Monday, April 25, 2005

US v. Callum

No. 02-10210 (4-20-05). What happens when the 9th bemoans the gov't's sloppiness and lack of supervision in preparing a wiretap application? Of course, harmless error. Here the gov't applied for a wiretap. The statute is explicit about who at DOJ has to approve and when it has to approve (think muckety-muck for the former and before the court signs for the latter). Well, the 9th (Kozinski) talks about how Congress was concerned with proper authorization, but the precedent from the Supremes and the circuit is such that so long as it was apparently reviewed by DOJ, it is not a fatal insufficiency. Here, the application listed no one but as the 9th drolly notes, "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." So, not listing anyone approving the application, like the Deputy AG, is okay because listing an unauthorized person, like an Acting Deputy AG, has been found okay. The 9th also found that time is relative because the authorization from DOJ came in (according to the fax stamp) half hour after the judge signed it. The district court found this was close enough for gov't work (actually there was testimony that it had gotten there first....) and although the time stamp was inexplicable, the court's ruling was not clearly erroneous.


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