author: LOURIE, Circuit Judge.

text:
    The KENDALL COMPANY, Plaintiff-Appellant, v. PROGRESSIVE MEDICAL TECHNOLOGY, INC., Defendant-Appellee.
    No. 95-1444.
    United States Court of Appeals, Federal Circuit.
    June 4, 1996.

      Paul J. Hayes, Weingarten, Shurgin, Gagnebin & Hayes, Boston, Massachusetts, argued for plaintiff-appellant. With him on the brief was Dean G. Bostock.
    Jeffery V. Stuckey, Dickinson, Wright, Moon, Van Dusen & Freeman, argued for defendant-appellee. With him on the brief were Gregory L. McClelland, Lansing, Michigan, and Conrad J. Clark, of Washington, D.C.
    Before ARCHER, Chief Judge, LOURIE and SCHALL, Circuit Judges.
   LOURIE, Circuit Judge.

The Kendall Company appeals from the decision of the United States District Court for the Western District of Michigan granting summary judgment of noninfringement in favor of Progressive Medical Technology, Inc. Kendall Co. v. Progressive Medical Technology, Inc., No. 5:93-CV-89 (W.D. Mich. June 12, 1995). We affirm.

BACKGROUND

Kendall is the assignee of U.S. Patent 4,253,449, directed to a medical device for applying compressive pressure to a patient’s limbs in order to increase blood flow and treat or prevent deep vein thrombosis. The patented device is comprised of three basic components: a controller-pneumatic pump for supplying pressurized fluid, a pair of pressure sleeves that wrap around a patient’s limbs, and connecting tubes. A commercial embodiment of the invention, known as the “Kendall SCD System,” is illustrated below:

Kendall sold its SCD System to medical care facilities, knowing that, in order to reduce the risk of contamination between successive patients, its customers planned to replace the pressure sleeves after each use by a single patient. Kendall did not discourage this practice and, in fact, marked “FOR SINGLE PATIENT USE ONLY. DO NOT REUSE.” on the packaging of the replacement sleeves that it sold to its customers. In the district court, Kendall did not contradict Progressive’s sworn statement that:

Customers buy the Kendall controller and tubing assembly with the understanding that they are to be used repeatedly and on different patients. Customers buy the Kendall sleeves, on the other hand, with the understanding that they are to be used only on a single patient and then discarded. The buyers of the Kendall SCD System purchase the controller, the tubing assembly, and a plurality of sleeves with the understanding that many sets of sleeves will be used and discarded long before the controller and tubing assembly are worn out.

In addition, Kendall submitted an affidavit explaining that the pressure sleeves must be replaced after each use because, “In the hospital environment, there is a likelihood that the ‘SCD’ sleeves may be contaminated by a patient’s blood, body fluids and other excretions because the sleeves come into direct contact with the patient’s skin and any cuts, sores or other abrasions on the skin.” The resulting market for replacement sleeves has been substantial; Kendall’s sale of replacement sleeves has accounted for about eighty million out of the eighty-five million dollars in total annual sales.

Although Kendall’s customers replaced the pressure sleeves after each use, not all of them purchased replacement sleeves from Kendall. Some purchased replacement sleeves from Progressive, which supplied replacement sleeves to medical care facilities that had purchased the complete SCD System from Kendall. Consequently, in July 1993, Kendall sued Progressive alleging, inter alia, contributory infringement of the ’449 patent. Following discovery, Progressive moved for partial summary judgment of noninfringement, arguing that, since Kendall’s customers acted within their right to repair the SCD System by replacing the pressure sleeves after each use, they did not directly infringe the ’449 patent. Thus Progressive did not contributorily infringe. In opposition, Kendall argued that the repair doctrine did not apply because the sleeves were not physically worn-out when they were replaced and could have been used repeatedly for three years or more before wearing out. The district court held that there were no genuine issues of material fact and that, under the repair doctrine, purchasers of Kendall’s SCD System did not directly infringe the ’449 patent when they replaced the sleeves after each use. Because there could be no contributory infringement absent an act of direct infringement, the court granted summary judgment of noninfringement in favor of Progressive. All other claims in the lawsuit were resolved by settlement agreement and consent judgment. This appeal followed.

DISCUSSION

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Johnston v. IVAC Corp., 885 F.2d 1574, 1576-77, 12 USPQ2d 1382, 1383 (Fed.Cir.1989). Thus, summary judgment is justified when no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the nonmovant. Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1274, 35 USPQ2d 1035, 1038 (Fed.Cir.1995). “When there are no genuine issues of material fact, ‘the question ... whether the defendant’s conduct constituted permissible repair is answerable as a question of law.’ ” Sage Prods., Inc. v. Devon Indus., Inc., 45 F.3d 1575, 1577, 33 USPQ2d 1765, 1766-67 (Fed.Cir.1995) (quoting Dana Corp. v. American Precision Co., 827 F.2d 755, 758, 3 USPQ2d 1852, 1854 (Fed.Cir.1987)). We review de novo a district court’s grant of summary judgment. Conroy v. Reebok Int'l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994).

It is unclear whether Kendall contends that there was any genuine issue of material fact precluding summary judgment; its briefs do not point to any evidentiary conflict in the record. Having carefully reviewed the record, we agree with the district court that the essential facts set forth in the parties’ affidavits do not conflict and there was no genuine issue of material fact. Thus, we will consider Kendall’s arguments to be that Progressive was not entitled to summary judgment of noninfringement as a matter of law.

The dispositive question here is whether purchasers of Kendall's complete SCD System directly infringed the ’449 patent when they replaced the pressure sleeves after a single use with sleeves purchased from someone other than Kendall. Without direct infringement by these purchasers, Progressive could not have contributorily infringed the ’449 patent. See 35 U.S.C. § 271(c) (1994); Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341, 81 S.Ct. 599, 602, 5 L.Ed.2d 592 (1961) (Aro I) (“[I]t is settled that if there is no direct infringement of a patent there can be no contributory infringement.”).

