Date: 03-01-2017

Case Style: United States of America v. Martinho Rodriguez, a/k/a Thoey, a/k/a Tho

Case Number: 15-1377

Judge: Thompson

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Kelly Begg Lawrence and Carmen M. Ortiz

Defendant's Attorney: Inga Parsons

Description: A Massachusetts jury failed to
reach a unanimous verdict on a multiple count indictment charging
Martinho Rodrigues with conspiring with 29 others to distribute
assorted drugs in several Boston area neighborhoods. Rather than
face a repeat trial, Rodrigues opted to plead guilty to Count One,
conspiracy to distribute marijuana in violation of 21 U.S.C. §
846, but he preserved his right to appeal the trial court's denial
of his motion to suppress. Before us, he claims the government,
in bad faith, failed to meet the strict procedural requirements
for obtaining wiretaps under 18 U.S.C. § 2517-2522. He also argues
that the court erred in denying him a hearing to explore his
misrepresentation and bad faith concerns. For the following
reasons, we affirm the district court's ruling.
Background
In the summer of 2011, the Federal Bureau of
Investigation ("FBI") and the Boston Police Department ("BPD")
initiated an investigation into the purported drug-trafficking
activities of the Woodward Avenue and Hendry Street gangs in
Roxbury and Dorchester, Massachusetts. During the course of the
investigation, the district court issued four, successive 30-day
orders authorizing the interception of six cell phones known to be
used by Alexis Hidalgo and Jonathan Dasilva -- two gang members
from whom a cooperating witness had conducted several controlled
purchases.
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The first order, on August 8, 2012, authorized the
interception of target telephones #1 and #2 ("TT1" and "TT2"),
which were known to be used by Hidalgo. The wiretap expired on
September 7, 2012 -- thirty days after its authorization -- and
the wiretap application and affidavit in support of the application
were sealed until further order of the court. On September 5 and
7, the district court granted the government's motions to seal the
resulting recordings from the wiretap and to postpone inventory
notice1 to targeted subjects until further order of the court for
all communications intercepted.
The second order was granted on September 25, 2012. The
government sought and was granted authorization to intercept
target telephones #3 and #4 ("TT3" and "TT4") -- both known to be
used by Hidalgo and Dasilva in furtherance of the drug-trafficking
offenses. Like the first wiretap, the September 25 wiretap was to
expire thirty days after its authorization on October 25, 2012.
Unlike the first wiretap, however, the government did not
immediately request to seal the resulting recordings or postpone
inventory notice from the second wiretap by the date of its
expiration. Instead, on October 24, 2012 -- a day before the
September 25 wiretap was slated to expire -- the government
1 We explain inventory notice later on, but generally,
the wiretap statute entitles the target subject to receipt of
certain information once the intercept and investigation is
complete.
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submitted a third wiretap application in which it sought
authorization of a new target, telephone #5 ("TT5"), as well as
the continued interception of TT3 and TT4 that had initially been
granted in the September 25, 2012 order (and slated to end October
25, 2012). The district court granted the government's request,
for thirty days. On November 27, 2012 -- four days, or two business
days, after the October 24 order expired -- the district court
granted the government's motion to seal the recordings and postpone
inventory notice until further order of the court for all
communications intercepted on TT3, TT4, and TT5.
On December 21, 2012 the government submitted its fourth
and final wiretap application. In that application, the government
sought to renew its interceptions of TT3, TT4, and TT5, and also
sought to intercept communications from a final target telephone
#6 ("TT6"). The district court granted the government's motion.
Both the renewals of TT3, TT4, and TT5 and the initial interception
of TT6 were all set to expire -- again, 30 days after their
authorization -- on January 20, 2013. On January 18, 2013 the
court granted the government's motion to seal the resulting
recordings and postpone inventory notice on communications
intercepted pursuant to the December 21, 2012 order.
