United States v. Callum ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 02-10210
Plaintiff-Appellee,
v.  D.C. No.
CR-98-40206-DLJ
GARLAND CALLUM,
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 02-10242
Plaintiff-Appellee,
D.C. No.
v.
 CR-98-40206-DLJ-
STEVEN RAY HENDERSON, aka Ray; 04
Detail Ray,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-10243
v.
 D.C. No.
CR-98-40206-DLJ
JOHNNY LEE BARNES, aka Darnell
Ferguson, aka J Fresh,
Defendant-Appellant.

4415
4416 UNITED STATES v. CALLUM
UNITED STATES OF AMERICA,  No. 02-10471
Plaintiff-Appellee,
v.  D.C. No.
CR-98-40206-8-DLJ
DELVONNE MAURICE JENKINS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted
August 12, 2004—San Francisco, California
Filed April 20, 2005
Before: Harry Pregerson and Alex Kozinski, Circuit Judges,
and John S. Rhoades, Sr.,* District Judge.
Opinion by Judge Kozinski;
Concurrence by Judge Pregerson
*The Honorable John S. Rhoades, Sr., Senior United States District
Judge for the Southern District of California, sitting by designation.
UNITED STATES v. CALLUM 4419
COUNSEL
Mark Rosenbush, San Francisco, California, for defendant-
appellant Steven Ray Henderson; Richard B. Mazer, San
Francisco, California, for defendant-appellant Garland Cal-
lum; Joyce Leavitt, Assistant Federal Public Defender, Oak-
land, California, for defendant-appellant Delvonne Maurice
Jenkins; Michael Stepanian, San Francisco, California, for
defendant-appellant Johnny Lee Barnes.
Rebecca C. Hardie, Assistant United States Attorney, Oak-
land, California, for the plaintiff.
OPINION
KOZINSKI, Circuit Judge:
The federal wiretapping statute requires court orders
approving wiretaps to “specify . . . the identity . . . of the
[Department of Justice official] authorizing the [wiretap]
application.” We decide whether suppression is required when
wiretap orders and corresponding applications say nothing
about who authorized them.
FACTS
The Drug Enforcement Administration (DEA) suspected
defendants Barnes and Henderson of participating in a drug
trafficking ring in Northern California. After unsuccessfully
exhausting conventional investigative techniques, DEA agents
4420 UNITED STATES v. CALLUM
and Jeffrey Cole, the Assistant United States Attorney
(AUSA) supervising the investigation, decided to ask the
Department of Justice (DOJ) for authorization to apply for
court orders permitting oral, wire and electronic surveillance.
The AUSA started the process in August of 1998 by request-
ing authorization to bug Barnes’s office. He received a DOJ
authorization letter and presented it along with a wiretap
application to a district judge, who signed an order authoriz-
ing the wiretap. The AUSA added phone and pager taps for
Barnes in September, and taps on Henderson’s cell phone and
pager in October. The government’s surveillance efforts
proved successful, and defendants were indicted for conspir-
acy to distribute cocaine.
Defendants challenged the validity of the wiretap applica-
tions and court orders, contending that (1) the documents
were facially insufficient because they didn’t identify who at
DOJ authorized the applications; (2) the applications had not
been authorized by DOJ before being presented for approval
to the judge who issued the wiretap orders; and (3) the affida-
vits accompanying the applications omitted significant facts
relating to prior interceptions. The district court denied defen-
dants’ motions to suppress the intercepted communications,
and defendants entered conditional pleas preserving their
rights to appeal the court’s rulings.
ANALYSIS
[1] Interceptions of wire, oral and electronic communica-
tions are governed by Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-
2522. In discussing Title III, the Supreme Court has noted that
“Congress legislated in considerable detail in providing for
applications and orders authorizing wiretapping and evinced
the clear intent to make doubly sure that the statutory author-
ity be used with restraint.” United States v. Giordano, 416
U.S. 505, 515 (1974). This concern is evident from the Act’s
text, which restricts the criminal offenses that can justify a
UNITED STATES v. CALLUM 4421
wiretap or bug, see 18 U.S.C. § 2516(1), and includes a host
of procedural safeguards to regulate interception of communi-
cations. See Giordano, 416 U.S. at 515.