Direct infringement includes, inter alia, the making or using of a patented invention “without authority.” 35 U.S.C. § 271(a). Thus, the specific issue that we must address is whether Kendall's customers acted “without authority” when they replaced the pressure sleeves after each use. The district court held that such action was within their right to repair the SCD System. Kendall maintains, on appeal, that the court misapplied the repair doctrine by “ignor[ing] factual evidence that the sleeves [were] not physically exhausted” and could have been reused for three years or more before wearing out. This argument is unpersuasive.

When Kendall sold its patented SCD System to its customers it granted them an implied license to use the device for its useful life. See Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 484, 84 S.Ct. 1526, 1531, 12 L.Ed.2d 457 (1964) (Aro II) (“[I]t is fundamental that sale of a patented article by the patentee or under his authority carries with it an ‘implied license to use.’ ”) (quoting Adams v. Burke, 84 U.S. (17 Wall.) 453, 456, 21 L.Ed. 700 (1873)). That implied license to use included the right to repair the patented article and necessarily to purchase repair parts from others. E.g., Standard Havens Prods., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1376, 21 USPQ2d 1321, 1333 (Fed.Cir.1991), cert. denied, 506 U.S. 817, 113 S.Ct. 60, 121 L.Ed.2d 28 (1992). The right to repair is implied as a matter of law. As the Supreme Court explained in Aro I:

[I]t is “the use of the whole” of the combination which a purchaser buys, and ... repair or replacement of the worn-out, damaged or destroyed part is but an exercise of the right “to give duration to that which he owns, or has a right to use as a whole.”

Aro I, 365 U.S. at 342-43, 81 S.Ct. at 603 (quoting Wilson v. Simpson, 50 U.S. (9 How.) 109, 123, 13 L.Ed. 66 (1850)).

We have noted that “[t]he Supreme Court has taken an expansive view of conduct that constitutes permissible repair of a patented combination of unpatented elements.” Sage Prods., 45 F.3d at 1578, 33 USPQ2d at 1767. Thus, when a patentee sells a patented device to a purchaser, without restriction, direct infringement will occur only when there is a complete “reconstruction” of the device. Replacement of individual unpatented components, on the other hand, is permissible “repair,” not direct infringement:

The decisions of this Court require the conclusion that reconstruction of a patented entity, comprised of unpatented elements, is limited to such a true reconstruction of the entity as to “in fact make a new article,” United States v. Aluminum Co. of America, supra, [148 F.2d 416] at 425 [(2d 1945)], after the entity, viewed as a whole, has become spent. In order to call the monopoly, conferred by the patent grant, into play for a second time, it must, indeed, be a second creation of the patented entity, as, for example, in [American] Cotton-Tie Co. v. Simmons, supra [106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79 (1882)]. Mere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property.

Aro I, 365 U.S. at 346, 81 S.Ct. at 604.

Here, the district court, relying on Aro I and our precedent, determined that the replacement of pressure sleeves by Kendall’s customers after a single use constituted permissible repair, not direct infringement. The court placed particular reliance on our decision in Sage Products, stating that “the facts ... of Sage are exceedingly close to the facts here.” We agree with the district court that Sage Products is controlling precedent and effectively disposes of Kendall's principal contention that the repair doctrine does not apply because the pressure sleeves were not physically worn-out when they were replaced.

In Sage Products, the patented device was a system for disposing of potentially contaminated medical waste. It consisted of an outer container, which could be mounted on a wall, and a cooperating, removable inner container for receiving waste. The device was designed so that when the inner container became full, it could be removed and discarded. Sage, the patentee, sold the device to customers with the understanding that the inner container would be discarded when it became full. Sage marked a “BIOHAZARDSINGLE USE ONLY” warning on the inner container, and its literature instructed customers to discard filled inner containers.

The defendant, Devon Industries, sold replacement inner containers to customers who had purchased the complete patented system from Sage. Sage sued Devon alleging contributory and induced infringement. The district court granted summary judgment in favor of Devon. On appeal, Sage argued that the repair doctrine did not apply because the inner containers were not physically exhausted and thus were in no need of repair when they were replaced. Sage offered evidence that the inner containers could have been emptied and reused, and that the containers were, in fact, reused by some hospitals. We rejected the argument, stating:

This court has never said that an element is spent only when it is impossible to reuse it. Like the district court, we believe that when it is neither practical nor feasible to continue using an element that is intended to be replaced, that element is effectively spent. See Everpure, 875 F.2d at 303, 10 USPQ2d at 1857. When the inner containers marketed by Sage are filled they are effectively spent and the user may replace them without infringing the ’413 patent.

Sage Prods., 45 F.3d at 1578, 33 USPQ2d at 1767 (emphasis added).

The same principle applies here. Although, as Kendall urges, the replacement sleeves theoretically could have been used repeatedly for three years or more before they physically wore out, this practice would not have been feasible because of the risk of contamination between patients. KendaU’s customers never agreed to sterilize and reuse the sleeves. Moreover, Kendall sold its SCD System knowing that, to prevent contamination between successive patients, the sleeves would be used once and then discarded. It marked “FOR SINGLE PATIENT USE ONLY. DO NOT REUSE.” on the packaging of its replacement sleeves. Kendall thus clearly intended to permit its customers to replace the sleeves after each use; its product labelling instructed them to do precisely that. Therefore, we conclude that the district court correctly held that, consistent with Sage Products, Kendall’s customers’ right of repair included the right to replace the pressure sleeves after each use.

