* Honorable Ruggero J. Aldisert, Circuit Judge, U.S . Court of Appeals,

Third Circuit, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 16 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN WESLEY RADCLIFF, Defendant - Appellant. No. 01-1557

Appeal from the United States District Court

for the District of Colorado (D.C. No. 99-CR-61-N)
David B. Savitz, Denver, Colorado, for Defendant-Ap pellant. Robert M. Russel, Assistant United States Attorney, Denver, Colorado (John W. Suthers, United States Attorney, with him on the br iefs) for Plaintiff-Appellee.

Before EBEL , ALDISERT, * and HOLLOWAY , Circuit Judges.

EBEL , Circuit Judge.

Defendant John Wesley Radcliff, undersheriff for Ou ray County, Colorado, was convicted by a jury of conspiracy to distribute methamphetamine and of- 2 -

carrying a firearm during and in relation to that c onspiracy. He was sentenced to 288 months of imprisonment. Defendant now challenges three aspects of the proce edings before the district court. First, he contends that the eviden ce was not sufficient to support his firearm conviction. Second, Defendant contends that wiretap evidence used against him at trial should have been suppressed be cause of a defect in the order authorizing the wiretap. Third, Defendant contends that the district court erroneously declined to grant a downward departure based on his evidence of psychological coercion. We exercise jurisdiction over this criminal appeal pursuant to 28 U.S.C. § 1291, AFFIRM Defendant’s conviction, and DISMISS his sentencing challenge. The evidence at trial was sufficient to prove that Defendant carried a firearm during and in relation to the methamphetamine consp iracy. The district court correctly denied Defendant’s motion to suppress the wiretap evidence because the omission in the wiretap order was merely a technica l defect. We do not have jurisdiction to review a district co urt’s denial of a downward departure at sentencing, unless the distri ct court mistakenly believed it had no authority to depart. Because the district c ourt did not clearly indicate that it had no authority to depart, we DISMISS that port ion of Defendant’s appeal.- 3 -

I. BACKGROUND On March 25, 1999, Defendant was indicted along with eighteen others for conspiracy to possess with intent to distribute methamphetamine in violation of 18 U.S.C. § 846. Defendant was also individually i ndicted for carrying a firearm—the Ruger .45 service weapon he carried in his capacity as undersheriff—during and in relation to the conspira cy in violation of 18 U.S.C. § 924(c). The methamphetamine distribution conspiracy charged in this case began in 1996. Its ringleader was Defendant’s brother-in-law, Perry Wherley (“Wherley”). In 1994, Defendant married Wherley’s sister, Lisa, who unbeknownst to Defendant was a long-time user of methamphetamine. Lisa obtained methamphetamine from Wherley and from her aunt, co- defendant Brenda Paul (“Paul”). The conspiracy emerged when Wherley and Paul began traveling to California every other weekend to purchase methamph etamine and bring it back to Ouray County. They would typically buy one to f our ounces of methamphetamine and, upon their return, would prepa re it for distribution to approximately ten regular customers. Customers wou ld come to Wherley’s trailer to pick up their purchases. Although Paul left the conspiracy in the summer of 1997, Wherley continued these trips to California w ith various partners and- 4 -

obtained methamphetamine from various sources. Dur ing the conspiracy’s infancy, Defendant discovered his wife’s addiction and eventually became a user himself. They both continued to use methamphetamin e until the 1999 indictment. Defendant’s role in the conspiracy was to warn Lisaand Wherley about law enforcement risks to the operation and to mislead o ther law enforcement officers regarding the illegal drug activity. Through numer ous incidents from 1997 until the March 1999 indictment, Defendant demonstrated h is willingness to interfere with law enforcement’s investigation of the conspir acy. In February 1997, Defendant received information fr om sheriff’s deputy Dominic “Junior” Mattivi that a neighboring county was setting a roadblock for Wherley and Paul, who were returning from purchasin g methamphetamine in California. Defendant relayed this information to Lisa and drove her to Paul’s boyfriend’s home. Paul’s boyfriend drove to Utah t o warn Wherley and Paul. Based on this warning, Wherley and Paul were able t o avoid detection by law enforcement. In June 1997, in order to cover up Defendant’s know ledge of the conspiracy, Defendant and Lisa staged an act to con vince another sheriff’s deputy, co-defendant Leroy Todd, that Defendant was just discovering his wife’s methamphetamine addiction. Also during that summer , Defendant learned that Paul was reporting Wherley’s drug activities to the Colorado Bureau of- 5 -

