United States v. 2006-06-26 | 05-10243 | USA VSTAFFELDT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 05-10243v.
D.C. No.JEREMY EUGENE STAFFELDT;  CR-03-01294-ROSORLANDO LEON PASTRANO; LINCOLN
CLARENCE METZGAR; JOHN OPINION
ANTHONY GONZALES,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
March 13, 2006—San Francisco, California
Filed June 26, 2006
Before: Stephen Reinhardt, John T. Noonan, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Reinhardt
7083

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COUNSEL
Paul K. Charlton, United States Attorney, John Joseph Tuchi,
Deputy Appellate Chief, Keith E. Vercauteren, Assistant
United States Attorney, Phoenix, Arizona, for the appellant.
Cameron A. Morgan, Scottsdale, Arizona, for the appellees.
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OPINION
REINHARDT, Circuit Judge:
The United States appeals an order of the district court
granting a motion to suppress evidence obtained by means of
a wiretap of two cellular phones belonging to Jeremy Staf-
feldt, one of the defendants. The district court found that the
wiretap application was “facially insufficient,” one of the
three grounds for suppressing evidence under the statute gov-
erning the authorization of wiretaps, Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (“Act”). The
application, which sought an order to wiretap Staffeldt’s
phones, included as an exhibit a memorandum of authoriza-
tion from the Department of Justice (“DOJ” or “Justice
Department”) that purportedly showed that the request to sub-
mit the application to wiretap Staffeldt had been approved by
a properly authorized DOJ official, as required by the Act.
Unfortunately, however, the memorandum of authorization
did no such thing. Instead, it pertained to an entirely unrelated
wiretap. It authorized the submission of an application for a
wiretap of a different person, with a different phone number,
address, cell phone issuer, and mobile subscriber identity
number, than those belonging to Staffeldt or any of the defen-
dants in this case. In fact, it referred to an entirely different
criminal investigation in a different state in a different part of
the country. Most important, the memorandum of authoriza-
tion did not, directly or indirectly, refer to Staffeldt or his co-
defendants in any regard.
Despite this flagrant and obvious error on the face of the
wiretap application — we have held the attachment to be a
part of the application1 — the government argues that the evi-
1In United States v. Callum, 410 F.3d 571 (9th Cir. 2005), we explained
that when a DOJ memorandum of authorization for a wiretap request is
presented to a judge reviewing a wiretap application, that memorandum is
part of the application. Id. at 576.
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dence should not be excluded because, it contends, the error
was a minor one not warranting suppression. We disagree.
Unlike the cases relied on by the government in which the
facial insufficiency related only to the identity of the authoriz-
ing official in the Justice Department, the facial insufficiency
here is far more substantial: The facial insufficiency in this
case makes it impossible for a judge to conclude from the face
of the application that it had been authorized by the Justice
Department, let alone by a duly empowered Justice Depart-
ment official.
The general statement in the application regarding authori-
zation refers the judge to a copy of the attached memorandum
of authorization — a memorandum that does not apply to
Staffeldt at all. Because a wiretap application that has not
been authorized by the DOJ cannot support the issuance of a
wiretap order, the failure of the application to show that it had
been authorized cannot be considered minor. Accordingly, we
hold the wiretap evidence challenged here must, because of
the facially insufficient application, be suppressed, and we
therefore affirm the district court.
I. Background
A. The Application, Authorization, and Approval Process
for Wiretaps
Title III, as amended (codified at 18 U.S.C. §§ 2510-2522),
contains strict controls governing the issuance of wiretap war-
rants, and the use of wiretaps, in criminal investigations.
Because Congress recognized the grave threat to privacy that
wiretaps pose, it spelled out “in elaborate and generally
restrictive detail” the process by which wiretaps may be
applied for and authorized. United States v. King, 478 F.2d
494, 498 (9th Cir. 1973). It did so in order to insure that wire-
taps are limited “to those situations clearly calling for the
employment of this extraordinary investigative device.”
United States v. Giordano, 416 U.S. 505, 527-28 (1974). The
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statutory scheme created by Congress relies on a uniquely rig-
orous bifurcated system of authorization involving review and
approval by both the executive and judicial branches. The
Supreme Court has explained that this system evinces Con-
gress’s “clear intent to make doubly sure that the statutory
authority be used with restraint and only where the circum-
stances warrant the surreptitious interception of wire and oral
communications.” Id. at 515.
