United States District Court, D. New Hampshire
Sven D. Wiberg, Esq., Charles L. Rombeau, Esq., Donald A. Feith, Esq. United States Marshal United States Probation
Joseph DiClerico, Jr. United States District Judge
Peter Apicelli was convicted of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). He has moved under 18 U.S.C. § 3143(b) for continued release pending appeal. The government objects to the motion on the ground that Apicelli cannot show a substantial question of law or fact as required by § 3143(b). The court denied the motion at the end of the hearing but stayed the order to surrender, pending appeal of the order denying the motion. The background and reasoning for denying the motion for continued release is provided as follows.
Standard of Review
After conviction and sentencing, detention of a defendant pending appeal is mandatory unless he qualifies for the exception provided by § 3143(b). United States v. Colon-Munoz, 292 F.3d 18, 20 (1st Cir. 2002). To meet the requirements of § 3143(b), a defendant must show that he is not likely to flee, that he is not dangerous, that the appeal is not for the purpose of delay, and that the appeal “raises a substantial question of law or fact likely to result in - (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less that the total of the time already served plus the expected duration of the appeal process.” § 3143(b)(1).
The background information is taken from the court’s prior orders that summarize the circumstances leading to Peter Apicelli’s arrest, from the subsequent procedural history of the case, and from the evidence presented at trial.
Apicelli rented property at 201 Mason Road, Campton, New Hampshire, from Rene Dubois, beginning in May of 2012. He did not move out until October of 2013. The property had wooded parts, open areas, a tree farm, an apple orchard, and a house. Apicelli was the only person renting the property between May of 2012 and October of 2013.
In early September of 2013, the Campton police received a tip from Robert Bain, identified as a concerned citizen, that there might be marijuana growing on the property at 201 Mason Road. In response to the tip, Sergeant Patrick Payer of the Campton Police Department contacted Sergeant Nick Blodgett of the New Hampshire Drug Task Force. Blodgett contacted Detective Piche of the New Hampshire State Police. On September 5, 2013, Payer, Blodgett, Piche, and Bain went to the property to look for marijuana plants. They found a patch of twenty to twenty-five marijuana plants growing just inside a wooded area, next to a more open area. The plants were growing about 200 yards from the house.
Payer learned that Rene Dubois owned the property and that it was rented to Apicelli. Payer also saw two vehicles at the property and determined that they were registered to Apicelli. He then looked up information about Apicelli and found a photograph of him. Detective Eric James of the Grafton County Sheriff’s Department was contacted to set up a surveillance video camera to record the area where the marijuana was growing.
On September 6, Payer, James, and Blogett went back to the property and installed a motion activated video camera. Over the next ten days, the officers checked the video footage in the camera, but they did not see video footage of a person tending the plants until they checked the camera on September 16. That day they found video footage that had been taken on September 14 showing a man with dark hair, wearing khaki shorts and a hat, tending the plants. In one segment, the man was also wearing a red backpack, while tending the plants.
Based on the results of the investigation, Payer applied for and was granted a search warrant for Apicelli’s home at 201 Mason Road on September 17, 2013. Payer, James, Blodgett, and other officers executed the search warrant the same day. Once inside the house, Payer noticed the smell of marijuana. In the course of the search of the house, the officers found, took pictures of, and seized as evidence a red back pack, khaki shorts, a piece of mail with Apicelli’s name on it and addressed to a post office box in Campton, a grow light, marijuana plants, packaged marijuana, scales, potting soil, plastic bags, and a book titled Marijuana Grower’s Insider’s Guide. They also seized the marijuana plants that were growing outside on the property.
Criminalist Shane Zeman from the New Hampshire State Police Crime Laboratory collected samples of the plants seized from Apicelli’s property. He tested the samples in the lab. Zeman’s testing found that the plant samples were consistent with marijuana.
Apicelli originally was arrested by state authorities, but the case was referred to the United States Attorney’s office in New Hampshire in December of 2013. The indictment against Apicelli was filed on January 22, 2014. Apicelli’s initial appearance in federal court was on February 28, 2014. During the next year, the trial was continued several times at Apicelli’s request (document nos. 9, 12, 15, 19, and 22).
In February of 2015, Apicelli moved to dismiss the indictment or, in the alternative, to compel the government to provide discovery, and the trial was continued again (document no. 25) in the interest of justice to allow time for adequate preparation and consideration of Apicelli’s motion to dismiss. At the hearing on the motion to dismiss, Apicelli sought three items of outstanding discovery, which were discussed and 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 (document no. 32).
Once again, Apicelli moved to dismiss, arguing a violation of the Speedy Trial Act, and sought another continuance. A hearing was held on the motion for a continuance, and defense counsel represented that a continuance was needed to accommodate his scheduling conflicts and to allow him time to file a motion to suppress. The government was prepared to try the case.