As a result of the government's investigation,
Rodrigues, along with 29 co-defendants, was charged with
conspiracy to distribute cocaine base, cocaine, oxycodone, and
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marijuana in violation of 21 U.S.C. § 846. The magistrate judge
subsequently held grouped detention hearings and Rodrigues
proceeded alongside co-defendant Moises Figueroa. During the twoday
hearing held on May 21 and June 10, 2013, BPD Detective Martin
O'Malley testified and submitted an affidavit in support of the
government's detention motion. O'Malley testified that Rodrigues
was a known associate of Hidalgo and Dasilva from the outset of
the investigation and that Rodrigues had been observed on pole
camera footage at a meeting spot for the Woodward and Hendry Street
gangs. Despite this knowledge, however, Rodrigues was never listed
as a target subject in any of the four wiretap applications
submitted by the government. Yet, in the December application
Rodrigues was mentioned as the individual who agents believed
Dasilva referenced during an intercepted call. At the close of
the hearing, the court issued an order of detention, remanding
Rodrigues into custody pending trial.
In pretrial proceedings, Rodrigues filed a motion to
suppress evidence obtained pursuant to the issued wiretaps. In
that motion, Rodrigues raised four arguments, namely, that: (1)
the government deliberately and in bad faith omitted him as a
target subject and as an identifiable person overheard on all four
wiretap applications in violation of 18 U.S.C. § 2518(1)(b)(iv)
and 18 U.S.C. § 2518(8)(d); (2) the government's wiretap
applications failed to show necessity or demonstrate that
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alternative investigative techniques would not succeed as required
pursuant to 18 U.S.C. § 2518(1)(c); (3) the government failed to
present the tapes for timely sealing pursuant to 18 U.S.C. §
2518(8)(a); and (4) that the court should hold a Franks hearing to
explore his allegations of bad faith. The court denied Rodrigues's
motion to suppress without a hearing.
With regard to Rodrigues's bad faith claim, the court
found that he failed to make a credible case for his contention
that the government deliberately failed to list him in the wiretap
applications. Specifically, the district court found that a
purposeful violation in a case like this, where there was a "30-
plus defendant criminal conspiracy" and "there was almost complete
compliance with subsection 8(d) [of Title III]," was extremely
unlikely. In denying his motion, the court found that Rodrigues
had not demonstrated any actual "prejudice resulting from the
violation" and that he pointed to no real evidence in the record
to substantiate that the violation was an intentional one.
With regard to Rodrigues's claim that the government's
applications failed to meet the Title III necessity requirement
(i.e., that other investigative techniques would not have
succeeded), the district court found that the "details [of the
initial wiretap affidavit were] extensive and persuasive, and
certainly, [as our case law requires,] 'minimally adequate' to
support the authorization of a wiretap." The court also found
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that the affidavit in support of the government's application
sufficiently stated the unfulfilled goals of the investigation
which necessitated the wiretap and, citing United States v.
Martinez, 452 F.3d 1, 6 (1st Cir. 2006), that those goals were
"nearly identical to those accepted as valid by the First Circuit
in the face of an identical challenge."
With regard to Rodrigues's claim that the recordings
from the September and October wiretaps were not timely sealed,
the district court found that the October wiretap order was in
fact an extension of the September wiretap order and that "a two
business-day delay [did] not violate 18 U.S.C. § 2518(8)(a),
particularly where, as here, the expiration date was the day after
Thanksgiving, and the recordings were kept in a secure location
with limited access and password protection."
With the district court finding the wiretap evidence
admissible, Rodrigues proceeded to trial on March 2, 2015.
However, at the close of trial, the jury was unable to reach a
verdict and the district court declared a mistrial. After the
mistrial, Rodrigues, as we noted earlier, pled guilty solely to
the marijuana conspiracy, reserving his right to appeal the denial
of his suppression motion. So here we are.
Discussion
Before delving into the merits of Rodrigues's claims,
some brief background on the general setup of the federal wiretap
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statute might prove helpful. "Title III provides a comprehensive
scheme for the regulation of electronic surveillance, prohibiting
all secret interception of communications except as authorized by
certain state and federal judges in response to applications from
specified federal and state law enforcement officials." Dalia v.