Under Title III’s statutory scheme, when a law enforcement
officer wishes to employ a wiretap, he must first seek permis-
sion to file an application with the court from a senior Justice
Department official. 18 U.S.C. § 2516(1). Either the Attorney
General or a duly empowered high-ranking subordinate must
review and approve the request before the application may be
filed. The application must provide the court with certain
information, including the facts and circumstances the appli-
cant relies on to justify his belief that a wiretap order should
be issued; a statement as to whether other investigative proce-
dures have failed, or why they are likely to fail if tried, or why
they are too dangerous to be attempted; and it must show that
a properly designated Justice Department official, who must
be identified, authorized the request for the particular wiretap
sought in the application. Id. § 2518(1). The judge who
receives the application must review it to determine whether
it complies with the statutory requirements. If it does and he
concludes that a wiretap is warranted, he issues an order
approving it. The order, like the application, must contain cer-
tain facts relevant to the authorizing of the application. Id.
§ 2518(4).
Wiretap evidence obtained in violation of the Act may not
be used at a criminal trial or in certain other proceedings. 18
U.S.C. § 2515. Title III provides that three types of statutory
violations merit suppression. Such violations occur when: (1)
“the communication was unlawfully intercepted”; (2) the
application or approval order “under which it was intercepted
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is insufficient on its face”;2 or (3) “the interception was not
made in conformity with the order of authorization or approv-
al.” 18 U.S.C. § 2518(10)(a). Here, the “insufficient on its
face” ground is at issue.
B. The Staffeldt Wiretap
A wiretap application was requested in connection with a
Drug Enforcement Agency investigation of Jeremy Staffeldt
and others. In September 2003, Assistant United States Attor-
ney Keith Vercauteren (“AUSA Vercauteren”) filed with the
Justice Department an Application for Interception of Wire
Communications for cellular telephones used by Staffeldt in
Arizona. According to the sworn affidavit of Jeffrey Spalding,
the Deputy Chief of the Electronic Surveillance Unit in the
Office of Enforcement Operations (“OEO”) at the Justice
Department, he received the application on September 23,
2003. Spalding states that on October 3, 2003, “he recom-
mended that an appropriately designated official of the Crimi-
nal Division authorize [AUSA Vercauteren] to apply for a
court order authorizing the interception of wire communica-
tions over the Arizona phones.” Spalding explains that he for-
warded a copy of the proposed authorization letter to
Assistant Attorney General Christopher Wray for the appro-
priate signature, and, on the same day, he also forwarded
Wray a similar proposed authorization letter, pertaining to an
unrelated proposed telephone wiretap in Pittsburgh, Pennsyl-
vania. On October 3, according to Spalding’s affidavit, Dep-
uty Assistant Attorney General John Malcolm faxed the OEO
a signed copy of the Title III authorization letter pertaining to
the Pittsburgh tap. At the same time, Spalding contends, Mal-
colm faxed that office the signed authorization letter pertain-
ing to Staffeldt’s phones. Spalding states that he then called
AUSA Vercauteren and left him a voicemail message to
2See Callum, 410 F.3d at 576 n.5 (9th Cir. 2005) (explaining that the
facial insufficiency factor applies to both applications and approval
orders).
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inform him that his request to seek a court order to wiretap
Staffeldt’s phones had been authorized. Following this call,
Spalding asserts that he “inadvertently” faxed the authoriza-
tion letter regarding the unrelated Pittsburgh wiretap to AUSA
Vercauteren in Arizona and the authorization letter regarding
the Staffeldt wiretap to an AUSA in Pittsburgh.