Trial was continued in the interest of justice to allow defense counsel time to effectively prepare the defense (document no. 38). The court denied the motion to dismiss, finding that no violation of the Speedy Trial Act had occurred (document no. 40). Trial was scheduled to begin on May 19, 2015.
Appicelli moved to suppress the evidence taken in the search of his house but did not request a hearing. He argued that the warrant was invalid because the investigation and discovery of marijuana plants were 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 as the person shown in the videotape footage tending marijuana plants.
In the order denying the motion to suppress (document no. 44), the court noted that Apicelli had not requested a hearing but, nevertheless, considered the applicable standard and found that grounds did not exist to hold a hearing on the motion. 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. The court found that the search of Apicelli’s property and home did not violate the Fourth Amendment, that the affidavit provided in support of the warrant application was based on the investigation, not on Bain’s tip, making information about Bain’s motive or ill will immaterial, and that Bain’s identification of Apicelli in the video footage did not violate due process. Apicelli moved for reconsideration of that order, which was denied on May 14, 2015 (document no. 54).
The day before trial was to begin, Apicelli moved to dismiss the indictment based on the government’s recent disclosure 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. He argued that the government had failed to comply with discovery obligations and that the government had engaged in misconduct. He also argued that the evidence taken during the search of his home and property should be suppressed because of alleged inconsistencies between Payer’s affidavit supporting the search warrant and his grand jury testimony.
With the assent of counsel, the trial was continued to allow time for consideration of the motion to dismiss and for certain additional filings (document no. 60). The motion to dismiss and to reconsider the order denying his motion to suppress was denied on May 27, 2015, (document no. 69).
In the meantime, Apicelli filed a fourth motion to dismiss again alleging discovery abuses by the government and violation of the Speedy Trial Act. He also sought an order to compel the government to provide additional information about police dispatch recordings and Bain’s involvement with the police. The court denied the motion (document no. 70).
The court granted the government’s motion to preclude defense counsel from making jury nullification arguments and from encouraging the jury to use nullification to acquit Apicelli (document no. 66). Apicelli’s motion for a jury view was denied (document no. 70).
Apicelli moved for reconsideration of the orders (documents 69 and 70) denying his motion to dismiss and his motion to dismiss or compel discovery. In support, Apicelli argued that the court improperly failed to hold evidentiary hearings on his motions, that his Sixth Amendment right to a speedy trial had been violated, that the government had not provided full discovery, that the government had violated the Fourth Amendment, and that he had been the victim of selective prosecution.
In denying the motion (document no. 73), the court explained that Apicelli had failed to show that a hearing was necessary because of disputed material facts. The court held that Apicelli had never developed an argument based on the Sixth Amendment right to a speedy trial but that no violation had occurred, that he had not shown that the government failed to provide discovery, and that he provided no developed argument to show a Fourth Amendment violation. The issue of selective prosecution was raised for the first time in the motion for reconsideration, making it an unavailable ground for reconsideration. The court also found the theory meritless.
The jury was drawn as scheduled on June 2 but was not sworn. Opening statements and evidence were scheduled to begin on June 8. On Sunday, June 7, Apicelli moved to dismiss or to compel after the government sent defense counsel four compact disks of the “false trigger” video footage on Saturday, June 6. Apicelli charged 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 and that he could not begin the trial without having an opportunity to review the footage with Apicelli and to evaluate the videos to determine whether and how they might affect the defense. The AUSA characterized the footage as videos of nothing and videos of rain falling on leaves with no evidentiary value.
The trial was continued to allow adequate time for defense counsel to evaluate the video footage and was rescheduled for July. The motion to compel the government to produce police dispatch communications was denied (document no. 75). The motion to dismiss was denied because Apicelli showed no grounds for sanctions based on the late production of the additional video footage and because any issue about dispatch recordings had been resolved (document no. 77).
On July 2, 2015, Apicelli again moved to dismiss the charge against him or, in the alternative, to preclude the government from using the videotape evidence against him at trial on the ground that the videotapes were not timely or fully disclosed. He also moved to dismiss on the ground that his right to a speedy trial had been violated. Because Apicelli failed to show any grounds for a hearing, his request for a hearing was denied. The court denied the motion to dismiss, reiterating that the government had met its discovery obligations and no grounds had been shown for sanctions and explaining, again, that his right to a speedy trial had not been violated (document no. 84). Apicelli’s motion for reconsideration was denied.
A second jury was drawn on July 21. Apicelli moved, in limine, to preclude evidence of distribution and intent to distribute marijuana, invoking Federal Rules of Evidence 403 and 404(b). He also asked that the government be required to instruct its witnesses not to testify about any evidence of distribution of marijuana. The court denied the motion, concluding that the challenged evidence of distribution, such as bags, baggies, and scales, was intrinsic evidence of manufacturing marijuana under 21 U.S.C. §§ 802(15) and 802(22) and was not excludable under Rule 404(b) or Rule 403 (document no. 89). Although the evidence was not excluded, the court instructed the government to “carefully instruct its witnesses not to testify about the distribution or sale of marijuana and not to testify about any conjecture on those matters.”
