United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1549

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United States of America, *

*

Appellant, * Appeal from the United

* States District Court for

v. * the District of Nebraska.

*

Carlos Lomeli; Manuel Hernandez, *

*

Appellees. *

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Submitted: November 16, 2011

Filed: April 18, 2012

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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.

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BEAM, Circuit Judge.

Appellant, the United States Government, appeals from the district court's1

order adopting the findings and supplemental findings and recommendations of the

magistrate judge granting Carlos Lomeli's and Manuel Hernandez's motions to 2

suppress evidence obtained as a result of a wiretap. The government claims that the

The Honorable Lyle E. Strom, United States District Court for the District of 1

Nebraska.

The Honorable F.A. Gossett, III, United States Magistrate Judge for the

2

District of Nebraska.
district court erred in holding that the government's objections to the magistrate

judge's initial findings and recommendation were moot, and by refusing to consider

the merits of its arguments against suppression of the authorized wiretap. We affirm.

I. BACKGROUND

In October 2009, in furtherance of an ongoing narcotics investigation, an

Assistant United States Attorney (AUSA) for the District of Nebraska submitted an

application for interception of wire communicationsto a federal judge who approved

the requested wiretap. Applications for an order authorizing or approving the

interception of wire or oral communications("wiretap applications") are governed by

federal law. Under the law, wiretap applications may only be authorized by a discrete

number of people specially designated by the Attorney General, who are enumerated

in the federal statute. 18 U.S.C. § 2516(1). Additionally, all wiretap applications

must identify the investigative or law enforcement officers making the application,

and indicate the Department of Justice (DOJ) officer authorizing the application. 18

U.S.C. § 2518(1)(a). 

The application at issue here generally complied with all requirements, except

that even though the application indicated that "[a]ttached to this Application are

copies of the Attorney General's order of Special Designation and the Memorandum

of Authorization approving this Application," none were attached. The entire

paragraph in the application that is at issue today reads:

Pursuant to Section 2516 of Title 18, United States Code, the Attorney

General of the United States has specially designated the appropriate

officials of the Criminal Division to exercise the power conferred on the

Attorney General by Section 2516 of Title 18, United States Code, to

authorize this Application, under the power designated to himby special

designation of the Attorney General pursuant to Order number 3055-

2009 of February 26, 2009, and an appropriate official of the Criminal

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Division, has authorized this Application. Attached to this Application

are copies of the Attorney General's order of Special Designation and

the Memorandum of Authorization approving this Application.

Defendants Carlos Lomeli and Manuel Hernandez filed motions to suppress

following their arrests founded upon evidence obtained during the authorized

wiretaps. The motions, in part, claimed that the wiretap application failed to comply

with federal law. On December 9, 2010, the magistrate judge filed a report and

recommendation. As relevant here, the magistrate judge recommended that the

motions to suppress be granted as to all evidence obtained as a result of the wiretap. 

The magistrate judge concluded that the government's failure to include the

authorizing forms was not a mere technical defect and thus the wiretap application

was insufficient on its face. 

Over Lomeli's and Hernandez's objection, the magistrate judge reopened this

matter and conducted a supplemental hearing on January 5, 2011. During the

hearing, the government entered into evidence the two missing documents from the

wiretap application, showing that the people signing off on the wiretap had the

authority to do so. On January 17, 2011, following the supplemental hearing, the

magistrate judge filed its supplemental findings and recommendation. In it, the

magistrate judge acknowledged that both parties' objections to the initial report and

recommendation were pending before the district judge and no final judgment had

been entered. The magistrate judge also highlighted the fact that to-date the

government had never made any attempt to produce the authorization documentsthat

were to be attached to the wiretap application, did not provide the missing

attachments to Lomeli and Hernandez during discovery, and "apparently made no

effort to locate the missing documents prior to the suppression hearing." Rather than

denying the rehearing on this basis outright, the magistrate judge reopened the matter

"only to the extent necessary to provide Judge Strom with a complete record." 

