FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

No. 05-10243 v.

D.C. No. JEREMY EUGENE STAFFELDT;  CR-03-01294-ROS ORLANDO LEON PASTRANO; LINCOLN

CLARENCE METZGAR; JOHN OPINION

ANTHONY GONZALES,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

March 13, 2006—San Francisco, California

Filed June 26, 2006

Before: Stephen Reinhardt, John T. Noonan, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt

7083
COUNSEL

Paul K. Charlton, United States Attorney, John Joseph Tuchi,

Deputy Appellate Chief, Keith E. Vercauteren, Assistant

United States Attorney, Phoenix, Arizona, for the appellant.

Cameron A. Morgan, Scottsdale, Arizona, for the appellees.

UNITED STATES v. STAFFELDT 7085
OPINION

REINHARDT, Circuit Judge: 

The United States appeals an order of the district court

granting a motion to suppress evidence obtained by means of

a wiretap of two cellular phones belonging to Jeremy Staffeldt, one of the defendants. The district court found that the

wiretap application was “facially insufficient,” one of the

three grounds for suppressing evidence under the statute governing the authorization of wiretaps, Title III of the Omnibus

Crime Control and Safe Streets Act of 1968 (“Act”). The

application, which sought an order to wiretap Staffeldt’s

phones, included as an exhibit a memorandum of authorization from the Department of Justice (“DOJ” or “Justice

Department”) that purportedly showed that the request to submit the application to wiretap Staffeldt had been approved by

a properly authorized DOJ official, as required by the Act.

Unfortunately, however, the memorandum of authorization

did no such thing. Instead, it pertained to an entirely unrelated

wiretap. It authorized the submission of an application for a

wiretap of a different person, with a different phone number,

address, cell phone issuer, and mobile subscriber identity

number, than those belonging to Staffeldt or any of the defendants in this case. In fact, it referred to an entirely different

criminal investigation in a different state in a different part of

the country. Most important, the memorandum of authorization did not, directly or indirectly, refer to Staffeldt or his codefendants in any regard. 

Despite this flagrant and obvious error on the face of the

wiretap application — we have held the attachment to be a

part of the application1 — the government argues that the evi1

In United States v. Callum, 410 F.3d 571 (9th Cir. 2005), we explained

that when a DOJ memorandum of authorization for a wiretap request is

presented to a judge reviewing a wiretap application, that memorandum is

part of the application. Id. at 576. 

7086 UNITED STATES v. STAFFELDT
dence should not be excluded because, it contends, the error

was a minor one not warranting suppression. We disagree.

Unlike the cases relied on by the government in which the

facial insufficiency related only to the identity of the authorizing official in the Justice Department, the facial insufficiency

here is far more substantial: The facial insufficiency in this

case makes it impossible for a judge to conclude from the face

of the application that it had been authorized by the Justice

Department, let alone by a duly empowered Justice Department official. 

The general statement in the application regarding authorization refers the judge to a copy of the attached memorandum

of authorization — a memorandum that does not apply to

Staffeldt at all. Because a wiretap application that has not

been authorized by the DOJ cannot support the issuance of a

wiretap order, the failure of the application to show that it had

been authorized cannot be considered minor. Accordingly, we

hold the wiretap evidence challenged here must, because of

the facially insufficient application, be suppressed, and we

therefore affirm the district court. 

I. Background 

A. The Application, Authorization, and Approval Process

for Wiretaps

Title III, as amended (codified at 18 U.S.C. §§ 2510-2522),

contains strict controls governing the issuance of wiretap warrants, and the use of wiretaps, in criminal investigations.

Because Congress recognized the grave threat to privacy that

wiretaps pose, it spelled out “in elaborate and generally

restrictive detail” the process by which wiretaps may be

applied for and authorized. United States v. King, 478 F.2d

494, 498 (9th Cir. 1973). It did so in order to insure that wiretaps are limited “to those situations clearly calling for the

employment of this extraordinary investigative device.”

