United States v. Apicelli

United States Court of Appeals
For the First Circuit
No. 15-2400
UNITED STATES OF AMERICA,
Appellee,
v.
PETER APICELLI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Selya, and Thompson,
Circuit Judges.
Sven D. Wiberg, with whom Wiberg Law Office, PLLC was on
brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.
October 7, 2016
TORRUELLA, Circuit Judge. Peter Apicelli was convicted
of one count of manufacturing marijuana in violation of 21 U.S.C.
§ 841(a)(1) following a jury trial in the United States District
Court for the District of New Hampshire. On appeal, Apicelli
argues that the Government presented insufficient evidence to
prove that the marijuana found by the police belonged to him and
raises several procedural challenges. Unpersuaded by his
arguments, we affirm.
I. Background
In September 2013, New Hampshire law enforcement
officials received information from a Campton town employee named
Robert Bain about a potential marijuana grow near Chandler Hill
Road and Mason Road. On September 5, state police officers met
with Bain near Chandler Hill Road to locate the marijuana plants.
The area by Chandler Hill Road and Mason Road was heavily wooded.
The officers searched the woods for about an hour before finding
two clusters of marijuana plants growing at the edge of the wooded
area -- about 200-300 meters from the residence at 201 Mason Road.
The next day, the officers went back to the grow site and set up
a motion-activated video camera. On September 16, the officers
checked the camera and viewed footage showing an individual with
a red backpack and tan shorts tending the marijuana plants.
Through further investigation, the officers concluded that
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Apicelli was renting the 201 Mason Road residence and that two
cars parked in front were registered in Apicelli's name.
Based on this evidence, the officers obtained a warrant
to search the house at 201 Mason Road and arrest Apicelli. On
September 17, the officers executed the search warrant. Inside
the residence, the officers found additional marijuana plants,
marijuana drying, and packaged marijuana as well as a red backpack
and tan shorts. Apicelli was not present during the search or
arrested.
Apicelli was subsequently charged with and convicted of
one count of manufacturing marijuana in violation of 21 U.S.C.
§ 841(a)(1) and sentenced to 12 months and one day of imprisonment.
II. Sufficiency of the Evidence
On appeal, Apicelli argues that the evidence the
Government presented at his trial was insufficient to prove either
that the marijuana found growing in the woods near the 201 Mason
Road property or inside the house belonged to him. "We review
challenges to the sufficiency of the evidence de novo, 'considering
all the evidence, direct and circumstantial, in the light most
favorable to the prosecution, drawing all reasonable inferences
consistent with the verdict, and avoiding credibility judgments,
to determine whether a rational jury could have found the
defendant[] guilty beyond a reasonable doubt.'" United States v.
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Negrón-Sostre, 790 F.3d 295, 307 (1st Cir. 2015) (quoting United
States v. Agosto-Vega, 617 F.3d 541, 548 (1st Cir. 2010)).
Given that no marijuana was ever found on Apicelli's
person, the Government relied upon the doctrine of constructive
possession to link Apicelli to the marijuana found at 201 Mason
Road. "Constructive possession exists when a person knowingly has
the power and intention at a given time to exercise dominion and
control over an object either directly or through others." United
States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007)
(quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir.
2005)). Nothing prohibits the government from "rely[ing] entirely
on circumstantial evidence to show constructive possession." Id.
We conclude that the Government's circumstantial
evidence was strong enough for a rational jury to conclude beyond
a reasonable doubt that the marijuana found in the wooded area and
inside the 201 Mason Road residence belonged to Apicelli. First,
the Government's evidence led to the reasonable inference that
Apicelli lived at 201 Mason Road. In addition to the cars
registered in Apicelli's name observed during the officers'
surveillance, the search revealed mail addressed to Apicelli and
a debit card bearing Apicelli's name.