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The magistrate judge then, however, discussed the substantive issue as to

whether the omission of the attached documents was merely a technical defect. The

magistrate judge held a second time that the government's failure to attach the

referenced authorization documents was not merely a technical defect and was fatal

to its claim. The magistrate judge pointed out the paucity of record evidence that the

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identity of the officer who authorized the application wassomehow actually or timely

disclosed to the issuing judge despite the omission of that information from the

application. Thus, the magistrate judge held that contrary to Sixth Circuit precedent

relied upon by the government in support of its argument that not every

noncompliance with the relevant wiretap application statutes mandates suppression,

see United States v. Gray, 521 F.3d 514, 524 (6th Cir. 2008), the nature of the defect

here was not technical nor surmountable for similar reasons. Accordingly, the

magistrate judge once again granted defendants' motions to suppress. 

The district court issued its order on February 8, 2011. As relevant here, the

court acknowledged that the government filed objections to the magistrate judge's

initial findings and recommendation but overruled the objections "as moot inasmuch

asthe magistrate judge reopened the record." The court noted that no objections were

filed to the supplemental findings and recommendation and they were thus "approved

and adopted." It then ruled that "[d]efendant Lomeli's motion to suppress is granted

in part; the motion to [suppress] evidence obtained as the result of the October 22,

2009, Nebraska Wiretap is suppressed," and likewise that "Hernandez' motion to

suppress is granted; the motion to suppress evidence obtained as the result of the

October 22, 2009, Nebraska Wiretap is suppressed." The government appeals. 

"Paucity" may be a misnomer here, as the record is wholly devoid of any such 3

evidence.

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II. DISCUSSION

A. Standard of Review

This court reviews suppression issues under a two-pronged standard ofreview,

reviewing the district court's factual findings for clear error and its legal conclusions

de novo. United States v. Sheikh, 367 F.3d 756, 762 (8th Cir. 2004). 

B. Procedural Issue

On appeal, the government argues that the district court failed to conduct a de

novo review when it adopted the magistrate judge's supplemental findings and

recommendation. It claims the court thus failed to address the government's pending

objections regarding the magistrate judge's recommendation suppressing the wiretap

evidence. 

In the end, no matter what this court determines regarding whether the

government was required to renew its initial objection or file objections anew

following the issuance of a magistrate judge's supplemental findings and

recommendation, or what standard of review the district court employed, any ruling

on this discrete procedural matter does not effect our de novo review of the legal

conclusions that are central to the instant analysis. See United States v. Barragan,

379 F.3d 524, 528 (8th Cir. 2004) ("We review de novo the district court's legal

conclusions."). 

The rule in this circuit is that a failure to object to a magistrate judge's

report and recommendation will not result in a [wholesale] waiver of the

right to appeal "when the questions involved are questions of law or

mixed questions of law and fact, or when neither the local court rule nor

the magistrate's notice has clearly informed the [parties] that failure to

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object to the magistrate's report will result in a waiver of the right to

appeal." 

United States v. Benshop, 138 F.3d 1229, 1234 (8th Cir. 1998) (first and third

alteration in original) (quoting Francis v. Bowen, 804 F.2d 103, 104 (8th Cir. 1986)

(per curiam) (internal quotation omitted)). 

C. Substantive Issue Regarding Wiretap Application Evidence

"The federal wiretap statute wasfirst enacted as Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 212-223, codified at 18

U.S.C. §§ 2510-2520." United States v. Moore, 41 F.3d 370, 374 (8th Cir. 1994). 

"The law has dual purposes, '(1) protecting the privacy of wire and oral

communications, and (2) delineating on a uniform basis the circumstances and

conditions under which the interception of wire and oral communications may be

authorized.'" Id. (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968-2

U.S.C.C.A.N. 2112, 2153). The statute broadly prohibits wiretaps "[e]xcept as

otherwise specifically provided in this chapter." 18 U.S.C. § 2511(1). 

