PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEVIN LEWIS, Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. OTIS PONDS, Defendant - Appellant. No. 22-3125

No. 22-3126

________________ _________________ Appeals from the United States District Court for the District of Kansas (D.C. Nos. 6:20- CR-10028-EFM-11 & 6:20-CR-10028-EFM-15)

________________ _________________ Megan L. Hayes, Attorney at Law, Laramie, Wyoming, for Defendant - Appellant Kevin Lewis. Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Defendant - Appe llant Otis Ponds. FILED United States Court of Appeals Tenth Circuit 

### September 10, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 12 James A. Brown, Assistan t United States Attorney (Kate E. Brubacher, United States Attorney, with hi m on the brief), Topeka, Kansas, for Plaintiff - Appellee.

________________ _________________ Before MATHESON , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ These consolidated ap peals share two legal issues raised by two defendants convicted of crimes arising from a vast conspiracy to distribute methamphetamine, marijuana, heroin, powder cocaine, and crack cocaine in Wichita, Kansas. One defendan t, Kevin Lewis, went to trial and was convicted of all charges. The other, Otis Ponds, pleaded guilty days before trial but reserved his ability to app eal two issues: (1) whether the government violated his Sixth Amendment rights to a speedy trial and (2 ) whether he is entitled to an order suppressing all evidence derive d from one of the FBI’s wiretaps, on grounds that the wiretap application wa s not signed by the statutorily approved Department of Justice offici al designated on the author ization filing, but rather was signed by some other, unknown person. Lewis raises these same two issues in his appeal. In addition, Lewis alone raises a thir d issue: (3) whether the length of his sentence is substantively unreasonable. We affirm the district court’s judgment as to all three issues. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 23 BACKGROUND Kevin Lewis and Otis Ponds were two of twenty-four defendants charged in a fifty-five-count indictment for th eir roles facilitating a drug-trafficking conspiracy in Wichita, Kansas. The chie f of this operation was another man, Travis Knighten, who led the organization’s activities from inside an Oklahoma state penitentiary. Given Knighten’s conf ined location, he used contraband cell phones to coordinate with his “main tra ffickers,” including Lewis and Ponds. R. vol. 1, at 156 ¶ 4. From prison, Knighten directed Lewis and Ponds to arrange and execute the purchase and sale of ill egal drugs, including methamphetamine, marijuana, heroin, powder cocaine, and crack cocaine. Though Knighten headed the organiza tion, the FBI’s investigation didn’t start with him. Before the FBI knew abou t Knighten, a confidential source separately reported that another ma n, Dorzee Hill, was selling heroin in Wichita. This information from the FBI’s source, plus a referral from the Wichita Police Department about gang ac tivity in the area, spurred the FBI to begin investigating the Wich ita drug-trafficking ring in the spring of 2018. The FBI began by orchestrating a series of “controlled buys” between the confidential source and Hill. R. vol. 5, at 976. This entailed the FBI sending the confidential source to Hill’ s house to buy he roin, with a reco rding device and “pre-recorded” bills, and then meeting w ith the source after the exchange at a predetermined location to collect the ev idence—“black tar he roin.” Suppl. R. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 34 vol. 1, at 38 (sealed). 1 The FBI conducted six of th ese controlled buys between July 2018 and March 2019. These exchanges confir med the FBI’s suspicions that Hill was dealing heroin , but led no further. Hill had been careful not to reveal his supplier or unmask any of his co-conspirators. To aid its investigation, the FBI began conducting phy sical surveillance outside Hill’s residence in the fall of 2018. The FBI sometimes used GPS “pings” as part of this surveillance, to track Hill’s locat ion through his cell phone. Id. These tactics proved fruitless because Hill “ lived on a dead-end street” surrounded by fam ily members who “would serv e as lookouts for him,” and the GPS monitoring was neither accur ate nor reliable. R. vol. 5, at 871. After these failed attempts at physical surveillance, the FBI resorted to installing a pole camera on a utility pole up the st reet from Hill’s house. The pole camera went up on October 4, 2018. The pole camer a recorded video footage of the comings and goings outside Hill’s residence. And the FBI used it to capture many of the controlled he roin buys on camera . But the pole camera could take the FBI’s inves tigation only so far. Much about Hill’s activities and inner workings remained u nknown. To bridge the gap, the FBI needed to hear Hill’s conversations. So in the spring of 2019, the FB I sought its first federal authorization for a wireta p on Hill’s cell phone.

1 We have determined that nothi ng quoted from this sealed volume reveals sensitive information. Future cites in this opinion to this volume will not be designated as sealed. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 45 In April 2019, the FBI proc ured its first court-authorized wiretap for a cell phone used by H ill. The first wiretap ran for one month, intercepting phone calls and texts made to and from this cell phone. Then in May 2019, the FBI secured a second authorized wiretap using information gleaned from the first. The second wiretap continue d to intercept calls and texts on the same phone used by Hill, plus anothe r of Hill’s cell phones, and a third cell ph one used by another codefendant. That wiretap also ran for about a month. It was during the second wiretap that the FBI first heard Hill talking to Knighten during several intercepted phone conversations. Fr om these communi cations, the FBI discovered that Knighten, not Hill, was the organization’s l eader. So in June 2019, the FBI secured its third and final wiretap authorizatio n, which again ran for about a month, intercepting phone calls and texts to and from three cell phones: the two previously tapped phones us ed by Hill, and a third used by Knighten. Lewis was intercep ted on the third wiretap, talking and texting with Knighten to arrange several drug deals. 2 Conversations wi th Ponds were intercepted on all four cell phones acros s the three wiretaps. The third (and last) wiretap expired on July 20, 2019. Days before the last wiretap ended, the FBI obtained and executed five search warrants for several residences connected to the drug conspiracy, from

2 All three wiretap app lications listed Lewis as one of the “Target Subjects” and as “Hill’s main source of supp ly for heroin.” Supp l. R. vol. 1, at 29, 33. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 56 which law enforcement seized drugs, dr ug paraphernalia, ce ll phones, cash, and firearms. This mostly concluded the FB I’s investigation, but the pole camera stayed on and kept r ecording outside Hill’s h ouse until November 2019. According to the investiga tion’s lead agent, FBI Agen t Cameron Heath, the FBI left the pole camera running because agen cy policy requires that inactive pole cameras be removed from th e field—removal in this case would have been risky because Hill’s family was constantly watching for suspicious police activity in the neighborh ood. Plus, according to Agent Heath, the FBI maintained an interest in “who was coming and go ing from that location” before the “indictments we re going to come down.” Id. at 981. On February 26, 2020, a fe deral grand jury returned an indictment that charged twenty-four defend ants, including Knighten, Hill, Lewis, and Ponds, with a slew of drug-traffi cking-related crimes. Lewis was arrested on March 4, 2020, but Ponds evad ed arrest until D ecember 23, 2020. About a year later, on April 20, 2021, the government charged its superseding indictment, which removed the defendants who had pleaded guilty and added other drug-and-gun-related ch arges for some remaining defendants. The superseding indictment charged Ponds with conspiracy to distribute methamphetamine, in violation of 21 U.S. C. §§ 846, 841(a)(1 ), (b)(1)(A); two counts of maintaining a dr ug-involved premises, in violation of § 856(a)(1); and using a telephone to facilitate a dr ug-trafficking crime, in violation of § 843(b). The superseding indictment charged Lewis with conspiracy to Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 67 distribute methamphetamine, in violat ion of §§ 846, 841(a)(1), (b)(1)(A); conspiracy to distribute heroin, in vi olation of §§ 846, 841(a)(1), (b)(1)(A); conspiracy to distribute cocaine, in vi olation of §§ 846, 841(a)(1), (b)(1)(C); conspiracy to distribute crack cocai ne, in violation of §§ 846, 841(a)(1), (b)(1)(C); maintaining a dr ug-involved premises, in violation of § 856(a)(1); and three counts of using a telephone to facilitate a drug-trafficking crime, in violation of § 843(b). Ponds pleaded guilty on February 23, 2022. Under the terms of the plea agreement, Ponds ag reed to plead guilty to one count of maintaining a druginvolved premises, in exchange for the government dropping the other charges against him. The government agreed to let P onds reserve his ab ility to appeal two orders entered by the district court: (1) an order denying Ponds’s motion to suppress evidence obtained from the first wiretap, and (2) an order denying Ponds’s motion to dismi ss the indictment on sp eedy-trial grounds. The agreement recommended a sentencing range between 80 and 108 months, and Ponds waived his ri ght to appeal any sentence im posed by the district court within this range. At se ntencing, the district co urt imposed an 80-month

sentence. Lewis elected to go to trial, which, after nearly two years of discovery and a series of pretrial motions, began on February 28, 2022. After a ten-day trial, a jury convicted Lewis on all counts char ged in the superseding Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 78 indictment. The district court sent enced Lewis to serve 420 months’ imprisonment. Lewis and Ponds (Defendants) timely appealed. This court consolidated their appeals. We have jurisdiction to h ear these consolidated appeals under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
DISCUSSION Three issues are presented for our re view. First, Defendants challenge the district court’s denial of their mo tions to dismiss th e indictment on constitutional speedy-trial grounds. 3 Second, Defendants dispute the district court’s denial of their motions to su ppress evidence deri ved from the first wiretap. Third, Lewis ar gues that his 420-month sentence is substantively unreasonable. We take th ese in turn, starting with the speedy-trial issue.
I. Speedy Trial In November 2021, Defendants filed pretrial motions to dismiss the indictment, arguing that th e government violated thei r Sixth Amendm ent rights to a speedy trial by causing a two-year delay between the indictment and the

