United States v. Gordon

United States Court of Appeals
For the First Circuit

No. 15-2087

UNITED STATES OF AMERICA,

Appellee,

v.

DIMITRY GORDON,

Defendant, Appellant.

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

[Hon. Jon D. Levy, U.S. District Judge]

Before

Torruella, Selya and Kayatta,
Circuit Judges.

Edward S. MacColl, with whom Thompson, MacColl & Bass, LLC,
P.A. was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Richard W. Murphy, Acting United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, Appellate Chief, were
on brief, for appellee.

September 8, 2017
 SELYA, Circuit Judge. Defendant-appellant Dimitry

Gordon strives to persuade us that the district court erred in

denying his motion to suppress wiretap evidence and/or in refusing

to hold one or more evidentiary hearings in connection therewith.

We are not convinced and, therefore, we affirm the challenged

orders (that is, the order denying the motion to suppress and the

orders denying the two requests for evidentiary hearings).

I. BACKGROUND

Around September of 2012, a joint task force spearheaded

by the federal Drug Enforcement Administration (DEA), and

including state and local law enforcement officers, began

investigating a drug-distribution ring centered in Lewiston,

Maine. This probe led investigators to identify Romelly Dastinot

and Jacques Victor as the likely leaders of the ring.1 The task

force came to believe that the two regularly pooled their resources

to buy drugs in bulk quantities in Boston and transport them to

Maine. Once the drugs arrived in Maine, the pair apparently

peddled them through separate distribution channels.

In the course of its investigation, the task force

obtained Dastinot's and Victor's telephone records. That trove of

1This appeal was consolidated for oral argument with an
appeal taken by Dastinot, which raised a narrower subset of the
issues advanced by the appellant. Dastinot's appeal, No. 16-1272,
will be resolved by means of a separate opinion.

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information yielded several text-message exchanges detailing drug

transactions.

In addition, the task force implemented a gallimaufry of

other investigative strategies. To cite one example, it executed

controlled buys from both Dastinot and Victor. Some of the

controlled buys implicated the appellant as a lower-level member

of the conspiracy, who sold drugs (either oxycodone pills or crack

cocaine) on Dastinot's behalf. To cite another example, the task

force partnered with confidential sources and turncoat members of

the drug ring.2

Despite its investigative efforts, the task force was

unable to learn either the identity or specific location of the

drug ring's suppliers. Nor was the task force able to get a handle

on the drug ring's organizational structure. In hopes of catching

bigger fish, the government submitted a series of wiretap

applications to the district court between February and May of

2014, seeking to monitor a total of five telephones. Only three

of the target telephones, known as TT1, TT2, and TT5, are relevant

to this appeal (Dastinot used TT1 and TT5, while Victor used TT2).

2 The record reflects that the task force's investigation
involved no fewer than four confidential sources and that some
seven members of the drug ring cooperated with the government at
various stages of the investigation. For ease in exposition, we
do not distinguish between the confidential sources and the
turncoats but, rather, refer to all of them as cooperating sources.

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The appellant was identified as a target-subject of the wiretaps

even though his own telephone was never tapped.

A DEA agent, Joey Brown, prepared supporting affidavits

for the wiretap applications. All of these applications were

approved by the district court and renewed as needed. See 18

U.S.C. § 2518(5) (limiting wiretap authorization to thirty days).

In Agent Brown's first affidavit (dated February 24, 2014), he

spelled out investigative techniques that the task force had used

up to that point. For instance, investigators had worked

extensively with cooperating sources, executed controlled

purchases, analyzed telephone data (obtained through pen

registers, telephone toll records, historical text-message

records, and trap-and-trace devices), conducted physical

surveillance, examined public records, and used available subpoena

powers (both administrative and grand jury).

The affidavit identified the objectives of the wiretap

investigation as obtaining:

a. The identity of the sources of supply for
Dastinot and Victor, their locations, and the
manner in which they acquire[d] and
transport[ed] drugs to Maine and elsewhere for
distribution;

b. The precise roles of the Target Subjects
[including the appellant] in this drug
conspiracy and the methods being utilized by
the Target Subjects to distribute illegal
drugs;

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 c. The identity of all persons receiving
drugs from Dastinot and Victor for further
distribution;

d. Identification of the site(s) being
utilized for the storage and concealment of
illegal drugs;

e. The existence, location and disposition of
proceeds (including currency, real estate,
motor vehicles, and personal property) derived
from the Target Subjects' involvement in drug
distribution;

f. The precise date(s), time(s) and
location(s) of shipments of illegal drugs
to/from this organization and the manner of
delivery.

