saying that characterization is binding on us i believe it is i believe it is i don't think there's any you get into whether it's a purely legal classification application an affidavit there was in fact approval by a duly authorized official i'm not contesting that that's the application itself and why don't we see the application as sort of part of the in the sense that this is the attorney general wilson was not the authorizing official and there wasn't anything to suggest that he had delegated in this particular in that particular case his authoriz i'd be happy to well i didn't want to take your time but my question is have you abandoned that we would submit on it we have no further argument on it so you have no response to the government that's correct thanks for that i would like to address in the minutes i have left are the requirement in the statute for a full and complete statement of the facts in the application now  informed decision is essential to raid two deciding the issue of probable cause and the sassy and informed decision by the authorizing judge is only possible with a full and complete statement of the facts if someone says this is close enough that doesn't satisfy the fact that the requirement statute and the reason for that i believe is that the congress welcomes denies that wiretaps are an unusual  and extraordinary effort by law enforcement and that they should have very strict judicial scrutiny so close enough is not good enough in a wiretaps wiretap issue in our reply brief we've isolated two areas acquitted before a different judge of the same fence the same location possibly by the use of the same government witnesses we know he was prosecuted by the same prosecutor so that that was one feet apart so when u s district court siddur it what what do you intend the district court do you find in your favor i must admit i trial depends on how and the reason for its admission my point is that it was it was a a fact which should have been known to the authorizing judge a fact which should have been made known we don't know who these people are but there's a good reason to believe that they participated in the first trial with mr scary for the same fence we're talking about proof beyond a reasonable doubt versus probable cause and that could be explained by the government our interactions of criminal justice no i'm not willing to go that far all right so the best i'm just trying to understand the argument the best would be that if you had some reason to think you need investigating detective all not at all i don't mean to say that one i mean so the judge says one count before acquitted same prosecutor same investigating officers maybe same cooperating witnesses so why doesn't that hurt your case as opposed because the judge was never in a position to make that determination because he was never clear of this prior just prior acquittal i'm assuming he's experienced district court judges  inkling that people who are charged with these drug conspiracies may have had some contact with the criminal justice system for just want to know what it is i can understand if you had some proffer bias or something like that but just the fact of a prior acquittal yes two years before by the same location the same offens the basis for the wiretap that there's probable cause that there's been a crime to me and not not coincidentally there's going to be overlap where someone has an ongoing business in illegal narcotics i'm not sure that the i mean the evidence may overlap it's a similar conduct but what i think what we're asking is without more what is so obviously probative about the prior court case that it is defective when it's excluded i think you can make arguments either way that including it if you have a proffer bias or a biased theory that you're raising maybe it's permissible and not saying it would be required excluding it so has virtues it saying look we're just going to put before you fresh evidence judge you know clean slate does it add up to something that the government can go after i think we're just missing why this would be required without more of a theory of bias or or retaliation and i agree with most of what your honor says i don't disagree with that but my point is that it was never presented to the authorizing judge there would be no determination of that or possible bias because he was kept silent by the the application for the wiretap but they could have a third cooperate in witness whose information wasn't  before the judge and that's just a call on the part of the investigating officials unless you have gone further and made a case that there is something being hidden by its exclusion i cannot i don't see that there's even that there's even a sort of prime official proffer on that point well the only thing i can say is that the statute requires a firm complete statement of the surrounding facts right it seems obvious to me at least that that's  surrounding fact that was not disclosed in the initial application i cannot argue that there was bias i cannot argue that there's a smoking gun there i cannot do that because it was never brought up and one might say that it was biased to include it a judge would say this is someone that we put a lot of resources into let me see this person as as more of a bad actor than i would have without that so actually in some ways it's more it's a less tainted way for the investigators to approach it less tainted against the defense i mean if you're on a watch the view it that way i can't dispute that may well be correct but my point is that the authorizing judge never had a chance to make that decision but your strongest  hopefully it's this case it's want to be clear my strongest case i think it will be this case before i sit down i want to remind the court we had a second so what you're saying is that affidavit was legally insufficient because it failed to let the district court judge you know the same prosecutor same witnesses possibly same witnesses i don't know that had been