3 In Defendants’ opening briefs, they also challe nge the district court’s ruling under the Speedy Trial Act, 18 U. S.C. § 3161(c)(1), but they abandon these arguments in their respective reply briefs. Defendants concede the government’s point that any error u nder the Speedy Trial Act would be harmless because both Lewi s and Ponds “were brought to trial within the STA’s 70-day limit based on overlapping and ex cludable delays under the provisions of § 3161(h)(1)(D) and (H ).” Resp. Br. at 20. Beca use the Speedy Trial Act arguments have been abandoned, we do not address them. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 89 trial. The district court denied the mo tions, and Defendants now appeal that decision. We affirm.
A. Legal Background The Sixth Amendment guar antees criminal defendants “the right to a speedy and public trial.” U. S. Const. amend. VI. “Thi s right attach es when the defendant is arrested or indi cted, whichever comes first.” United States v.
Larson , 627 F.3d 1198, 1207 (10th Cir. 2010) (cleaned up) . An infring ement of the speedy-trial right requires dismissal of the indictment. Betterman v.
Montana , 578 U.S. 437, 443–44 (2 016). Though the spee dy-trial remedy is severe, the right itself is “slippery.” Barker v. Wingo , 407 U.S. 514, 522 (1972) (explaining that “any inquir y into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case” (citation omitted)). Because of the “amorphous quality of the right,” id. , the Supreme Court has issued a flexible, four-factor balancing test that weighs “the conduct of both the prosecution and the defendant,” id. at 530, to determine whether a speedy-trial error has occurred. These so-called Barker factors are (1) th e length of the delay, (2) the reason for the delay, (3 ) the defendant’s assertion of the speedytrial right, and (4) prej udice to the defendant. Id. Length of Delay. The length-of-delay factor is a “double inquiry,” the first part being a threshold to the Barker analysis. United States v. Seltzer , 595 F.3d 1170, 1176 (10th Cir. 2010 ). We consider first wh ether the defendant has shown a “presumptively prejudicial” dela y sufficient “to trigger a speedy trial Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 910 analysis,” which is any de lay longer th an one year. Id. (quoting Doggett v. United States , 505 U.S. 647, 651–52 (1992)). If the defendant ca nnot show a one-year-plus delay, then we do not proceed to the remaining factors. See Barker , 407 U.S. at 530 (“Until there is some delay which is presumptively prejudicial, there is no n ecessity for inquiry into the other fact ors that go into the balance.”). But if th e defendant has shown a presumptively prejudicial delay, we then consider “the extent to which the delay stretches beyond the bare minimum needed to trigger ju dicial examination of the claim.” Seltzer , 595 F.3d at 1176 (quoting Doggett , 505 U.S. at 652). In do ing so, we may account for the complexity of the charges. See id. Reason for Delay. The second factor—the r eason for delay—has been touted as “[t]he flag all litigants seek to capture.” United States v. Keith , 61 F.4th 839, 852 (10th Cir. 2023) (quoting United States v. Loud Hawk , 474 U.S. 302, 315 (1986)). At this stage, “[i]t is incumben t upon the government to present acceptable reas ons for the delay.” United States v. Margheim , 770 F.3d 1312, 1326 (10th Cir. 2014). Not all reasons for a dela y are weighed the same. We fault the government more for a “purposeful delay or delay to gain advantage” and less for de lays caused by “negligence.” Id. (quoting United States v. Gould , 672 F.3d 930, 937 (10th Cir. 2012)); see Barker , 407 U.S. at 531 (“[D]ifferent weights should be assign ed to different reasons.”). Likewise, we hold the defendant accountable for self-inflicted delays, including those attributable to filing pretrial motions or seeking continuances. United States v. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1011 Tranakos , 911 F.2d 1422, 1428 (10th Cir. 1990); see, e.g. , United States v. Abdush-Shakur , 465 F.3d 458, 465 (10th Cir. 2006) (finding “little merit” in defendant’s Sixth Amendment speedy-tria l claim because “in the wake of the government’s legitimate request for a con tinuance” defendant “s at on his hands for seven months and requested seve ral continuances of his own”). Often, the government and the defe nse share the blame for various pretrial delays, so in assessing the reason-for-del ay factor under Barker , “we attempt to ‘divide’ th e overall delay into discrete ‘periods.’” United States v. Muhtorov , 20 F.4th 558, 639–40 ( 10th Cir. 2021) (quoting United States v. Black , 830 F.3d 1099, 1 113 (10th Cir. 2016)). Then, fo r each one, we decide “whether the government or the criminal defendant is more to blame for the delay.” Id. at 640 (quoting Doggett , 505 U.S. at 651). This splicing exercise doesn’t end with us observing which party is blameworthy for the longest stretch of delay and then auto matically weighi ng the second Barker factor against that party. See id. We also pay attention “to the circumstances that caused [each] delay” because this te lls us “how strongly to weigh it.” Id. For instance, a shorter (yet nefariously motivated) delay counts more heavily against the responsible party than a longer (yet innocuous ly caused) one. See id. (“For example, ‘even if the defendant is responsibl e for a majority of the delay, we could weigh the second Barker factor against the government if the government delayed the trial to gain an advantage ov er the defendant or to deprive the defendant of his ability to defend hims elf at trial.’” (quoting Black , Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1112 830 F.3d at 1120)). So we must examine each segment of the total pretrial delay separately, considering which part y caused each portion and why. Assertion of Right. For the assertion-of-right f actor, we simp ly look to “whether the defendant ‘actively’ assert ed his right,” or ra ther, “whether the defendant’s behavior during th e course of litigation evin ce[d] a desire to go to trial.” Keith , 61 F.4th at 853 (quoting United States v. Koerber , 10 F.4th 1083, 1110 (10th Cir. 2021)); see Margheim , 770 F.3d at 1328 (noting “the frequency and force of [defendant’s] objections” in weighing the streng th of defendant’s assertion of his speedy-tri al right (cleaned up)). Prejudice. Last, we consider the prejudice that the delay caused to the defendant. This requires th e defendant to “make a par ticularized showing” that the delay prejudiced an in terest that the speedy-tr ial right is designed to protect: “(i) the prevention of oppressi ve pretrial incarceration; (ii) the minimization of anxiety a nd concern of the accused; and (iii) the minimization of the possibility that the defense will be impaired.” Black , 830 F.3d at 1122 (quoting United States v. Hicks , 779 F.3d 1163, 11 69 (10th Cir. 2015)). The defendant’s failure to show prejudice “eviscerate[s]” his claim. Keith , 61 F.4th at 854 (quoting Margheim , 770 F.3d at 1329); see Gould , 672 F.3d at 939 (“A showing of prejudice may no t be absolutely n ecessary in order to find a Sixth Amendment violation, but we have great reluctance to find a speedy trial deprivation where there is no prejudice.” (quoting Perez v. Sullivan , 793 F.2d 249, 256 (10th Cir. 1986))). Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1213 B. Pertinent Facts Lewis and Ponds were indi cted on February 26, 2020. Lewis was arrested about a week later, on Marc h 4, 2020, and he first ap peared in court on March 6, 2020. The district court entered an order detaining Lewis pending trial on March 10, 2020. Lewis’s trial began on February 28, 2022. So Lewis spent almost two years in pretri al detention, from March 4, 2020, until February 28,
2022. Ponds’s route was more circuitous—he did not appear in Kansas district court until March 2021, almo st a year after Lewis. After being indicted in February 2020, Ponds was “operating, liv ing, [and] working under a false ID” in California, apparently to “rem ain undetected” by federal authorities. 4 R. vol. 5, at 407–08. Then, on December 23, 2020, la w enforcement finally apprehended Ponds and arrested him base d on the charges in the indictment. He was then transferred to federal custod y in Kansas, and he appeared for his detention hearing before a Kansas magi strate judge on Ma rch 1, 2021. The magistrate ordered Ponds re leased on conditions but, days later, on March 5, 2021, the government successfully appeal ed the magistrate’s order to the district court. The district court ordere d Ponds to be detained pending trial. Ponds entered his guilty pl ea on February 23 , 2022, five days before trial began. So from his initial a rrest in Californi a until his guilty plea, Ponds spent

4 Ponds challenges this characteriza tion, but as we explain in n.9, infra , we do not count this pe riod against Ponds for speedy-trial purposes. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1314 a little over one year in detention, from December 23, 2020, until February 23,
2022. The district court initially set Lewis’ s trial date for May 26, 2020, which the court soon modified to June 2, 2020. Then , on April 2, 2020, the government filed a moti on to declare the case comple x, after which the district court held a status conference, on Apr il 29, 2020. The cour t heard arguments on the motion and attempted to set a realistic timeline for discovery. 5 Around the same time, the court appointed a coordinating discovery attorney to manage the discovery process. After the April status conference, on May 1, 2020, the district court granted the government’s moti on to declare the case co mplex. The district court found the case complex based on the large number of defendants, the interception of communications from four phone line s, the amount of discoverable material (including “a significant number of transcripts and recorded conversations in addition to phone download s and surveillance videos”), the “interfer[ence] with disc overy production” caused by the COVID19 pandemic, and the need “for defense counsel to review, organize, and digest the materials.” R. vol. 1, at 396. This order releas ed the case from the time limits imposed by the Speedy Trial Act. In the same order, the court set a status conference for July 10 , 2020, to track the pr ogress of discovery.

5 At the April 29, 2020 status co nference, Lewis objected to the government’s motion to declare the case complex and requested a speedy trial. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1415 The July 10, 2020 status conference was the first time the length of the pole-camera footage was specifically ra ised as a potentia l slowdown for the discovery process. By this point, the government hadn’t yet produced the polecamera footage due to “techni cal glitches.” R. vol. 5, at 181. But it had given the “bulk” of the other discovery to defense counsel. 6 Id. The government acknowledged that the po le-camera footage was “q uite large” because the camera had been “running for 24 hours a day for 13 months.” Id. at 180. Counsel hoped that the government might “pare do wn” the footage or provide defense counsel with more detail about which segments of the footage were relevant. Id. at 185. The district court consider ed this obstacle and posited that even the government id entifying the relevant segmen ts of the footage might not “exhaust [defense counsels ’] own obligations with re spect to what may happen on the video.” Id. at 190. Yet the court acknowl edged that, because the pole camera outside Hill’s house ran nonstop for thirteen months, there would be large portions of the video where, as the court put it, “nothing’s happening.” Id.
at 187. By the next status conference, on August 21, 2020, on e defense attorney confirmed that all the defendants’ counse l had received the pole-camera footage from the government and that paralegals were “maki ng their way through it.”