United States v. Giordano, 416 U.S. 505, 527-28 (1974). The

UNITED STATES v. STAFFELDT 7087
statutory scheme created by Congress relies on a uniquely rigorous bifurcated system of authorization involving review and

approval by both the executive and judicial branches. The

Supreme Court has explained that this system evinces Congress’s “clear intent to make doubly sure that the statutory

authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral

communications.” Id. at 515. 

Under Title III’s statutory scheme, when a law enforcement

officer wishes to employ a wiretap, he must first seek permission to file an application with the court from a senior Justice

Department official. 18 U.S.C. § 2516(1). Either the Attorney

General or a duly empowered high-ranking subordinate must

review and approve the request before the application may be

filed. The application must provide the court with certain

information, including the facts and circumstances the applicant relies on to justify his belief that a wiretap order should

be issued; a statement as to whether other investigative procedures have failed, or why they are likely to fail if tried, or why

they are too dangerous to be attempted; and it must show that

a properly designated Justice Department official, who must

be identified, authorized the request for the particular wiretap

sought in the application. Id. § 2518(1). The judge who

receives the application must review it to determine whether

it complies with the statutory requirements. If it does and he

concludes that a wiretap is warranted, he issues an order

approving it. The order, like the application, must contain certain facts relevant to the authorizing of the application. Id.

§ 2518(4). 

Wiretap evidence obtained in violation of the Act may not

be used at a criminal trial or in certain other proceedings. 18

U.S.C. § 2515. Title III provides that three types of statutory

violations merit suppression. Such violations occur when: (1)

“the communication was unlawfully intercepted”; (2) the

application or approval order “under which it was intercepted

7088 UNITED STATES v. STAFFELDT
is insufficient on its face”;2

 or (3) “the interception was not

made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a). Here, the “insufficient on its

face” ground is at issue. 

B. The Staffeldt Wiretap 

A wiretap application was requested in connection with a

Drug Enforcement Agency investigation of Jeremy Staffeldt

and others. In September 2003, Assistant United States Attorney Keith Vercauteren (“AUSA Vercauteren”) filed with the

Justice Department an Application for Interception of Wire

Communications for cellular telephones used by Staffeldt in

Arizona. According to the sworn affidavit of Jeffrey Spalding,

the Deputy Chief of the Electronic Surveillance Unit in the

Office of Enforcement Operations (“OEO”) at the Justice

Department, he received the application on September 23,

2003. Spalding states that on October 3, 2003, “he recommended that an appropriately designated official of the Criminal Division authorize [AUSA Vercauteren] to apply for a

court order authorizing the interception of wire communications over the Arizona phones.” Spalding explains that he forwarded a copy of the proposed authorization letter to

Assistant Attorney General Christopher Wray for the appropriate signature, and, on the same day, he also forwarded

Wray a similar proposed authorization letter, pertaining to an

unrelated proposed telephone wiretap in Pittsburgh, Pennsylvania. On October 3, according to Spalding’s affidavit, Deputy Assistant Attorney General John Malcolm faxed the OEO

a signed copy of the Title III authorization letter pertaining to

the Pittsburgh tap. At the same time, Spalding contends, Malcolm faxed that office the signed authorization letter pertaining to Staffeldt’s phones. Spalding states that he then called

AUSA Vercauteren and left him a voicemail message to

2

See Callum, 410 F.3d at 576 n.5 (9th Cir. 2005) (explaining that the

facial insufficiency factor applies to both applications and approval

orders). 

UNITED STATES v. STAFFELDT 7089
inform him that his request to seek a court order to wiretap

Staffeldt’s phones had been authorized. Following this call,

Spalding asserts that he “inadvertently” faxed the authorization letter regarding the unrelated Pittsburgh wiretap to AUSA

Vercauteren in Arizona and the authorization letter regarding

the Staffeldt wiretap to an AUSA in Pittsburgh. 