United States, 441 U.S. 238, 249 (1979). Indeed, "Congress enacted
Title III of the Omnibus Crime Control and Safe Streets Act of
1968 with the stated purpose of '(1) protecting the privacy of
wire and oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which the
interception of wire and oral communications may be authorized.'"
United States v. Cartagena, 593 F.3d 104, 108 n.1 (1st Cir. 2010)
(quoting Gelbard v. United States, 408 U.S. 41, 48 (1972)). And
where law enforcement authorities fail to comply fully with the
requirements of Title III, suppression may be merited if "the
communication was unlawfully intercepted; the order of
authorization or approval" under which it was intercepted is
insufficient on its face; or the interception was not made in
conformity with the order of authorization or approval. 18 U.S.C.
§ 2518(10)(a). While suppression may be merited where a
communication is unlawfully intercepted, "(not) every failure to
comply fully with any requirement provided in Title III[, the
precise issue raised in Rodrigues's appeal,] would render the
interception of wire or oral communications 'unlawful.'" United
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States v. Donovan, 429 U.S. 413, 433 (1977) (quoting United States
v. Chavez, 416 U.S. 562, 574-75 (1974)).
Before us, Rodrigues reprises the same four arguments he
made below. We address each argument in turn, keeping in mind our
well-rehearsed standards of review. The district court's factual
findings and credibility determinations get clear error scrutiny.
United States v. Lyons, 740 F.3d 702, 720 (1st Cir. 2014). "To
find clear error, an inquiring federal court must form a strong,
unyielding belief, based on the whole of the record, that a mistake
has been made." United States v. Siciliano, 578 F.3d 61, 67–68
(1st Cir. 2009) (quoting In Re Grand Jury Investigation, 545 F.3d
21, 24 (1st Cir. 2008)). "We affirm under the clear error standard
'if any reasonable view of the evidence supports' the district
court's finding." Id. at 68 (quoting United States v. Rivera-
Rivera, 555 F.3d 277, 283 (1st Cir. 2009)). We review the court's
legal conclusions de novo. Lyons, 740 F.3d at 721; see also United
States v. McLellan, 792 F.3d 200, 212 (1st Cir. 2015) ("Our review
of the district court's denial of [defendant's] motion to suppress
is bifurcated: we review its findings of fact for clear error and
apply de novo review to the application of law to those facts and
to conclusions of law.") (citations omitted).
A. "Bad Faith" Omissions
Rodrigues claims that the government deliberately
omitted him as a target subject as required under 18 U.S.C. §
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2518(1)(b)(iv) and deliberately failed to identify him as an
individual overheard during the course of the wiretaps pursuant to
18 U.S.C. § 2518(8)(d). See Donovan, 429 U.S. at 431 (agreeing
with the Ninth Circuit that § 2518(8)(d) imposes a duty on the
government "to classify all those whose conversations have been
intercepted[] and to transmit this information to the judge.").
He argues that these omissions were done deliberately and in bad
faith -- thereby depriving him of the inventory notice required
under 18 U.S.C. § 2518(8)(d).2 As discussed above, the district
court found Rodrigues's bad faith allegations incredible and,
further, that he suffered no prejudice.
Under 18 U.S.C. § 2518(1)(b)(iv), "a wiretap application
must name an individual if the Government has probable cause to
believe that the individual is engaged in the criminal activity
under investigation and expects to intercept the individual's
2 Rodrigues also argues that these omissions denied him
a probable cause determination by the issuing judge. A judge may
authorize a wiretap order upon a determination that probable cause
exists to believe that an individual is, has, or is about to commit
a crime and that particular communications concerning the crime
will be obtained through the interception. 18 U.S.C. § 2518(3).
Try as we might, we cannot reconcile this argument with Rodrigues's
assertion of bad faith. On the one hand, Rodrigues argues that if
listed as a target subject, "the lack of evidence of [his]
involvement would very likely have led to a determination of [a]
lack of probable cause to make him a target." On the other hand,
Rodrigues argues that he should have been listed as a target
subject because the government knew who he was and his role in the
conspiracy well before August 2012 and therefore had probable cause
to list him as a target. In all events, the assignment of error
is without merit.