6 This included “line sh eets, the T3 apps and orders, the phone calls themselves, police reports, phone downloads, a drone video, search warrant photos and reports, arrest interviews, videos, most of the lab results, [and] some of the nexus report s on the firearms.” R. vol. 5, at 180. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1516 Id. at 212. That attorney estimated that the two paralegals reviewing the footage would require another two-to-thr ee months to finish reviewing the polecamera footage. The court clarified that the purpose of the paralegals’ review was “to identify what portions of the video [defense counsel] need to look at.” Id. at 218–19. So to speed th e process along, and “in the interests of the defendants, particularly those detained,” the court sanctioned the use of a third paralegal to help review the footage. Id. at 220. At the next status conference on Oc tober 2, 2020, the defense reported that the paralegals were not expected to complete the pole-camera-footage review until the first of th e year in 2021. On Novemb er 19, 2020, during the next status conference, the district court prodded the g overnment about its timeline for producing the se gments of the footage it planned to use at trial. The court then gave the government “a n aspirational date” of sixty days to produce these segments. On January 13, 2021, the status conference report was that the paralegals had finished review ing “about a quarter” of the pole-camera footage and were moving at a rate of “two and a half to five hours per 24-hour period to review.” Id. at 285. Based on that pace, th e paralegals estimated that they would complete the review by June 2021. With this update, the defense relayed to the court that “the video is pr etty grainy,” that “ it’s difficult to make out specific individuals or vehicles,” and that “you can’t see what’s going on.” Id. The government also upda ted the court that it was “about halfway through” the pole-camera footage, having identified “somewhere between 30 and 40 Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1617 specific dates and times” th at it might introduce as pa rt of its case in chief against the many defendan ts still awaiting trial. Id. at 288–89. The government added that it was on pace to meet the court’s Februa ry 19, 2021 deadline for producing the relevant segments of footage to the defense. The court ended by expressing its “overarching concerns” a bout “the discovery procedures that the federal law enforcements have used to accumulate so much video.” Id. at 290. The court stressed that “defense [couns el] may view some items captured on video as potentially exculpatory in wa ys perhaps the Government would not perceive them,” which “compels the defe nse team to review all of the images that have been captured.” Id. at 291. At the start of the next status conference on Ma rch 15, 2021, the government confirmed that it had met the court’s sixty-day deadline to produce the relevant segments from the pole-camer a footage. The defense reported that the paralegals had completed reviewing “149 of the 416 days of footage.” Id. at 420. Counsel attributed the slow progress to “more activity and po ssibly more relevant information” on the recording. Id. By the next conference on June 7, 2021, the paralegals had finished viewin g all the relevant portions of polecamera footage identified by the governme nt and provided summaries of those segments to all defense counsel. Still, the court was alarmed at the time consumed by reviewing pole-camera fo otage and remarked that the case’s passing “the year anniversary mark” triggered “constitu tional speedy-trial considerations.” Id. at 452–53. Even so, the court maintained that “defense Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1718 [counsel] have an obligation to provide effective assistance to review all the evidence that’s there, to see if there’s anything exculpatory in one fashion or another for their client.” Id. at 454. This “obligation, ” the court pressed, was not “relieve[d]” by the government produ cing the relevant segments of polecamera footage to the defense. Id. About a month later, on July 19, 2021, P onds filed a notice of demand for a speedy trial. Just over a week later, on July 29, 2021, the district court held a pole-camera meeting, du ring which it admonished the government for producing “over 10,000 hours of pole ca mera video,” yet planning to use no more than two hours of footage at trial. Id. at 466 Still, the court restated that “defense counsel are obligated , all 24 of them, to look at in some way—if not themselves, through th eir legal assistants—all 10, 000-plus hours of discovery in this case.” Id. at 469. Failing to do so, th e court cautioned, could “imperil the actual trial.” Id. at 472. The court noted Ponds’ s demand for a speedy trial, and Lewis’s counsel told the court that he planned to f ile a speedy-trial motion, as well. The court anticipated that thes e motions would be “colorable” because, though law enforcem ent was “entitled” to install a pole camera, the court saw “no good reason to collect 400 days of pole camera” footage. Id. at 470–71. The painstaking pole-camera-review process finally ended in September 2021. With discovery over, the court sche duled a pretrial motions deadline for November 15, 2021, and se t a trial date for Februa ry 28, 2022. In November 2021, Lewis and Ponds filed their motions to dismiss th e indictment on speedyAppellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1819 trial grounds. 7 The motions alleged that the government had unconstitutionally delayed trial by producing over 10,000 hours of pole-camera footage that defense counsel were ethical ly obligated to review. 8 After hearing arguments on the spee dy-trial motion, the district court issued a written order on February 16, 2022, denying both motions. United
States v. Lewis , 586 F. Supp. 3d 10 94 (D. Kan. 2022). The court first recounted the investigatory tactics the FBI deployed during its “sprawling” investigation, including “60,000 intercepted communica tions” yielded from “six trap and trace warrants and three Title III inte rception [wiretap] authorizations.” Id. at 1098. The FBI had additiona lly engaged in physical surveillance, executed search warrants, and installed two pole cameras, one of whic h represented “the source of [Defendants’] woes” and the impetus for the speedy-trial motions under review. Id. To decide whether the tr ial’s nearly two-year delay violated Defendants’ speedy-trial rights, the court applied the four Barker factors. See id. at 1100. First (length of delay), the court conclu ded this factor was “neutral” because the delay was not so egregious consid ering the complexity of the case. Id. at

7 The day of the pretrial-motions deadline, November 15, 2021, Ponds filed a motion to discharge his counsel. The court denied this motion. Because of this delay, the court allowed Pond s until November 24, 2021, to file his pretrial motions. On November 24, 2021, Ponds filed his moti on to dismiss the indictment on speedy-trial grounds.

8 Neither of Defendants’ speedy-trial motions cite the 60,000 phone calls and texts as cause for the pretrial delay. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1920 1100–01 (referring to the “ 60,000 intercepted calls and texts, and 10,000 hours of pole camera footage”). Second (reason for delay), the court reasoned that “[t]he blame . . . lies at the feet of the Government” for causing defense counsel to review thousands of hours of pole-camera footage, and though “there is no evidence of purposeful delay,” this factor “wei ghs slightly in favor of [Defendants]” because of th e government’s “negligence.” Id. at 1102. Third (assertion of right), the court found this factor favored both Defendants because Lewis had “asserted his speedy trial righ ts early and often,” while Ponds too had “asserted his rights a me re three or four months after he appeared before this Court.” Id. at 1103. Fourth (prejudice), th e court listed the three ways a defendant might show pr ejudice—“(i) oppressive pretrial incarceration; (ii) anxiety and concern associated w ith such incarceration; and (iii) the possibility that the defense will be im paired”—and having considered these, it observed that all of Defendants’ prejudice claims were “equivocal,” “generalized,” “conclus ory,” or “unavailing.” Id. at 1104–05 (citation omitted). Based on Defendants’ failure to show prejudice, whic h is “nearly fatal” to a speedy-trial claim, the district court denied both motions. Id. at 1105 (quoting United States v. Nixon , 919 F.3d 1265, 1278 (10th Cir. 2019)).
C. Analysis We review de novo a defendant’s cl aim for violatio n of the Sixth Amendment right to a speedy trial, “accepting the district court’s factual findings unless they ar e clearly erroneous.” United States v. Medina , 918 F.3d Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2021 774, 788 (10th Cir. 2019). We pr oceed by applying the four Barker factors and then balancing them to de termine whether the nearly two-year delay between the indictment and Lewi s’s trial and Ponds’s gu ilty plea violated the Constitution’s speedy-trial guarantee. No single factor is dispositive. Id. at 780. But an inability to show prejudice will typically “e viscerate the defendant’s claim.” Margheim , 770 F.3d at 1329.
1. Length of Delay The government concedes that Lewis and Pond s each experienced a presumptively prejudicial delay. Both De fendants were indi cted on February 26, 2020, Ponds entered his guilty plea on February 23, 2022 , and Lewis’s trial began on February 28, 2022. This two-year delay is sufficient for Defendants to have “clear[ed] the ‘gate’” and to trigger a speedy-trial analysis. Muhtorov , 20 F.4th at 638. But the delay was not unr easonable given the complexity of the charges, so this factor favo rs Defendants only slightly. See Seltzer , 595 F.3d at 1176 (“[E]ven a two-year in terval between charges and trial may not be deemed a ‘delay’ when the charges are complex.”).
2. Reason for Delay The district court identified the 10,0 00 hours of pole-camera footage as “the entire reason for the delay.” Lewis , 586 F. Supp. 3d at 1101. Though the district court recognized pole cameras as a generally “viable investigative tactic,” it faulted the government’ s strategy here “to maintain continuous Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2122 digital surveillance of De fendant Hill’s house for we ll over a year,” without a “clear reason.” Id. Defendants arguments on appeal reflect the district court’s reasoning. Defendants contend that the 10,000 hours of pole-camera footage, and consequently the time it took for defense counsel to re view it, caused most of the pretrial delay. They assert that the FBI’s leaving an unmonitored pole camera outside Hill’s house for thirteen months, running 24/7, was “reckless, not merely negligent, ” Ponds Op. Br. at 26, because that de cision “resulted in many more months of vide o footage for defense attorneys to slog through and created significant delays in bringing [Defendants] to trial,” Lewis Op. Br. at
30. In evaluating the reas on-for-delay factor, we “‘ divide’ the overall delay into . . . manageable units of analysis,” so that for each one we mi ght determine who and what caused that portion of delay. Muhtorov , 20 F.4th at 639–40. That task is tougher here because the distri ct court did not di vide the pretrial timeline into “m anageable units of analysis.” Id. at 640. So we begin there, by reviewing the pretrial timeline as we see it according to th e record. We may then decide which party is responsible for each period of delay and consider Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2223 whether each period “shoul d weigh for or against a constitutional violation.” 9
Id. Defendants’ right to a speedy trial attached on the day the indictment was filed—February 26, 2020. See Medina , 918 F.3d at 779 (“ Th[e] right attaches when the defendant is arrested or indicted, wh ichever comes first.” (citation omitted)). 10 Ponds pleaded guilty on February 23, 2022 

### , and Lewis’s trial began on February 28, 2022. So the total delay period ran almost exactly two years, or twenty-four months. That twenty-four-month delay divides as follows. February 2020–July 20 20: Initial Discovery. The first five months of delay—from February 2020 until the second status conference on July 10, 2020—Defendants do not challenge. During this time, Ponds was still in California evading authorities, and Le wis was receiving di scovery from the