When a law enforcement officer seeks a court order allow-
ing him to set up a wiretap (or other means of surveillance
regulated by Title III1), he has a long and bumpy road ahead
of him. First, he needs authorization to apply for an order
from the Attorney General or some specified and appropri-
ately designated subordinate. See § 2516(1). If he receives
DOJ authorization, the officer may then apply to a federal
judge for a wiretap order. The application is anything but a
formality; it requires the officer to provide specific informa-
tion, including who at DOJ authorized the application, what
facts support the need for wiretapping and “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.” Id. § 2518(1). If the judge presented
with the application finds that it provides a proper basis for
a wiretap, he may issue an order identifying the target and
context of the wiretapping, the period of time during which
interception is authorized and, most important for present pur-
poses, “the person authorizing the application.” Id. § 2518(4).
With court order in hand, the officer may begin intercepting
communications. But criminal defendants aggrieved by the
wiretap order may challenge its validity and seek suppression
of the evidence obtained thereunder, which is where we find
ourselves with these defendants.
Facial Insufficiency
1. Defendants claim first that their communications should
have been suppressed because they were intercepted pursuant
1
For the covered modes of surveillance, see 18 U.S.C. § 2510. See also
§ 2516.
4422 UNITED STATES v. CALLUM
to facially insufficient wiretap orders and corresponding
applications.
[2] We begin with the August order. It is undisputed that
the order is silent as to who at DOJ authorized the application.
This is problematic, because section 2518(4)(d) requires that
“[e]ach order authorizing or approving [any covered] inter-
ception . . . shall specify . . . the identity . . . of the person
authorizing the application.” Further, section 2518(10)(a)(ii)
calls for suppression of evidence obtained by surveillance
when “the order of authorization or approval under which [a
communication] was intercepted is insufficient on its face”
(emphasis added).
Though the Supreme Court has not yet decided a case
involving a facially insufficient warrant under section
2518(10)(a)(ii), two opinions interpreting Title III shortly
after its enactment offer some guidance here. In United States
v. Giordano, the Court considered the issues of who at DOJ
could authorize wiretap applications under Title III, and
whether suppression was required when an order was not
properly authorized. At the time, the statute limited authority
to “[t]he Attorney General, or any Assistant Attorney General
specially designated by the Attorney General.” See 416 U.S.
at 513.2 The order in Giordano stated that the wiretap applica-
tion had been authorized by a specially designated Assistant
Attorney General, but this was incorrect; it was really autho-
rized by the Executive Assistant to the Attorney General. Id.
at 509-10. The Court found that, despite the confusion, there
was no facial insufficiency, as “the order, on its face, clearly,
though erroneously, identified [the Assistant Attorney Gen-
eral] as the Justice Department officer authorizing the applica-
tion, pursuant to special designation by the Attorney General.
As it stood, the intercept order was facially sufficient under
2
Title III has since been amended to allow authorization by a broader
range of officials working under the Attorney General. See 18 U.S.C.
§ 2516(1).
UNITED STATES v. CALLUM 4423
§ 2516(1).” Id. at 525 n.14. Accordingly, the wiretap evidence
was not suppressible under section 2518(10)(a)(ii).
The Court held that the communications were nevertheless
“unlawfully intercepted,” and thus subject to suppression pur-
suant to section 2518(10)(a)(i), because the Executive Assis-
tant to the Attorney General, who had actually approved the
application, lacked statutory authority to do so. In deciding
that suppression was appropriate, the Court noted that “Con-
gress intended to require suppression where there is failure to
satisfy any of those statutory requirements that directly and
substantially implement the congressional intention to limit
the use of intercept procedures to those situations clearly call-
ing for the employment of this extraordinary investigative
device.” Id. at 527. Applying this test, the Court was “confi-
dent that the provision for pre-application approval was
intended to play a central role in the statutory scheme and that
suppression must follow when it is shown that this statutory
requirement has been ignored.” Id. at 528.
In United States v. Chavez, 416 U.S. 562 (1974), decided
the same day as Giordano, the Court dealt with a wiretap
application and order that “incorrectly identif[ied] an Assis-
tant Attorney General as the authorizing official” when the
authorization had actually come from the Attorney General
himself. Id. at 565. The Court again found that the misstate-
ments didn’t render the wiretap order facially insufficient
under section 2518(10)(a)(ii), as “the interception order
clearly identified ‘on its face’ [the Assistant Attorney Gen-
eral] 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 573-74. Moreover, because the
Attorney General—a statutorily empowered official—had in
fact authorized the application, the case differed from Gior-
dano, and the communications were not subject to suppres-
sion for being “unlawfully intercepted” under section
2518(10)(a)(i): “Failure to correctly report the identify of the
4424 UNITED STATES v. CALLUM
person authorizing the application . . . when in fact the Attor-
ney General has given the required preliminary approval to
submit the application, does not represent a similar failure to
follow Title III’s precautions against the unwarranted use of
wiretapping or electronic surveillance and does not warrant
the suppression of evidence gathered pursuant to a court order
resting upon the application.” Id. at 571.