The federal statutes governing wiretap applications clearly require that such

applications must be authorized by the Attorney General or other such designated

authority specifically enumerated in the statute. Id. at § 2516(1). All wiretap

applications must identify the investigative or law enforcement officer making the

application, and the designated Attorney General representative authorizing the

application. Id. at § 2518(1)(a). According to the statutory scheme, the court may

suppress evidence acquired through wiretapping, upon motion of "[a]ny aggrieved

person" if "(i) the communication was unlawfully intercepted; (ii) the order of

authorization or approval under which it was intercepted is insufficient on its face;

or (iii) the interception was not made in conformity with the order of authorization

or approval." Id. at § 2518(10)(a). Noncompliance with the statutory provisions

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governing the application procedure are contemplated by the relief available for

aggrieved persons under the statute. United States v. Giordano, 416 U.S. 505, 528

(1974)(explaining that § 2518(10)(a)(i) providesfor suppression of evidence directly

or indirectly obtained in violation of the pre-approval provisions of the chapter and

that these provisions were intended to play a central role in the statutory scheme and

thus violation thereof amounts to the unlawful interception of wire and oral

communications). 

Determining whether suppression is warranted in a particular case requires an

examination as to whether the statutory requirement violated (here, the failure to

identify the applicant's authority to make the application) occupies a central, or even

functional, role in guarding against unwarranted use of wiretapping or electronic

surveillance. United States v. Chavez, 416 U.S. 562, 578 (1974). Suppression is

required under § 2518(10)(a)(i) & (ii) only for "failure to satisfy any of those

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statutory requirements that directly and substantially implement the congressional

intention to limit the use of intercept proceduresto those situations clearly calling for

the employment of this extraordinary investigative device." Giordano, 416 U.S. at

527 (holding, in part, that suppression under § 2518(10)(a)(i) for "unlawfully

intercepted" communications includes constitutional violations as well as failure to

satisfy certain statutory requirements); see also Moore, 41 F.3d at 375 (analyzing

whether a facial insufficiency violated a core statutory requirement in a §

2518(10)(a)(ii) case). Suppression is not justified if the facial insufficiency of the

wiretap order is no more than a technical defect. Moore, 41 F.3d at 374. According

to Moore, our analysis is two-tiered, first identifying the omission or defect at issue

(i.e., whether the challenged document is insufficient on its face), and second,

It is unclear from the parties' initial motions and the district court's order

4

which of the grounds available under § 2518(10)(a) was relied upon to suppress the

wiretap evidence here. 

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determining whether that defect violates a core statutory requirement or whether it is

a mere technical defect not warranting suppression. Id. at 375. 

The government assertsthat the boilerplate statement in the wiretap application

itself that "an appropriate official of the Criminal Division" had given authorization,

fulfilled the statutory purpose–that just by saying someone authorized by the Attorney

General had signed off on it, "the issuing judge was made aware that the central role

in guarding against the unwarranted use of wiretapping had been fulfilled." So,

argues the government, the failure to attach the actual authorizing documents was

merely a technical defect. The district court disagreed, holding that omitting these

documents could not be a mere technical defect because correct authorization and

proof thereof is the center of the whole statutory scheme limiting the use of intercept

proceduresto those situations clearly calling for the employment ofthis extraordinary

investigative device. 

In Giordano, the Supreme Court stated it was "confident that the provision for

pre-application approval was intended to play a central role in the statutory scheme

and thatsuppression must follow when it isshown that thisstatutory requirement has

been ignored." 416 U.S. at 528. In Giordano, the Court suppressed evidence when

it became apparent that at the time the wiretap applications were made, the

application erroneously purported to have been authorized by a specially designated

Assistant Attorney General. Id. at 509, 529. Later, however, it developed that the

first wiretap application had not in fact been authorized by a specially designated

individual, but rather the Attorney General's Executive Assistant, an individual not

statutorily authorized to do so. Id. at 510. Because the officer approving the

application had been misidentified, the motion to suppress was granted under §

2518(10)(a)(i) asto evidence obtained fromthe execution of the first wiretap and any

wiretap thereafter that relied upon the first faulty application. Id. at 533. 