AUSA Vercauteren filed an Application for Interceptions
of Wire Communication for Staffeldt’s phones with the Dis-
trict Court for the District of Arizona on October 9, 2003. The
application stated in general terms that a duly designated Jus-
tice Department official had authorized the request for the
wiretap sought in the application. To substantiate this asser-
tion, the application then stated that attached was a copy of a
“Memorandum of Authorization approving this application”
as well as a copy of the Attorney General’s order of special
designation. The memorandum of authorization that was
attached, however, pertained to the unrelated Pittsburgh
phone interception; it identified targets, and a phone number,
address, cell phone issuer, and mobile subscriber identity
number completely different from those identified in the body
of the application. It did not mention or refer to Staffeldt in
any respect, and in no way supported the assertion that the
application to wiretap his phones was authorized. The district
judge nevertheless signed an order authorizing the wiretap on
Staffeldt’s phones. The order states that the application to tap
Staffeldt’s phones was “authorized by a duly designated offi-
cial of the Criminal Division, United States Department of
Justice, to intercept wire communications to and from the tar-
get telephone numbers [of Staffeldt’s two phones].” The
judge attached to the order the memorandum of authorization
for the unrelated wiretap of the Pittsburgh phone, which, of
course, failed entirely to show that any authorization had been
obtained with respect to Staffeldt’s phones.
Because under Title III a wiretap warrant must be renewed
after thirty days,3 the government filed an Application for
318 U.S.C. § 2518(5).
7090 UNITED STATES v. STAFFELDT

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Continued Interception of Wire Communications on Novem-
ber 13, 2003. This application alleged probable cause for the
same offenses as before. The factual basis for the continued
wiretap consisted in part of information that had been
obtained from the initial tap. Shortly after the government
filed the second application, it discovered that the original
application had the Pittsburgh memorandum of authorization
attached to it, and that it had failed to provide an authorization
relating to Staffeldt. It then filed a motion to amend the origi-
nal order and substitute a different memorandum of authoriza-
tion — the memorandum that authorized the filing of an
application to wiretap Staffeldt, the copy of which had mis-
takenly been sent to Pittsburgh. The district judge then signed
an order amending the original order authorizing the initial
wiretap and granting the application for the continued wire-
tap.
A federal grand jury indicted Staffeldt on charges of Con-
spiracy to Possess with the Intent to Distribute Marijuana, in
violation of 21 U.S.C. §§ 846(a)(1) and 841(b)(1)(B)(vii), and
Possession with the Intent to Distribute Marijuana, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Staffeldt
filed a motion to suppress the intercepted conversations and
the resulting fruits of the two wiretaps; the motion was based
in part on the failure of the application to conform to the stat-
utory requirements, and in particular on the facial insuffi-
ciency of the application.4 The district court granted the
motion and the government appealed.
II. Analysis
A. The Staffeldt Wiretap Application is Facially Insufficient
[1] Three cases, two from the Supreme Court and one from
4Staffeldt’s five co-defendants joined in this motion. After this appeal
was filed, two of those co-defendants made motions to withdraw joinder,
which we granted.
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our court, explain when an application is insufficient on its face.5
These cases establish that a wiretap application is facially suf-
ficient if, on the basis of the information that appears on its
face, it could reasonably be believed that it meets all the statu-
tory requirements, including the requirement that a duly
empowered Justice Department official authorize the applica-
tion for the particular wiretap being sought, and thus that the
wiretap is warranted. If not, the application or order is deemed
facially insufficient.
In the first case, United States v. Giordano, 416 U.S. 505
(1974), the application and the order challenged as facially
insufficient identified “Assistant Attorney General Will Wil-
son” as the official who authorized the submission of the
application, “pursuant to special designation by the Attorney
General.” Id. at 508-09. It was later discovered, however, that
it was not Mr. Wilson who authorized the wiretap request, but
rather the Executive Assistant to the Attorney General. Id. at
509-10. The Court held that this error did not render the order
facially insufficient, as the application clearly identified an
official, Assistant Attorney General Wilson, who, under the
statute, could qualify as an authorizing official. As a result,
although the identification was incorrect, a judge examining
the application and order on its face could reasonably believe
that a duly empowered DOJ official had in fact authorized the
wiretap request. Because it appeared from the face of the
order that the statutory requirements had been satisfied, the
Court held that the order was sufficient on its face and, there-
fore, was not suppressible on the ground of facial insuffi-
ciency. Id. at 525 n.14.
Similarly, in Chavez v. United States, 416 U.S. 562 (1974),
the Court considered a wiretap application and order that also
erroneously identified Assistant Attorney General Wilson as
5Although some of these cases address the facial sufficiency of approval
orders in part, the facial insufficiency analysis applicable to such orders
applies equally to applications. See Callum, 416 F.3d at 576 n.4.