9 The government parses the reason -for-delay timeline according to each defendant. Though we reco gnize that Lewis’s and Pond s’s pretrial paths were slightly different (because P onds evaded arrest for the first ten months after the indictment was char ged and didn ’t appear in court un til March 2021), we don’t find it useful to divide the pretrial tim eline this way. The crux of Defendants’ speedy-trial claims is that the governm ent erred by accumulating 10,000 hours of pole-camera footage and unconstitutionally delayed tr ial as a result. By the time Ponds was apprehended and appeared in court in March 2021, the polecamera review was still ongoin g. So counting the first year or so of Ponds’s pretrial-detention period against him, as the government does, doesn’t help us resolve the pole-camera i ssue. Nor does it change the outcome of the speedytrial issue, which we ultim ately decide against Defend ants, because their failure to show prejudice weighs so heavily agains t them under Barker

.
10 Ponds was arrested on December 23, 2020 , almost ten months after the indictment was filed. See Medina , 918 F.3d at 779. But his speedy-trial clock started the same day as Lewis, even though he did not appear before the Kansas district court until March 2021. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2324 government along with the re st of the defendants. Defense counsel had not yet started reviewing the pole-camera footag e because of technical glitches with the video, which the gover nment was still resolving with the coordinating discovery attorney. Defendants do not a ssert, nor do we perceive, that this delay was deliberate or neglig ent on the gover nment’s part. Cf. Medina , 918 F.3d at 789 (reasoning that the governm ent had not displayed “the kind of ‘neutral . . . negligence’ that is properly weighed against [it]” where defendant’s federal trial was delayed during pending state-court proceedings, because the government made efforts not to let the federal case “languish” (quoting Barker , 407 U.S. at 531)). So neither party is responsible for the initial five-month period, and it does not weigh for or against a constitutional violation. 11 August 2020–September 2021 : Pole-Camera Review. The second period of delay runs from August 2020 to September 2021: the time it took defense counsel to review all 10,0 00 hours of pole-camera foot age. By the August 21, 2020 status conference, the paralegals’ review of the footage was underway, and this process was not complete until an unknown date in September 2021. This fourteen-month period is Defendants’ main source of consternation. They

11 Though “the delay can still favor one side or th e other” even “[w]hen neither [party] is to blame, ” that is not the case here. Muhtorov , 20 F.4th at 640. Technical glitches are not “traceable” to either party. Id. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2425 blame the governmen t for this entire period of de lay, for essentially the same reasons that the district court did. But in our view, this is not so clear cut. The district court found the FBI ne gligent for insta lling a pole camera and then leaving it on, unmonitored, for thirteen months straight. See Lewis , 586 F. Supp. 3d at 1101. True, the FBI installed th e pole camera outside of Hill’s residence on October 4, 2018, and left it up until sometime in November 2019, without an agent constantly monitoring the live recording. But the district court acknowledged that po le cameras are an accepted, “viable investigative tactic.” Id. Indeed, in this case, the pole camera captured on video some of the FBI’s contro lled heroin buys from Hill. These controlled buys spanned the course of months, from Ju ly 2018 through Ma rch 2019. The polecamera footage of these exchanges help ed law enforcement establish probable cause and necessity when it sought authorization fo r the first wiretap of Hill’s cell phone. Pole cameras naturally complement wire tap surveillance because pole cameras lack “audio capability.” Supp l. R. vol. 1, at 56. So the FBI’s expansive operation of po le cameras in what the district court called a “sprawling” drug investigation should come as no surprise. Lewis , 586 F. Supp. 3d at 1098. We disagree w ith the district court and Defendants that the FBI’s decision to operate a 24/7 pole camera for months was per se unreasonable. We Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2526 do not blame the government for this portion of the delay solely based on its continuous use of a pole camera. 12 What Defendants ignore about this apparently “abysmal” investigative tactic is that the true so urce of the delay was not th e footage itself but, rather, the time required for defense counsel to review the footage. Lewis Op. Br. at 29. The district court insi sted throughout the pretrial status conferences thatdefense counsel had an “obligation” to review “all 10,000-plus hours” of polecamera footage for “anything exculpatory.” R. vol. 5, at 454, 469. But not once did the district court or defense counse l offer up an exam ple of what such

12 The only period of pole-camera foot age that might arguably have been negligent on the government’s part was the footage obtained between July 20, 2019, and November 2019: the time from when the last wire tap ended until the pole camera came down. After the last wiretap ended, there was, conceivably, no reason for the FB I to continue monitoring Hill’ s home for four additional months. This is how the government conceives of Defendants’ argument. Though Defendants challenge this characterizatio n and maintain that their argument attacks the entire 10,000 hours of footage, P onds agrees in his reply brief that “it was particularly egregious to leave the camer a running after the investigation had largel y wrapped.” Ponds Reply Br. at 11–12. Because Defendants don’t define their argument by the pre- versus post-wiretap dividing line, we agree that the government mischaracteriz es their arguments. But we acknowledge that by th e March 15, 2021 status conference (nearly seven months into the objectionable fourte en-month delay), the paralegals had reviewed pole-camera foot age only through about February 201 9—nearly five months before the last wiretap came down. It’s unclear from the record when the paralegals surpassed the July 20, 2019 mark in the footage. All this to say, at least half of the delay period that Defendants now cha llenge was occupied reviewing pole-camera footage captured wh ile the wiretaps were still running, which makes that footage u ndeniably legitimate. This is because the “visual observations” obtained from pole cam eras assist law enforcement in “characteriz[ing]” and contextualizing the conversations intercepted over wiretaps. Suppl. R. vol. 1, at 56. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2627 exculpatory evid ence might be. The government introduced one pole-camera segment at trial as evidence of Lewis’s involvement in a he roin deal. In the video, Lewis is purportedl y pulling up to H ill’s house in a van, less than ten minutes after the wiretap intercepted a phone call betw een Lewis and Hill, in which Lewis said, “I just picked up the 20 ounces . . . and I’ll head that way.” R. vol. 6, at 1050. A few minutes after the pole camera s howed the van pulling away, the wiretap intercepted a call betw een Hill and a nother codefendant, in which Hill said that a bag of heroin ha d been delivered. About twenty minutes after that, Lewis texted Kn ighten’s cell phone to conf irm that Hill gave Lewis $5,000 in ex change for the twenty ounces of he roin he had just delivered. We cannot conceive of anything defense c ounsel could have found on the polecamera footage to refu te this evidence. Besides, defense counsel acknowled ged that the footage was “pretty grainy,” that it was “difficu lt to make out specific indi viduals or vehicles,” and that it was hard to “see wh at’s going on.” R. vol. 5, at 285. Indeed, FBI Agent Heath testified that, in the video clip of Lewis’s drop off, neither the license plate on the van nor the driver were discernible, though the government had established by other evidence that Lewi s owned and regularly drove a van. So even if there were something exculpatory on the pole camera—and, again, we strain to see what that co uld possibly be—the pole-camera footage was among the weaker evid ence offered at trial becau se the picture was so difficult to decipher. The defense counsel at trial could have more efficiently Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2728 (and likely effectively) rebutted the pole-camera foot age by simply emphasizing to the jury th at, after thirteen months of surveillance, all the government could scrounge up wa s one short, grainy clip of someone pulling up to Hill’s house in a van. Given the state of the pole-camera footage and its unlikelihood to produce anythi ng exculpatory, this sort of strategic calculus by the defense team would have been perfe ctly reasonable an d within the bounds of counsels’ effective-assistance obligation. See Strickland v. Washington , 466 U.S. 668, 690–91 (1984) (“[S ]trategic choices made after less than complete investigation are reasonable precisely to the extent th at reasonable professional judgments support the limitations on inves tigation. In other words, counsel has a duty to make reason able investigations or to make a reasonable decision that makes particular investigations unnecessary.”); see also United States v. Kearn , 90 F.4th 1301, 1306 (10t h Cir. 2024) (noting that we judge the effectiveness of defense counsel’s assistance by “an ob jective standard of reasonableness” (quoting Lee v. United States , 582 U.S. 357, 363 (2017)). Even without the 10,000 hours of pole-camera footage, it’s conceivable to us that discovery might have lasted just as long given that the government had also produced 60,000 phon e calls and texts. We fi nd it odd that Defendants assign blame for the entire fourteen-month delay to the pole-camera footage, with no mention or explanation of ho w this timeline over lapped with their review of the 60,000 phone cal ls and text messages. It seems to us that 60,000 phone communications would have pos ed a commensurate ly burdensome Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2829 amount of discovery for counsel to revi ew. And unlike the po le-camera footage, which was not particularly compelling given its poor quality, the heart of this case lies in the phone communications. Th is discovery should have been far more consequential to Defendants, a nd yet the record from the status conferences is nearly sile nt about when and how this discovery was reviewed— separately or in tandem—with the pole-camera discovery. At the January 13, 2020 status confer ence, the government told the court it would take additional tim e to produce the co-con spirator statements it intended to introduce from the wiretaps because “our fo cus has been on identifying the pole cam,” and so “we’ve pulled aw ay from the wire itself.” R. vol. 5, at 295. Defense counsel never offered any similar explanation for how review of the 60,000 phone calls and te xt messages was being balanced with the 10,000 hours of po le-camera footage. At the pretrial motions hearing on February 11, 2022, the government raised the point ag ain about the purported tension between the time taken to review 10,000 hours of footage versus 60,000 phone calls and texts, but it gained no traction with th e court. The government mere ly wondered how long it took defense counsel to review the 60 ,000 phone communications because, according to the prosecu tor, it had taken the g overnment “months.” Id. at 1280. Ponds’s reply brief attempts to addre ss this point by noting that, generally, “widely available data search programs . . . allow defense attorneys to review only pertinent reports and phone calls” much mo re quickly than video footage. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2930 Ponds Reply Br. at 12. Bu t Ponds doesn’t assert th at his counsel availed himself of these programs to review the di scovery in this case. Even if we were to assume that such prog rams were used, 60,000 calls and texts is still a significant chunk. Without any explana tion as to when this portion of the discovery was reviewed, by whom, and how long it took, we doubt that the entire delay from August 2020 from September 2021 can be attributed solely to the length of the pol e-camera footage. That said, we do not fa ult Defendants for this period of delay. The district court essentially ordered defens e counsel to persist in reviewing every moment of pole-camera footage. We will not hold their compliance against them. But we do blame the government for its lack of preparedness in producing the segments of footage it plan ned to introduce at trial. When the government indicts, it must be prepared to try its case. See Barker , 407 U.S. at 527 (stressing that it is “the State[’s] . . . duty” “to bring [the defendant] to trial” and to “insur[e] that the tria l is consistent with due process”); Dickey v. Florida , 398 U.S. 30, 38 (1970) (“[T]he right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.”); see also United States v. Sims , 776 F.3d 583, 586 (8th Cir. 2015) (upholding the district court’ s sanction against the government to exclude DNA evidence that the government produced less than a week before trial, despite the government’s statemen t days earlier that “it was ‘definitely Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3031 ready for trial’”). It should not have ta ken the government from August 2020 until February 2021—about seven mont hs—to produce the few segments of footage relevant to its case in chief. “[ T]he burden is on the prosecution to explain the cause of the pre-trial delay.” United States v. Jumaev , 20 F.4th 518, 533 (10th Cir. 2021) (citatio n omitted). So even though the district court waited until November 2020 to orde r the government to iden tify the relevant polecamera segments by February 2021, the gov ernment must bear some burden for being ill-prepared. On this basis, we de termine that the gove rnment caused the approximately seven-month period of de lay from the production of the polecamera footage (August 2020) until the identification of the relevant segments (February 2021). 13 The government is therefore responsible for these seven months of pretrial delay. October 2021–February 2022: Pretrial Motions. After the pole-camera review finished, the last five months before trial were spent resolving Defendants’ various pretrial motions, including the motion s to dismiss and motions to suppress under review in these appeals. Defendants are responsible for delays caused by pretrial motions. See Keith , 61 F.4th at 852 (“[A] defendant’s actions that delay his ow n trial weigh heavily against him.”); United States v. Toombs , 574 F.3d 1262, 1274 (10th Cir. 2009) (weighing “423 [days of delay] . . . attrib utable to motions filed by [the defendant]” “heavily

