U.S. v. Staffeldt

• Citation: 451 F.3d 578
• Decision Date: 26 June 2006
• Docket Number: No. 05-10243.,05-10243.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jeremy Eugene STAFFELDT; Orlando Leon Pastrano; Lincoln Clarence Metzgar; John Anthony Gonzales, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 578

451 F.3d 578

UNITED STATES of America, Plaintiff-Appellant, v. Jeremy Eugene STAFFELDT; Orlando Leon Pastrano; Lincoln Clarence Metzgar; John Anthony Gonzales, Defendants-Appellees.

No. 05-10243.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 2006.

Filed June 26, 2006.

Paul K. Charlton, United States Attorney, John Joseph Tuchi, Deputy Appellate Chief, Keith E. Vercauteren, Assistant United States Attorney, Phoenix, AZ, for the appellant.

Cameron A. Morgan, Scottsdale, AZ, for the appellees.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CR-03-01294-ROS.

Before: REINHARDT, NOONAN, and HAWKINS, Circuit Judges.

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 Staffeldt, 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 governing 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 authorization from the Department of Justice ("DOJ" or "Justice Department") that purportedly showed that the request to submit 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 defendants 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 authorization 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 evidence 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 authorizing 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 Department official.

The general statement in the application regarding authorization 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 warrants, 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 wiretaps 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, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The statutory scheme created by Congress relies on a uniquely rigorous bifurcated system of authorization involving review and approval by both the executive and judicial branches. The Supreme Court has explained that this system evinces Congress's "clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications." Id. at 515, 94 S.Ct. 1820.

Under Title III's statutory scheme, when a law enforcement officer wishes to employ a wiretap, he must first seek permission 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 applicant relies on to justify his belief that a wiretap order should be issued; a statement as to whether other investigative procedures 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 certain 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 is insufficient on its face";² or (3) "the interception was not made in conformity with the order of authorization or approval." 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 Attorney 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 recommended that an appropriately designated official of the Criminal Division authorize [AUSA Vercauteren] to apply for a court order authorizing the interception of wire communications over the Arizona phones." Spalding explains that he forwarded a copy of the proposed authorization letter to Assistant Attorney General Christopher Wray for the appropriate signature, and, on the same day, he also forwarded Wray a similar proposed authorization letter, pertaining to an unrelated proposed telephone wiretap in Pittsburgh, Pennsylvania. On October 3, according to Spalding's affidavit, Deputy 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, Malcolm faxed that office the signed authorization letter pertaining to Staffeldt's phones. Spalding states that he then called AUSA Vercauteren and left him a voicemail message to 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 authorization 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 District Court for the District of Arizona on October 9, 2003. The application stated in general terms that a duly designated Justice Department official had authorized the request for the wiretap sought in the application. To substantiate this assertion, 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 official of the Criminal Division, United States Department of Justice, to intercept wire communications to and from the target telephone numbers [of Staffeldt's two phones]." The...