Kendall attempts to distinguish Sage Products by pointing out that the specification of the patent at issue in that case mentioned that the inner containers were preferably disposable, whereas the ’449 specification is silent as to whether the sleeves were for single-use only. We find the distinction to be of no consequence. The implied right to use (and repair) a purchased patented item exists whether or not the patent specification teaches that particular components may be replaced. A purchaser may repair or replace any unpatented component that wears out or otherwise becomes “spent,” whether or not the patentee believed at the time the patent application was filed that it would be necessary to do so. Thus, the ’449 specification’s silence concerning the replaceability of the pressure sleeves does not matter. We also reject Kendall’s contention that the district court “entirely ignored” the fact that the ’449 specification does not teach that the sleeves are disposable. That the district court did not discuss this fact in its opinion does not mean that the court “ignored” it. To the contrary, we believe that the court’s well-reasoned opinion shows that the court considered all the relevant evidence.

Moreover, as long as reconstruction does not occur or a contract is not violated, nothing in the law prevents a purchaser of a device from prematurely repairing it or replacing an unpatented component. Premature repair is the business of the purchaser of the product, who owns it, rather than the patentee, who sold it.

Kendall further argues that its “concededly valid and reasonable restriction on the sleeves should at least limit application of the repair doctrine,” relying on Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 24 USPQ2d 1173 (Fed.Cir.1992). We disagree that Mallinckrodt helps Kendall. In that case, Mallinckrodt, the patentee, sold patented inhalers to hospitals subject to a notice that they were for “single use only.” The “single use only” notice referred to reuse of the entire patented device. The hospitals disregarded that notice and permitted the defendant, Medipart, to collect used inhalers from the hospitals, recondition them, and sell them back to the hospitals for reuse. When Mallinckrodt sued Medipart for infringement, the district court held, on summary judgment, that all restrictions on a purchaser’s use of patented goods were invalid as a matter of law and therefore the single-use notice placed on the inhalers by Mallinckrodt was per se invalid and unenforceable.

We reversed and remanded the case for a proper determination of the enforceability of the single-use notice under antitrust and patent misuse principles based on application of the rule of reason. In addition, we stated that, if it were determined on remand that the single-use notice was an enforceable contractual restriction, the hospitals’ reuse of the inhalers contrary to that restriction would be a breach of contract; it would be unlicensed and thus directly infringe the patent. Consequently, Medipart would potentially be liable for contributory infringement. We stated that, in such case, there would be “no need to choose between repair and reconstruction” because “even repair of an unlicensed device constitutes infringement.” Mallinckrodt, 976 F.2d at 709, 24 USPQ2d at 1180; see Aro II, 377 U.S. at 480-85, 84 S.Ct. at 1528-32. Thus, in Mallinckrodt, we recognized that breach of an enforceable condition of sale or license may leave the breaching party open to a claim for patent infringement. See 35 U.S.C. § 271(a) (“[W]hoever without authority makes, uses, offers to sell or sells any patented invention ... infringes the patent.”) (emphasis added).

Here, unlike the facts in Mallinckrodt, Kendall’s customers followed rather than disregarded the single-use notice. They replaced the pressure sleeves after each use. Also, Kendall’s customers did not agree to purchase replacement sleeves from Kendall. Kendall argued in the district court that such an obligation existed in view of the statement in its product literature that, “To ensure product safety and efficiency, the Kendall SCD Compression System must only be used with SCD Sleeves and Tubing Assemblies.” The district court correctly recognized that this language did not have contractual significance; by its terms, it was only the manufacturer’s recommendation for purposes of “safety and efficiency,” not a customer obligation. Thus, Kendall’s customers did not directly infringe the ’449 patent based on breach of a condition of sale or a restriction in an express or implied license.

In sum, although the pressure sleeves were not physically worn-out, they were effectively spent because of the risk of contamination between successive patients. Replacement of the sleeves after each use was necessary, as a practical matter, for Kendall’s customers to continue to use the complete SCD System. See Wilson, 50 U.S. (9 How.) at 123 (right of repair allows purchasers “to give duration to” the patented combination). Kendall, recognizing this practical necessity, marketed its replacement sleeves for single-use only. Moreover, necessity aside, Kendall’s customers had the right to repair the SCD System by replacing the pressure sleeves after each use; they did not act “without authority” in doing so and did not directly infringe the ’449 patent. See Sage Prods., 45 F.3d at 1578-79, 33 USPQ2d at 1767-68; see also Everpure, Inc. v. Cuno, Inc., 875 F.2d 300, 10 USPQ2d 1855 (Fed.Cir.) (affirming summary judgment that replacement of spent filter cartridges was permissible repair, not direct infringement), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989). Since Kendall’s customers were not direct infringers, Progressive could not have been liable as a contributory infringer. See 35 U.S.C. § 271(c); Aro I, 365 U.S. at 341, 81 S.Ct. at 602 (absent direct infringement there can be no contributory infringement).

We have considered Kendall’s remaining arguments but find them unpersuasive. At oral argument, Kendall’s counsel made a “sky is falling” plea, pointing out that an affirmance of the district court’s decision would make it uneconomical for companies to invent and develop devices like that involved in this case, because much of the profit arises from sale of the replaceable sleeves rather than from sale of the original device. If that is so, we are not of course in a position to guess whether the result is related to the pricing of the original device, the failure to obtain effective patent protection for the replaceable sleeve, or other factors. In any event, such an adverse economic outcome for the patentee cannot overcome the established law on repair. None of Kendall’s legal arguments are persuasive that the district court erred in its analysis or that, under the facts before us, Kendall is entitled to prohibit Progressive from selling replacement sleeves to purchasers of Kendall’s device.