Investigation (“CBI”). This information was relaye d through Lisa to Wherley, who went to the police and contradicted Paul’s repo rts. In January 1998, Wherley was stopped by a Colorado State Trooper, Shawn Olmstead. Olmstead discovered methamphetamine on Wherley and arrested him. When Olmstead radioed in the arrest information, he specifically requested that no one notify Defendant because he did not want any confrontations with Wherley’s family members, especially family members that would be armed. Despite Olmstead’s request, Defendant and Lisa arri ved at the scene of the arrest just a few minutes later. From there, Lisa went to Wherley’s trailer while Olmstead took Wherley to the police station and obt ained a search warrant for the trailer. With Defendant’s knowledge, Lisa took all of the inculpatory materials from Wherley’s trailer and stored them in her house before the warrant was executed. In February 1998, Wherley, while out driving, reali zed that he was being followed by Defendant’s subordinate, Ouray County S heriff’s Deputy Betty Wolfe. Wherley called Defendant to ask why he was being followed. Defendant then phoned Wolfe and interrogated her as to why sh e was following Wherley. Intimidated by Defendant’s questioning, Wolfe cease d to follow Wherley.- 6 -

During the summer of 1998, Defendant, Lisa and Wher ley became suspicious that their phone lines were under survei llance. They agreed to use a code when speaking about methamphetamine over the p hone. By November 1998, FBI Agent Emerson Buie had become involved in the investigation. Buie telephoned Defendant to see if Defendant would volunteer that Wherley was his brother-in-law. When Buie inq uired about Wherley, Defendant did not mention their relationship and re presented that Wherley had abandoned the drug business. That same month, CBI Agent Jack Haynes had the sheriff of a nearby town call Defendant and falsely advise him that a search was going to be executed at Wherley’s trailer. Defenda nt told Lisa about this search but warned her that she could not tell Wherley. Li sa gave this information to her mother, who then called Wherley and warned him abou t the search. Finally, throughout this time period, Defendant kno wingly permitted Wherley to store methamphetamine and cash in his ho me for safekeeping when Wherley went out of town or feared his trailer woul d be searched. Throughout the conspiracy, Wherley provided Defendant and Lisa with free, user amounts of methamphetamine. Typically h e gave the methamphetamine to Lisa, who would share it with Defendant. To getmethamphetamine from Wherley, Lisa and Defendant would ordinarily meet at Wherley’s trailer shortly after he returned from his weekend trips to Califor nia. Lisa would arrive in her- 7 -

car, and Defendant would arrive in his patrol car, wearing his uniform and carrying his gun. Wherley would give the methamphe tamine to Lisa. Defendant would drive a short distance from the house, wait f or Lisa to leave, and then escort her home. The indictment alleged that on March 30, 1998, Defe ndant carried a firearm during and in relation to the drug trafficking cons piracy, shortly after Wherley had returned from a trip to California. On that date, law enforcement agents conducting surveillance testified that Defendant an d Lisa arrived in separate cars at Wherley’s trailer. After a short time, Defendan t, who was in uniform, left in his patrol car, drove a few miles and pulled over t o the shoulder of the road in front of a motel. Lisa Radcliff arrived at that lo cation in her car five or ten minutes later. Both cars pulled out heading toward the Radcliffs’ home. On March 25, 1999, nineteen individuals were indict ed in connection with this conspiracy. Eventually Wherley, Lisa, and oth er co-defendants cooperated and became government witnesses, while Defendant an d six others proceeded to trial. Prior to trial, Defendant moved to suppress evidence that had been obtained from a wiretap in Wherley’s house. This motion was denied. The jury convicted Defendant on both the conspiracy and firearm charges. Defendant moved for a judgment of acquittal on the firearm conviction on the ground that there was insufficient evidence to show that he used his firearm “in1 Defendant preserved this issue for appeal by moving for a judgment of

acquittal at the close of the Government’s case and again at the close of all evidence. - 8 - relation to” the drug trafficking conspiracy on Mar ch 30, 1998. The district court denied the motion. Defendant was sentenced to 168 months of imprisonme nt on the conspiracy count and an additional 60 months on the firearm co unt. The district court denied his request for a downward departure pursuant to U. S. Sentencing Guideline §
5K2.12. For the reasons stated below, we AFFIRM Defendant’s conviction and DISMISS the portion of his appeal related to his se ntence.

