show: a wooded area of Apicelli's property near the apple orchard where marijuana was growing. Apicelli argues that the false trigger videos support his argument that the videotape images from the surveillance camera are of low quality. He contends that the poor quality of the images requires that all of the video footage should be excluded from trial. The court has reviewed the recently-produced compact discs. Apicelli has not identified any factual issue that should or even could be addressed by a hearing.

Therefore, because Apicelli has not carried his burden of showing a hearing is necessary, no hearing will be held on his motion.

B. Discovery

Apicelli asserts that the charge against him must be dismissed or all video evidence must be suppressed due to "the Government's continued failure to honor his constitutional rights to prompt and full discovery (including all potentially exculpatory or impeaching material) which failure also violated his statutory and constitutional rights to speedy trial and due process."[3] As the court's prior orders state, the government is and has been aware of its discovery obligations and has provided all of the discovery it was required to produce and some that it was not required to produce.[4] Therefore, because the government has not violated its discovery obligations, no grounds exist to impose sanctions. See Fed. R. Crim. P. 16(d)(2).

Even if the government had engaged in discovery abuses, the imposition of sanctions depends on the seriousness of the abuse and whether the defendant was prejudiced. United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996); see also United States v. Jones, 620 F.Supp.2d 163, 170-79 (D. Mass. 2009). Further, the "drastic remedy of dismissal" is not available when discovery problems can be addressed by other means that mitigate any prejudice to the defendant. United States v. Soto-Beniquez, 356 F.3d 1, 30-31 (1st Cir. 2004); see also United States v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007).

Apicelli has had ample opportunity to review the four compact discs of videotapes and to develop any defenses that evidence might support. Therefore, the government's decision to produce four compact discs of videotaped just before trial, which has been continued, is not grounds to dismiss the charge or to suppress other videotape evidence.

C. Speedy Trial

Apicelli again argues that his right to a speedy trial under the Speedy Trial Act and the Sixth Amendment has been violated. He is mistaken. The issue of speedy trial was addressed by the court in the orders issued on April 17, 2015, and June 4, 2015. Subsequent continuances were granted to serve the ends of justice, and Apicelli has not shown that the delay has prejudiced his defense. See United States v. Tinklenberg, 131 S.Ct. 2007, 1010 (2011; United States v. Carpenter, ...


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