Sunday, July 02, 2006

Case o' The Week: Pittsburg ain't "close enough" to Arizona, Writes Reinhardt (Staffeldt and wiretaps)

Reinhardt writes a very rare wiretap win for the Ninth, and provides a good overview for facial wiretap challenges. United States v. Staffeldt, __ F.3d __, 06 Cal. Daily Op. Serv. 7083 (9th Cir. June 26, 2006), opinion available here.

Players: Great Reinhardt decision from good panel including Hawkins and Noonan.

Facts: An Arizona AUSA applied to DOJ for authorization to submit a wiretap application. 06 Cal. Daily Op. Serv. at 7090. (For Title III wiretaps, a senior DOJ official must authorize before an application is submitted to a federal court). Id. at 7088, citing 18 USC § 2516(1). DOJ faxed the wrong authorization back; the Arizona AUSA ended up attaching a Pittsburgh authorization to his wiretap application. Id. at 7089-90. Wire approved, the tap catches Staffeldt in a pot conspiracy, the district court suppressed the wire, and the government appealed. Id. at 7091.

Issue(s): Is this “flagrant and obvious error,” a “minor one not warranting suppression.?” Id. at 7086-87? (The government’s argument).

Held: 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 wiretap, which was approved on the basis of the insufficient application.” Id. at 7097.

Of Note:
There are two broad categories of wiretap attacks: facial (a flaw in the face of the affidavit or application), and “substantive” (e.g., lack of probable cause, Title III necessity, and Franks problems). Staffeldt is a useful case for its approach to and explanation of facial attacks to wiretaps. The case is important, for courts of late have shown an appalling tolerance for glaring facial errors in wiretap applications. See, e.g. United States v. Callum, 410 F.3d 571, 576 (9th Cir. 2005) (rejecting facial wiretap challenge when application identified wrong DOJ authorizing official).

How to Use: Staffeldt reaffirms a painful fact: defense counsel must read the actual entire wiretap affidavit and application(s). This is a miserable task, because these are often incredibly poorly-written and sloppy legal documents. It helps to scan the originals into .pdf (Adobe) files with a very good OCR pass – this aids searches for terms or players across hundreds of documents. This technology, however, is no substitute for actually slogging through the paper.

For Further Reading: “As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.” Olmstead v. United States, 277 U.S. 438, 476 (1928) (Brandeis, J., dissenting). The folks at the Electronic Privacy Information Center (EPIC) are among the few Americans left that still agree with Brandeis - their site brims with righteous indignation at wiretap abuses. See site here. The EPIC site contains many useful nuggets about current wiretap trends, and provides useful links to the Administrative Office (A.O.) wiretap reports. The A.O. reports are a fascinating read: you can visit them directly here. These reports often (inadvertently) reveal the broad parameters of wiretaps coming down the pike in your district, much to the chagrin of your local AUSAs. See reports here (discussing N.D. Cal. wiretaps at page 7).

Do you suspect your USAO of forum shopping? Handpicking the judge to whom they submit the wiretap application? Take a look at these reports, and note how often some district court judges appear as having authorized wiretaps – and how infrequently others show up. A law student with five years of these reports, a list of judges in a given district, and a good Excel spreadsheet would have the foundations of a great law review article on wiretapping, forum shopping, and the abuse of prosecutorial discretion.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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