involved in the prosecution two years earlier of your client for a drug crime position makes it as credible as as you would like because it's not the error on the part of someone typing something it's a failure of including information they didn't misspell someone's name technical kind of a technical error and will overlook at the pump for us is that we have precedent our circuit of the globe or case which seems to repudiate the analysis that other circuits have used which is the technical defect analysis and so what's your what's your argument that given that we're not allowed to use a core concerns analysis under section two in our circuit how do you get us there excuse me your hon glover merely says that if order is facially insufficient it must be suppressed it doesn't address the question of what constitutes official insufficiency and glover wek igniters is that there could be space and we submit that based upon forty years of precedent in other circuits there should be space between a perfect order and an order that is insufficient on its face this order was not facially insufficient it contained all of the statutory requirement it made clear that the judge had considered the application and the material submitted by the government and how to prove that application based upon the fact that the surveillance had been authorized by deputy assistant attorney general who had that authority under a very specific a memorandum although it didn't include all of the statutory requirements did it because under four d one of the requirements that has to be in each title the level at the department of justice of the person who authorized the application a deputy assistant attorney general who was authorized to do so by a specific attorney general sole argue that there are more than one person who fills that such a slot that's correct your honor if there are multiple people the record doesn't establish how many but we know from the record that at least three different deputy assistant attorney general authorized the wire type applications at issue here we would point the court to the ninth circuit's decision and stuff l which addressed when an order or an authorization is facially insufficient and the ninth circuit set forth a test that it's sufficient if on the basis of the information that appears on the face of the order it could reasonably be believed that it meets all of the statutory requirements so when congress concerned about identifying the authorizing official am i correct in understanding your argument to be that even if that congress's concern is satisfied so long as the attorney  general title is referred to in the order in other words why would congress have put that language in the statute if all it meant was that so long as the attorney general or his authorized approved just aren't charged as discussed why the language was put forth in the statute and it was to fix responsibility and responsibility can be fixed in multiple ways and you know what purpose it appears that is in the wake of watergate and other issues that they wanted to make sure you could identify the parties responsible for authorizing a particular wiretap application there's no question that responsibility was fixed here there's no dispute that we know who the deputy attorney assistant attorneys general are who authorized change you know i mean somebody resigns it's another and we're trying to track down who it is who actually authorizes don't you see any difference i mean i realize one thousand nine hundred sixty eight was a very different time in terms of the attitude about wiretaps the war on drugs has changed things but changed the law let me just put it that way but i mean what's left of the requirement if it doesn't matter if a name is on there much less whose name i mean suppose it just said you know a deputy attorney general joe smith who is a deputy attorney general would have nothing to do with this case but there is a name on it that's what i'm trying to understand in sort of the supreme court's point that i was discussing with counsel if you aren't charged as makes clear that sufficient because and the supreme court looked and found that the order at issue in charge of us was actually authorized by the attorney general and tried as very knowingly could stand for the proposition as the ninth circuit has recognized that you simply look to see if there is a potential authorizing official on the face of the order but the ninth circuit does recognize that charges more probably stands for the proposition that the supreme court is concerned about whether the documents before the dish or quick fix responsibility and here they clearly did but everyone knows that you see any difference the so i understand here what congress is trying to get at between suppose that you have four deputies and one just signed off on anything everybody knows take it to joe he'll sign off where is jim is a real stickler every t has to be properly crossed every i do with congress care which of those too as authorized that's not clear your honor it the supreme court's discussion of fixing responsibility looked at the level of authorization within the department of justice they were folks they discussed the fact that there could be no question in a case where the assistant attorney general was thought by the district court to have authorized the intercept that if the attorney general himself is the one who did it that the record would nevertheless have approved it and so congress at least in charge as a supreme court saw congress's focus on the level of responsibility within the department of justice and not the name of a particular individual which as this court noted changes somewhat routinely what is the identity of the agency and the person authorizing and i think there's a you know there's a natural understanding that if it's a job title that is in close of a category of people that know putting their their reputations on it and there's no question that that's exactly what occurred here