II. SUFFICIENCY OF THE EVIDENCE Based on events that occurred on March 30, 1998, a jury convicted Defendant of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c )(1). On appeal, Defendant argues that the evidence was insufficient to support the jury’s finding that he carried his firearm “in relation to ” the crime. 1 Because we find that a reasonable jury could infer that Defendant intended for his Ru ger .45 service weapon to facilitate the conspiracy for the distribution of m ethamphetamine, we conclude2 This is the version of the statute that existed on March 30, 1998, the date

of the crime charged. The statute was amended in N ovember 1998 to impose enhanced sentences not only on those who used or carried firearms during drug felonies, but also on any person “who, in furtheran ce of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A) (2000). “We do not consider the effects, if any, of the new language of § 924(c) because it did not become law until after [Defendant] committed the crimes with which he is c harged.” McKissick , 204 F.3d at 1292 n.2. - 9 - that there was sufficient evidence that the firearm was carried “in relation to” the drug trafficking crime and AFFIRM his conviction. We review the sufficiency of the evidence to support a jury’s verdict de novo. United States v. McKissick , 204 F.3d 1282, 1289 (10th Cir. 2000). “[W]e ask only whether taking the evidence—both direct an d circumstantial, together with the reasonable inferences to be drawn therefro m—in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id. (internal quotations and citations omitted). We r ely on the jury, as the fact finder, “to resolve conflicting t estimony, weigh the evidence, and draw inferences from the facts presented.” Id. at 1289-90. 18 U.S.C. § 924(c)(1) provides that “[w]hoever, dur ing and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, shall, in addition to the punishment provided for s uch crime . . . , be sentenced to imprisonment for five years . . . .” 2 Id. (emphasis added). On appeal, Defendant does not dispute that he carried a firearm during t he commission of a drug3 Iilandwas primarily concerned with interpreting the lang uage added to

§ 924(c)(1) in the 1998 amendments. That language provides punishment for anyone who possesses a firearm “in furtherance of” a drug trafficking crime. In order to interpret the phrase “in furtherance of,” the Iilandcourt conducted a (continued...) - 10 - trafficking crime. Instead, he argues that the evi dence was not sufficient to show that the firearm was carried “in relation to” the c rime. He contends the firearm was coincidentally present as part of his sheriff’s uniform. In Smith v. United States , 508 U.S. 223 (1993), the Supreme Court held that the phrase “in relation to” is expansive. . . . [A]t a minimum, [it] clarifies that the firearm must have some purpose or effectwith respect to the drug trafficking crime; its presence or involvement cannot be the result of acc ident or coincidence

. As one court has observed, the “in relation to” lan guage “allay[s] explicitly the concern that a person could be” punished under § 924(c)(1) for committing a drug trafficking offense “while in pos session of a firearm” even though the firearm’s presence is coincidental or entirely “unrelated” to the crime. Instead, the gun at least must “facilit ate, or have the potential of facilitating,” the drug trafficking offense. Id. at 237-38 (emphasis added) (citations omitted). The Tenth Circuit has further articulated the circu mstances under which a jury may find that a defendant has carried a weapon “during and in relation to” a drug trafficking crime. First, “our cases make cle ar that the ‘during and in relation to’ requirement of section 924(c) necessit ates some direct connection between the firearm and the drug offense.” United States v. Iiland , 254 F.3d 1264, 1274 (10th Cir. 2001) (emphasis added). 3 To establish this connection, the3 (...continued)

lengthy analysis of our interpretation of the phras e “during and in relation to.” 254 F.3d at 1272-74.