AUSA Vercauteren filed an Application for Interceptions

of Wire Communication for Staffeldt’s phones with the District Court for the District of Arizona on October 9, 2003. The

application stated in general terms that a duly designated Justice Department official had authorized the request for the

wiretap sought in the application. To substantiate this assertion, the application then stated that attached was a copy of a

“Memorandum of Authorization approving this application”

as well as a copy of the Attorney General’s order of special

designation. The memorandum of authorization that was

attached, however, pertained to the unrelated Pittsburgh

phone interception; it identified targets, and a phone number,

address, cell phone issuer, and mobile subscriber identity

number completely different from those identified in the body

of the application. It did not mention or refer to Staffeldt in

any respect, and in no way supported the assertion that the

application to wiretap his phones was authorized. The district

judge nevertheless signed an order authorizing the wiretap on

Staffeldt’s phones. The order states that the application to tap

Staffeldt’s phones was “authorized by a duly designated official of the Criminal Division, United States Department of

Justice, to intercept wire communications to and from the target telephone numbers [of Staffeldt’s two phones].” The

judge attached to the order the memorandum of authorization

for the unrelated wiretap of the Pittsburgh phone, which, of

course, failed entirely to show that any authorization had been

obtained with respect to Staffeldt’s phones. 

Because under Title III a wiretap warrant must be renewed

after thirty days,3 the government filed an Application for

3

18 U.S.C. § 2518(5). 

7090 UNITED STATES v. STAFFELDT
Continued Interception of Wire Communications on November 13, 2003. This application alleged probable cause for the

same offenses as before. The factual basis for the continued

wiretap consisted in part of information that had been

obtained from the initial tap. Shortly after the government

filed the second application, it discovered that the original

application had the Pittsburgh memorandum of authorization

attached to it, and that it had failed to provide an authorization

relating to Staffeldt. It then filed a motion to amend the original order and substitute a different memorandum of authorization — the memorandum that authorized the filing of an

application to wiretap Staffeldt, the copy of which had mistakenly been sent to Pittsburgh. The district judge then signed

an order amending the original order authorizing the initial

wiretap and granting the application for the continued wiretap. 

A federal grand jury indicted Staffeldt on charges of Conspiracy to Possess with the Intent to Distribute Marijuana, in

violation of 21 U.S.C. §§ 846(a)(1) and 841(b)(1)(B)(vii), and

Possession with the Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Staffeldt

filed a motion to suppress the intercepted conversations and

the resulting fruits of the two wiretaps; the motion was based

in part on the failure of the application to conform to the statutory requirements, and in particular on the facial insufficiency of the application.4

 The district court granted the

motion and the government appealed. 

II. Analysis

A. The Staffeldt Wiretap Application is Facially Insufficient

[1] Three cases, two from the Supreme Court and one from

4Staffeldt’s five co-defendants joined in this motion. After this appeal

was filed, two of those co-defendants made motions to withdraw joinder,

which we granted. 

UNITED STATES v. STAFFELDT 7091
our court, explain when an application is insufficient on its face.5

These cases establish that a wiretap application is facially sufficient if, on the basis of the information that appears on its

face, it could reasonably be believed that it meets all the statutory requirements, including the requirement that a duly

empowered Justice Department official authorize the application for the particular wiretap being sought, and thus that the

wiretap is warranted. If not, the application or order is deemed

facially insufficient.

In the first case, United States v. Giordano, 416 U.S. 505

(1974), the application and the order challenged as facially

insufficient identified “Assistant Attorney General Will Wilson” as the official who authorized the submission of the

application, “pursuant to special designation by the Attorney

General.” Id. at 508-09. It was later discovered, however, that

it was not Mr. Wilson who authorized the wiretap request, but

rather the Executive Assistant to the Attorney General. Id. at

509-10. The Court held that this error did not render the order

facially insufficient, as the application clearly identified an

official, Assistant Attorney General Wilson, who, under the

statute, could qualify as an authorizing official. As a result,

although the identification was incorrect, a judge examining

the application and order on its face could reasonably believe

that a duly empowered DOJ official had in fact authorized the

wiretap request. Because it appeared from the face of the

order that the statutory requirements had been satisfied, the

Court held that the order was sufficient on its face and, therefore, was not suppressible on the ground of facial insufficiency. Id. at 525 n.14. 

