Filed: Jan. 30, 2013
Latest Update: Feb. 12, 2020
Summary: two brothers, appellants Ervin Figueroa and Elio Figueroa. The district court denied their motion.appropriately denied the motion to suppress the wiretap evidence. He also has appealed, but his appeal has been severed, for later argument.United States v. Echeverri, 982 F.2d 675, 677-78 (1st Cir.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1701
UNITED STATES OF AMERICA,
Appellee,
v.
ERVIN FIGUEROA,
Defendant, Appellant.
____________________
No. 11-1702
UNITED STATES OF AMERICA,
Appellee,
v.
ELIO FIGUEROA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Robert D. Watt Jr. for defendant Ervin Figueroa.
Judith H. Mizner, Assistant Federal Public Defender, for
defendant Elio Figueroa.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief for
appellee.
January 30, 2013
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SELYA, Circuit Judge. In 2009 a federal grand jury
returned a 23-count indictment against six individuals, including
two brothers, appellants Ervin Figueroa and Elio Figueroa. The
indictment charged the group with conspiring to distribute one
kilogram or more of heroin and with a litany of specific drug,
firearms, and money laundering offenses. All of the charges
stemmed from the defendants' alleged participation in a sprawling
drug ring that imported heroin from Guatemala into Rhode Island.
Several of the persons indicted entered guilty pleas, but
the two Figueroa brothers and a third defendant (Carlos Roberto
Rodas) contested the charges. This trio filed a gallimaufry of
pretrial motions, including a motion to suppress wiretap evidence
and for a Franks hearing, see Franks v. Delaware, 438 U.S. 154,
155-56 (1978). The district court denied their motion.
An 8-day trial followed, which prominently featured 133
intercepted telephone calls. Pertinently, the jury convicted the
Figueroa brothers on the general conspiracy count and on specific-
offense counts charging possession of heroin with intent to
distribute on various dates.1 The jury also convicted Ervin
Figueroa of possessing cocaine with intent to distribute, money
laundering conspiracy, and ten specific-offense counts of money
1
To be precise, Ervin Figueroa's specific offenses occurred
on three different dates, whereas Elio Figueroa's specific offenses
took place on only two of those dates.
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laundering. In due course, the district court sentenced the
appellants. These timely appeals ensued.2
The issues presented by these appeals are largely
factbound. No useful purpose would be served by setting out a
lengthy factual exegesis. The parties know as well as we do what
the record contains and what inferences the proof permits.
Moreover, the case is so fact-specific that weaving together the
evidentiary strands would accomplish nothing of precedential value.
Given these circumstances, we proceed directly to the merits. See,
e.g., DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 750-51 (1st
Cir. 1989).
We need not dawdle. In this case, we can safely omit any
in-depth analysis of the issues raised on appeal. It suffices to
say that we have given careful scrutiny to the briefs, the oral
arguments, and the record below. Applying well-settled law, we are
persuaded, beyond hope of contradiction, that the appellants were
fairly tried and lawfully convicted. We explain briefly.
First, we are fully satisfied that the district court
appropriately denied the motion to suppress the wiretap evidence.
The affidavit and other materials submitted in connection with the
application for the wiretap contain considerable detail. These
materials staunchly support a finding that other, less intrusive
2
Rodas was tried and convicted along with the Figueroa
brothers. He also has appealed, but his appeal has been severed
for later argument.
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investigative means could not reasonably have been expected to
achieve the goals of the investigation. The district court's
"necessity" determination was, therefore, wholly justified, as was
its denial of the motion to suppress. See, e.g., United States v.
Uribe, 890 F.2d 554, 556-57 (1st Cir. 1989); United States v.
Hoffman,
832 F.2d 1299, 1306-07 (1st Cir. 1987).
Second, the district court did not err in refusing to
convene a Franks hearing. In arguing this point, the appellants
rely principally on two supposed misstatements in the case agent's
affidavit. Their argument is unconvincing.
To be sure, the first wiretap application contained an
incorrect statement of fact vis-à-vis the use of a pole camera.
But that error was peripheral and, in our view, the inclusion of
the accurate fact would not have adversely influenced the issuing
judge's "necessity" determination. The second supposed
misstatement was not a misstatement at all. In this regard, the
appellants' attack targets a representation about the utility of a
global positioning system (GPS) device. This is a lame attempt to
make a mountain out of a molehill: it was the court-authorized
wiretap that produced the information that enabled the government
to secure the authorization for the installation of the GPS
device.3
3
At oral argument in this court, the appellants claimed that
other misstatements may have occurred. But these claims were never
addressed in the court below. Consequently, we deem them waived.
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Third, Ervin Figueroa's claim that the wiretap
application was rendered infirm by a host of technical defects
represents a triumph of hope over reason. This claim is undermined
both by the language of the statute, see 18 U.S.C. § 2518(1), and
by the case law, see, e.g., In re Grand Jury Proceedings, 988 F.2d
211, 214-15 (1st Cir. 1992) (per curiam); United States v. Citro,
938 F.2d 1431, 1435-36 (1st Cir. 1991).
Fourth, the district court did not commit clear error
under Federal Rule of Evidence 801(d)(2)(E) in finding that there
was sufficient extrinsic evidence of Elio Figueroa's involvement in
the conspiracy to warrant the introduction of intercepted
conversations in which he did not directly participate. See United
States v. Petrozziello, 548 F.2d 20, 22-23 (1st Cir. 1977). Where,
as here, there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous. See
Anderson v. City of Bessemer City,
470 U.S. 564, 573-74 (1985);
United States v. Pontoo,
666 F.3d 20, 26-27 (1st Cir. 2011).
Fifth, and finally, the record reveals ample evidence
from which a rational jury could infer — as this jury did — that
Elio Figueroa either actually or constructively possessed heroin on
the dates delineated in the specific-offense counts. See, e.g.,
United States v. Echeverri, 982 F.2d 675, 677-78 (1st Cir. 1993).
In any event, given the surfeit of evidence of Elio's guilt with
See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
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respect to the heroin conspiracy count, the jury had an adequate
basis for convicting him on a Pinkerton theory. See Pinkerton v.
United States, 328 U.S. 640 (1946); see also United States v.
Gobbi,
471 F.3d 302, 309 & n.3 (1st Cir. 2006).
We need go no further. The judgments appealed from are
affirmed.
Affirmed.
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