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conversations over the target telephone." Id. at 428. Under 18
U.S.C. § 2518(8)(d) a "judge shall cause to be served, on the
persons named in the [wiretap] order or the application, and such
other parties to intercepted communications as the judge may
determine in his discretion that is in the interest of justice, an
inventory" giving notice of, among other the things, the entry of
the order or application, its disposition, and communications
intercepted. Section 2518(8)(d) imposes a duty on the government
to provide the district court with a complete list of identifiable
persons overheard on the wiretaps to assist with its discretionary
power to issue inventory notice. Id. at 431. Under both
§§ 2518(1)(b)(iv) and 2518(8)(d), the failure to name all target
subjects or all identifiable individuals whose conversations have
been overheard does not automatically require suppression. See
id. at 439.
Nevertheless, we have also held that "suppression should
be required when the statutory violation arose from a conscious
decision by the federal authorities to violate the law and prevent
an individual or group of individuals from receiving the post
interception notice." United States v. Harrigan, 557 F.2d 879,
884-85 (1st Cir. 1977). In addition to volitional governmental
behavior, we have also indicated that "suppression is an
appropriate remedy when a defendant can show that the failure to
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serve an inventory notice caused him actual prejudice and that the
prejudice which resulted cannot otherwise be cured." Id. at 884.
Here, even if we assume, as it appears the district court
did, that the government should have listed Rodrigues as a target
subject,3 the mere failure to name additional targets or to list
3 The government claims to have lacked the probable cause
necessary to identify Rodrigues as a target subject in any of its
four wiretaps; however, the government admits that it was generally
aware of Rodrigues's drug and gang-related activities and
associations prior to the underlying investigation in this case.
The record indicates that there were at least two instances in
October 2012 in which Rodrigues was identified during the course
of the government's investigation: (1) an incident on October 23,
2012 where Dasilva called Rodrigues to assist a fellow gang member
who was being threatened by a rival gang; and (2) an incident on
October 31, 2012 where agents intercepted a call from Dasilva
asking Rodrigues to pick up contraband associated with a marijuana
sale on Woodward Avenue. The agents later confirmed that Rodrigues
was the individual spoken to during the October 31 call by
confirming his identity with pole camera surveillance. It is
unclear from the record at what point the government determined
that Rodrigues was the individual referenced in either of these
October incidents. During oral argument, the government conceded
that on October 20, 2012 -- before the third October 24 wiretap
application -- agents had indicated being suspicious that Hidalgo
was speaking to Rodrigues during an intercepted call. Given the
government's general knowledge of Rodrigues's identity and his
criminal associations with the target subjects/owners of the
target cell phone numbers in the wiretap applications, the agents'
suspicion that Hildalgo was speaking with Rodrigues during
intercepted calls, and the confirmation of Rodrigues's identity in
the October 31 call and pole camera footage, the government may
have had probable cause to believe that Rodrigues was engaged in
the criminal activity under investigation and a reasonable
expectation to intercept his conversations over the target
telephones at least well before its last December application. If
that were the case, the government should have listed Rodrigues as
a target subject in at least the December 21, 2012 application and
its failure to do so would have constituted a violation of Title
III. The government argues that it was unaware of Rodrigues's
involvement in real time and the record is indeed unclear on the
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Rodrigues as an individual overheard on the wiretaps does not
necessitate suppression under § 2518(10)(a)(i). See Donovan, 429
U.S. at 439. While suppression may be appropriate where the
government knowingly and in bad faith seeks to "[keep] relevant
information from the District Court," id. at 436 n.23, we agree
with the district court's findings that Rodrigues failed to present
a credible case of bad faith omissions or that he suffered any
prejudice because of the omissions.
Indeed, a reasonable view of the evidence supports the
district court's conclusion that a purposeful violation is
extremely unlikely. This case bears a striking resemblance to
Harrigan, where we noted:
In cases like the one at bar where there was
almost complete compliance with subsection
8(d), a purposeful violation is extremely
unlikely. By transmitting the names of 26 of
the 27 identifiable persons whose
conversations were overheard, the government
demonstrated an awareness of its statutory
duty and, at least, a general desire to
satisfy it. We think it exceedingly
improbable that the government would have
deliberately violated its statutory duty only
as to defendant.
