USA v. Apicelli

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 14-cr-012-JD
Opinion No. 2015 DNH 072
Peter Apicelli
O R D E R
Peter Apicelli is charged with one count of manufacturing
marijuana in violation of 21 U.S.C. § 841(a)(1). Apicelli moved
to dismiss the indictment, or in the alternative to compel
discovery and continue trial, arguing that the government had
failed to provide requested and required discovery. The
government objected, contending that it had complied with all
discovery requests and obligations.
The trial, which was scheduled for the two-week period
beginning on February 18, 2015, was continued in the interest of
justice until Apicelli’s motion could be resolved. After
receiving the government’s objection to the motion, the court
scheduled a hearing and ordered counsel to meet and confer in
person, before the hearing, to resolve the discovery issues or
at least to narrow the issues to specific and discrete requests.
Counsel for Apicelli was ordered to be prepared at the hearing
“to submit a list documenting each request for discovery that
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was made, the date, and the specific discovery that was
requested.” The government was ordered to be prepared “to
submit a list of each discovery request that was received, the
date, and the specific discovery that was provided and when.”
The hearing on the motion to dismiss was held on March 26,
2015. Counsel for Apicelli provided a list of three remaining
discovery items he was seeking from the government: (1)
“Dispatch recordings,” (2) “Lab report and expert opinion,” and
(3) “Disclosure of information regarding conflict of interest
mentioned in [government’s] objection.” The government
submitted exhibits showing the history of the discovery it had
provided. See Docket no. 28.
Counsel for Apicelli argued that the government had not
provided required and requested discovery in a timely manner.
The Assistant United States Attorney argued that the government
had provided all the required and requested discovery materials
and that counsel for Apicelli had not responded to the
government’s offers to provide access to additional information.
Discussion
If the government fails to comply with discovery
requirements imposed by Federal Rule of Criminal Procedure 16,
the court may order that the discovery be produced, grant a
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continuance, preclude the undisclosed evidence from trial, or
enter an order “that is just under the circumstances.” Fed. R.
Crim. P. 16(d)(2). Important considerations in whether
sanctions are appropriate for discovery abuse are the
seriousness of the abuse and whether the defendant was
prejudiced. United States v. Josleyn, 99 F.3d 1182, 1196 (1st
Cir. 1996). 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).
The record shows that in December of 2013, when it took
over the prosecution of this case, the government offered
discovery materials to Apicelli’s counsel, before Apicelli was
indicted. Counsel responded that he would provide the
government with a letter requesting discovery, but he did not do
so. Following indictment in January of 2014, the government
provided discovery to Apicelli’s counsel in March of 2014. The
government continued to participate in discovery and provided
information and assistance in obtaining information. See Docket
no. 28.
In light of the entire history of discovery in this case,
Apicelli has not shown that the government failed in any
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material respect to comply with discovery requirements or his
requests. Indeed, the record at hand demonstrates that from the
time it took over prosecution of this case, which is the
relevant time frame, the government was actively engaged in
fulfilling its discovery obligations.
The three items of outstanding discovery that Apicelli
raised at the hearing were resolved as follows. The government
will provide a cd-rom of the dispatch tapes under the terms of
the protective order entered on March 27, 2015. See Docket no.
31. Counsel for Apicelli conceded that he has the lab report
for the marijuana testing but wants other information about the
expert and the testing. The government agreed to provide the
bench notes and the expert’s opinion by close of business on
March 27, 2015, and has previously indicated to Apicelli’s
counsel that he can meet with the lab technician. The
government explained the conflict of interest at the state level
that was mentioned in the government’s objection to the motion
to dismiss.
Under all of the circumstances that have been presented,
the court finds that there are no justifiable grounds for
sanctions of any kind, much less dismissal.
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Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 24) is denied.
The case will be scheduled for trial during the period
beginning on April 21, 2015.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
March 31, 2015
cc: Sven D. Wiberg, Esq.
Terry L. Ollila, Esq.
United States Marshal
United States Probation
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