Similarly, in Chavez v. United States, 416 U.S. 562 (1974),

the Court considered a wiretap application and order that also

erroneously identified Assistant Attorney General Wilson as

5Although some of these cases address the facial sufficiency of approval

orders in part, the facial insufficiency analysis applicable to such orders

applies equally to applications. See Callum, 416 F.3d at 576 n.4. 

7092 UNITED STATES v. STAFFELDT
the Justice Department official who had authorized the wiretap request. This time, the request had actually been authorized by the Attorney General. Id. at 565. The Court held that

this error also did not make the order insufficient on its face

because it “clearly identified ‘on its face’ Assistant Attorney

General Wilson 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 574. Accordingly, the Court did not suppress the wiretap evidence on the

ground of facial insufficiency. Id. 

In United States v. Swann, 526 F.2d 147 (9th Cir. 1975),

the relevant case on facial insufficiency decided by our court,

two of the challenged wiretaps had been approved by the district judge on the basis of applications that identified “Acting

Assistant Attorney General Henry E. Peterson” as the authorizing Justice Department official. The identification was

incorrect. It was the Attorney General who had in fact authorized the applications. Id. at 148. In Swann, unlike in Giordano and Chavez, however, Peterson, the official identified as

having authorized the applications, was not and could not

have been empowered to do so under Title III. Because the

Act precluded an Acting Assistant Attorney General from

authorizing wiretap requests, we reasoned that a judge

reviewing an application that identified an officer with that

title as the authorizing official could not reasonably believe

from the face of the document that it complied with the statutory requirements regarding authorization. Accordingly, we

held that the applications were facially insufficient. Id. at 149.

[2] Under the standard established by Giordano, Chavez,

and Swann, there can be no question that the application here

was facially insufficient. It would be impossible for a reasonable jurist to conclude from the face of the application,

including the attached memorandum of authorization,6 that the

6

See supra note 1. 

UNITED STATES v. STAFFELDT 7093
request for the Staffeldt wiretap had been authorized by the

Justice Department. The application itself states that the

attachment is a copy of the applicable authorization. The

attachment, however, does not authorize anything with

respect to Staffeldt or even mention him. Instead, it authorizes

the filing of an application for a wiretap of an entirely different person in a different part of the country. As a result, a

reading of the application would preclude a determination that

all the statutory requirements for approving a wiretap of Staffeldt’s telephones had been met.

[3] It strains the imagination to believe that a judge who

properly reviewed the application, including the memorandum of authorization attached as part of that document, could

have concluded from the face of the application that a duly

empowered Justice Department official had authorized the

request to wiretap Staffeldt. The authorization memorandum

is clearly irrelevant to the Staffeldt application and offers no

indication whatsoever that any official at the Justice Department had approved the filing of the Staffeldt wiretap application. Indeed, the government concedes that had the district

judge been aware of the contents of the application including

the attached exhibits, he would not have been able to approve

the wiretap.7 Because the application for the wiretap filed in

7The following exchange took place at oral argument: 

Court: Is what your telling us is if the assistant [U.S. Attorney]

had appeared before Judge Carroll and Judge Carroll . . . asked

the assistant did the appropriate official from the Department of

Justice approve the application and the assistant said yes sir, and

Judge Carroll said, how do I know that, and the assistant said just

look at the attachment to our application, your honor, and he

turns it over and reads it, and he says wait a minute, this attachment you are referring to talks about a case in Pittsburgh, it

doesn’t have anything to do with this case, that the assistant

would have been on good strong legal grounds to say, well you

can ignore that, we did in fact get the permission of the Department of Justice, I probably attached the wrong sheet to the application, so don’t worry your honor, you can go ahead and

authorize the wiretap. 

7094 UNITED STATES v. STAFFELDT
the district court fails to show that authorization was obtained

to file an application for a wiretap of Staffeldt’s phones, we

hold that it is facially insufficient. 

