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United States v. Apicelli

United States Court of Appeals, First Circuit

October 7, 2016

UNITED STATES OF AMERICA, Appellee,
v.
PETER APICELLI, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

          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.

          Before Torruella, Selya, and Thompson, Circuit Judges.

          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 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. 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 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 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 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 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.

         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 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.

         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 ...


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