FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District
D. Wiberg, with whom Wiberg Law Office, PLLC was on brief,
R. Aframe, Assistant United States Attorney, with whom Emily
Gray Rice, United States Attorney, was on brief, for
Torruella, Selya, and Thompson, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
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
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.
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
Sufficiency of the Evidence
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)).
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
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
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.
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.
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.
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
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
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.
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).
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. 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)). We therefore affirm the district
court's denial of Apicelli's motion to suppress.
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 ...