The affidavit revealed that the task force had learned very little

about the drug ring's sources of supply, finances, organizational

structure, or the roles of its members.

According to Brown, the task force had mulled a number

of additional investigative strategies, but had rejected them as

either too risky or too unlikely to yield worthwhile results. In

this vein, the task force had decided against conducting more

aggressive physical surveillance, attempting to install cameras in

selected public locations, obtaining search warrants for known

drug-distribution venues, collecting target-subjects' trash,

widening the use of grand jury interviews, or attempting to

introduce undercover agents into the ring. Brown added that he

did not believe that further controlled purchases would yield more

information about the drug ring. Nor did he think that either

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approaching or arresting the target-subjects and asking them to

reveal their sources of supply was apt to prove fruitful.

Brown also noted that the task force had considered

obtaining cell-site location information for at least some of the

telephones. This option was rejected because "the range of error

in this type of data prevents narrowing down a precise residence

(especially in dense places like Boston and Lewiston)." What is

more, the location data are often several minutes behind the actual

location of the telephone. And location data alone, he reasoned,

whether from cell-site records or from vehicle trackers, would not

reveal the identity of the person with whom a target-subject meets

or the nature of the encounter.

Brown concluded that wiretapping was "the only available

technique that ha[d] a reasonable likelihood of securing the

evidence necessary to accomplish the goals of th[e]

investigation." His affidavit chronicled minimization procedures

that would be instituted if the wiretaps were approved. At the

outset, the monitors (the persons intercepting calls) would be

provided with a minimization memorandum, the wiretap applications,

and the authorizing orders. In pertinent part, the memorandum

instructed that monitors should stop listening to conversations

that did not relate to the criminal enterprise (though they could

periodically check on seemingly innocuous discussions to see if

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the conversation had shifted). Each monitor would sign a form

indicating that he had read the documents.

After the district court granted the first of the wiretap

applications, the task force set up a wire room to serve as a

central location for intercepting and monitoring calls. The room

was staffed from 8:00 a.m. to midnight, and any calls not monitored

by staff in real time were not recorded. Through the duration of

the wiretaps, the authorities intercepted approximately 23,000

completed calls and text messages, many of which were in Haitian

Creole (the language of choice for members of the drug ring).

Along the way, the government compiled and submitted periodic

statistical summaries to the district court.

Armed with, inter alia, the fruits of the wiretapping,

a federal grand jury sitting in the District of Maine indicted the

appellant and eleven codefendants. The indictment charged the

appellant with conspiracy to distribute and possess with intent to

distribute controlled substances, see 21 U.S.C. §§ 841(a)(1), 846,

and conspiracy to commit money laundering, see 18 U.S.C.

§ 1956(a)(1)(B)(i).

In due course, the appellant moved to suppress the

evidence obtained through the wiretaps and requested two kinds of

evidentiary hearings. First, he requested a general evidentiary

hearing as to the adequacy of the government's minimization

procedures. Second, he requested a Franks hearing on the ground

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that Brown's affidavits in support of the wiretap applications

included false statements. See Franks v. Delaware, 438 U.S. 154,

155-56 (1978).

The district court heard arguments on these motions on

January 28, 2015, but reserved decision. It later ordered the

government to submit additional information regarding the

statistical makeup of the intercepted conversations. In response,

the government submitted Brown's supplemental affidavit dated

February 13, 2015, which clarified and corrected the double-

counting of some intercepted calls and reported that 14% of the

calls lasting more than two minutes had been minimized in some

way.

After further briefing, the district court denied not

only the motion to suppress but also the twin requests for

evidentiary hearings. The appellant thereafter entered a

conditional guilty plea to the drug conspiracy count, see Fed. R.

Crim. P. 11(a)(2), preserving his right to appeal the denial of

both his motion to suppress and his related requests for

evidentiary hearings. The district court accepted the conditional

plea and subsequently sentenced the appellant to a 28-month term

of immurement. At the same time, the court dismissed the money

laundering charge. This timely appeal followed.

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II. THE MOTION TO SUPPRESS

Insisting that his motion to suppress the wiretap

evidence should have been granted, the appellant, ably

represented, attacks the wiretap orders on multiple fronts. We

start with his assertion that the orders were insufficiently

particular. We next proceed to his claims that wiretapping was

unnecessary and that, in all events, the government failed

adequately to minimize its intrusion into the target-subjects'

privacy rights.