557 F.2d at 886.
Here, the government listed 27 of the 30 defendants
indicted as target subjects in its wiretap applications. Like
timing of the government's confirmation of Rodrigues's identity in
this specific investigation. Given our rulings today, we need not
resolve this dispute.
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Harrigan, we find it improbable that the government would have
deliberately omitted only three defendants, including Rodrigues,
to no gain. See id. And other than the fact of the omission,
Rodrigues points to no other evidence supporting his bad faith
claim.
Rodrigues also proffers no explanation of how he was
prejudiced outside of his bald assertion that the government
intended to circumvent his Title III inventory notice rights.
However, the record reflects, and Rodrigues does not seriously
dispute, that the issuing judge, based on the ongoing nature of
the government's investigation, delayed inventory notice to
subject targets at the expiration of each wiretap until further
order of the court. Consequently, Rodrigues was given inventory
notice at the same time as all other co-defendants -- at their
initial appearance or arraignments in January 2013 after the
indictment was returned and within a timeframe designated by the
court. We cannot say that the district court clearly erred in its
factual and credibility findings (clear error requires an
"unyielding belief, based on the whole of the record, that a
mistake has been made," Siciliano, 578 F.3d at 67 (citation
omitted)) nor can we say that the district court erred in its
application of the law to the facts. See United States v. Dudley,
804 F.3d 506, 512 (1st Cir. 2015) (when reviewing a denial of a
motion to suppress, "we review the district court's legal
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determinations, including its application of the law to the facts,
de novo").
B. Necessity
Next, Rodrigues argues that in all four wiretap
applications, the government failed to show necessity as required
by Title III. The "necessity" requirement obliges the government
to include in its wiretap application "a full and complete
statement as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous." 18 U.S.C. §
2518(1)(c). "[W]e [have] held § 2518(1)(c) 'to mean that the
statement should demonstrate that the government has made a
reasonable, good faith effort to run the gamut of normal
investigative procedures before resorting to means so intrusive as
electronic interception of telephone calls.'" United States v.
Martinez, 452 F.3d 1, 4 (1st Cir. 2006) (citing United States v.
Villarman–Oviedo, 325 F.3d 1, 9 (1st Cir. 2003)). However, we
have also made clear that "the government need not demonstrate
that it exhausted all investigative procedures." United States v.
Santana, 342 F.3d 60, 65 (1st Cir. 2003); see also Cartagena, 593
F.3d at 109 ("To establish necessity, the government is not
required to show that other investigative methods have been wholly
unsuccessful . . . nor must the government exhaust all other
investigative measures before resorting to wiretapping.")
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(citations omitted). Accordingly, "[w]hen reviewing the
government's showing of necessity, our role 'is not to make a de
novo determination of sufficiency as if [we] were [the issuing
judge], but to decide if the facts set forth in the application
were minimally adequate to support the determination that was
made.'" Santana, 342 F.3d at 65 (citing United States v. López,
300 F.3d 46, 53 (1st Cir. 2002)).
Upon review, we are satisfied with the applications'
minimal adequacy. FBI special agent Matthew C. Knight filed an
82-page affidavit in support of the first wiretap application on
August 8, 2012, which detailed the government's investigation
efforts up until that point. The affidavit:
 spelled out the numerous traditional investigative
methods utilized, including physical and video
surveillance, confidential witnesses and informants,
search warrants, controlled purchases, pen registers,
trap and trace devices, and toll record analysis;
 explained why other traditional investigative
methods, such as undercover agents, grand jury
subpoenas, and trash searches were not utilized and were
believed unlikely to prove successful; and
 explained that the wire interceptions were necessary
to "fully identify all of the Target Subjects" and their
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co-conspirators, as well as their suppliers of firearms
and controlled substances.