that the deputy assistant attorney general signed their own name to the authorization memos the number that takes us to the question of what is the order i mean for certain purposes it's clear that the orders different from the application but to what extent do the application order travel together under under department policy and rules as a matter of practice they are submitted to the district court all as progress and package and the just the court has them before it at the same time so they have the application the authorization memo the proposed order and then the order to the telecommunications company that's going to assist with the intercept these are all together before they just record at the same time the district court signs the order which says it has considered the other materials including in this case the authorization memos that very specifically identified the specific deputy assistant attorney general responsible for authorizing and then then it goes into a sealed file of some sort i would have to ask my colleagues about which documents are returned to the assistant u s attorney and the law enforcement agents my understanding is that all of the documents remain under seal including including the order because otherwise one could figure out being wiretapped and in this case they were all under seal at the time appellants filed their brief it was only when the u s attorney's office moved the district court to unseal all the materials before filing our brief that we've been filed papers minder since they were all provided to defense counsel in discovery while this case but as you put it was that the department that cost the seal to be lifted right now they're all provided to defense counsel and discovery below discovery below ok the basis for their motion before the district i sort of ok ok at that point and the sealed documents are provided to counsel they're provided soley to defense counsel for purposes i'm just trying to understand literally what happens to this order your honor i'm informed that the application and the order placed under seal during the course of the investigation that they're provided to defense counsel after the investigation itself is unsealed and in other words an indictment has returned in the defendants have been arrested and appointed count  as a practical matter the judge signs the order all the papers are sealed the assistant u s attorney in the case gets a copy of all the sealed documents i would assume a copy is given to the assistant united states attorney and the law and it gives them and the district court gives its authorization to law enforcement to initiate the wiretap at that time by signing the order as well as another document that's not in the record here which is an order to the communications provider to the degree its assistance is needed as part of the wiretap so it's your interpretation then sort of no harm no foul and that congress's concern about privacy and setting up a series of hoops through which the government has to jump successfully does does not matter it's not that it does not matter your honor it's that there's a difference between a perfect order an court at the time it signed the order that is on the materials and the record that were provided to defense counsel that was never attempted to be hidden there is no question that this was a lawful wiretap and that it did dot all the i's and cross all the t's it's merely inadvertent admission of a name that was known to everyone at the time the district court entered the order from the order itself and that does not make the order facially insufficient by looking at the documents on the f why should this court not require strict compliance instead of allowing slopp district court it would do so in the face of forty years of every other courtroom look at an issue like this not suppressing the contents of the wiretap well i understand your point about glover the reason suppression isn't required is because it wasn't a core concern of congress is this type of omission from anything at just that this court has rejected that type of analysis if you're just a court emitted any analysis of probable cause from its order but nevertheless the application set forth sufficient probable cause for the authorization of a wiretap and all the other such a tory requirements were complied with that order would clearly be facially insufficient but the wiretap itself would not be on lawful why would it be patiently insufficient if this isn't officially insufficient you're saying it's one of the requirements of the statute and one of the requirements wouldn't satisfy the statutory requirement in that case because one looking at the order wouldn't know from its face that the statute had in fact that's true if you look at the well there's no person identified here and i don't know how big of a statutory command had been complied with because the district court's considered up location considered the underlying authorization materials that a district deputy assistant attorney general who was clearly known to the district court given that there was an asterisk and merely an inadvertent omission it's not as though who had been specifically authorized who had been specifically authorized to exercise that authority by a specific attorney general order in other words the asterisk next clear  necessary to effectuate the court's order so it does seem like itself is the operative document that gets separated and circulated as telling people what's going on throughout the investigative team that seems like a application not with the national insufficiency of an order the ninth circuit applies the same facial insufficiency test to both applications and orders and so this test set forth in staff felt wall that case itself dealt with an application warranted let's put it in our brief it's the ninth circuit stuff felt decision four fifty one of thirty five seventy five eighty two going back to my question if we could when we said in there is no room for judicial