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Later, in Chavez, the Court again visited this issue. There, the Court held that

suppression was not necessary where the Attorney General had actually authorized

the challenged wiretap but the application incorrectly identified the Assistant

Attorney General (a potential, statutorily designated official that could have been

designated by the Attorney General) as the authorizing official. 416 U.S. at 568-69. 

The Court acknowledged the "facial sufficiency" of the wiretap application because

it clearly identified on its face the name of the authorizing Assistant Attorney

General. Id. at 573-74. Stated differently, the application in Chavez stated that a

specifically named, statutorily designated official actually gave the authorization. In

light ofChavez, the government's argument that the statement on the application itself

that the appropriate approval had been received carries some weight. The critical

difference is, however, that in Chavez, the face of the application included the name

of the specific individual that had purportedly authorized the application whereasthe

application in this case just states generically that "an appropriate official of the

Criminal Division" had authorized the application. Id. at 566. Unlike Chavez, one

cannot tell from the face of the application at issue here exactly who the authorizing

individual was, just generically that authorization wasreceived, which does not allow

the authorizing judge to issue an interception order with the knowledge contemplated

by Congress. 18 U.S.C. § 2518(1)(a) (requiring that each application include the

identity of the officer authorizing the application). 

The Eighth Circuit has likewise weighed in on this matter. In Moore, the

defendant challenged a wiretap application that had been approved by the judge, and

although the judge thought he signed the application order, there was no signature by

the judge on the order. 41 F.3d at 373. There, we denied the motion to suppress,

determining that the absence of the judge's signature was only a technical defect. Id.

at 375-76. The court held that the requirement of judicial approval is obviously at the

core of the congressional purpose underlying the statute, but noted that written

approval was not actually required. Id. And, there was testimony from the

authorizing judge that he indeed approved the application and fully intended to sign

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it. Id. In fact, the judge testified that he found sufficient probable cause to issue the

order and believed he had signed the order along with all of the other original papers

presented to him for his signature at the time of the application. Id. at 372-73. On

those facts, the absence of the judge's signature did "not reflect a violation of any

underlying statutory requirement." Id. at 375. Moore is thus inapposite to the issue

uniquely presented here. 

The application in the instant case is insufficient on its face, as it does not

comport with the § 2518(1)(a)requirement. And despite the government's arguments

to the contrary, the omission here is not "technical" as has been determined in other

cases. See United States v. Radcliff, 331 F.3d 1153, 1160-63 (10th Cir. 2003)

(denying suppression because even though the name of the authorizing official was

omitted from the wiretap order, there was no dispute that the applications identified

the appropriate DOJ individual); United States v. Fudge, 325 F.3d 910, 917-18 (7th

Cir. 2003) (denying suppression even though the order granting the wiretap

application did not specifically identify the authorizing DOJ official because attached

to the application were two letters specifying the approval and authorization, along

with an affidavit supporting the same). 

By way of this statutory scheme, Congress intended:

not only to limit resort to wiretapping to certain crimes and situations

where probable cause is present but also to condition the use of intercept

procedures upon the judgment of a senior official in the Department of

Justice that the situation is one of those warranting their use. It is

reasonable to believe that such a precondition would inevitably

foreclose resort to wiretapping in varioussituations where investigative

personnel would otherwise seek intercept authority from the court and

the court would very likely authorize its use.

Giordano, 416 U.S. at 527-28. 

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The authorizing judge in the instant case had no way of knowing the name of

the actual, statutorily designated official that had indeed authorized the application

even though the application states as much in general terms–one of the core

components of this legislation. And, the government offered no evidence (such as

wasreceived in other cases) that the judge indeed knew the identity of the appropriate

authorizing official, or that the name of the statutorily designated official was

otherwise disclosed. Such evidence would have demonstrated compliance with all

the fundamental statutory safeguards that protect against unauthorized or unwarranted

wiretap surveillance. See Moore, 41 F.3d at 375 n.2 (justifying a determination that 5

an omission was a mere technicality by focusing on the relevant perspective of the

partiesto the events, where all present, including the judge, proceeded as if the judge

had signed the order as he fully intended, thus Congress's purpose in requiring

judicial approval was substantially fulfilled). 