We have regularly upheld affidavits in support of
wiretap applications where the agents assert a well-founded belief
that the techniques already employed during the course of the
investigation had failed to establish the identity of
conspirators, sources of drug supply, or the location of drug
proceeds. See Martinez, 452 F.3d at 5-6 (finding the goals of
identifying drug suppliers, the manner in which the organization
transported drugs, how payments were made, storage locations for
drugs, and the manner in which a defendant and his associates
laundered and invested drug proceeds to be "discrete and realistic
goals for a criminal drug investigation" and "similar to goals
that we have approved for wiretaps in previous cases."); Santana,
342 F.3d at 66 (upholding wiretap application as sufficient where
affiant "stated that a wiretap was necessary to uncover the full
scope of the conspiracy, including conclusive proof of identity
and information as to how the drug sales were made"); López, 300
F.3d at 53 (finding wiretap application sufficient where affidavit
demonstrated that traditional techniques "failed to establish the
identity of some conspirators"); United States v. Ashley, 876 F.2d
1069, 1074 (1st Cir. 1989) (finding wiretap application and
supporting affidavit sufficient where the agent set forth his
belief that wire communications would "illuminate details of the
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cocaine conspiracy including the roles of the participants and the
financial backing," and assist in "gathering the necessary
evidence to sustain prosecution of the supplier(s)"). Here, the
initial application and supporting affidavit can reasonably be
found to be more than adequate.
So too are the three remaining wiretap applications --
granted on September 25, October 24, and December 21 -- which
contain similar supporting information from the affiant, FBI agent
Matthew C. Knight. The subsequent applications also provide
detailed accounts of communications intercepted as a result of the
preceding wiretaps -- including a detailed list of calls received
to and from the target telephones which supported the agent's
finding of probable cause.
Having reviewed the applications and supporting
affidavits in this case, we find no flaws in the district court's
determination that the facts spelled out in the applications were
at least minimally sufficient to support its grant of wiretap
intervention. See Ashley, 876 F.2d at 1073. The government's
affidavit is adequate if it indicates a reasonable likelihood that
alternative techniques would fail to expose the crime. The
government meets this burden here.4
4 Rodrigues also makes a number of subsidiary arguments
that the government failed to file separate wiretap applications,
that the applications were "bundled" together, and that the
applications contained the same "boilerplate" information without
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C. Sealing
Rodrigues also argues that the government did not timely
present communications intercepted from the September and October
wiretaps for sealing as the wiretap statute requires. Under 18
U.S.C. § 2518(8)(a) recordings obtained pursuant to a Title III
wiretap must be sealed "[i]mmediately upon the expiration of the
period of the [wiretap] order, or extensions thereof." Section
2518(8)(a) provides further that "[t]he presence of the seal
provided for by this subsection, or a satisfactory explanation for
the absence thereof," is a prerequisite to the admissibility of
evidence procured pursuant to a wiretap order.
According to Rodrigues, the September 25 wiretap was not
extended by the October 24 wiretap and the September recordings
needed to be sealed upon expiration of the September wiretap on
October 25, 2012. Assuming this timeline is correct, by
Rodrigues's count, there was a 33-day delay in the sealing of the
September wiretap recordings, which were not sealed until November
establishing probable cause. We can quickly dispose of Rodrigues's
complaints. A review of the record demonstrates that these
assertions are simply false. The government filed four separate
applications on four separate dates, each containing new
information establishing probable cause based on previously
intercepted calls. Even where subsequent affidavits overlap
considerably in language with an initial affidavit and with each
other, we have found no error when the affidavits contain specific
and concrete details which pertained to the specific
investigation. See United States v. Yeje-Cabrera, 430 F.3d 1, 9
(1st Cir. 2005).
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27, 2012. The government counters that the October order was an
extension of the September order and thus the expiration date for
both orders (and the accompanying target telephones) was November
23, 2012.
The parties agree that the motion to seal the October 24
wiretap was filed late -- it expired on November 23, 2012, but the
initial recordings requested in that wiretap were also not sealed
until November 27, 2012. By Rodrigues's count, this resulted in
a four-day (or two-business-day) delay in the sealing of the
October 24 recordings. Rodrigues argues that the lack of strict
adherence to the sealing requirements of Title III mandated
suppression. The government counters that the district court did
not err in its finding that a two-business-day delay did not
violate the requirements of Title III because the expiration date
fell on the Friday after Thanksgiving and the recordings were kept
in a secure location.