Familiar standards of review guide our analysis. When

assaying a district court's ruling on a motion to suppress wiretap

evidence, we review its factual findings for clear error and its

legal conclusions de novo. See United States v. Lyons, 740 F.3d

702, 720-21 (1st Cir. 2014). The key question is whether the

wiretap application and its supporting affidavits were "minimally

adequate" to support the issuance of the wiretap order. United

States v. Santana, 342 F.3d 60, 65 (1st Cir. 2003) (quoting United

States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003)).

A. Particularity.
With the passage of Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 (Title III), see 18 U.S.C.

§§ 2510-2522, Congress authorized wiretapping as needed to allow

effective investigation of criminal activities while at the same

time ensuring meaningful judicial supervision and requiring

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specific procedures to safeguard privacy rights. See United States

v. Rodrigues, 850 F.3d 1, 6 (1st Cir. 2017); see also Gelbard v.

United States, 408 U.S. 41, 48 (1972) (describing Title III as

"(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" (quoting S. Rep. No. 1097, at 66 (1968), as

reprinted in 1968 U.S.C.C.A.N. 2112, 2153)). Among other things,

Title III provides for the suppression of wiretap evidence on the

ground that "the order of authorization or approval under which it

was intercepted [was] insufficient on its face." 18 U.S.C.

§ 2518(10)(a)(ii).

Here, the appellant complains that the wiretap orders

failed to satisfy Title III's particularity requirements in three

respects. He submits that they did not include "a particular

description of the type of communication sought to be intercepted,"

id. § 2518(4)(c); that they did not include "a statement of the

particular offense to which [the communication] relates," id.; and

that they did not include a sufficient description of "the agency

authorized to intercept the communications," id. § 2518(4)(d). We

examine these plaints sequentially.

The appellant's remonstrance regarding the type of

communication sought focuses on the fact that the orders were not

limited to existing telephone numbers but, rather, extended to

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numbers "subsequently assigned to or used by the instruments

bearing the same" electronic serial number (ESN) or International

Mobile Equipment Identity (IMEI) number as the original tapped

telephone. For example, if Dastinot changed the ten-digit

telephone number assigned to a particular cellular telephone, the

order would automatically cover the new ten-digit number, and the

task force would not have to seek a further order every time that

number changed. Relatedly, the orders authorized the interception

of "background conversations intercepted in the vicinity of the

target telephones while the telephones are off the hook or

otherwise in use." In the appellant's view, extending the

authorizations in this manner rendered them impermissibly broad.

These arguments comprise more cry than wool. Brown's

affidavits set forth convincing reasons for tracking telephones by

ESN or IMEI number: drug traffickers change telephone numbers

frequently in an attempt to avoid detection and, in the bargain,

tend not to associate their names with telephone numbers. To cinch

the matter, the orders were specific in that they restricted

interception to particular serial numbers. We can think of no

good reason why Title III's particularity requirement should be

read as limiting a wiretap to a specific telephone number rather

than a specific ESN or IMEI number reasonably believed to be used

by the target. Cf. United States v. Oliva, 705 F.3d 390, 400-01

(9th Cir. 2012) (holding, with respect to 18 U.S.C. § 2581(4)(b),

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that order authorizing wiretap by reference to specific serial

number was sufficiently descriptive to satisfy Title III's mandate

that order describe "the nature and location of the communications

facilities").

The appellant's argument regarding background

conversations overheard through an off-the-hook telephone is

equally unavailing. This language is standard fare in wiretap

applications, see id. at 397 n.7, and its inclusion does not make

the wiretap orders impermissibly broad. After all, describing

potential types of communications to be intercepted appears fully

consistent with Title III's directive to define the sought-after

communications with particularity. And, finally, it is doubtful

whether Title III even applies to background conversations. Cf.

United States v. Couser, 732 F.2d 1207, 1210 (4th Cir. 1984)

(questioning whether "plain view" doctrine creates an exception to

Title III requirements for background conversations). See

generally United States v. Williams, 827 F.3d 1134, 1153 (D.C.

Cir. 2016) (assuming, arguendo, that overheard conversations

implicate Title III's requirement to name target individuals but

noting lack of authority for the proposition), cert. denied, 137

S. Ct. 706 (2017).

Next, the appellant posits that the wiretap orders are

invalid for failing to identify "the particular offense to which"

the sought-after communications relate. 18 U.S.C. § 2518(4)(c).

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The critical fault, he says, is that the orders simply cite

statutory sections without providing any broader context. But the

appellant sets the bar too high: the enumeration of specific

criminal statutes itself serves to identify particular offenses

and, thus, satisfies this facet of the particularity requirement.