Second, the record also supports the reasonable
inference that Apicelli was the only person who lived at 201 Mason
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Road. The officers did not see any cars parked in front of 201
Mason Road during their investigation besides the two registered
to Apicelli. Apicelli's landlord, Rene Dubois, testified that the
lease required Apicelli to notify him if any other person lived at
the residence for an extended period of time and he received no
such notice. Finally, one of the investigating officers, Sergeant
Patrick Payer testified that only one person appeared to live in
the house. Although Payer acknowledged the residence had two
bedrooms, he stated the second bedroom appeared to belong to a
child and "did not look lived in." Based on this evidence, a
rational jury could infer that Apicelli was the only person who
lived at 201 Mason Road at the time the officers found the
marijuana plants and therefore the plants belonged to him.
Finally, the Government presented evidence linking
whoever lived at 201 Mason Road to the marijuana grow at the edge
of the woods. In addition to the plants' proximity to the
property, the officers found a red backpack and tan shorts like
those seen on the surveillance footage inside 201 Mason Road.
Notably, the tan shorts were found in the only bedroom in the
residence that appeared to belong to an adult. Putting two and
two together, a rational jury could conclude that because the
clothing seen on the footage was found inside 201 Mason Road and
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Apicelli was the home's only resident, Apicelli was the person
seen on the surveillance footage.
Apicelli takes issue with the fact that none of the
Government's witnesses identified him as the individual in the
surveillance video tending to the plants. Without a positive
identification, Apicelli argues that the Government's evidence
that he lived at 201 Mason Road is insufficient because someone
else could have lived there during the relevant time frame. As
stated above, however, a rational fact finder could conclude that
Apicelli was the only resident at 201 Mason Road during the
relevant time frame. Moreover, we do not "demand that the
government disprove every hypothesis consistent with the
defendant's innocence." United States v. Spinney, 65 F.3d 231,
234 (1st Cir. 1995). Apicelli's argument that the Government
failed to completely rule out the possibility that the marijuana
belonged to an unnamed visitor to 201 Mason Road turns sufficiency
review on its head. "[W]hen this Court reviews a jury verdict for
sufficiency of evidence, 'it matters not whether [the defendant]
can raise a plausible theory of innocence: if the record as a whole
justifies a judgment of conviction, it need not rule out other
hypotheses more congenial to a finding of innocence.'" United
States v. Valerio, 676 F.3d 237, 245 (1st Cir. 2012) (quoting
United States v. Manor, 633 F.3d 11, 14 (1st Cir. 2011)). The
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record supports the conclusion that the marijuana belonged to
Apicelli; thus our inquiry ends.
III. Suppression Rulings
We now turn to Apicelli's various procedural claims,
starting with his argument that the district court committed error
by denying his suppression motion without an evidentiary hearing.
Before the district court, Apicelli claimed that Sergeant Patrick
Payer intentionally or recklessly included material
misrepresentations and omitted material information from his
search warrant affidavit. All of Apicelli's arguments related to
information concerning Bain, the road agent who had alerted the
police to the marijuana grow, and his credibility.
In his affidavit, Payer recounted that he had received
a tip about a marijuana grow, visited the area, found marijuana
plants, and set up a motion-activated video camera to watch the
grow. Payer also stated that he believed Apicelli was renting the
house at 201 Mason Road, that he had identified two cars registered
to Apicelli at the house, and that Apicelli fit the profile of the
person seen tending the plants on the surveillance video -- a man
with dark hair between the ages of twenty-five and thirty.
Additionally, Payer stated that he asked someone to review the
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surveillance footage and that the person subsequently identified
Apicelli as the man tending the plants.1
Apicelli argued in his motion to suppress that Bain's
initial tip to the police as well as his subsequent identification
of Apicelli on the surveillance video were not credible because
Bain had motive to lie due to a personal dispute. According to
Apicelli, he had caught Bain entering the wooded area near 201
Mason Road to hunt and told Bain that he was trespassing.
Apicelli's landlord, Rene Dubois, subsequently prepared a "Land
Use Conditions" document prohibiting Bain from entering the wooded
area without permission. Apicelli claimed that Payer
misrepresented Bain as merely a "concerned citizen" who was friends
with Dubois and that Bain's motive to retaliate against Apicelli
was a material omission. Apicelli also argued that the affidavit
should have mentioned that Bain, as a road agent, was a town
employee, and had previously worked with the police on other cases.
