Monday, May 02, 2005

Case o' The Week: Callum and Wiretap Challenges

The Ninth posts a very disappointing Title III decision in United States v. Callum, ___ F.3d ___, 2005 WL 901319 (9th Cir. Apr. 20, 2005), available here. Despite the government's conceded failures to comply with the wiretap statute, the Court upholds a refusal to suppress wire proceeds. The opinion is worth review for the scathing criticism of the ND USAO, and is a must-read for anyone wrestling with a wiretap.

Players: A superstar defense cast of Mark Rosenbush, Richard Mazer, Joyce Leavitt, and Michael Stepanian.

Facts: The ND Cal USAO and DEA ran a wiretap on two coke dealers. Id. at *1. Although the Title III wiretap statute requires it, the wiretap application – and subsequent order – did not state on their face which DOJ official authorized the wiretap. Id. Moreover, the wire application completely failed to reveal that there were previous wires on the same defendants. Id. at *6. Evidence also strongly suggested that the authorizing judge approved the wiretap before it was actually authorized by DOJ. Id. at *4. Nonetheless, the reviewing court refused a Franks hearing on these and other issues.

Issues: Do any of these myriad Title III shortcomings require suppression of the wiretap proceeds?

Held: No. "Here, rather than listing someone who was statutorily incapable 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 . . . 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 appropriate remedy." Id.

This holding is a far cry from the Title III requirement that the DOJ official be identified on the face of the application and order. Equally troubling is the Ninth's terse rejection of all of the remaining – and very substantial – challenges to the wire.

Of Note: Callum, and the equally bad McGuire decision, elevate the Ninth as one of the worst Circuits for wiretap litigation. Although judge Kozinki strongly rebukes the ND USAO, the wiretap is still upheld. "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 District of California bespeaks a lamentable lack of supervision." Id. at *6. Judge Pregerson’s scorching concurrence lambasts the USAO even more directly – and yet this egregious wiretap is still upheld. Id. at *6.

Callum raises the question of just how bad must a wire be to finally merit suppression? We’ve devolved a long way from the original, strict Title III requirements designed to limit the use of this extraordinarily invasive investigative technique.

How to Use: Anyone in the Ninth dragged into wiretap litigation should begin by reading Callum on the issue of Title III technical requirements, and United States v. McGuire, 307 F.3d 1192 (9th Cir. 2002) on substantive wiretap challenges. To put it charitably, fighting a wiretap in the shadow of these decisions is an uphill battle.

For Further Reading: Mark Rosenbush and his colleague, Tim Finnegan, are our local experts on wiretap litigation and won’t take this decision lying down – an en banc petition is already in the works. Callum is particularly dangerous in light of the government's increased reliance on wiretaps – the feds increased the use of non-terrorist wiretaps by 19% last year. See CNN article here.

Steven Kalar, Senior Litigator ND Cal FPD. Website available here.


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