Reading Giordano and Chavez together, it is clear that the
Supreme Court was far more concerned with the wiretap
applications being authorized by an empowered DOJ official
than with correct identification of that official in the wiretap
applications and orders. The absence of valid authorization in
Giordano and the presence of valid authorization in Chavez
explain why suppression was ordered in the former case but
not the latter.
One could plausibly read Chavez, as well as Giordano, as
standing for the narrow proposition that a wiretap order is
facially sufficient if (along with meeting the other statutory
requirements) it identifies an authorizing official who is
empowered under Title III to approve applications, even if
that official was not the one who actually gave approval. This
reading, however, is foreclosed to us by United States v.
Swann, 526 F.2d 147 (9th Cir. 1975) (per curiam). In that
case, we dealt with applications that incorrectly identified the
authorizing source as an Acting Assistant Attorney General
when the Attorney General himself had in fact approved the
applications.3 We recognized the situation was distinct from
Chavez, as the Acting Assistant Attorney General was not
listed in the statute as qualified to authorize applications.
Because the applications identified a DOJ official who wasn’t
statutorily empowered to provide authority, we stated that “it
3
We note that section 2518(10)(a)(ii) applies by its terms only to
“order[s] of authorization or approval” that are facially insufficient. In
Swann, however, we applied paragraph (ii) facial insufficiency analysis to
wiretap applications. See 526 F.2d at 148-49.
UNITED STATES v. CALLUM 4425
may be argued that each application was ‘insufficient on its
face’ ” under section 2518(10)(a)(ii). See id. at 149. Even so,
we held that the misstatement of authorization did not warrant
suppression. Drawing on the opinions of several of our sister
circuits, we held that the misstatement was merely a “minor
facial insufficiency that does not substantially impair the
accomplishment of Congress’ purpose.” Id. Thus, suppression
was not required.
[3] Under Giordano and Chavez, a wiretap order can list an
incorrect source of DOJ authority without creating a facial
insufficiency, provided that the source listed is statutorily
empowered to exercise authority. Swann goes a step farther
and holds that even if the source listed had no authority to
exercise, the resulting facial insufficiency still does not call
for suppression.
[4] Against this backdrop, we conclude that suppression is
not required based on any insufficiency in the August order.
Here, rather than listing someone who was statutorily incapa-
ble of authorizing the application, the AUSA who prepared
the order for the judge’s signature listed no one at all. But this
is no more a “substantial[ ] impair[ment]” of congressional
purpose than identifying an unauthorized source.4 In both
cases, the wiretap order fails to mention a statutorily empow-
ered source of authority. In both cases, the resulting order is
facially insufficient. If listing an unauthorized source of
approval is only a “minor” insufficiency that does not require
suppression, it follows that listing no official at all is also a
minor insufficiency for which suppression is not the appropri-
ate remedy.
[5] As for the argument that suppression is required based
4
Indeed, in some ways listing no one is better than listing an unautho-
rized source; in the latter scenario, the issuing judge might more easily be
misled into thinking there was valid DOJ authorization when there was
not.
4426 UNITED STATES v. CALLUM
on a facial insufficiency in the August wiretap application, the
district court found that the issuing judge had been presented
with written DOJ authorization for the wiretap before he
signed the order. The authorization was thus part of the wire-
tap application, and the application was facially sufficient.
2. The government also intercepted communications
under two subsequent orders, one applied for in September
and the other in October. Defendants challenge the facial suf-
ficiency of these orders and the corresponding applications for
failing to properly identify the authorizing source at DOJ.
[6] The September and October orders state that they were
authorized by “the Assistant Attorney General in charge of
the Criminal Division, United States Department of Justice,
pursuant to the power delegated [to] her by special designa-
tion of the Attorney General.” Though the authorization for
the orders actually came from the Deputy Assistant Attorney
General, a specially designated Assistant Attorney General is
statutorily empowered to provide authorization.5 See
§ 2516(1). These facts are on all fours with Chavez, and sup-
pression is not required.
[7] Regarding the corresponding wiretap applications, nei-
ther application states that it was approved by any official at
DOJ. As with the August wiretap, however, the district court
found that the issuing judge was presented with written DOJ
authorization before signing the September and October orders.6
The written authorization constituted part of the applications,
and the district court thus correctly determined that suppres-
sion was inappropriate.
5
A properly designated Deputy Assistant Attorney General is likewise
empowered to authorize wiretap applications. See note 2 supra.
6
As discussed below, we reject defendants’ challenges to these findings.
See pages 4427-28 infra.