The case was tried on July 28, 29, and 30, 2015. The government called Rene Dubois, Sergeant Payer, Sergeant Blodgett, Detective James, and Criminalist Zeman as witnesses. The jury returned a verdict of guilty on July 30.
Apicelli moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 (document no. 98). In support, he argued that there was insufficient evidence to identify him as the person who manufactured marijuana in light of his theories of innocence, that the government introduced and relied on improper and inadmissible evidence, and that the jury’s short deliberation undermined the verdict. The court denied the motion (document no. 100), concluding that evidentiary challenges could not be raised in a Rule 29 motion, that the government had no obligation to refute Apicelli’s theories of innocence, that the substantial circumstantial evidence linking Apicelli to the marijuana manufacturing operation was more than sufficient, and that the brief jury deliberations provided no basis for a judgment of acquittal.
Apicelli was sentenced on November 17, 2015, to imprisonment for twelve months and one day with two years of supervised release. He was ordered to surrender to the institution designated by the Bureau of Prisons before 2:00 p.m. on January 8, 2016. Apicelli filed a notice of appeal on November 17, 2015.
On December 30, 2015, a hearing was held on his motion for release pending appeal. After counsel for Apicelli and the Assistant United States Attorney presented argument on the motion, the court denied the motion but stayed the order to surrender pending appeal of the order.
Apicelli moved pursuant to § 3143(b) to stay the order to surrender and to continue his release pending appeal. The government objected, contending that Apicelli had not met the requirement of § 3143(b)(1) that his appeal “raises a substantial question of law or fact likely to result in - (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less that the total of the time already served plus the expected duration of the appeal process.” The government did not contest Apicelli’s showing that he is not likely to flee, that he is not dangerous, and that the appeal was not filed for the purpose of delay.
A. Flight, Dangerousness, Delay, and Duration of Sentence
Apicelli has shown that he is not likely to flee, that he is not dangerous, and that the appeal is not for the purpose of delay. At the hearing, counsel agreed that those factors were satisfied. Therefore, the only issue is whether his appeal raises a substantial question of law or fact that is likely to result in overturning his conviction, no sentence, or a sentence that would be less than the time served plus the duration of the appeal.
Because he was sentenced after the motion for release was filed, Apicelli did not address sentencing issues. At the hearing, counsel argued that as a matter of equity, Apicelli should be not be incarcerated pending appeal because his sentence may be served before the decision on appeal is issued.
Apicelli was sentenced to twelve months plus one day of imprisonment. The court cannot predict whether the sentence will have been served before the appeal is resolved but concedes that is a possibility. Nevertheless, because Apicelli did not show a substantial question of law or fact for appeal, that issue need not be resolved.
B. Substantial Questions of Law or Fact
For purposes of a motion pursuant to § 3143(b)(1), the standard of a substantial question that is likely to result in reversal, a new trial, a reduced sentence, or no imprisonment is to be applied flexibly so that “a question that can be regarded as ‘close’ will often suffice.” Colon-Munoz, 292 F.3d at 20 (quoting United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985)). In Bayko, the First Circuit adopted the interpretation of “substantial question” used in other circuits to mean “‘a close question or one that very well could be decided the other way.’” Bayko, 774 F.2d at 523 (quoting United States v. Giancola, 754 F.2d 818, 901 (11th Cir. 1985)). To the extent a defendant relies on new issues to support a § 3143(b)(1) motion, he must show that a new issue is either plain error or “‘so compelling as virtually to insure appellant’s success.’” United States v. Curley, 2015 WL 1539619, at *9 (D. Me. Apr. 6, 2015) (quoting Bayko, 774 F.2d at 518.)
The twelve issues that Apicelli raises to show substantial questions of law or fact are listed on pages two and three of his four-page motion. He provides little or no explanation of what errors those issues are intended to raise. In its objection, the government addresses each issue and contends that none raises a substantial question.
At the hearing, defense counsel argued that this was an unusual case because it was transferred from the state to the United States Attorney for prosecution and that all twelve issues raised in his motion, along with several others raised or alluded to for the first time during the hearing, were substantial questions under § 3143(b)(1), but provided additional argument on only a few of the issues. Counsel also raised some new issues that were not included in the motion and alluded to other possible issues that might be raised on appeal.
1. Motion to Suppress
The first issue Apicelli raises in the motion is stated as “Denial of suppression or even the opportunity for an evidentiary hearing.” Apicelli apparently intends to argue that the court erred in denying his motion to suppress and erred in not holding a hearing on the motion but he provided no further analysis of what error occurred or why he was entitled to an evidentiary hearing. At the hearing on the motion for continued release, defense counsel argued that ...