See United States v. Spillone, 879 F.2d 514, 517-18 (9th Cir.

1989).

The overall structure of the statute buttresses this

view: an earlier subsection — section 2518(3)(a) — uses the term

"particular offense" in reference to "a particular offense

enumerated in section 2516." Section 2516, in turn, lists criminal

offenses, some by statutory citation and others by even broader

descriptions, such as "the manufacture, importation, receiving,

concealment, buying, selling, or otherwise dealing in narcotic

drugs, marihuana, or other dangerous drugs, punishable under any

law of the United States." 18 U.S.C. § 2516(1)(e). In light of

this provision, abecedarian principles of statutory construction

lead to the conclusion that the "particular offense" requirement

in section 2518(4)(c) is satisfied when a wiretap order simply

lists the charging statute. See United States v. Nippon Paper

Indus. Co., 109 F.3d 1, 4-5 (1st Cir. 1997) ("It is a fundamental

interpretive principle that identical words or terms used in

different parts of the same act are intended to have the same

meaning. This principle . . . operates not only when particular

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phrases appear in different sections of the same act, but also

when they appear in different paragraphs or sentences of a single

section." (citations omitted)).

The appellant has one last shot in his particularity

sling. Title III requires a wiretap order to specify "the agency

authorized to intercept the communications." 18 U.S.C.

§ 2518(4)(d). The appellant assails the description of the

authorized agency contained in the wiretap orders as virtually

"unbounded."

By their terms, the orders authorize "special agents of

the United States Drug Enforcement Administration and other

investigative and law enforcement officers, and civilian monitors

operating under a contract with the Government" to conduct the

wiretapping. The appellant correctly notes the looseness of this

language: phrases such as "other investigative and law enforcement

officers" are not moored to any particular agency. Even so, the

orders must be read in the context of Brown's affidavits and the

wiretap applications, and those documents leave little doubt that

the DEA was the agency involved.

For one thing, Brown's affidavits made pellucid the

DEA's pervasive involvement in the case. For another thing, the

wiretap orders specified that the wiretapping would "be executed

at a listening post maintained at the United States Drug

Enforcement Administration Resident Office, in Portland, Maine."

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They also described a cooperative effort between Verizon Wireless

and the DEA. Given a practical, commonsense reading, we hold that

the wiretap orders were sufficiently particular in describing the

DEA as "the agency authorized" to conduct the wiretapping.

Even if we assume, for argument's sake, that inclusion

of the loose language challenged by the appellant departed from

the statutory "agency identification" requirement, the violation

would not demand suppression. Not every blemish in an order of

authorization demands suppression: such a remedy is required only

when there is a failure to satisfy "statutory requirements that

directly and substantially implement the congressional intention

to limit" wiretaps. United States v. Giordano, 416 U.S. 505, 527

(1974); see United States v. Cunningham, 113 F.3d 289, 293-94 (1st

Cir. 1997). This principle recognizes that suppression is "strong

medicine," which should not be profligately dispensed. United

States v. Adams, 740 F.3d 40, 43 (1st Cir. 2014).

The putative violation of the "agency identification"

requirement is more a matter of form than of substance. That

lapse, though regrettable, cannot plausibly be said to directly or

substantially weaken the protections that Congress sought to craft

in connection with wiretapping. See United States v. López, 300

F.3d 46, 55-56 (1st Cir. 2002) (holding that "government must

disclose, as a part of its application for a wiretap warrant, any

intention to utilize the services of civilian monitors in the

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execution of the warrant" but concluding that omission did not

require suppression). It follows that suppression would be

manifestly disproportionate to the putative violation and, thus,

should not be required.

That ends this aspect of the matter. We reject the

appellant's importunings and hold that the wiretap orders were not

so lacking in particularity as to demand suppression.

B. Necessity.

In investigating criminal activity, "wiretapping is to

be distinctly the exception — not the rule." United States v.

Hoffman, 832 F.2d 1299, 1307 (1st Cir. 1987). To balance "privacy

and the rights of the individual," Title III requires the

government to establish necessity as a prerequisite for obtaining

a wiretap order. Id. Seizing on this requirement, the appellant

asserts that the government failed to establish that it was

necessary to resort to wiretapping.

In the Title III lexicon, necessity is not an absolute.

Rather, it must be viewed through the lens of what is pragmatic

and achievable in the real world. See United States v. Uribe, 890

F.2d 554, 556 (1st Cir. 1989) (explaining that "Title III demands

a practical, commonsense approach to exploration of investigatory

avenues"). It is a relative term — and it is context-specific.