UNITED STATES v. CALLUM 4427
Compliance with Authorization Requirements
1. Defendants next argue that the AUSA presented the
September wiretap application to the issuing judge for
approval before receiving DOJ authorization. If defendants
are correct, suppression of the intercepted communications is
required; as the Supreme Court stated in Giordano, DOJ
authority must “be exercised before the application is pre-
sented to a federal judge.” 416 U.S. at 523 n.12; see also
United States v. Reyna, 218 F.3d 1108, 1112 (9th Cir. 2000)
(“The statutory sequence of wiretap authorization makes it
clear that prior authorization by senior executive branch offi-
cials is an express precondition to judicial approval under
§ 2516; its violation merits suppression.”).
The basis for defendants’ claim is that the issuing judge
listed the time he signed the wiretap order as 3:00 p.m., nearly
half an hour before the timestamp on the fax that constituted
DOJ’s written authorization of the application.7 To investigate
the timing discrepancy, the district court conducted an eviden-
tiary hearing. The AUSA who presented the application to the
judge submitted a declaration stating that, consistent with his
usual practice, he waited until he received DOJ approval
before seeking judicial authorization for the September wire-
tap. The court also considered the testimony of the DEA agent
who provided the affidavit supporting the application. The
agent testified that the AUSA told him the documents they
presented to the judge, and which they watched the judge
review before he signed the order, included DOJ approval of
the wiretap application.
Ultimately, the district court concluded that the issuing
judge had viewed the DOJ approval before signing the wire-
7
The fax lists 6:29 p.m. as the sending time. Because the machine from
which the fax originated was in Washington, D.C., in the Eastern time
zone, the time translates to 3:29 p.m. Pacific Time at the U.S. Attorney’s
office in San Francisco, where the fax was received.
4428 UNITED STATES v. CALLUM
tap order, and that the most reasonable explanation for the
timing discrepancy was an error on the judge’s part. This
finding of fact is entitled to deference, and we review only for
clear error. See United States v. Scott, 74 F.3d 175, 176 (9th
Cir. 1996) (“Generally, we review a motion to suppress de
novo and the trial court’s factual findings for clear error.”). To
hold that the district court’s finding was clearly erroneous, we
must have a “definite and firm conviction that a mistake has
been committed.” Concrete Pipe & Prods., Inc. v. Constr.
Laborers Pension Trust, 508 U.S. 602, 623 (1993) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948) (internal quotation marks omitted)).
[8] We have no such conviction. The wiretap order, which
was signed by the judge, indicated that he knew of the DOJ
authorization before issuing the order. The AUSA’s declara-
tion likewise stated that the AUSA had waited for DOJ autho-
rization and presented it to the judge when seeking issuance
of the wiretap order. And the DEA agent corroborated the
story. Given this evidence, we cannot say that the district
court clearly erred in concluding that the issuing judge viewed
the DOJ’s authorization of the September wiretap application
before he signed the wiretap order.
[9] We likewise affirm the district court’s ruling that the
October wiretap order was not issued before the judge
reviewed DOJ authorization. The court had a similarly robust
evidentiary basis for reaching its conclusion.
2. Defendants claim that the district court improperly
denied their motions to depose the issuing judge pursuant to
Federal Rule of Criminal Procedure 15 or subpoena him to
appear at the evidentiary hearing pursuant to Rule 17(b), as
well as their request to examine the AUSA. They contend
they could have elicited testimony suggesting that the judge
signed the wiretap orders without having viewed DOJ authori-
zation of the wiretap applications.
UNITED STATES v. CALLUM 4429
We review the district court’s rulings for abuse of discre-
tion, see United States v. Omene, 143 F.3d 1167, 1170 (9th
Cir. 1998) (Rule 15); United States v. Etimani, 328 F.3d 493,
501 (9th Cir. 2003) (Rule 17(b)), and find none. Defendants
merely assert it is possible that examining the issuing judge
could have turned up “relevant” information bearing on
whether the wiretap applications were authorized by DOJ
before they were presented to the judge. The district court did
not abuse its broad discretion in refusing to authorize this
fishing expedition.
Lawfulness of Wiretap Applications
[10] 1. Defendants contend that the wiretap applications
were unlawful because the preparing officers intentionally or
recklessly omitted the fact that two of the surveillance sub-
jects had been targeted by a prior wiretap. Such an omission,
if intentional, would violate section 2518(e) and require sup-
pression. See United States v. Lujan, 936 F.2d 406, 409 (9th
Cir. 1991) (per curiam). Defendants argue that a reckless
omission should have the same effect. We need not address
that issue, however, because the district court did not clearly
err in finding that the government had acted neither intention-
ally nor recklessly in omitting information about prior inter-
ceptions. Cf. id. at 409 (“Findings of fact concerning
misleading statements and omissions . . . are reviewed under
the clearly erroneous standard.”).