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the Justice Department official who had authorized the wire-
tap request. This time, the request had actually been autho-
rized by the Attorney General. Id. at 565. The Court held that
this error also did not make the order insufficient on its face
because it “clearly identified ‘on its face’ Assistant Attorney
General Wilson as the person who authorized the application
to be made. Under § 2516(1), he properly could give such
approval had he been specially designated to do so by the
Attorney General, as the order recited.” Id. at 574. Accord-
ingly, the Court did not suppress the wiretap evidence on the
ground of facial insufficiency. Id.
In United States v. Swann, 526 F.2d 147 (9th Cir. 1975),
the relevant case on facial insufficiency decided by our court,
two of the challenged wiretaps had been approved by the dis-
trict judge on the basis of applications that identified “Acting
Assistant Attorney General Henry E. Peterson” as the autho-
rizing Justice Department official. The identification was
incorrect. It was the Attorney General who had in fact autho-
rized the applications. Id. at 148. In Swann, unlike in Gior-
dano and Chavez, however, Peterson, the official identified as
having authorized the applications, was not and could not
have been empowered to do so under Title III. Because the
Act precluded an Acting Assistant Attorney General from
authorizing wiretap requests, we reasoned that a judge
reviewing an application that identified an officer with that
title as the authorizing official could not reasonably believe
from the face of the document that it complied with the statu-
tory requirements regarding authorization. Accordingly, we
held that the applications were facially insufficient. Id. at 149.
[2] Under the standard established by Giordano, Chavez,
and Swann, there can be no question that the application here
was facially insufficient. It would be impossible for a reason-
able jurist to conclude from the face of the application,
including the attached memorandum of authorization,6 that the
6See supra note 1.
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request for the Staffeldt wiretap had been authorized by the
Justice Department. The application itself states that the
attachment is a copy of the applicable authorization. The
attachment, however, does not authorize anything with
respect to Staffeldt or even mention him. Instead, it authorizes
the filing of an application for a wiretap of an entirely differ-
ent person in a different part of the country. As a result, a
reading of the application would preclude a determination that
all the statutory requirements for approving a wiretap of Staf-
feldt’s telephones had been met.
[3] It strains the imagination to believe that a judge who
properly reviewed the application, including the memoran-
dum of authorization attached as part of that document, could
have concluded from the face of the application that a duly
empowered Justice Department official had authorized the
request to wiretap Staffeldt. The authorization memorandum
is clearly irrelevant to the Staffeldt application and offers no
indication whatsoever that any official at the Justice Depart-
ment had approved the filing of the Staffeldt wiretap applica-
tion. Indeed, the government concedes that had the district
judge been aware of the contents of the application including
the attached exhibits, he would not have been able to approve
the wiretap.7 Because the application for the wiretap filed in
7The following exchange took place at oral argument:
Court: Is what your telling us is if the assistant [U.S. Attorney]
had appeared before Judge Carroll and Judge Carroll . . . asked
the assistant did the appropriate official from the Department of
Justice approve the application and the assistant said yes sir, and
Judge Carroll said, how do I know that, and the assistant said just
look at the attachment to our application, your honor, and he
turns it over and reads it, and he says wait a minute, this attach-
ment you are referring to talks about a case in Pittsburgh, it
doesn’t have anything to do with this case, that the assistant
would have been on good strong legal grounds to say, well you
can ignore that, we did in fact get the permission of the Depart-
ment of Justice, I probably attached the wrong sheet to the appli-
cation, so don’t worry your honor, you can go ahead and
authorize the wiretap.
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the district court fails to show that authorization was obtained
to file an application for a wiretap of Staffeldt’s phones, we
hold that it is facially insufficient.
B. The Facial Insufficiency of the Staffeldt Wiretap
Application Requires Suppression
[4] Not every facial insufficiency in an application requires
a court to suppress the wiretap evidence. When the facial
insufficiency is so “minor . . . that [it] does not substantially
impair the accomplishment of Congress’s purpose,” suppres-
sion is not required. Swann, 526 F.2d at 149; see also Callum,
410 F.3d at 579. As explained in United States v. Acon, which
we relied upon in Swann, whether a facial insufficiency is
minor relates to the “distinction[s] in the kinds of information
which must be supplied to the approving judge.” 513 F.2d
513, 517 (3d Cir. 1975) (cited in Swann, 526 F.2d at 149).