13 This assumes that defendants we re not reviewing the 60,000 phone calls and texts during this time. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3132 against [him]”); see also Tranakos , 911 F.2d at 1428 (det ermining “delays do not weigh against the governm ent” when they “are attrib utable to motions filed and continuances sought by the defendants”). Weighing the Periods of Delay. Having “numerica lly assess[ed] the reason-for-delay factor,” we must now decide “how heavily [each] delay weighs” against the responsible parties. Muhtorov , 20 F.4th at 640 (citations omitted). We’ve determined that the gover nment is responsible for seven months of delay and that Defendants are responsible for five months of delay. There is no evidence that the government’s delay in identifying the pole-camera segments was “[a] deliberat e attempt to delay the tria l in order to hamper the defense,” so we weigh this “less heavily” against the government. Barker , 407 U.S. at 531. Yet “a defendant’s actions that delay his own trial weigh heavily against him,” so we mu st weigh the five months of de lay attributable to pretrial motions heavily ag ainst Defendants. Keith , 61 F.4th at 852. Still, “the ultimate responsibility” for speedy-trial delays “must rest with th e government rather than with the defendant.” Barker , 407 U.S. at 531. For that reason and because the government’s delay was longer, we count the second Barker factor slightly against the government.
* * * Pole cameras typically run for lo ng periods during large-scale drug investigations like this one, so this will like ly not be the last time a district court faces the problem that arose here. Going forward, to avoid the protracted Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3233 discovery process that unfolded in this case, district courts should issue the government a reasonably prom pt deadline to identify any relevant segments of pole-camera footage. Had th e court done so here, in August 2020, it’s likely one of two outcomes would have result ed: either, the government would have prioritized gathering the relevant vide o and expedited the defense’s review process from the get-go; o r, the government would have thrown up its hands and walked away from th e footage altogether, know ing the strength of its evidence lay in the wiretap intercepts, anyway. Of co urse, if defense counsel states a plausible need to review the footage for exculpatory reasons, he may request a continuance to do so, but that time would we igh against the defense.
3. Assertion of the Speedy-Trial Right The government accepts the district co urt’s finding that this factor favors Defendants. After hi s initial appearance on March 1, 2021, Ponds filed a notice demanding a speedy trial on July 19 , 2021, and a motion to dismiss the indictment on speedy-trial grounds on November 24, 2021. The district court reasoned that this “early and persistent assertion” of his speedy-trial right sufficiently “tip[ped] this factor in Ponds’ favor.” Lewis , 586 F. Supp. 3d at 1103 (citation omitted). The sa me went for Lewis. The district court observed that Lewis had consisten tly invoked his ri ght to a speedy trial since his arraignment, “renew[ing] this objection at virtually every hearing.” Id. That, plus Lewis’s refraining from seeking any continuances, favored the third Barker factor toward Lewis. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3334 We agree with the dist rict court’s conclusion th at this factor favors Defendants. And given that the gover nment doesn’t challenge the court’s determination on appeal, we move on to prejudice.
4. Prejudice When the defendant has endured an “extreme” delay, meaning a delay over six years, prejud ice may be presumed. See Muhtorov , 20 F.4th at 653. The two-year delay under review here does no t trigger that presumption. This means Lewis and Ponds each have to “make a particularized showing of prejudice” caused by the pretrial delay. Hicks , 779 F.3d at 1169. Pr ejudice from a speedytrial violation reflects “the particular evils the speedy trial right is intended to avert: pretrial incarceration; anxiety and concern of th e accused; and the possibility that the defense will be impaired.” Keith , 61 F.4th at 854 (quoting Koerber , 10 F.4th at 1110). Ne ither Lewis nor Ponds de monstrate prejudice.
Lewis. Lewis alleges that he suffered undue and oppressive pretrial detention because he was held in a local county jail du ring the COVID-19 pandemic. Lewis presents evidence th at county jails were known to be particularly unsafe duri ng the pandemic because of “antiquated” ventilation systems and a lack of social distanci ng. Though Lewis says he contracted COVID-19 during his pretrial detentio n, he does not allege that he was subjected to harsher conditi ons compared to other deta inees or that the facility holding him flouted proper COVID-19 sa fety measures. Without showings of this kind, Lewis cannot su fficiently demonstrate prej udice from his pretrial Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3435 incarceration. See United States v. Gordon , 93 F.4th 294, 309 (5th Cir. 2024) (reasoning that defendant co uld not show speedy-trial prejudice in part because he made no showing “that he was aff ected by any failure of the detention facility to follow proper COVID-19 sa fety protocol”); United States v. Tantuwaya , No. 22-50315, 2024 WL 701541, at *2 (9th Cir. Feb. 21, 2024) (unpublished) (determining defendant failed to show prejudice from his pretrial incarceration because he had not been “s ubject to more re strictive conditions than those experienced by other defendan ts incarcerated du ring the COVID-19 pandemic”). Lewis next asserts that he experien ced heightened anxiety and concerns from his detention based on having contract ed COVID-19 and being confined to a local jail. We’ve already stated why Lewis’s exposure to COVID-19 while incarcerated in a county jail does not, on its own, establish speedy-trial prejudice. But Lewis offers two additional reasons for his alleged pretrial anxiety: (1) his monthly status conferences being held by telephone, and (2) the thirteen months of pole-camera footag e that delayed his trial. The second rationale pertains to the reason-for-delay factor, not prejudice. And the first rationale makes little sense because de laying status conferences until the courthouse reopened afte r COVID-19 would have de layed Lewis’s trial even further. Lewis does not explain how the court hos ting these conferences telephonically caused him undu e anxiety, and again, it seems to us that pressing Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3536 on with pretrial proceedings despite COVID-19’s limitations was in Lewis’s best interest for a speedy trial. Impairment to the defense—the third form of speedy-trial prejudice—“is the most serious ‘because the inability of a defendant to adequately prepare his case skews the fairness of the entire system.’” United States v. Garcia , 59 F.4th 1059, 1069 (10th Ci r. 2023) (quoting Seltzer , 595 F.3d at 1179–80). Lewis argues that the two-year delay impaired his defense because “pretrial detention during Covid loc kdowns inhibited his ability to a ssist with investigating his defense and affected witness’s memories.” Lewis Op. Br. at 35. By this, Lewis vaguely suggests that his “f amily members” could have te stified that his role in Knighten’s organization was minimal. Id. We do not recognize prejud ice for defendants who “identif[y] no witness who would have been available but for th e delay” or who “do[] not claim that witnesses’ memories have faded as a result of the delay.” United States v. Dirden , 38 F.3d 1131, 1138 (10th Cir. 1994); see, e.g. , Margheim , 770 F.3d at 1330–31 (concluding defe ndant failed “to make any specific allegations concerning this ‘witness,’” merely by “conten[ ding] that he had lost track of ‘a girl at [his] house that would be able to testify’”); Garcia , 59 F.4th at 1069–70 (reversing the district court’s prejudi ce finding because ev en though the store where defendant shoplifted had closed during the pretrial delay—allegedly making the security-video evidence unavailable—defendant “never put forth evidence showing the video evidence woul d have been availa ble at any time, Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3637 even if the [store] had not closed,” therefore he failed to show his defense was prejudicially impaired). Even where a defense witness has died, this court has still declined to fi nd prejudice because the defe ndant could not “state[] with particularity . . . what exculpatory testimony would have been offered.” Tranakos , 911 F.2d at 1429 (quoting United States v. Villano , 529 F.2d 1046, 1060 (10th Cir. 1976)). Lewis identifies no specific defense witness made unavailable from the two-year delay. Nor does Lewis expl ain how testimony from his family members that he played a “minor role” in the drug-trafficking conspiracy would have exculpated him from the charged crim es. Lewis Op. Br.
at 35. Lewis hasn’t shown prejudice under an y of the interests protected by the speedy-trial right.
Ponds. Similar to Lewis, Ponds contends that his detention in a county jail during COVID-19 s ubjected him to unduly oppressive pretrial incarceration. For the same reasons as Le wis, these claims fail for being “too general,” Keith , 61 F.4th at 854, because ev en though Pond s contracted COVID-19 during his detention, he has not “show[n] some special harm suffered which distinguishes his case” from all detainees in c ounty jails during COVID-19, id. (quoting Hicks , 779 F.3d at 1169). See, e.g. , United States v. Battle , No. 21-50221, 20 23 WL 2158807, at *1 (9th Cir. Feb. 22, 2023) (unpublished) (noting that defendant di d “not claim to have been infected Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3738 before pleading guilty or to have faced different cond itions than other pretrial detainees” (emphasis added)). Ponds asserts that he was particularly prone to anxiety over his pretrial detention because he had been wrongfully detained “in a pr ior case for more than 24 months, only to be acquitted,” exacerbating hi s anxiety that he would suffer the same fate again. Ponds Op. Br. at 29 . This does not convince us that he experienced “concern and anxiety over his impending trial” any different “from that of any other arrestee awaiting trial.” Dirden , 38 F.3d at 1138. Presumably, any arrestee who maintains his innocence would worry about being wrongfully detained. Unlike the defendant in Margheim —who showed that he “required anxiety and de pression medication,” see 770 F.3d at 1329—Ponds has made only “[g]eneralized and conclusory references to the anxiety and distress that purportedly are intr insic to incarceration,” Nixon , 919 F.3d at 1276 (quoting Larson , 627 F.3d at 12 11). And even in Margheim , we noted that the district court’s prejudice finding base d on the defendant’s anxiety medication was questionable, but we d eclined to disturb the court’s ruling on that issue. 770 F.3d at 1330; see id. (upholding the district court’s prejudice ruling on the more important impairment-of-defense prejudice factor). By contrast, Ponds offers no evidence of particular anxiety he suffered as a result of or during his pretrial incarceration. Ponds’s anxiet y based on a prior experience is not sufficiently particular to show prejudice. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3839 To show that the two-year delay impa ired his defense, Ponds embarks on a meandering recitation of the various pr etrial motions he f iled to request new counsel, his counsel’s deficient performa nce in arguing the speedy-trial motion before the district court, his counsel’s alleged failure to “join other important arguments raised in other defendants’ motions,” and overall complaints about the effectiveness of his representa tion. Ponds Op. Br. at 31. Ponds misunderstands the impairme nt-of-defense interest. “P rejudice to the defendant in this regard will be ‘obv ious’ if witnesses die or disappear, or if witnesses lose their memory of events that are critical to the theory of defense.” Margheim , 770 F.3d at 1329. Effectiveness of defense counsel’s representation has no bearing on this analysis. Toombs , 574 F.3d at 1275 (explaining that defendant had not presented “a situation wh ere, for example, as a result of the delay, [he] no longer had access to certa in evidence or coul d no longer use a witness because that witne ss died before trial,” and so his “defense ha[d] not been hindered in the sense envisioned by the Barker analysis”). Only when the defendant has been denied counsel altogether has th is court recognized “an impairment of [defendant ’s] ability to defend and prepare his case” in a way that compelled us to recognize pr ejudice from the pretrial delay. Seltzer , 595 F.3d at 1180. Ponds has made no such claim here. For these reasons, he also hasn’t shown prejudice. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3940 5. Barker Balancing “Speedy trial claims require applying a balancing test.” Id. at 1181 (quoting Jackson v. Ray , 390 F.3d 1254, 12 66 (10th Cir. 2004)). The two-year delay Lewis and Ponds experienced triggers a Barker analysis under the first factor. See 407 U.S. at 530. But th e length of this delay was not unreasonable given the complexity of the case. See Seltzer , 595 F.3d at 1176, 1181. The second factor—reason for delay—weighs slightly against the government, and the third factor—assertion of right—weig hs heavily in favor of Defendants. Even so, “in most circumstan ces, failure to specify pr ejudice will eviscerate the defendant’s claim.” Margheim , 770 F.3d at 1329; see Nixon , 919 F.3d at 1278 (“[L]ack of prejudice is ‘nearly fatal’ to a [speed y-trial] claim.” (quoting Gould , 672 F.3d at 939)). That is the case here. Defendants have shown so little prejudice that we cannot su stain their speedy-trial clai ms, even though some of the other Barker factors weigh in their favor. We therefore affirm the district court’s denial of Defendants’ motions to dismiss the indictment on speedy-trial grounds.
II. Wiretap Authorization We consider next the district court’ s denial of Defendants’ motions to suppress evidence obtained from the first wiretap. See United States v. Lewis , Nos. 20-10028-11, -15, - 19, 2022 WL 486913, at *1 (D. Kan. Feb. 17, 2022). Defendants argue that the court erroneously denied their motions to suppress this evidence b ecause the wiretap application was improperly authorized Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4041 according to the procedures outlined in 18 U.S.C. §§ 2516(1) an d 2518(1)(a) and (4)(d). 14 Defendants perceive that reversi ng the district court’s order would have a cascading effect. Ponds states that “both the second and third applications rely heavily on conversa tions intercepted pur suant to the first authorization order,” Ponds Op. Br. at 52, and Lewis a sserts that “almost every piece of evidence at trial was derived fr om the initial and subsequent wiretap intercepts,” Lewis Op. Br. at 44. So essentially, De fendants argue that the improperly authorized application fo r the first wiretap negates all other evidence presented at trial. Lewis asks that we reverse the court’s suppression order, vacate his conviction, and remand the case with instru ction for the court to suppress all evidence de rived from the first wireta p. Ponds seeks a reversal of the court’s denial order and a remand for further proceedings. For the reasons stated below, we deny Defendants their requested relief. “On appeal from a motion to suppress evidence obtained pursuant to . . . a wiretap, we accept the district court’s factual findings unless clearly