2. Finally, defendants claim the district court improperly
denied their request for an evidentiary hearing under Franks
v. Delaware, 438 U.S. 154 (1978). They argue a Franks hear-
ing would have helped them prove that the August application
and order misstated material information about the need for a
wiretap.
[11] “A defendant is entitled to a [Franks] hearing if he
makes a substantial preliminary showing that a false statement
was deliberately or recklessly included in an affidavit submit-
4430 UNITED STATES v. CALLUM
ted in support of a wiretap order, and the false statement was
material to the district court’s finding of necessity.” United
States v. Staves, 383 F.3d 977, 982 (9th Cir. 2004). Here,
defendants made no such showing, and their request for a
Franks hearing was thus properly denied.
CONCLUSION
Under the force of precedent, we uphold the challenged
wiretap applications and orders. Still, we note that the Depart-
ment of Justice and its officers did not cover themselves with
glory in obtaining the wiretap orders at issue in this case. Title
III is an exacting statute obviously meant to be followed
punctiliously, yet the officers repeatedly ignored its clear
requirements. The sloppy handling of Title III’s procedures
by the United States Attorney’s Office for the Northern Dis-
trict of California bespeaks a lamentable lack of supervision.
See United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir.
1993). We trust that this problem has been corrected, and that
we will not see such errors in the future.
AFFIRMED.
PREGERSON, Circuit Judge, with whom RHOADES, Dis-
trict Judge, joins, specially concurring:
Although I concur in Judge Kozinski’s opinion, I write sep-
arately to emphasize my deep concern with the careless and
irresponsible handling of the wiretap applications by the U.S.
Attorneys’ Office and the U.S. Department of Justice. There
were three wiretap applications involved and the government
didn’t get one right.1 The very purpose of requiring that some
1
In the first application and order, the government failed to include the
name of the authorizing official on either document—although the govern-
ment did provide a separate letter from the appropriate DOJ official who
authorized the wiretap, which the issuing judge had before him when he
signed the order. The other two applications also omitted the authorizing
DOJ official and their corresponding orders each named the wrong offi-
cial.
UNITED STATES v. CALLUM 4431
high ranking official at DOJ review a proposed wiretap appli-
cation is to ensure that before a court is asked to issue a wire-
tap order, alternative, less intrusive methods of obtaining the
same evidence are considered. Yet, under the rubric of “harm-
less” or “minor” error, the courts excuse prosecutorial mis-
conduct that flouts people’s constitutional rights. By so doing,
courts fail to hold the government to the high standard set not
only by the wiretap statute, but by professional codes of con-
duct. See Model Rules Prof’l Conduct R. 3.8 cmt. [1] (2003)
(“A prosecutor has the responsibility of a minister of justice
and not simply that of an advocate. This responsibility carries
with it specific obligations to see that the defendant is
accorded procedural justice and that guilt is decided upon the
basis of sufficient evidence.”); ABA Standards for Criminal
Justice 3-1.1(b) (3d. 1993) (“The prosecutor is both an admin-
istrator of justice and an advocate. The prosecutor must exer-
cise sound discretion in the performance of his or her
functions.”); id. at 3.1-1(c) (“The duty of the prosecutor is to
seek justice, not merely to convict.”); see also Hayes v.
Brown, 399 F.3d 972 (9th Cir. 2005) (“The prosecuting attor-
ney represents a sovereign whose obligation is to govern
impartially and whose interest in a particular case is not nec-
essarily to win, but to do justice. . . . It is the sworn duty of
the prosecutor to assure that the defendant has a fair and
impartial trial.”) (quoting Commonwealth v. Mendiola, 976
F.2d 475, 486 (9th Cir. 1992) (citations omitted), overruled
on other grounds, George v. Camacho, 119 F.3d 1393 (9th
Cir. 1997) (en banc)).
These codes of conduct require that prosecutors set an
example by showing respect for, and adherence to, the civil
liberties protected by our sacred Constitution. Rather than
ensure that the constitutional rights of wiretap targets were
not violated and that Congress’s intent was respected, the
AUSA and DOJ handled the wiretap applications in a cavalier
and careless manner. Sadly, under the force of precedent, we
are obligated to affirm the district court. I too hope that such
4432 UNITED STATES v. CALLUM
gross mishandling of wiretap applications has been corrected,
and that we will not see such errors in the future.