Finally, Apicelli contended that Bain's identification was not
credible because the video was too low-resolution for anyone to
tell who was on camera.
1 In the version of Sergeant Payer's affidavit made publicly
available, the name of the person asked to review the tape was
redacted, but discovery subsequently revealed that this person was
Bain.
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In order to be entitled to an evidentiary hearing, a
defendant must make a substantial preliminary showing that a false
statement (or omission) was (1) "knowingly and intentionally, or
with reckless disregard for the truth . . . included by the affiant
in the warrant affidavit," and (2) "necessary to the finding of
probable cause." Franks v. Delaware, 438 U.S. 154, 155-56 (1978);
see also United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.
1990). The district court rejected Apicelli's arguments on this
second prong, concluding that Bain's tip and identification were
not the sole basis for finding probable cause. "A district court's
finding that the requisite showing for a Franks hearing has not
been made will be overturned only if it is clearly erroneous."
United States v. Cartagena, 593 F.3d 104, 112 (1st Cir. 2010).
Simply put, the information concerning Bain was not
necessary to the finding of probable cause, thus rendering any
issues with his credibility moot. As stated in Payer's affidavit,
he and the other officers found a marijuana grow near 201 Mason
Road.2 Independent of Bain's identification, the police linked
2 In his reply brief, Apicelli also alludes to the search of the
wooded area as falling outside the open fields exception to the
Fourth Amendment. See Florida v. Jardines, 133 S. Ct. 1409, 1414
(2013). "We have held, with a regularity bordering on the
monotonous, that issues advanced for the first time in an
appellant's reply brief are deemed waived." United States v.
Parigian, 824 F.3d 5, 13 (1st Cir. 2016) (quoting Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000)). We
also express doubt that an unenclosed wooded area 200-300 yards
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Apicelli to the 201 Mason Road residence through their own
investigation. Apicelli's rental of 201 Mason Road, Apicelli's
two cars parked in front of the residence, and Payer's statement
that Apicelli fit the profile of the person seen on the
surveillance video would allow a reasonable magistrate to conclude
that there was a "fair probability that contraband or evidence of
a crime [would] be found in" the residence at 201 Mason Road.
United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012) (quoting
United States v. Hicks, 575 F.3d 130, 136 (1st Cir. 2009)).3 We
therefore affirm the district court's denial of Apicelli's motion
to suppress.
away from the house at 201 Mason Road would be considered
curtilage. See United States v. Brown, 510 F.3d 57, 65 (1st Cir.
2007) (listing "[1] the proximity of the area claimed to be
curtilage to the home, [2] whether the area is included within an
enclosure surrounding the home, [3] the nature of the uses to which
the area is put, and [4] the steps taken by the resident to protect
the area from observation by people passing by" as factors in
determining whether a location falls within a home's curtilage
(alterations in original) (quoting United States v. Diehl, 276
F.3d 32, 38 (1st Cir. 2002)).
3 Apicelli attempts to refute this conclusion by citing our case
law requiring warrant affidavits to include information allowing
magistrates to assess the credibility of confidential informants.
See, e.g., United States v. Greenburg, 410 F.3d 63, 66-67 (1st
Cir. 2005). Apicelli's reliance on these cases, however, is
misplaced given that Bain was not unnamed in the affidavit as
presented to the magistrate.
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IV. Speedy Trial
Apicelli next contends that the Government violated his
right to a speedy trial under the Speedy Trial Act ("STA"), 18
U.S.C. §§ 3161-74, and the Sixth Amendment. Neither of these
claims have merit.
A. Speedy Trial Act
"The STA requires that a defendant be tried within
seventy days of the later of the indictment or initial appearance."