To demonstrate necessity, a wiretap application must include "a

full and complete statement as to whether or not other

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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). Such a showing

"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 phone calls." United States v. Martinez, 452 F.3d

1, 4 (1st Cir. 2006) (quoting Villarman-Oviedo, 325 F.3d at 9).

This does not mean, though, that the government is

"required to show that other investigatory methods have been

completely unsuccessful." United States v. Rivera-Rosario, 300

F.3d 1, 19 (1st Cir. 2002). Nor does it mean that "the government

[is] forced to run outlandish risks or to exhaust every conceivable

alternative before resorting to electronic surveillance." Id.;

accord Santana, 342 F.3d at 65.

On appeal, our task is not to undertake a de novo

determination of necessity as if we were deciding whether to issue

the wiretap order. See United States v. Ashley, 876 F.2d 1069,

1074 (1st Cir. 1989); accord Rodrigues, 850 F.3d at 9. We need

only "decide if the facts set forth in the application were

minimally adequate to support the determination that was made."

Ashley, 876 F.2d at 1074 (quoting United States v. Scibelli, 549

F.2d 222, 226 (1st Cir. 1977)). In evaluating whether the

government has crossed this threshold, we have not hesitated to

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uphold wiretap orders based on an agent's plausible, good faith

"assert[ion of] 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." Rodrigues, 850 F.3d at 10

(collecting cases). As we explain below, that is exactly the type

of assertion that the government proffered here.

Brown's affidavits related that it was not until early

2014 — approximately a year and a half into the investigation —

that the government turned to wiretaps. At that point, the task

force already had employed a myriad of investigative techniques,

including the use of confidential sources, physical surveillance,

controlled buys, analysis of telephone data and public records,

and the issuance of subpoenas (both administrative subpoenas and

grand jury subpoenas). Extensive use of these tools had left the

agents in the dark about important matters such as the drug ring's

sources of supply, its organizational structure, and its finances.

By the same token, Brown spelled out plausible reasons for not

employing certain other strategies. The task force did not want

to attempt more intensive use of undercover agents or cooperating

sources for fear of arousing suspicion.3 For much the same reasons,

3The maxim "once bitten, twice shy" was in play: Brown was
concerned that at least one confidential source already had been
outed because the source had been sold fake (or extremely low-
quality) heroin in executing a controlled buy.

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the task force did not recommend either more aggressive physical

surveillance or trying to install cameras. Further surveillance

of public spaces would be ineffectual, Brown reasoned, because the

vast majority of this drug ring's crimes occurred indoors.

To be sure, the task force had considered simply

revealing its evidence, at least in part, to selected

coconspirators and attempting to elicit their cooperation. This

tactic was not pursued because the task force reasonably concluded

that the possibilities of success were slim and the risks of

failure were great.

Other methods considered but left by the wayside

included cell-site location data and vehicle tracking. Brown

plausibly explained that the "range of error" of the cell-site

data provided by Verizon Wireless prevented that data from being

very useful, "especially in dense places like Boston and Lewiston."

At any rate, the data would not be able to "narrow[] down a precise

residence" in such areas. With respect to multi-unit buildings

(common in Boston and Lewiston), targeting a particular building

through location data would not serve to identify individual

conspirators. More critically, neither the cell-site data nor

vehicle tracking could reveal the purpose for the conspirator's

movements, the identity of the persons with whom they were meeting,

or the purposes of those meetings. To obtain this kind of

intelligence, Brown believed that wiretapping was needed.

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 The short of it is that Brown's affidavits, read as a

whole, show that the task force carried out a long-lasting, wide-

ranging, good-faith investigation that ran the gamut of standard

investigative techniques. Those affidavits reflect a careful and

rational balancing of the utility of various investigatory tools

against the possibility of prematurely alerting the drug ring to

the probe. The foundation laid in Brown's affidavits substantiates

a plausible judgment that the investigation had reached a point at

which wiretapping was reasonably necessary. We conclude,

therefore, that the wiretap applications were more than minimally

adequate to justify the wiretap orders. It follows that the

appellant's necessity challenge fails.

C. Minimization.

Title III warns monitors to minimize irrelevant calls.

See 18 U.S.C. § 2518(5) (declaring that monitoring must "be

conducted in such a way as to minimize the interception of

communications not otherwise subject to interception"); see also

Scott v. United States, 436 U.S. 128, 140 (1978) (explaining that

Title III "instructs the agents to conduct the surveillance in

such a manner as to 'minimize' the interception of [irrelevant]

conversations"). Consistent with this admonition, the wiretap

orders directed the monitors to stop listening and/or recording

when it became apparent that a conversation was not related to the

criminal investigation. The minimization memorandum distributed

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to the monitors contained a similar warning. Even so, the monitors

were permitted to check periodically on any given conversation to

ascertain whether the discussion had shifted. The appellant

insists that the government failed to comply with these

requirements.

Blanket suppression of wiretap evidence is a "drastic"

remedy, which should be reserved for the most "egregious" cases.

Hoffman, 832 F.2d at 1309. A minimization violation often can be

cured through a less draconian remedy: suppression of only those

calls that the court determines should have been minimized. See

id. Here, however, the appellant has not identified even a single

call that he contends should have been minimized, but was not.4

Thus, the relevant question reduces to whether the government's

handling of its minimization responsibilities was so egregious as

to support a blanket exclusion of the evidence obtained through

wiretapping.

As a general matter, whether the government fails

adequately to minimize intercepted conversations "depend[s] on the

facts and circumstances of each case." Scott, 436 U.S. at 140.

In evaluating the facts and circumstances of a specific case and

4Indeed, the appellant has not identified even a single
failure to minimize that prejudiced his rights. The absence of
any such prejudice may, in itself, warrant the denial of his motion
to suppress. See López, 300 F.3d at 58 (upholding denial of
suppression where defendant was not prejudiced by two intercepted
non-pertinent calls).

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the government's fealty to Title III's minimization requirements,

a reviewing court must "look at several factors, including: 1) the

nature and complexity of the suspected crimes; 2) the thoroughness

of the government's precautions to bring about minimization; and

3) the degree of judicial supervision over the surveillance

process." López, 300 F.3d at 57.

In this instance, the first two factors weigh heavily in

the government's favor. The sprawling operations of the drug ring

and the complexity of the suspected crimes are manifest. In cases

like this one, involving drug conspiracies of indeterminate

proportions, "the need to allow latitude to eavesdroppers is close

to its zenith." Hoffman, 832 F.2d at 1308.

To add to the complexity, the appellant and his

confederates frequently spoke in Haitian Creole and employed code

names on many occasions. The use of "codes and specialized jargon"

furnish an added reason for affording monitors leeway because, in

such cases, more context is needed to determine whether a

conversation is related to the suspected crimes. Uribe, 890 F.2d

at 557. The use of a foreign language itself supplies an extra

layer of complexity. Cf. United States v. David, 940 F.2d 722,

730 (1st Cir. 1991) (explaining that when intercepted

communications are in a foreign language and a real-time translator

is not available, minimization may be accomplished as soon as

practicable after the fact).

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 Importantly, the scope of the conspiracy was unknown at

the time that the wiretaps were authorized. Indeed, an animating

purpose behind the wiretap applications was to flesh out the

structure of the organization and to identify the drug ring's

sources of supply. These uncertainties also counsel in favor of

granting wider latitude to the monitors. See, e.g., Hoffman, 832

F.2d at 1308 (allowing broad latitude when "investigation is

focused largely on blueprinting the shape of the conspiratorial

wheel and identifying the spokes radiating from its hub").

Here, moreover, the thoroughness of the government's

precautions to bring about minimization is unquestioned. The

record reflects that the government established a regime of

adequate precautions designed to ensure that monitors were

appropriately minimizing irrelevant conversations. All monitors

had to confirm in writing that they had read the wiretap

applications and supporting affidavits, the wiretap orders, and an

instructional memorandum detailing proper minimization procedures.

These documents were posted in the monitors' workplace for easy

reference. Prosecutors also met with government agents to brief

them on minimization standards.

The third factor is not quite as clear-cut; in the end,

though, we think that the record indicates sufficient judicial

supervision. See Uribe, 890 F.2d at 558. To begin, the court

took care, in crafting the wiretap orders, to detail the

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minimization procedures already discussed. In addition, the

government was required to submit statistical reports to the court

on an ongoing basis.

It is the contents of these statistical reports that

bring us to the crux of the appellant's minimization argument.

When the appellant questioned the accuracy of some of the proffered

numbers in arguing for suppression in the court below — contending,

for example, that the reports listed as minimized calls that were

not monitored and text messages that were not minimized — the

district court ordered the government to submit additional

explanations and more detailed data.

Before us, the appellant focuses on the percentage of

non-pertinent calls that were not minimized in any way (98%,

according to his calculations). Such percentages, though, tell us

very little because many calls presumably end before the listener

can determine their pertinence. Courts therefore tend to look at

the relative percentage of calls minimized out of those calls

lasting more than two minutes. See, e.g., United States v. De La

Cruz Suarez, 601 F.3d 1202, 1215 (11th Cir. 2010); United States

v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir. 2008); United States

v. Rivera, 527 F.3d 891, 905 (9th Cir. 2008); United States v.

Dumes, 313 F.3d 372, 380 (7th Cir. 2002). Here, the government's

data show that there were 1616 such calls, out of which 667 were

determined to be not pertinent; 229 calls were minimized, likely

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meaning that over two-thirds of non-pertinent calls in excess of

two minutes were not minimized. Although the fact that over 200

calls were minimized shows that there were real minimization

efforts undertaken, the percentage of non-pertinent calls not

minimized would seem to warrant some explanation.

The record points to such an explanation — at least

enough of an explanation for us to find that the district court's

ruling was not unreasonable and, thus, to justify upholding it.

As Brown noted, many calls were in Haitian Creole and/or coded

parlance, requiring either the use of translators or other

assistants. It is eminently reasonable to conclude that

determining the lack of pertinence of such calls would take much

longer than usual.

Tellingly, there is no evidence of a slew of examples of

calls that plainly should have been minimized in less than two

minutes, but were not. Through we do not suggest that defense

counsel need have reviewed hundreds of calls, we make the more

limited point that if the minimization process had not been an

"honest effort," United States v. Charles, 213 F.3d 10, 22 (1st

Cir. 2000), it should have been easy to find quite a few examples

of non-minimized calls that obviously should have been minimized.

Nor is there any other sign of either a less-than-serious effort

on the part of the government to comply or a less-than-serious

degree of supervision by the district court such as would lead us

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to conclude that the court abused its considerable discretion.

Consequently, we decline the appellant's invitation to hold that

the failure to minimize more irrelevant calls caused a "taint upon

the investigation as a whole." Hoffman, 832 F.2d at 1307.

Although we uphold the district court's ruling that

suppression was not required due to minimization deficiencies, we

note that the appellant was at a disadvantage in manipulating the

wiretap data. The government produced the logs for more than

20,000 telephone calls and text messages in the form of 10,000-

plus pages in portable document format (PDF). Converting the

10,000 pages of PDFs into a workable spreadsheet would require

inordinate time, effort, and resources. The government had

available to it, and most likely should have produced the data in,

a more serviceable format.5 The appellant, though, merely

mentioned the government's failure to provide the material in an

electronically sortable format in his motion to suppress; he did

not identify this failure either as a ground for his motion or as

5The record discloses that the government was able to run
reports, sort, and otherwise manipulate the data using a program
called VoiceBox. When queried at oral argument in this court, the
government offered no explanation as to why it could not have
produced for the appellant a spreadsheet embodying the same
functionality as it enjoyed by means of the VoiceBox program. But
cf. United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574, at
*2 (W.D.N.Y. Nov. 16, 2012) (discussing limitations of VoiceBox
and finding disclosure obligations satisfied with searchable PDFs
rather than Excel-style spreadsheets because of data corruption
concerns).

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a basis for a continuance. Nor did he raise any issue concerning

the government's failure to produce materials in an electronically

sortable format in his briefs on appeal. Consequently, we do not

pursue this point. See United States v. Iwuala, 789 F.3d 1, 7

(1st Cir. 2015) (explaining that arguments not made in opening

appellate brief are deemed waived), cert. denied, 136 S. Ct. 913

(2016); United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992)

(explaining that arguments not made in the district court are

deemed waived).

III. THE EVIDENTIARY HEARING REQUESTS

We end our journey by examining the appellant's twin

requests for evidentiary hearings — his request for a general

evidentiary hearing on his failure-to-minimize argument, and a

Franks hearing to appraise what he alleges to be false statements

in Brown's affidavits. We discuss these hearing requests

separately.

A. General Evidentiary Hearing.

No criminal defendant has "a presumptive right to [a

general] evidentiary hearing on a motion to suppress." United

States v. D'Andrea, 648 F.3d 1, 5 (1st Cir. 2011). Rather, a

general evidentiary hearing is only warranted if the party seeking

suppression "makes a sufficient threshold showing that material

facts are in doubt or dispute, and that such facts cannot reliably

be resolved on a paper record." Id. (quoting United States v.

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Staula, 80 F.3d 596, 603 (1st Cir. 1996)). When all is said and

done, "the defendant must show that there are factual disputes

which, if resolved in his favor, would entitle him to the requested

relief." Staula, 80 F.3d at 603. "The district court has

considerable discretion in determining the need for, and the

utility of, evidentiary hearings, and we will reverse the court's

denial of an evidentiary hearing in respect to a motion in a

criminal case only for manifest abuse of that discretion." Id.