Section 2518(8)(a) provides no definition for what
constitutes "immediately." See 18 U.S.C. § 2518(8)("Immediately
upon the expiration of the period of the order, or extensions
thereof, such recordings shall be made available to the judge
issuing such order and sealed under his directions."); Id. at §
2510; United States v. Matthews, 431 F.3d 1296, 1307 (11th Cir.
2005) (agreeing with the Second, Sixth, and Ninth Circuits that
recordings sealed "'within one or two days' is a reasonable,
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workable interpretation of [the] term [immediately]"); United
States v. Coney, 407 F.3d 871, 873 (7th Cir. 2005) ("Ten days is
too long to be thought 'immediate.' The term '[i]mmediately' means
that the tapes should be sealed either as soon as practical after
the surveillance ends or as soon as practical after the final
extension order expires" and "[t]hat shouldn't require more than
a couple of days at most.") (citations omitted). But assuming
that the recordings were not timely sealed, suppression is not
warranted here. Recordings that are not presented for timely
sealing pursuant to § 2518(8)(a) may still be admissible if the
government offers a "satisfactory explanation" for the delay.
Mora, 821 F.2d at 867 ("When sealing is other than 'immediate,' we
believe that the resultant evidence can be utilized if -- and only
if -- a 'satisfactory explanation' for the delay eventuates.").
In determining whether the government's explanation is
satisfactory, we consider inter alia: (1) whether, by clear and
convincing evidence, the government has established that the
integrity of the tapes has not been compromised; and by a fair
preponderance of the evidence (2) whether the government has
demonstrated that the delay in presenting the tapes for judicial
sealing came about in good faith, which requires a showing that
the defendant was not prejudiced by the delay and that the
government did not benefit unfairly from the lack of immediacy;
(3) the length and frequency of any particular delay; and (4) the
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cause of the delay. See id. at 867-69 (The government must "carry
the burden of proving the continued integrity of the tapes by clear
and convincing evidence. If it fails to do so, the inquiry is at
an end. And, even if the court is satisfied that the evidence is
unsullied, the government must yet prove, by a fair preponderance,
that the explanation for the delay, taken in all its aspects, is
otherwise satisfactory."). And we have "stress[ed] that there is
no stock formula by which the adequacy of an explanation can
invariably be gauged," but that "[t]he trial judge must scrutinize
these situations case by case, giving due weight to the factors
which we have mentioned and to any other material which bears upon
the reasonableness of the conduct under the circumstances then
obtaining." Id. at 869.
In our review of "the question of whether the
government's explanation for the absence of a seal that complies
with the requirements of section 2518(a) is 'satisfactory,'" we
accept "the district court's supported subsidiary factual
findings, but appl[y] de novo review to whether those facts were
satisfactory under the newly announced test [in United States v.
Mora, 821 F.2d 860, 869-70 (1st Cir. 1987)]." United States v.
Burgos-Montes, 786 F.3d 92, 104 (1st Cir.), cert. denied, 136 S.
Ct. 599 (2015).
Here, accepting the district court's subsidiary
findings, we conclude that the government has presented a
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satisfactory explanation for its delay. First, there is no
indication in the record, nor does Rodrigues suggest, that the
integrity of the tapes has been compromised or tampered with in
any way. And "[w]hile the burden of proof is on the government,
this does not mean the government must prove a negative" when the
defendant does not allege tampering. Burgos-Montes, 786 F.3d at
104. Second, Rodrigues does not argue, nor is there support in
the record of, bad faith on the part of the government.
Additionally, there is no evidence of any prejudice to Rodrigues
or unfair benefit to the government as a result of the delay in
sealing.