4 Occasionally we have stated that an appellate courton review may “presume[] a nexus between a firearm and a drug tra fficking offense when an individual with ready access to a firearm commits s uch an offense,” McKissick , 204 F.3d at 1293; Richardson , 86 F.3d at 1548; Nicholson , 983 F.2d at 990, and that “a defendant can overcome this presumption by presenting evidence that the weapon was present for a reason other than facilitating the drug transaction,” Richardson , 86 F.3d at 1548; Nicholson , 983 F.2d at 990. Nevertheless, in an en banc footnote in United States v. Baker , 30 F.3d 1278, 1280 n.1 (10th Cir. 1994), we explained that this presumption was merely a too l used to review the sufficiency of the evidence on appeal, utilizing th e normal inferences applicable to review fact issues on appeal, and that it “in no way change[d] the government’s burden at trial to prove every element of a § 924(c )(1) offense.” Id. Because the “presumption” language does not change our normal review process, we do not employ it here. - 11 - Tenth Circuit requires evidence that the defendant intendedthat the firearm be used in the offense. United States v. Shuler , 181 F.3d 1188, 1190 (10th Cir. 1999) (citing United States v. Richardson , 86 F.3d 1537, 1548 (10th Cir. 1996) (quoting United States v. Nicholson , 983 F.2d 983, 990 (10th Cir. 1993))); United States v. Matthews , 942 F.2d 779, 783 (10th Cir. 1991) (citing S. Rep . No. 225, 98th Cong., 1st Sess. 1, 314 n. 10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n.10). 4 There is no requirement, however, that the drug t rafficking crime be the sole reason for the possession of the gun. McK issick , 204 F.3d at 1293-94. Although we have often considered whether a case pr esents sufficient evidence to show that a defendant carried a firearm “in relation to” a drug- 12 -

trafficking offense, we have never faced the specif ic issue presented here—whether a defendant, who carries a firearm as part of his law enforcement uniform and commits a crime while so attired, carri es the firearm “in relation to” that crime. We find that the evidence in this case was sufficient to support a jury finding that Defendant intended to use his weapon t o facilitate the methamphetamine conspiracy. One recognized theory that explains how a gun facil itates a drug trafficking crime is that the gun deters interference with the crime. See United States v. Roberts , 14 F.3d 502, 518 (10th Cir. 1993); Nicholson , 983 F.2d at 990. In this case, the facts support the inference that Defendan t intended that his weapon deter interference with his wife’s transport of the methamphetamine. First, the evidence demonstrated Defendant’s willin gness to interfere with law enforcement efforts targeting the drug operatio n. It also showed that other law enforcement agents knew of Defendant’s willingn ess to interfere with law enforcement activity. Law enforcement agents Matti vi, Wolfe, Buie, Haynes and Olmstead had each experienced Defendant’s disruptio ns of their investigations of Wherley. Trooper Olmstead even testified that when he arrested Wherley he did not want Defendant to be notified because he “did n ot want any further confrontations, especially with family members, esp ecially with family members that could be armed.” Escorting his wife’s transpo rt of the drugs while in- 13 -

uniform advertised to others that Defendant was car rying his gun. Because other police officers would know about the gun, they woul d be deterred from interfering with this escort. Second, the suspicious manner in which Defendant le ft Wherley’s house on March 30, 1998, supports the inference that Defenda nt desired that his gun deter interference with Lisa’s transport of the methamphe tamine. Instead of riding with Lisa or driving his personal vehicle, Defendant adv ertised the presence of his gun by leaving Wherley’s while wearing his uniform and driving his patrol vehicle. He then waited on the side of the road as though pe rforming his law enforcement duties, once again advertising his status as a poli ce officer and the presence of his gun. Only then did he escort his wife home, protec ting her transport of the methamphetamine. Anyone following Lisa and intendi ng to interfere with her transport of the drugs—whether they were police off icers attempting to apprehend her or other criminals desiring to steal the drugs—would naturally be reluctant to do so in the presence of her armed protector. From Defendant’s contrived behavior on March 30, 1998, a jury could infer thatDefendant knew about and intended this effect. We recognize that there is evidence in the record c utting the other way. Nevertheless, we conclude that a reasonable jury co uld find that Defendant carried his firearm to facilitate the transport of the methamphetamine. The jury- 14 -