Despite the fact that the government intended and may very well have thought

the appropriate authorizing documents were attached to the application, they were

not, and there is nothing in the record to give us reason to believe that the judge

authorizing the wiretap–the person for whose benefit the statutory requirement is

written–knew that the requisite authoritywas obtained. It was not until the magistrate

judge conducted the supplemental hearing in the instant case that the government

offered the supporting documents. Given the congressional intent to strictly limit the

use of this electronic interception, failing to include the name of the authorizing

official, and failing to include the documents that could have easily established

The casesrelied upon by the government to support the proposition that minor 5

errors in a wiretap application or order do not warrant suppression are wholly

distinguishable. In each, either the issuing judge knew the identity of the authorizing

DOJ official, or the official was designated by name in the application but that

information was omitted from the authorizing order. See United States v. Callum,

410 F.3d 571, 574-77 (9th Cir. 2005), Fudge, 325 F.3d at 914-18; Radcliff, 331 F.3d

at 1160-62.

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confirmation or proof of such authorization, was not a "minor," or merely technical,

defect. We therefore affirm the district court's suppression order on this basis. 

6

C. Good Faith Exception

The government alternatively argues that the Leon good faith exception should

apply in these circumstances because, again, the application's statement that "an

appropriate official of the Criminal Division" suffices. Yet, even though we have

applied the good faith doctrine adopted in United States v. Leon, 468 U.S. 897 (1984)

in the § 2518(10)(a) context, it does not apply on these facts. Moore, 41 F.3d at 376. 

In Leon, the Supreme Court held that the Fourth Amendment exclusionary rule does

not require the suppression of evidence seized by the police pursuant to a search

warrant which was sought, obtained, and executed in objectively reasonable good

faith, but which was held, subsequently, to have been issued without probable cause. 

468 U.S. at 918-21. 

Moore and its application of the good faith doctrine is notably distinct. In

Moore it "'was the judge, not the police officers, who made the critical mistake.'" 41

F.3d at 376 (quoting Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984)). There,

the law enforcement officials "complied with the core statutory requirements of

federal wiretap law in applying for and executing the wiretap orders." Id. at 376-77. 

The officer in Moore left the judge's chambers believing, as did the judge, that the

In doing so, we part ways with our sister circuit, which held otherwise on 6

similar facts. See Gray, 521 F.3d at 523, 527 (denying suppression because even

though the specific name of the authorizing official was omitted fromthe application,

and it was unclear whether the applicant informed the judge of the specific name of

the authorizing official, the fact of proper authorization was made known to the

issuing judge at the time he signed the application–i.e., the applicant told the judge

he had obtained authorization from a DOJ official specially designated to approve

wiretap applications). 

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judge had approved the wiretap application and that the order had been entered. Id.

at 376. Accordingly, we held the officer acted in good faith in presuming the validity

of the wiretap order he reasonably believed he watched the judge sign and enter. 

Just the opposite occurred here. We have already determined that the

government failed to comply with the core statutory requirements of federal wiretap

law and that the omission here was not merely a technical defect. Stated in

juxtaposition with Leon jurisprudence, we hold that no wiretap applicant can, in good

faith, rely upon a court order authorizing the wiretap when the applicant failed to

comply with the edicts of the federal wiretap statute in procuring the order. The

failure here thwarts the core purpose of the statutory scheme in place to regulate such

extraordinary investigative techniques. To hold otherwise on these facts would

prompt bad practices and reward those who routinely include mere boilerplate

language in wiretap applications, which runs upstream from the carefully laid out

statutory scheme. Without including the name of the authorizing DOJ official on

wiretap applications, there can be no "good faith" reliance under the statutory scheme

carefully crafted by Congress to limit the use of these electronic interceptions. We

will take no part in detracting from Congress's 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." Giordano, 416 U.S.

at 515. 

III. CONCLUSION

For the reasons stated we affirm the grant of the motions to suppress in this

case. 

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