Next, with regard to the length of the delay, the
district court concluded that the October order served as an
extension of the September order and that the resulting delay in
sealing for both orders was thus two business days. We accept the
district court's factual finding. See id. (noting that "we
accept[] the district court's supported subsidiary factual
findings"). The October 24 affidavit in support of the
government's application made clear that the government sought the
"continued interception" of TT3 and TT4, as well as the "initial
interception" of TT5. Both the extension requests for continued
interception of TT3 and TT4, as well as the initial application
for interception of TT5, sufficiently supported the district
- 24 -
court's factual finding that the October order served as an
extension of the September order.
We also agree with the district court that, given the
holiday weekend and the maintenance of the recordings in a secure
location, such a two-business-day delay does not raise concerns
over the integrity of the recordings. As we expressed in Mora,
"[t]he longer the delay, the greater looms the danger of
adulteration; the longer the delay, the harder it may become to
show, say, good faith or the absence of undue prejudice. And the
lengthier the delay, the more difficult to find the government's
explanation 'satisfactory.'" 821 F.2d at 868. The two-day delay
here raises no such concerns where the recordings were kept safe
and secure in a password-protected location throughout the
duration of the delay over the holiday weekend, the government
received no unfair advantage, and Rodrigues has demonstrated no
prejudice. See Mora, 821 F.2d at 870 (noting that "[a]lthough we
eschew rigid adherence to a numeric countdown of the days as
outcome-determinative," a delay of twenty or forty-one days "is
not so great as to require automatic exclusion of the evidence").
With regard to the cause of the delay, the government
does not make clear why the delay occurred. The district court
attributed the government's delay to the holiday weekend. When
considering the cause of the delay, "[w]e ask, among other things,
was the statutory requirement ignored deliberately or
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inadvertently?" Id. at 869. Here, while it is unclear why the
government did not file for sealing until two business days after
the expiration of the October wiretap, there is no indication of
"gross dereliction of duty or wilful disregard for the sensitive
nature of the activities undertaken by means of the order[s]."
Id.
D. Hearing
Lastly, Rodrigues argues that the district court should
have held a "hearing" to address his claim that the government
acted deliberately and in bad faith when it omitted him from the
wiretap applications.
Below, Rodrigues asked specifically for a Franks
hearing, but he did so by merely joining in his co-defendants'
motions -- mentioning in a perfunctory one-liner at the end of his
motion to suppress that he "join[ed] in and adopt[ed] his cocounsel's
motions to the extent applicable, including . . . [their]
Request for [a] Franks Hearing." Notwithstanding the form of the
request, the district court responded and rejected his argument,
finding that he "failed to provide any proof of falsehood, let
alone reckless or material falsehood, in the affidavit, which [was]
presumptively valid."
Rodrigues renews his should-have-had-a-hearing argument
on appeal, but it is unclear from his brief whether he is now
claiming that the district court erred in not holding,
- 26 -
specifically, a Franks hearing, or more generally some other type
of evidentiary hearing.5 Consistent with his effort below,
Rodrigues spends little time developing any supportive argument
here; rather he cursorily tells us that the judge should have "held
a hearing to explore further the bad faith of the government
agents." Thus, he can fare no better with us. The argument is
deemed waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990); see also Rando v. Leonard, 826 F.3d 553, 557 (1st Cir.
2016) (finding an appellant's argument waived when at the district
court she raised the argument in a single sentence in her
opposition brief and then on appeal raised the argument in a
footnote of her appellate brief) (citing Armistead v. C & M
Transp., Inc., 49 F.3d 43, 45 n.2 (1st Cir. 1995)).6

* * *

5 "[A] Franks hearing may be held to address allegations
of both material omissions as well as false statements" in federal
wiretap affidavits. Cartagena, 593 F.3d at 112.
6 To the extent that Rodrigues is arguing for the first
time on appeal that he was entitled to an evidentiary hearing and
not necessarily a Franks hearing, it is well-established that "[a]
party may not raise new arguments for the first time on appeal."
In re Rauh, 119 F.3d 46, 51 (1st Cir. 1997). Therefore, any such
argument is also deemed waived.

Outcome: For the foregoing reasons, we affirm the district
court's denial of Rodrigues's motion to suppress and its denial of
his request for a hearing.

Plaintiff's Experts:

Defendant's Experts:

Comments: