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 
-2- 

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 fortysix 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 fortysix 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 oftrepeated 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 endsof-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). 
-24- 

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 

 

12 On 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.