CONCLUSION

The district court did not err in determining that there was no genuine issue of material fact and that Progressive was entitled to summary judgment as a matter of law. We therefore affirm the court’s judgment.

AFFIRMED.

      . Claim 1 is illustrative of the claimed invention:
      1. A device for applying compressive pressures against a patient's limb from a source of pressurized fluid, comprising:
      a pair of first and second elongated pressure sleeves for enclosing a length of the patient’s limbs, with said sleeves each having a plurality of fluid pressure chambers;
      a first set of a plurality of conduits in communication with chambers in said first sleeve;
      a second set of a plurality of conduits in communication with chambers in said second sleeve, with the number of conduits in said second set being the same as the number of conduits in said first set;
      a third set of a plurality of conduits in communication with said source, with the number of conduits in said third set being the same as the number of conduits in said first and second sets; and
      means for connecting the conduits of said third set with the conduits of said first and second sets with each conduit in the third set being connected to only one conduit in each of said first and second sets to establish communication between the source and the first and second sleeves.

      . Kendall repeatedly argues in its briefs that its customers imposed the single-use restriction on Kendall. There is nothing in the record to support this assertion. Moreover, if Kendall acquiesced to its customers’ demand that they have a right to replace the sleeves after each use, this would support, rather than undermine, the district court’s conclusion that the customers acted within their right of repair.

      . The sleeve is apparently the subject of one or more U.S. patents, but those patents were not asserted against Progressive.


source: Caselaw Access Project

author: ARCHER, Chief Judge.

license: Public Domain

text:
    GRUPO INDUSTRIAL CAMESA, Camercial Camesa, Cables Camesa and Camesa Inc., Plaintiffs-Appellants, and Wire Rope Importers’ Association, Plaintiff, v. The UNITED STATES, Defendant-Appellee, and Committee Of Domestic Steel Wire Rope and Specialty Cable Manufacturers, Defendant-Appellee.
    No. 94-1436.
    United States Court of Appeals, Federal Circuit.
    June 10, 1996.
    David C. Frederick, Shearman & Sterling, Washington, D.C., argued, for plaintiffs-appeUants. With him on the brief were Thomas B. Wilner and Jeffrey M. Winton. Of counsel was Steven E. Rindner.
    Lyle Yander Sehaaf, Attorney, Office of the General Counsel, Washington, D.C., argued, for defendant-appellee. With him on the brief were Lyn M. Schlitt, General Counsel and James A. Toupin, Deputy General Counsel.
    Herbert E. Harris, II and Cheryl Ells-worth, Harris & Ellsworth, Washington, D.C., for defendant-appellee, Committee of Domestic Steel Wire Rope and Specialty Cable Manufacturers.
    Larry Klayman, Klayman & Associates, P.C., Washington, D.C., for plaintiff.
    Before ARCHER, Chief Judge, BENNETT, Senior Circuit Judge, and NEWMAN, Circuit Judge.
   ARCHER, Chief Judge.

Grupo Industrial Camesa et al. (Camesa) appeal the judgment of the United States Court of International Trade affirming the International Trade Commission’s (Commission) final determination that during 1989 to 1992 an industry in the United States was materially injured by reason of imports of steel wire rope from Mexico and the Republic of Korea. Grupo Indus. Camesa v. United States, 853 F.Supp. 440 (Ct. Int’l Trade 1994). We affirm.

BACKGROUND

In April 1992 an antidumping action was filed against imports of steel wire rope from Mexico and Korea. The Department of Commerce determined that these imports were being sold in the United States at less than fair value, Steel Wire Rope from Mexico, 58 Fed.Reg. 7531 (Dep’t Comm.1993) (final determination); Steel Wire Rope from Korea, 58 Fed.Reg. 11029, 11030 (Dep’t Comm.1993) (final determination). The Commission conducted an investigation to determine whether, pursuant to 19 U.S.C. § 1673d(b)(l) (1988), the importation of the steel wire rope had materially injured, or threatened to materially injure, a United States industry. During the course of its investigation, the Commission held a hearing which one of its six commissioners did not attend. Another commissioner attended only part of the hearing. As a result of its investigation, the Commission determined by an equally divided vote (see 19 U.S.C. § 1677(11) (1994)) that an industry in the United States was materially injured by reason of the imports of steel wire rope. Steel Wire Rope from the Republic of Korea and Mexico, USITC Pub. 2613, Inv. Nos. 731-TA-546 & 547 (March 1993) (hereinafter “Final Determination”).

Camesa, a Mexican producer of steel wire rope, appealed the Commission’s determination to the Court of International Trade. Camesa argued that the commissioners who found material injury included the two who did not fully attend the hearing and that those two commissioners were not competent to vote. It also contended that the Commission’s determination was inconsistent with the facts because the evidence showed that imported steel wire rope did not compete with domestic steel wire rope, and that the Commission’s analysis was legally flawed because it failed to consider the industry’s performance in the context of the business cycle as required by 19 U.S.C. § 1677(7)(C)(iii) (1994). The Court of International Trade held that it was not improper for the commissioners who did not attend the hearing to vote on the final determination and that the Commission’s finding of material injury was supported by substantial evidence. Although the Commission did not make an explicit finding concerning the effect of the business cycle, the Court of International Trade held that it did consider the evidence in the context of the industry’s business cycle. Camesa raises the same issues on appeal to this court.

DISCUSSION

We must determine whether the Court of International Trade correctly upheld the Commission’s affirmative injury determination. See Armstrong Bros. Tool Co. v. United States, 67 C.C.P.A. 94, 626 F.2d 168, 170 (1980); see also Matsushita Elec. Indus. v. United States, 750 F.2d 927, 932 (Fed.Cir.1984). To do so, we reapply the standard set forth in the statute and must uphold the finding of material injury unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1994); see Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1559 (Fed.Cir.1984); Matsushita, 750 F.2d at 932. As the Supreme Court has stated “[sjubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

A.

