United States v. Rodrigues

United States Court of Appeals
For the First Circuit

No. 15-1377

UNITED STATES OF AMERICA,

Appellee,

v.

MARTINHO RODRIGUES, A/K/A THOEY, A/K/A THO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Selya, and Thompson,
Circuit Judges.

Inga L. Parsons for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

March 1, 2017
 THOMPSON, Circuit Judge. 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.

- 2 -
 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.

- 3 -
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

- 4 -
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 two-

day 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

- 5 -
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

- 6 -
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

- 7 -
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

- 8 -
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. §

- 9 -
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.

- 10 -
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

- 11 -
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

- 12 -
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.

- 13 -
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

- 14 -
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.")

- 15 -
(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

- 16 -
 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

- 17 -
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

- 18 -
 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).

- 19 -
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,

- 20 -
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

- 21 -
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

- 22 -
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

- 23 -
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

- 24 -
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 co-

counsel'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,

- 25 -
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

Conclusion

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.

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.

- 26 -