In the case at hand, the appellant alleges that he

presented a colorable, fact-intensive claim as to whether the

government appropriately minimized his communications. That

claim, he says, could only be resolved after an evidentiary

hearing. We do not agree.

The district court was adequately apprised of the facts

relating to minimization through the parties' filings,

particularly after the government furnished supplemental

information (at the court's direction) explaining its minimization

tallies more thoroughly. The Supreme Court has noted the

"necessarily ad hoc nature" of minimization determinations and has

emphasized the need for flexibility in judicial oversight. Scott,

436 U.S. at 139. In the end, whether the government has engaged

in adequate minimization is quintessentially a judgment call, and

the court below had sufficient facts before it to make an informed

decision in that regard. We conclude, therefore, that the district

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court did not abuse its wide discretion in declining to hold a

general evidentiary hearing to delve further into the minimization

issue.

B. Franks Hearing.

This leaves the appellant's request for a Franks

hearing. To obtain a Franks hearing, a defendant must make "a

substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and [that] the

allegedly false statement is necessary to the finding of probable

cause." 438 U.S. at 155-56. "In considering a district court's

decision to deny a Franks hearing, we review factual determinations

for clear error and the probable cause determination de novo."

United States v. Arias, 848 F.3d 504, 511 (1st Cir. 2017); see

United States v. Tanguay, 787 F.3d 44, 48-50 (1st Cir. 2015)

(reviewing de novo district court's probable cause analysis in

connection with Franks hearing).

Here, the appellant alleges that Brown's affidavits

contained false statements with respect to the existence of

probable cause vis-à-vis money laundering, the efficacy of cell-

site location data, and the likelihood that wiretapping would allow

the task force to identify assets of the conspiracy and the precise

roles of the individuals involved.

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 The statements to which the appellant adverts, though,

are as much matters of opinion as matters of fact, and the

appellant has made no convincing showing that Brown knew the

statements were false, yet nonetheless included them in his

affidavits.

We add, moreover, that all of the challenged statements

appear to have had a reasonable basis in fact. With respect to

the money-laundering statements, Brown did not need to have

probable cause to believe that the appellant himself was engaging

in money laundering. He only needed probable cause to believe

that some members of the conspiracy were so engaged. The record

adequately evinces that Brown had probable cause to believe that

some members of the drug ring were engaging in money laundering;

after all, Brown's affidavits presented a detailed showing of

repeated buying and selling of drugs, which gave rise to a

commonsense inference that the members of the drug ring must have

been participating in some kind of scheme to protect and launder

their profits.

As to the cell-site location data, the appellant did not

proffer enough facts to demonstrate that Brown's statements were

false, much less knowingly so. While the appellant's brief relies

heavily on a document submitted to the district court (a Verizon

Wireless publication for law enforcement officers), the district

court took this document into account, see United States v.

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Dastinot, No. 2:14-CR-69, 2015 WL 1292611, at *6 (D. Me. Mar. 23,

2015), concluding (reasonably, we think) that it did not contradict

Brown's statements that the location data were neither

sufficiently accurate nor sufficiently particularized to enable

agents to pinpoint a specific residence, especially in densely

populated areas.

We need not linger long over the appellant's allegations

that Brown either dissembled or made statements in reckless

disregard of the truth when he stated that the task force hoped to

learn through the wiretaps about the precise roles of conspirators

and the whereabouts of the drug ring's assets. In support, the

appellant suggests that these goals were too broad to be reasonably

achievable. This contention does not withstand scrutiny.

The goals of identifying a drug conspiracy's

organizational structure (at least in rough terms) and locating

its assets are achievable in some measurable sense. Intercepted

conversations might well give clear indications of the drug ring's

hierarchy, and investigators — following up on information gleaned

from intercepts — might well locate cash, inventory, real estate

holdings, or other items of value. To say that these statements

of aspirational goals were either intentionally false or made in

reckless disregard of the truth is simply a bridge too far. We

have approved similarly broad goals in other wiretap cases, see,

e.g., Martinez, 452 F.3d at 6; Villarman-Oviedo, 325 F.3d at 10,

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and Brown could not be faulted for the description of goals

contained in his affidavits.

To say more would be to paint the lily. We hold, without

serious question, that the district court did not commit reversible

error in refusing to convene either a general evidentiary hearing

or a Franks hearing.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

the orders of the district court are

Affirmed.

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