In the course of an antidumping investigation, 19 U.S.C. § 1677c commands that “the Commission shall ... hold a hearing ... upon the request of any party to the investigation before making a final determination” of material injury. 19 U.S.C. § 1677e(a) (1988). According to Camesa, the statutory requirement is only meaningful if the commissioners voting are present at the hearing. While conceding that the Commission may have authority to delegate the responsibility for conducting the hearing to a particular commissioner or to a hearing examiner, Camesa points out that the Commission has not done so here. Camesa argues that by virtue of 19 C.F.R. § 207.23, which provides that “[t]he Commission shall hold a hearing ... before making a final determination,” the entire Commission must conduct the hearing.

The Court of International Trade, on the other hand, relied on the Commission’s regulation at 19 C.F.R. § 201.13(b)(1), which provides that “[pjublic hearings or conferences in nonadjudicative investigations will be conducted by the Commission or by one or more Commissioners.” It found that because Congress had intended these investigations to be investigatory rather than adjudicatory in nature, the Commission complied with its own regulations when one or more of the commissioners attended the hearing. On appeal to this court, Camesa argues that the Court of International Trade’s reliance on 19 C.F.R. § 201.13 was improper because that regulation has general applicability to public hearings, whereas 19 C.F.R. § 207.23 applies specifically to final injury determinations in antidumping eases.

Regardless of which regulation is applicable, the hearing held must satisfy the statutory hearing requirement of 19 U.S.C. 1677c. It is axiomatic that a regulation cannot expand the scope of the statute under which it is promulgated. See, e.g., Lykes Bros. S.S. Co. v. United States, 206 Ct.Cl. 354, 513 F.2d 1342, 1350 (1975) (“[I]t is well established that a regulation which ‘operates to create a rule out of harmony with the statute, is a mere nullity.’” (quoting Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936))); Travelstead v. Derwinski, 978 F.2d 1244, 1250 (Fed.Cir.1992) (stating “rules cannot be promulgated that are contrary to statute”); Alaskan Arctic Gas Pipeline Co. v. United States, 831 F.2d 1043, 1050 (Fed.Cir.1987) (stating that a regulation must be in harmony with the statute under which it is promulgated). Section 207.23 simply restates the language of § 1677c that the Commission shall hold a hearing and does not specify whether the hearing should be conducted by the Commission or by individual commissioners, or whether the commissioners voting on the final determination need be present at the hearing. On the other hand, § 201.13, provides that hearings in nonadjudicative investigations will be conducted by the Commission or by one or more commissioners. Because the regulations can confer no more discretion to the Commission regarding the nature of the hearing than is reasonable under the statutory scheme, we look to what Congress meant when it commanded “the Commission” to hold a “hearing.”

The type of hearing contemplated by § 1677c is not described anywhere in the statutory scheme. The only guidance provided by the text of the statute is in § 1677c(b) under the heading “procedures.” That section only provides that the hearing shall be conducted after notice is published in the Federal Register, that a transcript shall be prepared and made available to the public, and that it shall not be subject to the provisions of 5 U.S.C. §§ 551-59 (the Administrative Procedure Act). 19 U.S.C. § 1677c(b) (1988). It does not indicate who must conduct the hearing or who may vote.

A review of the legislative history indicates that the hearing was intended to give the parties to a material injury investigation an opportunity to participate in the administrative process and present information. According to the Senate Report accompanying the legislation, the “[Commission] would be required to hold a hearing in the course of an investigation ... at any time prior to the making of a final determination” and these hearings would have to be “conducted in a manner designed to permit full presentation of information and views.” Senate Comm, on Finance, Report on Trade Agreements Act of 1979, S.Rep. No. 96-249, 96th Cong., 1st Sess. 97 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 483. The Report further emphasized that it was “particularly important ... that parties be given every possible opportunity to respond to information submitted by other parties.” Id., 1979 U.S.C.C.A.N. at 483. Thus, the purpose of the hearing was to give the parties an opportunity to fully present information and respond to other parties; Congress placed no other limitations on the hearings.

In this case Camesa had an opportunity to present fully its information and to respond to that of other parties. Indeed, it makes no allegation that it was denied a meaningful hearing. It only disagrees with the Commission’s determination resulting from the hearing and the fact that two of the affirmatively voting commissioners did not attend part or all of the hearing. There is no requirement in the statute or legislative history that attendance during the hearing is a prerequisite to voting and we decline to impose such a requirement.

We discern no indication on the part of Congress to alter the normal administrative hearing procedure or to restrict the Commission to any particular type of hearing. In other statutory schemes, it is clear that an agency may substitute its judgment for that of an initial decision maker even though it was the initial decision maker who was present to hear testimony on which the decision was based. See, e.g., Administrative Procedure Act, § 8, 5 U.S.C. § 557(b) (1994) (“On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision....”); Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911-12, 80 L.Ed. 1288 (1936); NLRB v. Stocker Mfg., 185 F.2d 451, 453-54 (3rd Cir.1950) (stating that the Board is obligated to examine the record and reach its own conclusions independent from the examiner and may “make its findings and predicate its orders upon the written record without hearing the witnesses testify”). Thus, an agency’s finder of fact does not have to be present to hear the testimony upon which the finding is based. Likewise, since neither the Commission’s statute nor regulations prescribe that all the commissioners must attend the hearing, or that only the commissioners attending the hearing may vote, we conclude that the hearing conducted and the vote taken by the Commission in this case was not a violation of law. Camesa also argues that the Commission’s decision did not comport with the language of Morgan, 298 U.S. at 481, 56 S.Ct. at 912. It contends that in Morgan the Supreme Court laid down the requirement that in quasi-judicial proceedings the “[t]he one who decides must hear.” Id. According to Camesa this means that all of the commissioners must actually hear the evidence.