United States v. Ibrahim, 814 F.3d 30, 32 (1st Cir. 2016) (citing
18 U.S.C. § 3161(c)(1)). "If a criminal defendant is not brought
to trial within the seventy-day time limit . . . the penalty
provisions of the STA mandate that 'the information or indictment
shall be dismissed on motion of the defendant.'" United States
v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir. 1997) (quoting
18 U.S.C. § 3162(a)(2)). In calculating the seventy-day period,
certain delays are excluded, including delays caused by
continuances when the district court judge determines that "the
ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial." 18
U.S.C. § 3161(h)(7)(A). We review STA claims "de novo as to legal
rulings, and for clear error as to factual findings." Ibrahim,
814 F.3d at 32 (quoting United States v. Carpenter, 781 F.3d 599,
616 (1st Cir. 2015)). "Overall, however, we review for abuse of
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discretion decisions to exclude intervals of time from the STA
count," United States v. Souza, 749 F.3d 74, 79 (1st Cir. 2014),
including "ends of justice" determinations, United States v.
González-Martínez, 825 F.3d 51, 57 (1st Cir. 2016).
Apicelli's STA clock began running on March 1, 2014, the
day after his arraignment. The parties do not dispute that forty-
six countable days elapsed between this date and April 16, 2014,
when Apicelli first moved to continue trial for sixty days.
Apicelli does not contest that the period from April 16, 2014 to
February 12, 2015 was all excludable time due to various
continuance motions relating to plea negotiations and his
counsel's schedule.
Apicelli and the Government diverge as to whether the
STA clock continued to stand still during the following two periods
in which the district court granted ends-of-justice continuances:
February 12, 2015 to March 25, 2015, and June 8, 20154 to July 21,
2015. Counting either period would push Apicelli's STA clock to
nearly ninety days, after accounting for the uncontested forty-
six days that had previously elapsed.5 The district court issued
4 Apicelli lists June 2, 2015 as the start date of nonexcludable
time. This date corresponds with the parties' jury selection.
Apicelli does not explain in his brief how this date fits with his
claim that the district court's ends-of-justice continuance
entered on June 8 was improper.
5 Forty-two days elapsed between February 12, 2015 and March 25,
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the continuances in response to motions Apicelli filed on
February 7, 2015 and June 7, 2015.
Normally, a court may issue an ends-of-justice
continuance "at the request of the defendant or his counsel." 18
U.S.C. § 3161(h)(7)(A). Apicelli, however, contends that his case
fits into the exception we described in United States v. Hastings,
847 F.2d 920 (1st Cir. 1988). In Hastings, we acknowledged that
"[a] defendant denied automatic discovery . . . would be placed
snugly between a rock and a hard place: he could either forgo
discovery to which he was entitled or he could file a motion to
obtain it, thus stopping the speedy trial clock and easing the
pressure on the government to bring him to trial." 847 F.2d at
923. Apicelli seizes upon this language and argues that the
Government withheld discovery to which he was entitled and
2015. Forty-four days elapsed between June 8, 2015 and July 21,
2015. Apicelli also argues that ends-of-justice continuances are
only excludable if they are thirty days or less. This is
incorrect. Apicelli appears to be referring to the STA requirement
that a district court decide a motion submitted on its papers
within thirty days of the last submission. See 18 U.S.C.
§ 3161(h)(1)(H); Henderson v. United States, 476 U.S. 321, 329-30
(1986). We have not read a specific deadline into ends-of-justice
continuances. Instead, the district court must "set[] forth, in
the record of the case, either orally or in writing, its reasons
for finding that the ends of justice [are] served." 18 U.S.C.
§ 3161(h)(7)(A).
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therefore the time needed to resolve his motions should not have
been excluded from the STA clock.6
Apicelli's argument ignores Hasting's nuance. In that
case, we laid out a framework for analyzing when dismissal with
prejudice pursuant to the STA could be appropriate based on
differing degrees of culpability on the part of the Government.
Id. at 925.
[D]elay which results either from intentional
noncompliance with the Act or from actions designed
to gain unfair prosecutorial advantage weighs heavily
in favor of dismissal with prejudice.
Closely allied to such examples, but perhaps once
removed, are recurrent shortcomings. If delay is
occasioned by a pattern of governmental inattention
or because the prosecutor . . . fails to learn oft-
repeated lessons, the situation becomes more
conducive to dismissal with prejudice than if delay
stems from some solitary bevue. . . . Random
negligence . . . weighs less heavily in favor of
banning reprosecution.