Suppression is merited only when the facially insufficient
information is “likely to affect the judge’s determination that
a wiretap is or is not warranted.” Id.
Government: No, I wouldn’t put it quite that way. . . . What
would have happened at that point if Judge Carroll had seen it
was the wrong letter is that we would have stopped, gone back
to the office, called and got the right fax . . . .
Court: And there would have been no interception of communi-
cations?
Government: There wouldn’t have been interception of commu-
nications.
Court: And yet the interception of communications went on for
more than a month?
Government: Yes, your honor.
Court: And the government concedes that valuable information
was gained during that period.
Government: It does concede that valuable information was
gained during that period and that there were . . . 30 days of inter-
ception.
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[5] In the instant case, the facially insufficient portion of
the application to place a wiretap on Staffeldt’s phones
plainly relates to information critical to a judge’s determina-
tion whether the issuance of the application is warranted. The
application is facially insufficient in that it fails to show that
it was authorized at all by the Justice Department: All that a
judge can tell from reviewing it is that an application to wire-
tap another person was approved. The Supreme Court has
held that Justice Department authorization is a “critical pre-
condition” to the approval of a wiretap application.8 Thus, the
absence of an authorization memorandum regarding Staffeldt
clearly is “likely to affect the judge’s determination that a
wiretap is or is not warranted.” The facial insufficiency in the
Staffeldt wiretap application, therefore, cannot be considered
minor. Accordingly, the evidence obtained by means of the
wiretap must be suppressed.
Swann and Callum, two cases relied upon by the govern-
ment, are not to the contrary. In Swann, the applications were
insufficient on their face with respect only to the identity of
the Justice Department official who authorized the applica-
tions; however, the applications did not, on their face, prevent
the reviewing judge from determining whether authorization
for the particular wiretaps requested had been obtained at all.
As a result, the applications in Swann did not suffer from a
facial insufficiency comparable to that of the application here.
As the obtaining of authorization for the particular wiretap is
a significantly more important factor in the judge’s determina-
tion whether the wiretap is warranted than the identity of the
authorizing official, Swann does not suggest that we should
reverse the district court’s judgment in this case.
Callum, 410 F.3d 571 (9th Cir. 2005), is similarly distin-
guishable from the present case. The facial insufficiency at
issue there also related to the identity of the authorizing offi-
cial, not to the fact of authorization itself. In Callum, we reaf-
8See Giordano, 416 U.S. at 515-16.
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firmed our holding in Swann that when the facial
insufficiency relates exclusively to the identity of the autho-
rizing official, that insufficiency is minor and does not require
suppression. Id. at 576.9
III. Conclusion
The application for the wiretap of Staffeldt’s telephones is
clearly insufficient on its face. The facial insufficiency relates
not to a minor issue unlikely to affect a reviewing judge’s
determination whether issuance of a wiretap is warranted, but
rather to a factor essential to the issuance of a warrant — that
the application for the wiretap has been authorized. We hold
that the facial insufficiency here requires the suppression of
the evidence obtained as a result of the initial Staffeldt wire-
tap, which was approved on the basis of the insufficient appli-
cation. As the factual showing for the subsequent wiretap of
Staffeldt’s phones relied on information obtained from the
first wiretap, all evidence gained from that wiretap must also
be suppressed.10 We remand for further proceedings consistent
with this opinion.
AFFIRMED.
9The government also relies on Chavez. As we explained supra, in Cha-
vez the Court held that the application for the wiretap there at issue was
not facially insufficient. 416 U.S. at 572-73. The remainder of the Court’s
discussion concerns arguments that the wiretap evidence must be sup-
pressed on a different suppression ground, namely that the communication
was “unlawfully intercepted.” Id. at 574-80. Accordingly, Chavez has little
relevance of the question here — whether the facial insufficiency of the
wiretap application is minor enough so as to not require suppression.
10Because we affirm the district court on this ground, we do not reach
any of Staffeldt’s other claims for relief.
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