                Not for Publication in West's Federal Reporter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




                              -2-
           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.

                                  -3-
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.

                                      -4-
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.

                                     -5-
          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).

                                  -6-
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.




                                 -7-