Id. (citations omitted). We also cautioned against imputing bad
faith to the Government because Congress did not intend for the
STA to serve as "an all-encompassing code of ethical conduct for
prosecutors." Id. at 927.
6 We decline to address whether any additional time for the period
from March 26, 2015 to June 7, 2015 was excludable because Apicelli
fails to specifically contest it in his opening brief. The
district court concluded all but April 1 to April 8 (seven days)
did not count towards the STA clock.
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On appeal, Apicelli never alleges that the Government
acted intentionally or delayed its discovery production to gain an
unfair advantage. Rather, he simply lists evidence he believes
the Government should have disclosed at an earlier date and asks
us to infer bad faith or government inattention from the delays
themselves. For example, with respect to the February 12, 2015
continuance, Apicelli claims he had not received the "vast majority
of the discovery" before the filing of his February 7 motion.
Apicelli, however, neither explains why this evidence should have
been part of the Government's automatic discovery obligations nor
does he appeal the district court's finding that the Government
was in compliance.7 We have long held that "issues adverted to in
7 Apicelli claimed in his February 7 motion and at the subsequent
hearing that the Government had failed to produce (1) the dispatch
records and log notes relating to the investigation of his
property; (2) the "bench file" from the laboratory that tested the
marijuana found on the 201 Mason Road property; (3) additional
information about the conflict of interest that resulted in the
transfer of his case from state to federal court. Apicelli also
alleged that the Government delayed turning over a laboratory
report and the surveillance video of the person in the tan shorts
and red backpack tending the marijuana plants. With respect to
each, the district court concluded that the Government had a
reasonable explanation for the delay or that Apicelli was wrong
that the Government had not turned over all of the evidence it
had.
In his appellate brief, Apicelli lists other evidence he
believes the Government withheld that were not subject to the
February 7 motion, but fails to provide any citations to the
motions or orders concerning them. As a result, we find ourselves
at sea discerning the merits of these claims or even the STA
periods they would exclude.
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a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). Without any reason to doubt the
district court's findings that the Government had complied with
its discovery obligations, we cannot find an STA violation from
the delays themselves. Thus, our review of the district court's
continuances is only for whether "reasonable minds could disagree
about the proper ruling." González-Martínez, 825 F.3d at 57
(quoting United States v. Delgado-Marrero, 744 F.3d 167, 195 (1st
Cir. 2014)).
The district court could reasonably conclude that the
ends of justice outweighed Apicelli's speedy trial right in
granting a continuance to resolve his February 7 motion. As the
court explained, a continuance was necessary because the
Government's deadline for responding was after Apicelli's trial
date. The district court also stated it foresaw needing to hold
an evidentiary hearing and issue subpoenas in order to rule upon
the motion. Given this context, we do not believe the district
court abused its discretion in excluding this period from the STA
clock.8
8 We also uphold the district court's conclusion that this period
was also properly excluded as time needed to resolve a pretrial
motion pursuant to 18 U.S.C. § 3161(h)(1)(D).
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Similarly, the district court could reasonably exclude
the period from June 8 through July 21 from its STA calculations.
Apicelli contends that the Government necessitated this motion
because it waited until June to turn over four DVDs containing
four to six hours of additional video footage caught by the
surveillance camera set up near the marijuana grow. Again,
however, Apicelli fails to explain the significance of this footage
or why the Government was obligated to turn it over sooner. 9
Without any guidance from Apicelli or a direct challenge to the
district court's discovery rulings, we must view the Government as
in compliance with its discovery obligations. The district
court's explanation for the continuance is otherwise reasonable.
Apicelli requested the continuances in order to review the new
9 The DVDs contained the "false trigger" footage -- i.e., footage
in which the motion-activated camera was triggered by something
other than the person tending the marijuana plants, be it animals,
law enforcement officials setting up the camera, or wind. The
Government had previously only given Apicelli the footage showing
the person tending the marijuana plants, and stated the false
trigger footage was not disclosed earlier because it did not
believe the footage was relevant.