As the Court of International Trade correctly stated, however, Morgan held only that the fact finder must consider the evidence, not that such person must be present to hear the evidence. In Morgan the Court was reviewing an action by the Secretary of Agriculture which could be taken only after a “full hearing.” 298 U.S. at 479-80, 56 S.Ct. at 911. In that case the Secretary was charged with having taken action without reviewing or considering the evidence, i.e., he had not “heard or read any of the evidence.” Id. at 476, 56 S.Ct. at 909. Describing what the hearing should entail, the Court stated that the hearing “is designed to afford the safeguard that the one who decides shall be bound in good conscience to consider the evidence.... The ‘hearing’ is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that a hearing has not been given.” Id. at 480-81, 56 S.Ct. at 911 (emphasis added). Thus, the Court was concerned not with the decision maker’s failure to hear the evidence presented, but rather with the lack of consideration of that evidence. This is shown by the Court’s acknowledgment that hearings are often held before a hearing examiner and not the decision maker. As the Court said:

Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates. Argument may be oral or written. The requirements are not technical. But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them.

Id. at 481-82, 56 S.Ct. at 912 (emphasis added). Camesa’s argument that the commissioners must be present to hear the evidence is, therefore, belled by the Court’s recognition that evidence may be taken, sifted and analyzed by subordinates and that argument may be oral or written. Id. at 481, 56 S.Ct. at 911-12.

We are convinced that the procedures used in this case comply with the requirements enunciated in Morgan. Notice was given to the parties, a hearing was held, and the parties were able to present evidence and respond. The only issue, therefore, is whether the commissioners considered the evidence in making their decision. In this respect, Camesa has failed to allege or show that any of the commissioners failed to consider the evidence. Indeed, Camesa only claims that the absence of two of the commissioners from the hearing necessarily makes the hearing deficient. For the reasons discussed above, we are unable to conclude that the Commission’s procedures for the conduct of the hearing were inadequate or that the absence of the two commissioners from part or all of the hearing precluded them from voting where, as here, it is clear that they fully considered the evidence in arriving at their decisions.

B.

Before antidumping duties are imposed, the Commission must determine that imported merchandise which is being sold, or which is likely to be sold, at less than fair value is materially injuring or threatening to materially injure domestic industry. 19 U.S.C. § 1673 (1988). Camesa challenges the Commission’s affirmative material injury determination on the basis that the Commission’s finding that the imported and domestic products compete is not supported by substantial evidence. Camesa argues that the steel wire rope market is divided into two segments, one that prefers and purchases domestic product and another that prefers and purchases imported product. Camesa does not dispute the finding that the domestic and imported product are physically fungible, but contends that the market share of the domestic and imported product shows they are not commercially fungible. Camesa notes that during 1987 through 1992 the domestic industry maintained 60% of the market, while consistently charging 30% higher prices, and that the domestic industry did not lose market share as a result of the lower priced imports and did not lower their prices to meet the price of the imports. It also notes that domestic producers imported steel wire rope and sold it at significantly lower prices than their own domestically produced steel wire rope. Camesa views these facts as establishing that there are two separate market segments for steel wire rope that do not compete with each other and, as a result, the domestic industry is not materially injured by the imports.

Although Camesa’s market analysis based on these factors has appeal and standing alone might support its conclusion, the Commission’s finding that the domestic industry was suffering material injury and that there was competition between the imported and domestic products is supported by other factors amounting to substantial evidence. Final Determination at 29 (views of Chairman Newquist, Vice Chairman Watson, and Commissioner Rohr). The commissioners voting in the affirmative reached their conclusion that the domestic industry was suffering material injury because of the decline in the domestic industry’s production, capacity utilization, net sales, and operating income from 1989-1991 and because of their further decline in 1992. Id. at 20. The commissioners also found that there was a “reasonable overlap” in competition between the subject imports and domestic product. Id. at 22.

In finding competition the commissioners pointed to evidence of lost sales and revenues. Id. at 18-19. They also cited, among other things, testimony that the imports into the United States market are often sold interchangeably; the responses of purchasers that the imports are employed in the same range of uses as the domestic products and that, as a result, they consider the products to be competitive; and evidence that price was the overwhelming factor in the pm-chasing decisions of a large number of end users, whereas quality and design differences were not a major factor. Id. at 30-31. In this connection, the commissioners noted that the differences between the products were not significant and, more specifically, that there were no real quality differences between the domestic and imported steel wire rope because of the industry specification standards that all steel wire rope must meet in the United States. Id. at 22, 30. Finally, as to competition between domestic and imported products, the commissioners cited evidence that sales of the products overlapped geographically and were made through the same channels of distribution. Id.

The Commission found other support for its affirmative injury determination as well. The Commission noted that there had been significant underselling by these imports. Id. at 28. Based on data compiled during the investigation, it found that during the period from 1989 to 1991, while other imports lost significant market share, the volume and market share of these imports increased as their unit values declined significantly. Id. at 28, 31. Also, the volume of domestic products was declining while domestic market share was increasing only marginally. Id. at 28. The commissioners noted that these imports gained considerably more market share than domestic products during this period. Id. at 31. Based on this evidence, the Commission concluded that these imports gained domestic market share and that this could be attributed to their low price. Id. at 28. The low price of these imports prevented the domestic industry from gaining market share during this period. Id. at 31. The commissioners also cited a significant number of confirmed lost sales due to the low price of the imports. Id. From this the commissioners concluded that the volume and price of the unfairly traded imports had an adverse impact on production, sales, capacity utilization, and financial performance of domestic products. Id. at 31-32.