14 The court addressed a “complicat ed web of motions” from various defendants. Lewis , 2022 WL 486913, at *1. Lewi s filed his own motion to suppress, though he later joined Knighten’s motion to suppress. Ponds joined Lewis’s motion first, and then filed a pr o se letter, in whic h he requested to join Knighten’s motion as well. The di strict court granted Lewis’s motion to join Knighten’s motion but never ruled directly on Ponds’s pro se letter asking to join Knighten’s motion. Regardless, the court’s order denying all defendants’ motions to suppress ackno wledged that “Kevin Lewis, Travis Vontress, and Otis Ponds still challenge the validity of the wiretaps.” Id. at *1. So we are satisfied that Ponds succe ssfully joined Kn ighten’s motion to suppress, preserving those arguments for his appeal. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4142 erroneous and review quest ions of law de novo.” United States v. Smart , 278 F.3d 1168, 1172 ( 10th Cir. 2002). Title III of the Omnibus Crime Contro l and Safe Streets Act of 1968 authorizes law enforcemen t to intercept telephone communications. 18 U.S.C. §§ 2510–20. To do so, law enforcemen t must apply for authorization “in writing . . . to a judge of competent jurisdiction.” § 2518(1). Before the application goes to the ju dge, it must be preapprove d by the Attorney General or a high-ranking official at the De partment of Justice (DOJ) specially designated by the Attorney General. § 2516(1). Title III lists the DOJ officials who have special designation to approve wiretap applications , including “[t]he . . . Deputy Attorney Genera l, Associate Atto rney General, or any Assistant Attorney General, any acting Assistan t Attorney General, or any Deputy Assistant Attorney Ge neral . . . in the Cr iminal Division.” Id. The wiretap application must contain certain informatio n, including “the id entity of . . . the [DOJ] officer authorizing the applica tion.” § 2518(1)(a). Th e reviewing judge “may grant . . . an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Inves tigation,” § 2516(1), which, among other things, “shall specif y . . . the identity . . . of the [DOJ] person” who “authoriz[ed] th e application,” § 2518(4)(d). Evidence obtained from an improper ly authorized wire tap is inadmissible at trial. See § 2515. A defendant may move to suppress improp erly obtained Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4243 wiretap evidence on three possible grounds, defined in § 2518(10)(a). 15 One ground for suppression arises when “the order of authorization or approval under which [the content] was interc epted is insufficient on its face.” § 2518(10)(a)(ii). In the district court, Knighten mo ved to suppress the evidence derived from the first wiretap under 18 U.S.C. § 2518(10)(a)( ii), asserting that “the documents submitted to the Court for authorization ar e facially insufficient” “[b]ecause the approval is not unequivo cally signed by Bruce C. Swartz.” R. vol. 1, at 1228–29. Defendant s successfully moved to join Knighten’s motion to suppress, which was the only motion before th e court to raise the legibility of Swartz’s signature as pote ntial grounds for suppression. Because Defendants rely on Knighten’s motion to preserve the signature issue for our review, and

15 In full, § 2518(10)(a) states: Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, o fficer, agency, regu latory body, or other authority of the United States, a State, or a political subdivision thereof, may move to s uppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefro m, on the grounds that— (i) the communication was unla wfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception wa s not made in conformity with the order of authorization or approval. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4344 because Knighten explicitl y invoked § 2518(10)(a)(ii) as the grounds for his motion to suppress the evidence from the first wiretap, subparagraph (ii) governs our analysis. 16 To determine whether the fi rst wiretap’s authorization order was facially sufficient under § 2518 (10)(a)(ii), we start with the pertinent facts. The first wiretap ran from April 10, 2019, to May 9, 2019, and intercepted communications from one cell phone used by Hill. Lewis , 2022 WL 486913, at *1. Assistant United States Attorney Matt Treaster, the lead prosecutor in this case, app lied to the federal district court for authorization on April 9, 2019. The application comprised several documents. The first document was an affidavit from AUSA Treas ter that attested to his authority to apply for wiretap auth orization under 18 U.S.C. § 1510(7) and stated the purpose, probab le cause, and necessity of the requested wiretap. Relevant here, the affidavit swore th at the wiretap app lication had been authorized by a “specially designated” member of th e DOJ as required by 18 U.S.C. § 2516—in this case, Deputy Assistant Attorn ey General, Bruce C. Swartz. Suppl. R. vol. 1, at 8.