Apicelli does not explain the significance of the false trigger
footage in his briefing. Instead, he simply claims that the
district court did not accept the Government's initial
representation that the tapes had no evidentiary value. This
characterization is incorrect. The district court initially
declined to take the Government at its word that the footage was
not relevant -- thus finding a continuance necessary -- but
ultimately concluded that it had complied with its discovery
obligations.
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evidence and potentially prepare new exhibits. It is evident that
the district court granted Apicelli's motion in order to give his
counsel time to prepare. See 18 U.S.C. § 3161(h)(7)(B)(iv)
(stating a district court should take into account whether failure
to grant continuances would "deny counsel for the defendant . . .
the reasonable time necessary for effective preparation"). We
therefore find no abuse of discretion in its issuance of an ends-
of-justice continuance.
Finding that both timeframes Apicelli contests are
excludable, we affirm the district court's determination that no
STA violation occurred.
B. Sixth Amendment
The STA does not act as a bar to speedy trial claims
under the Sixth Amendment. See 18 U.S.C. § 3173. Nonetheless,
it would be an "unusual case" in which a Sixth Amendment but not
a STA violation exists. United States v. Muñoz-Amado, 182 F.3d
57, 61 (1st Cir. 1999) (quoting United States v. Mitchell, 723
F.2d 1040, 1049 (1st Cir. 1983)).
"To determine whether a [Sixth Amendment speedy trial]
violation has occurred, we use the four-part balancing test
established in Barker v. Wingo, [407 U.S. 514 (1972)], which
requires a weighing of: (1) the length of the delay, (2) the
reasons for the delay, (3) the defendant's assertion of his right,
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and (4) prejudice to the defendant resulting from the delay."
United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (citing
Barker, 407 U.S. at 530). We ordinarily review Sixth Amendment
speedy trial determinations for abuse of discretion. Souza, 749
F.3d at 81.
We start with the length of the delay. "The Sixth
Amendment right to a speedy trial attaches upon formal accusation.
In the typical case, this means either arrest or indictment,
whichever comes first." Dowdell, 595 F.3d at 61 (citations
omitted). Apicelli's trial did not commence until July 21, 2015
-- a time period of almost eighteen months. Where the time
differential between a criminal defendant's indictment and trial
is greater than one year, this court will make additional inquiry.
Muñoz-Amado, 182 F.3d at 61.10
10 On appeal, Apicelli contends that the district court should
have used the date of his state arrest to calculate the length of
his speedy trial delay. State authorities in New Hampshire
arrested Apicelli on November 20, 2013, sixty-three days before
his federal indictment on January 22, 2014. This argument is
without merit. Normally, "an arrest or indictment by one
sovereign would not cause the speedy trial guarantees to become
engaged as to possible subsequent indictments by another
sovereign." Dowdell, 595 F.3d at 61 (quoting United States v.
MacDonald, 456 U.S. 1, 10 n.11 (1982)).
Apicelli claims that he can overcome the dual sovereign
presumption because he showed that the state prosecution was
"merely a tool of the federal authorities." Bartkus v. Illinois,
359 U.S. 121, 123 (1959). Apicelli, however, only cites the
similarity between his state and federal charges -- i.e., that
they were both prosecutions for drug offenses. Mere similarity
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Nonetheless, we agree with the district court that the
reasons for the delay weigh against finding a speedy trial
violation. Apicelli does not dispute that delays arising between
April 2014 and November 2014 -- a seven-month period -- are
attributable to his counsel filing motions relating to plea
negotiations and personal reasons. As stated above, we do not
believe Apicelli's claim that his discovery-related motions should
be attributed to the Government. The resolution of Apicelli's
discovery claims spanned most of the time period from December
2014 to July 2015. Finally, we note that between May and the end
of July of 2015, Apicelli filed at least three motions for
reconsideration reiterating the same arguments. Based on this
record, the reasons for the delay are mostly, if not entirely,
attributable to Apicelli.