Although Camesa points to evidence supporting the dissenting commissioners’ decision that the domestic industry was not materially injured, this does not mean that the Commission’s affirmative determination is unsupported by substantial evidence. The Supreme Court has stated that under the substantial evidence standard two inconsistent conclusions could be adequately supported. See Consolo v. Federal Maritime Comm., 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (substantial evidence “is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence”). Either of such inconsistent conclusions would, therefore, have to be upheld on appeal. An appellate court is not the initial decision maker, and thus cannot substitute its judgment for that of the fact finder if it is supported by substantial evidence. Although in this ease the dissenting commissioners’ conclusions may be plausible, we are convinced that the Commission’s affirmative injury determination is supported by substantial evidence.

C.

As a final point, we consider Camesa’s assertion that the Commission committed reversible error when it ignored the business cycle. It contends that the evidence shows that the industry was in a cyclical trough during the period from 1990-92, and that this down-turn in the industry explained why the domestic industry’s overall performance had declined during that period. Given the context of the industry, Camesa asserts that the domestic industry was actually performing quite well.

In making a material determination, the Commission is required to evaluate relevant economic factors “within the context of the business cycle and conditions of competition that are distinctive to the affected industry.” 19 U.S.C. § 1677(7)(C)(iii). The commissioners voting in the affirmative explicitly acknowledged this requirement. They stated that “[n]o single factor is determinative, and the Commission considers all relevant factors “within the context of the business cycle and conditions of competition that are distinctive to the affected industry.’ ” Final Determination at 15 (quoting 19 U.S.C. § 1677(7)(C)(iii)). While the commissioners did not make a specific finding concerning the effect of the business cycle, we have no reason to conclude that they ignored their own admonition. To the contrary, the commissioners voting in the affirmative all noted that the apparent consumption of steel wire rope in the United States had decreased during the period from 1989 to 1992. Id. at 16 (views of Chairman Newquist and Commissioner Rohr); Id. at 36 (views of Vice Chairman Watson). By finding that injury to the domestic industry was attributable to the unfairly traded imports, (and not attributing it to the declining fortunes of the steel wire rope industry), these commissioners implicitly rejected Camesa’s business cycle argument. Under these circumstances, we are unable to conclude that the Commission ignored the context of the business cycle in making its determination.

CONCLUSION

The final decision of the International Trade Commission, which found that the steel wire rope industry in the United States was materially injured during 1989-92 by imports from Korea and Mexico, was made in accordance with law and was based upon substantial evidence. Accordingly, we affirm the judgment of the Court of International Trade.

AFFIRMED.

      . We cite to the 1994 edition of the U.S.Code except where necessary to give effect to the version of the U.S.Code in force when the Commission rendered its determination.

      . We refer to the Administrative Procedure Act as an example to show that such procedures are permissible although, as we have noted, section 1677c hearings are not subject to that Act. See 19 U.S.C. § 1677c(b).

      . Camesa and the government dispute whether an antidumping investigation is properly characterized as quasi-judicial in nature or merely investigatory. Because, the hearings held in this case were sufficient for either investigatory proceedings or quasi-judicial proceedings, as described in Morgan, we need not decide which position is correct.

      . Vice Chairman Watson issued separate views on the issues of like product, domestic industry, and condition of the industry, but he joined with the views of Chairman Newquist and Commissioner Rohr on all other issues. Final Determination at 16 n.53, 33.


author: HATCHETT, Circuit Judge:

text:
    In re LUMMUS DEVELOPMENT CORPORATION, Debtor. LUMMUS CORPORATION, Plaintiff-Appellant, v. UNSECURED CREDITORS’ COMMITTEE OF LUMMUS INDUSTRIES, INC. and Michael P. Cielinski, Chapter 7 Trustee, Defendants-Appellees.
    No. 95-8916.
    United States Court of Appeals, Eleventh Circuit.
    June 18, 1996.
    C.L. Wagner, Jr., Hunton & Williams, Atlanta, GA, Virginia W. Powell, Tyler P. Brown, Hunton & Williams, Richmond, VA, and Robert Kevin Imperial, Columbus, GA, for appellant.
    Ward Stone, Jr., David A. Garland, Macon, GA, and Michael Patrick CielinsM, Columbus, GA, for appellees.
    Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge, and MILLS , District Judge.

       Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by designation.

   HATCHETT, Circuit Judge:

Appellant, Lummus Corporation (LC), appeals the district court’s decision concluding that the unambiguous language of an Asset Purchase Agreement between LC and appellee, Lummus Industries (LI), did not convey as an asset Li’s right to collect a debt from an intercompany loan made to Lummus Development Corporation (LDC), a subsidiary of LI.

BACKGROUND

LI filed a Chapter 11 petition in bankruptcy court on November 3,1992. At that time, LI owned interests in LDC, an eventual Chapter 7 debtor. Prior to its bankruptcy, LI made numerous intercompany loans to LDC, totalling $4.6 million in notes receivable that LDC owed LI. In March of 1993, with bankruptcy court approval, LI sold substantially all of its assets to LC. Thereafter, LC joined with two other creditors in filing an involuntary petition under Chapter 7 against LDC. The bankruptcy court entered an order for relief under Chapter 7 and appointed Michael CielinsM the Chapter 7 trustee of LDC. With the order of relief against it, LDC filed schedules listing LI as the holder of the notes receivable at issue in this case. Subsequently, both LC and LI filed proofs of claim to the notes receivable. The trustee intervened and filed objections to the proofs of claim that LC and LI filed to determine which of the two owned LDC’s notes receivable.