B. The Facial Insufficiency of the Staffeldt Wiretap

Application Requires Suppression

[4] Not every facial insufficiency in an application requires

a court to suppress the wiretap evidence. When the facial

insufficiency is so “minor . . . that [it] does not substantially

impair the accomplishment of Congress’s purpose,” suppression is not required. Swann, 526 F.2d at 149; see also Callum,

410 F.3d at 579. As explained in United States v. Acon, which

we relied upon in Swann, whether a facial insufficiency is

minor relates to the “distinction[s] in the kinds of information

which must be supplied to the approving judge.” 513 F.2d

513, 517 (3d Cir. 1975) (cited in Swann, 526 F.2d at 149).

Suppression is merited only when the facially insufficient

information is “likely to affect the judge’s determination that

a wiretap is or is not warranted.” Id. 

Government: No, I wouldn’t put it quite that way. . . . What

would have happened at that point if Judge Carroll had seen it

was the wrong letter is that we would have stopped, gone back

to the office, called and got the right fax . . . . 

Court: And there would have been no interception of communications? 

Government: There wouldn’t have been interception of communications. 

Court: And yet the interception of communications went on for

more than a month? 

Government: Yes, your honor. 

Court: And the government concedes that valuable information

was gained during that period. 

Government: It does concede that valuable information was

gained during that period and that there were . . . 30 days of interception. 

UNITED STATES v. STAFFELDT 7095
[5] In the instant case, the facially insufficient portion of

the application to place a wiretap on Staffeldt’s phones

plainly relates to information critical to a judge’s determination whether the issuance of the application is warranted. The

application is facially insufficient in that it fails to show that

it was authorized at all by the Justice Department: All that a

judge can tell from reviewing it is that an application to wiretap another person was approved. The Supreme Court has

held that Justice Department authorization is a “critical precondition” to the approval of a wiretap application.8

 Thus, the

absence of an authorization memorandum regarding Staffeldt

clearly is “likely to affect the judge’s determination that a

wiretap is or is not warranted.” The facial insufficiency in the

Staffeldt wiretap application, therefore, cannot be considered

minor. Accordingly, the evidence obtained by means of the

wiretap must be suppressed.

Swann and Callum, two cases relied upon by the government, are not to the contrary. In Swann, the applications were

insufficient on their face with respect only to the identity of

the Justice Department official who authorized the applications; however, the applications did not, on their face, prevent

the reviewing judge from determining whether authorization

for the particular wiretaps requested had been obtained at all.

As a result, the applications in Swann did not suffer from a

facial insufficiency comparable to that of the application here.

As the obtaining of authorization for the particular wiretap is

a significantly more important factor in the judge’s determination whether the wiretap is warranted than the identity of the

authorizing official, Swann does not suggest that we should

reverse the district court’s judgment in this case.

Callum, 410 F.3d 571 (9th Cir. 2005), is similarly distinguishable from the present case. The facial insufficiency at

issue there also related to the identity of the authorizing official, not to the fact of authorization itself. In Callum, we reaf8

See Giordano, 416 U.S. at 515-16. 

7096 UNITED STATES v. STAFFELDT
firmed our holding in Swann that when the facial

insufficiency relates exclusively to the identity of the authorizing official, that insufficiency is minor and does not require

suppression. Id. at 576.9

III. Conclusion

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. As the factual showing for the subsequent wiretap of

Staffeldt’s phones relied on information obtained from the

first wiretap, all evidence gained from that wiretap must also

be suppressed.10 We remand for further proceedings consistent

with this opinion. 

AFFIRMED.

9The government also relies on Chavez. As we explained supra, in Chavez the Court held that the application for the wiretap there at issue was

not facially insufficient. 416 U.S. at 572-73. The remainder of the Court’s

discussion concerns arguments that the wiretap evidence must be suppressed on a different suppression ground, namely that the communication

was “unlawfully intercepted.” Id. at 574-80. Accordingly, Chavez has little

relevance of the question here — whether the facial insufficiency of the

wiretap application is minor enough so as to not require suppression. 

10Because we affirm the district court on this ground, we do not reach

any of Staffeldt’s other claims for relief. 

UNITED STATES v. STAFFELDT 7097