Turning to the third factor, we acknowledge that
Apicelli repeatedly asserted his speedy trial right through
motions to dismiss. However, "[c]ourts look with some skepticism
at assertions of speedy trial rights made by defendants who
is not sufficient -- a defendant must make a prima facie case that
"one sovereign was a pawn of the other, with the result that [the]
notion of two supposedly independent prosecutions is merely a
sham." Dowdell, 595 F.3d at 63 (quoting United States v. Guzmán,
85 F.3d 823, 827 (1st Cir. 1996)). Because Apicelli has failed
to make such an allegation, any preceding state proceedings do not
count towards his speedy trial claim.
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contribute to the delay, . . . [a]nd like the other factors,
assertion of the right is not in itself decisive." United States
v. Carpenter, 781 F.3d 599, 614 (1st Cir. 2015).
Finally, we address the prejudice prong. "The prejudice
prong seeks to protect three interests: avoidance of oppressive
pretrial incarceration, minimizing anxiety and concern, and
limiting the possibility that the defense will be impaired." Id.
Apicelli does not allege any of these interests were implicated by
the delay in his case. Apicelli was not subject to pretrial
incarceration and he does not claim he suffered anxiety from the
pending proceedings. He states the Government unduly withheld
discovery, but he does not explain how his preparation for trial
was impaired in light of the district court's continuances. Given
that Apicelli was largely responsible for the delay and he has
failed to allege prejudice, we believe the district court did not
abuse its discretion in denying Apicelli's Sixth Amendment speedy
trial claim.
V. Motions for Mistrial
Finally, Apicelli argues that two of the police officers
who testified for the Government made improper statements that
entitled him to a mistrial. "Because 'whether to declare a
mistrial speaks to the informed discretion of the district court,'
we review this decision for abuse of that discretion only." United
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States v. Díaz, 494 F.3d 221, 226 (1st Cir. 2007) (quoting United
States v. Keene, 287 F.3d 229, 233 (1st Cir. 2002)).
"Declaring a mistrial is a last resort, only to be
implemented if the taint is ineradicable, that is, only if the
trial judge believes that the jury's exposure to the evidence is
likely to prove beyond realistic hope of repair." United States
v. Trinidad-Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting
Díaz, 494 F.3d at 227). In making this determination, we look at
the totality of the circumstances, considering in particular the
following three factors: "1) whether an appropriate curative
instruction was issued, 2) whether the judicial response was
timely, and 3) whether appellants successfully rebutted the
presumption that the jury followed the judge's instructions."
United States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st Cir. 2013).
When "a curative instruction is promptly given, a mistrial is
warranted only in rare circumstances implying extreme prejudice."
United States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998). As
discussed in more detail below, the district court promptly issued
curative instructions rendering a mistrial unnecessary.
A. Hearsay Evidence Argument
Apicelli first contends that a mistrial was warranted
because Payer testified that Bain (who was not a witness at
Apicelli's trial) had identified Apicelli as the person on the
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surveillance video. Apicelli argues that the jury could infer
this from the following exchange between Payer and the prosecutor:
Q. After recovering this video, what, if any
investigative steps did you take next?
A. To get the person in the video
identified.
Q. And did you speak to anyone in order --
as part of that process?
A. Yes.
Q. And who did you speak with?
A. Robert Bain.
Q. And after speaking with Mr. Bain, what
did you do next?
Immediately following this exchange, Apicelli moved for a mistrial
on the ground that the Government was attempting "an end run around
the hearsay rule" and introduce Bain's out-of-court identification
of Apicelli as the person in the surveillance video. 11 The
district court denied the motion and instead instructed the jury
"to disregard the last question and answer, and . . . not to draw
any inference that this witness identified the defendant from these
videos." At Apicelli's request, the district court further
11 "Fed. R. Evid. 801(c) defines hearsay generally as 'a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.'" Vázquez v. López-Rosario, 134 F.3d 28, 33-
34 (1st Cir. 1998).
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instructed the jury "not to draw any inference from the last
question and answer that an identification was made by anybody
from these videos."
We find no abuse of discretion in connection with the
district court's course of action. The district court's prompt
curative instructions addressed the very concern Apicelli raised
-- that the jury would infer that Bain identified Apicelli on the
video and use this statement for its truth. We do not believe
Payer's remark created the type of extreme prejudice that would
overcome our presumption that juries follow curative instructions.