On November 22, 1994, the bankruptcy court held a hearing to determine whether the Asset Purchase Agreement between LI and LC (the agreement) conveyed the notes receivable to LC. In an open court opinion, the bankruptcy court ruled that the unambiguous language and the plain meaning of the agreement did not transfer Li’s right to collect the intercompany debt from LDC to LC. Because no ambiguity existed in the agreement, the bankruptcy court ruled that it could not extend the agreement’s language to include the notes receivable in the assets that LC purchased from LI. Accordingly, the bankruptcy court concluded that the notes receivable remained an asset of LI.

On December 13, 1994, the bankruptcy court entered an order sustaining the trustee’s objection to LC’s proof of claim and overruling the trustee’s objection to Li’s proof of claim. On December 22, 1994, LC filed an appeal in the district court. The district court affirmed the bankruptcy court’s decision finding that the bankruptcy court did not err in concluding that the clear and unambiguous language of the agreement between LC and LI did not convey Li’s right to collect the intercompany debt that LDC owed LI. LC filed this appeal.

CONTENTIONS

Appellant LC contends that LI failed to controvert evidence that both parties intended to transfer notes receivable as an asset under the agreement. LC contends that if the language of the agreement did not convey the notes receivable, the omission resulted from a mutual mistake. LC also contends that LI led LC to believe and rely to its detriment that the assets included the inter-company debt that LDC owed LI. Appellees LI and Chapter 7 trustee CielinsM, on the other hand, contend the unambiguous language of the agreement sufficiently supports the district court’s determination that LI did not transfer its right to the notes receivable. Appellees contend no other extraneous documents can expand the unambiguous definition of the assets transferred in the agreement.

ISSUE

We address the following issue: whether the district court erred in affirming the bankniptcy court’s decision concluding from the language of the Asset Purchase Agreement that LC did not purchase LDC’s notes receivable from LI.

DISCUSSION

We review the district court’s decision affirming the bankruptcy court’s factual findings under the clearly erroneous standard. In re Club Associates, 951 F.2d 1223 (11th Cir.1992). We review the district court’s interpretation of the agreement as a conclusion of law de novo. Georgia-Pacific Corp. v. Lieberam, 959 F.2d 901 (11th Cir.1992). After a review of the record, we find that the unambiguous language and plain meaning of the agreement does not indicate that LI sold the notes receivable to LC. Under Georgia law, if the agreement contains unambiguous language, the court gives the language its plain meaning. Georgia-Pacific Corp., 959 F.2d at 905 (citing Hunsinger v. Lockheed Corp., 192 Ga.App. 781, 386 S.E.2d 537 (1989)). When we read the plain language of the agreement, we find that the notes receivable remained an asset of LI after the sale. Resolution Trust Corp. v. Artley, 24 F.3d 1363 (11th Cir.1994). The notes receivable against the LDC, amounting to over $4.6 million, constituted a material asset that would have been listed specifically in the agreement if both LI and LC intended to convey that interest to LC. Accordingly, the district court did not err in affirming the bankruptcy court’s determination finding the agreement did not include the notes receivable as an asset.

CONCLUSION

We conclude that the Asset Purchase Agreement between LC and LI did not transfer as an asset to LC, Li’s right to collect the intercompany debt from LDC. Accordingly, we affirm the district court’s judgment.

AFFIRMED.


author: THOMPSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Martinho RODRIGUES, a/k/a Thoey, a/k/a Tho, Defendant, Appellant.
    No. 15-1377
    United States Court of Appeals, First Circuit.
    March 1, 2017

      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.
    Before TORRUELLA, SELYA, and THOMPSON, Circuit Judges.
   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 Rox-bury 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.

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 notice 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 Hidal-go 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 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 marijuana in violation of 21 U.S.C. § 846. The magistrate judge subsequently held grouped detention hearings and Rod-rigues proceeded alongside co-defendant Moisés 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’Mal-ley testified that Rodrigues wás a known associate of Hidalgo and Dasilva from the outset of the investigation and that Rodri-gues 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(l)(b)(iv) and 18 U.S.C. § 2518(8)(d); (2) the government’s wiretap applications failed to show necessity or demonstrate that alternative investigative techniques would not succeed as required pursuant to 18 U.S.C. § 2518(l)(e); (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 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, Rodri-gues, 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 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, 99 S.Ct. 1682, 60 L.Ed.2d 177 (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, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972)). And where law enforcement authorities fail td 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 States v. Donovan, 429 U.S. 413, 433, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (quoting United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (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. § 2518(l)(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, 97 S.Ct. 658 (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). 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(l)(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 conversations over the target telephone.” Id at 428, 97 S.Ct. 658. 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, 97 S.Ct. 658. Under both §§ 2518(l)(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 ⅛ at 439, 97 S.Ct. 658.

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 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, the mere failure to name additional targets or to list Rodri-gues as an individual overheard on the wiretaps does not necessitate suppression under § 2518(10)(a)(i). See Donovan, 429 U.S., at 439, 97 S.Ct. 658. 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, 97 S.Ct. 658, 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 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 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(l)(c). “[W]e [have] held § 2518(l)(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.”) (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] weré [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. Lopez, 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 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 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 appli-eation 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.

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]m-mediately 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 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, 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 ‘[[Immediately’ 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 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.

Here, accepting the district court’s subsidiary findings, we conclude that the government has presented a 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 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 “[although 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 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, specifically, a Franks hearing, or more generally some other type of evidentiary hearing. 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)).

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.

      . 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.

      . 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.

      . The government claims to have lacked the probable cause necessary to identify Rodri-gues 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) ah incident on October 23, 2012 where Dasil-va 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 Rod-rigues 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 Rodri-gues 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 Rod-rigues 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 timing of the government's confirmation of Rodrigues’s identity in this specific investigation. Given our rulings today, we need not resolve this dispute.

      . 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 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).

      . "[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.

      . 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.