discretion when i read that i thought that means this circuit is saying strict conformance with the statutory requirement as you've described the process the application yes david a proposed order is submitted to the district court by the assistant u s attorney is that correct the assistant united states attorney should have when the assistant united states attorney prepares the application that and the affidavit and a proposed order if then is submitted to main justice meet approval there's a section within the criminal division called the office of enforcement operations they are responsible for ensuring compliance with both the statutory and internal justice department requirements once that is signed off by that office and it then goes to a deputy assistant attorney general for his or her approval and it is only once that approval is obtained that materials then go back to the assistant united states attorney who then submit some to the judge it is at that point that the assistant united states attorney should then fill in the name that was before then unknown to him or her of the approving officer before submitting it to the court that one step did not occur and two of the wiretaps at issue here one quick question here i know your position that the district court heard when it found that the order was rac insufficient in glover we said that the technical violation on which the district court relied was wrong and we  that doesn't that limit our ability to adopt the ninth circuit's approach no your honor the the district court's finding of official insufficiency is a legal conclusion that this court refused to know the factual finding that's not in dispute that there was an asterisk in the place of the name glover says that if the court finds facial insufficiency it must suppress glover leaves open the question at importation of the core concerns test into the if you find facial insufficiency can nevertheless be a technical error that doesn't require suppression it said no if you find facial insufficiency suppression is required if then went on to say even if in this case we think that there's a difference between perfection and facial insufficiency which the government believes there is and then one circus found there is that mistake in that case was nevertheless a core concern and wasn't a mere technical in the morning it was not facial sufficiency i'll concede that it make it makes a difference whether the outside things are in the application and supporting memo or just out in the world that's probably a fair statement mark explicitly the things that go before the judge versus things that don't necessarily go before the judge i would agree with you as a general proposition but i think in determining whether or not an order is facially sufficient you cannot consider things that are outside the order i say understand obviously linguistic argument but putting aside core concerns is there any concern manifested in the statute that is invaded yes pinched upon by a rule that allows looking at the application and supporting now the documents which i miss when i misinterpreted what your question was going to be i would say in this case  if i could be a couple quick ones first we're going to quote concerns test that is not a political here absolutely absolutely that's why i said and when the government that's why my question was directed to any concern totally regardless of whether it's core or completely trivial i would say the response is yes and what is of concern here you have to look at this is the history of title three and the concerns to be addressed were really well laid out  that all these different safeguards were imposed one was that was a safeguard that it's not just anybody it has to be you do the a g or a specially designated person to make sure they reviewed but the other safeguard was that a report had to be filed by the judiciary listing what warrants were issued and who the special assistant who the designated assistant was so that the public and supervise these and there would be exactly what judge rogers was implying before there be beyond the order i understand this is linguistically tricky because it's not on the face of the order but it filling in that form wouldn't he go to the supporting documents he could have access he or she could have access to that of course but in this instance n prepared i assume because judge kennedy retired before the reports were due that year so there is no report but but the point at issue is the the point judd rogers implicitly was making about the additional level of scrutiny that's required and that's why the of the requesting or the authorizing a j or deputy a g is so critical here and that's why that's why the statute says without it it's facially insufficient it would require to be there and it's strictly  that their actions could be could be evaluated i know we've discussed this concerns but the prosecutors talked about forty years of history flying in the face of the session but the forty years of history and those cases cited in their section  required to be in the order the judge is supposed to have found i was in that on the certainly need to list them in there or they just found them based on simply on the application there is i guess one technical one i'm trying to remember the case it was a case where the procedure signature required to make effect but that's not something that the statute governs exactly exactly i think the argument there was it was technically it was insufficient space because it wasn't signed by the judge and the ruling was it doesn't have to be essentially it doesn't have to have the actual physical signature so i guess that's about as close as i could come and i haven't seen a case that actually in the category thankfully insufficient that would not be swept away  by the exception that would also be invalid subsection one and that's where you get into the whole issue brought up and then about the surplusage that if you apply core concerns under section