16 It is unclear from Defe ndants’ appellate briefing on which available grounds under § 2518(10)(a) they base their arguments . The district court’s order also does not iden tify which grounds under § 25 18(10)(a) justified the motions to suppress, t hough the court’s order acknowledges that the government did not challenge Defendant s’ standing to file the motions. Lewis , 2022 WL 486913, at *5 n.6. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4445 The second document was a memo randum dated April 5, 2019, from “Brian A. Benczkowski[,] Assistant Attorney General[, ] Criminal Division” at DOJ, to “J. Robert Bryden[,] Acting Director of Offi ce of Enforcement Operations[,] Criminal Division” at DOJ, and designated for the attention of
“Matt Treaster.” Id. at 20. The memo stated that “the appropriately designated official authorizes the above-described application,” exercisi ng his power under § 2516(1). Id. The signature block at the bottom of this memo displayed two names: Brian A. Benczkowski and Bruce C. Swartz. A signat ure appeared on the document above Swartz’s hand-s tamped name and title, like this:

Id. at 21. The district cour t found that this memo wa s sent from DOJ to AUSA Treaster, to confirm that Bruce C. Sw artz had exercised hi s statutory power to authorize the wiret ap application. Lewis , 2022 WL 48 6913, at *1. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4546 The third document was another memo dated April 5, 2019, to the United States Attorney for the District of Kansas, Step hen R. McAllist er, similarly stating that “[a]n appropriate official hereby approves an application to be made to a federal judge of competent jurisdiction for an order under [18 U.S.C. § 2518].” Suppl. R. vol. 1, at 22. Just like the DOJ memo, the signature block at the bottom of this memo displayed the names of Benckowski and Swartz, but was signed in Swartz’s sp ace, only, above a stamp of Swartz’s name and title:

Id. at 23. The fourth document in AUSA Treaster’s application to the district court was Order No. 4417-2019, issu ed in 2019 by then-Attorney Ge neral William P.
Barr. Id. at 24. The order gran ted “any Deputy Assistant Attorn ey General of the Criminal Division” in the DOJ authority “to ex ercise the power conferred by Section 2516(1) of T itle 18, United States Code , to authorize [wiretap] applications.” Id. at 24. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4647 The fifth, and final, document appe nded to AUSA Treaster’s application was an affidavit from Agen t Heath, which detailed th e FBI’s investigation of the drug conspiracy, the r eason for requesting a wiretap on Hill’s cell phone, and the probable cause and necess ity to support the wiretap. Having received these documents, Unite d States District Judge John W. Broomes issued an order, on April 9, 2019, authoriz ing the first wiretap on Hill’s cell phone. Lewis , 2022 WL 486913, at *1. The court’s authorization order names “Bruce C. Swartz, Deputy A ssistant Attorney General, a duly designated official of the Criminal Division,” as the DOJ official who authorized the wiretap application and st ates Swartz’s author ity to give such authorization under § 2516(1). Supp l. R. vol. 1, at 74. Three defendants (Lewis , Knighten, and Orlando H ogan) filed motions to suppress evidence obtained under the first court-auth orized wiretap. These motions attacked several aspects of the first wiretap’s authorization, including probable cause, necessity, and proper authorization by a “statutorily approved person.” Lewis , 2022 WL 486913, at *5. In a written order, the district court denied the motions to suppress. 17 The court acknowledge d that the argument

17 Before issuing its written ruling, th e district court h eard arguments on the motions to suppress. At the moti on-to-suppress hear ing, Agent Heath testified that he did not k now Swartz or what Swartz ’s signature looked like, when asked by the defens e. Yet the prosecutor aver red that Agent Heath’s affidavit attached to the wiretap application c onstituted further proof that Swartz’s signature was genu ine. The court push ed back that Swartz’s signature was outside Agent Heath’s knowledge , given his earlier testimony. The ( footnote continued ) Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4748 about Swartz’s signature was “fair” beca use “the signature . . . is difficult to reconcile with DAAG Schwartz’s name.” Id. at *11. Yet the co urt affirmed the wiretap’s proper authorization, partly because the statut e does not require authorization by signature, but also , because “a named designee whose high office gives him statutory pow er to authorize electronic surveillance orders is presumed to have properly exercised that power an d the conditions precedent are presumed to have been met unless the defendants offer evidence, apart from mere conjecture or speculation, to rebut this presumption.” Id. (quoting United States v. O’Connell , 841 F.2d 1408, 1416 (8th Cir. 1988)). Fo cusing on this second point, the district cour t elaborated that “the name stamp of a [statutorily approved pers on] along with an apparent signat ure, is enough for the Court to conclude that the applicati on was properly authorized.” Id. On appeal, Lewis and Pond s both challenge the district court’s ruling on the wiretap’s authorization. Lewis contends (1) that “[t]he signature does not appear to be ‘Bruce C. Swartz’”; (2) that “the g overnment failed altogether to introduce any eviden ce to support its burden to prove that a high-level Department of Justice official had pr operly authorized the first wiretap application”; and (3) that the district court wrongly applied the presumption of

prosecutor then represented to the court that he had emailed with Swartz, who confirmed in that email exchange that the signature on the memo was his. The court asked whether anything other than Swartz’s signature could demonstrate authorization of the wiretap applicati on, and the government had nothing else to present. None of this impacts our decision on the authorization issue. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4849 proper authorization because “[t]hat presumption applies only when the government has first establis hed that a wiretap had been properly authorized, as indicated by a signature and other supporting eviden ce.” Lewis Op. Br. at 42– 43. Lewis insists that ther e is no proof the signature on the memo belongs to Bruce C. Swartz. For his pa rt, Ponds argues (1) that “it is difficult to square” the signature with Swartz’s name; (2) that the dist rict court misapplied the presumption from O’Connell because, unlike that case, “the signature [here] is of an unknown individual”; and (3) that, contrary to the court’s statement, the Defendants “ did offer evidence to re but any presumption that Swartz followed the proper procedure” by pointing out that “[t]he signature does not match.” Ponds Op. Br. at 4 7–50. Ponds also asserts that if the evidence from the first wiretap is suppressed, then the eviden ce from the second and third wiretaps must be suppressed as well because the probable cause for the later wiretaps was established from conversations in tercepted on the first wiretap. These arguments are unava iling. The only card Defe ndants have to play is a flimsy one: that, at first blush, th e signatures on the April 5, 2019 memos are illegible as any name, including “Bru ce C. Swartz.” From this, Defendants take a huge leap by urging that the sign ature must belong to someone else, at worst, someone unapproved to authorize a wiretap under Title III. Defendants fault the government for presenting insufficient eviden ce to prove who authorized the wireta p, if not Swartz. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4950 But Defendants misunder stand the standard for suppressing evidence under 18 U.S.C. § 2518(10 )(a)(ii). This provision re quires suppression when “the order of authorization or appr oval under which [the evidence] was intercepted is insufficient on its face.” Id. In Dahda v. United States , the Supreme Court explained what makes an authorization order “insufficient” under subparagraph (ii). 584 U.S. 440, 448–49 (2018 ). “An order is ‘insufficient,’” the Court said, “insofar as it is ‘deficient’ or ‘lacking in what is necessary or requisite.’” Id. at 450 (quoting 5 Oxford English Dictionary 359 (1933)). Though Dahda declined to answer “just which kinds of defects subparagraph (ii) covers,” th e Court did advise that an authorization order lacks “necessary or requisite” information if it “fail[s] to includ e information that § 2518(4) specifically requires the order to contain.” 18 Id. at 449–50. This includes “the identity . . . of the pe rson authorizing the application.” § 2518(4)(d). This seems to be Defendant s’ principal compla int—that the order