Generally speaking, inadmissible evidence that is "brief and
ambiguous" is only minimally prejudicial. See United States v.
Brown, 805 F.3d 13, 17 (1st Cir. 2015) (concluding jury would not
place much weight on improper playing of tape in which officer
questioned defendant about cocaine found in his hat when there was
little context for the conversation's meaning). Payer never
explicitly stated that Bain identified Apicelli as the person on
the surveillance video. Rather, Payer testified only that he had
Bain identify the person on the surveillance tape and after that
he applied for a search warrant of 201 Mason Road. Although a
jury could draw the inference that Payer applied for the warrant
in part because Bain identified Apicelli as the person on the
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surveillance video, this conclusion was by no means obvious or the
only interpretation of Payer's remarks.12
Apicelli contends that reversal is necessary because the
district court based its decision on the premise that the
Government agreed not to identify Apicelli as the person in the
surveillance video and backtracked on this promise in its closing
argument. We, however, see no inconsistency in the Government's
position. The Government stated that it would not argue that
anyone specifically identified Apicelli in the surveillance video
-- instead, it would identify Apicelli as the person in the video
based on the backpack and shorts found in his residence. This
latter argument was exactly what the Government focused on in its
closing. Because Bain's out-of-court identification of Apicelli
12On appeal, Apicelli portrays Payer's statements as impermissible
overview testimony, perhaps as a vehicle to argue that the
testimony resulted in the type of extreme prejudice warranting a
mistrial. Overview testimony occurs when "a government witness
testifies about the results of a criminal investigation, usually
including aspects of the investigation the witness did not
participate in, before the government has presented supporting
evidence." United States v. Rosado-Pérez, 605 F.3d 48, 55 (1st
Cir. 2010). Payer, however, was testifying about an investigation
he undertook. An officer's testimony describing his or her own
investigation does not create the same concerns as overview
testimony. See United States v. Hall, 434 F.3d 42, 57 (1st Cir.
2006). Additionally, Apicelli's objection characterizes Payer's
testimony as hearsay, but we doubt this is so because Payer never
stated in court what Apicelli feared the jury would infer -- that
Bain identified Apicelli from the video.
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in the surveillance video only came up once in trial, we view the
district court's prompt curative instruction as sufficient.
B. Bad Act Evidence
Apicelli also contends that he was irreparably
prejudiced by bad act testimony made by another officer, Nicholas
Blodgett. Blodgett stated that he found "[m]arijuana growing,
marijuana drying, packaged marijuana, from my training and
experience what appeared to be marijuana edibles, [and] what we
believe to be a mushroom grow at one point" inside the house.
Apicelli moved for a mistrial immediately after the remark arguing
that Blodgett had testified about bad act evidence prohibited by
Federal Rule of Evidence 404(b).13 The district court judge denied
the motion and stated he would instruct the jury to disregard
Blodgett's testimony. Apicelli then argued this instruction was
inadequate and asked the district court to also tell the jury that
Blodgett's testimony was improper. The district court declined
to do so and told the jury to "disregard the testimony concerning
the mushroom grow" and that it was "irrelevant" to Apicelli's case.
We fail to see how Apicelli suffered prejudice, let alone
extreme prejudice, from Blodgett's remark. Again, the district
13 Federal Rule of Evidence 404(b)(1) prohibits the use of
"[e]vidence of a crime, wrong, or other act . . . to prove a
person's character in order to show that on a particular occasion
the person acted in accordance with the character."
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court acted near-instantaneously in issuing a curative
instruction. Apicelli cites no case law supporting his proposed
instruction that Blodgett did something improper. We also note
that Apicelli's main argument (both at trial and on appeal) is
that the items found in 201 Mason Road and the marijuana found in
the woods belonged to someone else. The fact that another
contraband item was found inside 201 Mason Road would not have
influenced the jury's determination of whether Apicelli was the
only person who lived there. We therefore affirm the district
court's denial of Apicelli's motion for a mistrial.
VI. Conclusion
For the foregoing reasons, we affirm.
Affirmed.
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