18 Because Dahda didn’t define with precision the class of defects that require suppression under subparagraph (ii), other circuits since Dahda have grappled with that question. See United States v. Brunson , 968 F.3d 325, 331 (4th Cir. 2020) (concluding “t hat the absence of the o fficial’s name from the face of the [authorization] or ders, even if technically a defect, is not the type of defect that would render these orders facially insufficient”); United States v. Friend , 992 F.3d 728, 73 0–31 (8th Cir. 2021) (reviewing authorization orders that failed to identify th e specific DOJ officials by name, even though the underlying wiretap applications did desi gnate specific DOJ officials as the authorizing personnel). This case does no t send us into those uncharted waters because, as we discuss below, Defendant s have identified no defect with the authorization order in this case. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5051 doesn’t identify the person who authorized the first wiretap application because the signature doesn’t look like “Bruce C. Swartz.” But neither § 2518(1)(a) no r (4)(d) say anything a bout a signature. Under Title III, all the applicatio n and authorizatio n order must do is state “the identity ” of the authorizing official. Sure enough, both do cuments identify Bruce C. Swartz by name as the authorizing official. And on all the documents, his name is not only acco mpanied by a signature, bu t also by his personal stamp.
In United States v. Chavez , the Supreme Court reviewed a challenge to two wiretap authorizations that miside ntified the authorizing official under § 2518(1)(a) and (4)(d). 4 16 U.S. 562, 570 (1974). Both applications identified Assistant Attorney Genera l for the Criminal Divisi on, Will Wilson, as the authorizing official, when one application had been approved by the Attorney General and the other by the Attorn ey General’s Exec utive Assistant. Id. at 565. Evidence from both wiretaps was s uppressed in the district court, and those orders were upheld on appeal. Id. at 567–68. The Supr eme Court reversed that decision in part, ho lding that the wiretap application authorized by the Attorney General was su fficient, even though the wiretap application misidentified the specially designated DOJ official who had authorized the wiretap, because the actual authorizing official—the Attorney General—had his own authority to appr ove the application. Id. at 572–73. Because the wiretap was indeed authorized by an official designated und er § 2516(1), just not the Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5152 one stated on the applicat ion, the order complied with Title III and the evidence derived from the wiretap could not be suppressed under § 2518(10)(a)(ii). Id. at 573–74. Considering the facial sufficien cy of the misidentified wiretap application, the Supreme Court observed that “the intercep tion order clearly identified ‘on its face’ A ssistant Attorney General Wilson as the person who authorized the appli cation to be made.” Id. at 573. And Wilson, the Court noted, was indeed a statutorily authoriz ed person under § 2516(1) to authorize wiretap applications. Id. So even tho ugh it was later revealed that the Attorney General, not Wilson, had actually auth orized the wiretap, the Court still concluded that the misidentification “d[id] not detract from the facial sufficiency of the order.” Id. at 574. This discussion from Chavez settles that the author ization orde r here is facially sufficient under § 2518(10)(a )(ii). This case presents facts less egregious than Chavez because there is no evidence showing or even suggesting that anyone other than Bruce C. Swartz authorized the first wiretap application. The backstop for a ll the Defendants’ arguments is that the illegibility of Swartz’s signature means it must not be his. Ponds in sists that because, in his view, “[t]he first letter of the first na me looks like a ‘J’” and not “a ‘B,’” and because “the first letter of the last name” doesn’t look like “an ‘S,’” then therefore the April 5, 20 19 memos must have been signed by someone other than Swartz. Pond s Op. Br. at 47. Both Defendants lean on the district court’s Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5253 recognition that this signature is “diffi cult to reconcile with DAAG Schwartz’s
name.” Lewis , 2022 WL 486913, at * 11. But Defendants ignore the court’s other comment that “it is often tricky to discern a name scrawled quickly in cursive.” Id. Indeed, it is. So we focus on what is discernible. AUSA Treaster’s wiretap application names “Bruce C. Swartz” as the statutorily authorized official who prea pproved the application. The district court’s authorization order also na mes “Bruce C. Swartz” as the “duly designated official of the Criminal Di vision” who authorized the wiretap. Suppl. R. vol. 1, at 74. Two separate memos were se nt on April 5, 2019, one to the Kansas U.S. Attorney and the othe r to AUSA Treaster, and both documents bear a signature above the name “Bruce C. Swartz.” Those signatures match each other. Both memos also bear the personal stam p of “Bruce C. Swartz,” identifying him as a Deputy Assistant Attorney General of the Criminal Division—a position with authority to approve wiretap applications under § 2516(1). All of this is more than enough to identify Swartz as the statutorily approved “person” and “official” w ho authorized the first wiretap. § 2518(1)(a), (4)(d). These facts are a far cry from cases where courts have deemed wiretap authorizations facially deficient under subparagraph (ii). In those cases, the authorization orders typically fail to identify any authorizing individual by name, which is not the situation here. See United States v. Scurry , 821 F.3d 1, 8, 12 (D.C. Cir. 2016) (affi rming the district court’s ruling that two wiretap Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5354 orders were “facially insu fficient under 18 U.S.C. § 2518(10)(a)(ii)” because “where th[e] official’s name should appear, there are only asterisks”); United States v. Lomeli , 676 F.3d 734, 740–42 (8 th Cir. 2012) (concluding the wiretap application was “insufficient on its face” because “the application in this case just states generically that ‘an appropria te official of the Criminal Division’ had authorized the application,” giving the “authorizing judge . . . no way of knowing the name of the actua l, statutorily designated official that had indeed authorized the application”); United States v. Radcliff , 331 F.3d 1153, 1162 (10th Cir. 2003) (determining the wiretap orders were facially deficient because the orders “did not specify the identity of any person” but rather “listed by title every Department of Justi ce official with legal authority to authorize an application”). The purpose of § 2518(1)(a) and (4)(d) is to “fix[] responsibility” for the wiretap to a specific DOJ official to deter potential misu se or abuse of electronic surveillance. See S. Rep. No. 90-1097 , at 101 (1968); see id. at 97 (discussing the impo rtance of “centraliz[ing] in a publicly responsible official” the proper execution of “el ectronic surveillance tech niques” to “avoid the possibility that divergent pr actices might develop” b ecause, “[s]hould abuses occur, the lines of respons ibility lead to an id entifiable person”). The identification of Bruce C. Swartz by na me as the authorizin g official on the wiretap application, see § 2518(1)(a), and the court’s authorization order, see § 2518(4)(d), sufficiently affixes the responsibility that Congress intended. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5455 Moreover, Congress easily could have written T itle III to require that statutorily approved DOJ officials au thorize wiretap applications with authenticated signatures, whether th rough a notary, witness, or some other way. But Congress chose not to. See United States v. de la Fuente , 548 F.2d 528, 534 (5th Cir. 1977) (stating th at “[n]othing in the statute governing the authorization of wiretaps . . . requires that the governmen t must authenticate the attorney general’s signatu re on an authorization order as a predicate to use of wiretap evidence” and th at Congress elected not to install “safeguard[s]” such as “requiring that an authorization signature be notarized, witnessed, or authenticated by personal testimony at trial”). Ac cordingly, we see no facial defect with an order that identifies Bruce C. Swartz by his name, his personal stamp, and an accompanying signature. 19 See Dahda , 584 U.S. at 449 (“The statute means what it says. That is to say, subparagraph ( ii) applies where an order is ‘insufficient on its face.’” (quoting § 2518(10)(a)(ii))). At bottom, Defendants have presented no evidence that the signature at issue is not Swartz’s. As it happens, our own research reveals that the signature likely does belong to Swar tz. His signature in othe r case records matches the ones on both April 5, 2019 memos:

19 Our disposition of the signature issu e does not depend on applying the presumption from United States v. O’Connell , 841 F.2d 1408 (8 th Cir. 1988). Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5556 Suppl. R. vol. 1, at 21.

Suppl. R. vol. 1, at 23.

Brief of the United States of America, United States v. Dean , 55 F.3d 640 (D.C. Cir. 1995) (N o. 94-3021).

Supplemental Appendix for Appellee, United States v. Scurry , 821 F.3d 1 (D.C. Cir. 2016) (Nos. 12-3104, -3105, -3109, 13 -3055, -3068). Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5657 We are satisfied that the authoriza tion order sufficiently identifies Bruce C. Swartz as the authorizing official fo r the first wiretap, as § 2518(1)(a) and (4)(d) require. Because Defendants fail to iden tify any defect in the authorization order that re quires suppression under § 2518(10)(a)(ii), we affirm the district court’s denial of the motions to suppress.
III. Lewis’s Sentence Lewis argues that his 420-month se ntence is unreas onable under the § 3553(a) sentencing factors and that th e district court shoul d have gr anted his requested downward variance to 2 27 months. He challenges only the substantive reasonableness of his sentence. See United States v. Smart , 518 F.3d 800, 803 (10th Cir. 2 008) (“[A]ppellate review for reasonableness includes both a procedural component, encompassing the me thod by which a sentence was calculated, as well as a su bstantive component, which relates to the length of the resulting sentence.”). The presentence report re commended a guidelines range for Lewis of 360 months to life imprisonment, calculated from Lewis’s total o ffense level of 40 and criminal history category of IV. At the sentencing hear ing, the government asked that Lewis receive a longer sentence than other codefendants because the success of Knighten’s organization “was wholly and entirely dependent on the actions of fiercely loyal lieutenants lik e Mr. Lewis.” R. vol. 6, at 2330. The government noted that Lewis dealt drug s and made money for the organization and that, unlike some of his codefenda nts (like Knighten), Lewis had not Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5758 pleaded guilty and accepted responsibility for his actions. All of this, the government asserted, supported a sentence of 400 months’ imprisonment. In response, Lewis asked for a downward variance to 227 months, the same sentence as another codefendant in the or ganization. He reasoned that his role in Knighten’s organization was minimal compared to Knight en himself. Lewis argued that Knighten shou ld receive “the highest se ntence among th is ring,” and that Lewis, a mere subordinate, o ught to receive a sentence commensurate with others received by his co defendants in the lower ranks. Id. at 2345. The district court sentenced Lewis to 420 months’ imprisonment, denying Lewis his requested downward variance to 227 months. The court supported its decision by obse rving that Lewis played a key ro le in Knighten’s organization because, without Lewis, Knighten “w ould have been a toothless tiger.” Id. at 2356. The court was persuaded that Lewi s presented a different case than some of the other codefendants, who dealt solely with the money side of the organization, because Lewis was on the ground as “the operational muscle and enforcer.” Id. This made Lewis’s role critical to the entire oper ation, in the court’s mind. The court was also influe nced by Lewis’s sign ificant criminal history and by his failure to accept responsibility for his conduct. Lewis appeals his sentence and asks us to vacate his judgment of conviction and remand his case for resentencing. “We review substantive reasonablene ss for an abuse of discretion,” and will uphold the sentence impos ed unless the sentencing decision “exceeds the Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5859 bounds of permissible choice, given the facts and the applicable law.” United
States v. Ware , 93 F.4th 1175, 1180 (1 0th Cir. 2024) (first quoting United States v. Williams , 10 F.4th 965, 97 7 (10th Cir. 2021); and then quoting United States v. Chavez , 723 F.3d 1226, 1233 (1 0th Cir. 2013)). Give n our substantial deference to the district court’s discre tion in sentencing, we do “not reweigh the [§ 3553(a)] sent encing factors” on appeal, we instead “ask whether the sentence fell within th e range of rationally available choices.” United States v. Blair , 933 F.3d 1271, 1274 (10th Cir. 2019 ) (citation omitted). More too, sentences that fall within the adviso ry guidelines rang e are “entitled to a presumption of reasonableness.” United States v. Maldonado-Passage , 56 F.4th 830, 842 (10th Cir. 2022). Lewis argues that his sentence is lo nger than reasonably necessary to achieve two sentencing goals under § 3553(a): to avoi d a sentencing disparity among similarly situat ed offenders and to impose a sentence th at is “sufficient, but not greater than necessary, to comply with the pur poses [of criminal punishment].” 18 U.S.C. § 3553(a). Lewis reminds us that Kn ighten received a 300-month sentence and Armando Luna, another codefendant and Knighten’s supplier, received a 360-month sentence, while Lewis was sentenced to serve 420 months. 20 Lewis attacks the court’s fa voring Knighten and Luna for

20 By the time of Lewis’s sentencing hearing, Luna had already pleaded guilty and been sentenced to 360 months. The gove rnment’s plea deal for Knighten requested a 300-m onth sentence, though Knighten had not yet been sentenced. Knighten was u ltimately sentenced to 300 months’ imprisonment. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5960 accepting responsibility because “both of them were already serving lengthy prison sentences,” and he maintains that his role was minimal compared to theirs. Lewis Op. Br. at 49. Given these circumstances, Lewis contends, his 420-month sentence is “dis proportionate” and longer th an necessary to achieve the § 3553(a) sentencing goals. Id. at 52. As has been stated many times, this was a co mplex case. Twenty-four defendants were charged. The district court knew best how each defendant contributed to the drug-trafficking sche me. At sentencing, the district court explained how Lewis’s role as “the symbolic figurehead” of the organization distinguished him from other members, and so jus tified him receiving a higher sentence than other codefendants higher up the food chain. R. vol. 6, at 2356. The court openly co nsidered and balanced the § 3553(a) factors, before it imposed a within-guidelines-range senten ce of 420 months and denied Lewis’s request for a downward variance. Thus, th e court’s decision was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Hurst , 94 F.4th 993, 1010 (10th Cir. 2024) (citation omitted). Le wis’s argument fails.
CONCLUSION We affirm the judgment of the district court. Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 60