was the judge of the testimony of Lisa Radcliff and Perry Wherley and could easily have disregarded as biased their assertions that Defendant’s possession of a gun was only incidental to the distribution of meth amphetamine. The jury heard multiple witnesses testify about the drug conspirac y and about the activities that Defendant undertook to interfere with the police’s ability to bust this conspiracy. Knowing that Defendant would undertake these activi ties and knowing of his loyalty to his wife and her family, the jury could infer that he intended for his firearm to serve as a deterrent to other police off icers’ interference with Lisa Radcliff’s transport of methamphetamine, thus facil itating the conspiracy. Defendant’s conviction is therefore affirmed.

III. MOTION TO SUPPRESS Some of the evidence against Defendant was obtained via a wiretap in Perry Wherley’s house. The wiretap was authorized pursuant to an original application, and then twice extended by additional applications. Prior to trial, Defendant moved to suppress this evidence because the wiretap orders failed to name the Department of Justice officials who had authorized the wiretap applications. Although we find that this failure rendered the ord ers facially insufficient under 18 U.S.C. § 2518(10)(a)(ii), we AFFIRM the districtcourt’s denial of5 18 U.S.C. § 2516(1) permits the following officers to authorize a wiretap

application: The Attorney General, Deputy Attorney General, Asso ciate Attorney General, or any Assistant Attorney General, any act ing Assistant Attorney General, or any Deputy Assistant Attorney General o r acting Deputy Assistant Attorney General in the Criminal Divisionspecially designated by the Attorney General . . . . - 15 - Defendant’s motion to suppress because this failure constituted a technical defect that did not undermine the purposes of the statute or prejudice Defendant. A wiretap authorization order is presumed valid, an d the defendant bears the burden of proof to show otherwise. United Stat es v. Mitchell , 274 F.3d 1307, 1309 (10th Cir. 2001). On appeal from a motion to suppress evidence obtained pursuant to a wiretap, this court reviews questions of law de novo. Id. The use of wiretaps and evidence obtained therefrom is governed by Title III of the Omnibus Crime Control and Safe Streets A ct of 1968 (“Title III”). 18 U.S.C. §§ 2510 et seq. To obtain a wiretap author ization order, a law enforcement agent must file an application with a j udge of competent jurisdiction. Id. § 2518(1). That application must be authorized by one of the Department of Justice officials designated in § 2516(1), 5 and the order issued pursuant to the application must specify the identity of that autho rizing official. Id. §§ 2518(1)(a), (4)(d).- 16 -

Section 2518(10)(a) permits a defendant to move forsuppression of evidence obtained through a wiretap on three ground s:

(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under w hich it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. Relying only on the second ground, Defendant conten ds that the orders of authorization in this case were insufficient on the ir face because they failed to specify the identity of the person or persons autho rizing the applications as required by § 2518(4)(d). In this case, each wiretap application was present ed to federal district court judge John L. Kane, Jr., who granted the wire tap authorization orders. The first application was authorized in fact by Mary Le e Warren, Deputy Assistant Attorney General, Criminal Division. The first ext ension application was authorized in fact by Kevin V. DiGregory, Deputy As sistant Attorney General, Criminal Division. The second extension applicatio n was also authorized in fact by Mary Lee Warren. There is no dispute that each of the applications w as authorized by an appropriate individual within the Department of Jus tice, as required by § 2516(1). There is also no dispute that Mary Lee Warren and K evin V. DiGregory were identified by name in the respective wiretap applic ations . However, instead of6 This language largely tracks the language of 18 U.S .C. § 2516(1), which

prescribes which officials may authorize a wiretap application.

7 Defendant conceded this at oral argument. - 17 - specifying the names of Mary Lee Warren or Kevin V. DiGregory in the wiretap orders , each of the wiretap orders merely stated that the applications were: authorized by Attorney General Janet Reno who deleg ated her authority to an Assistant or Acting Assistant Attorney General i n charge of the Criminal Division or any Deputy or Acting Deputy Assistant Attorney General of the Criminal Division, of the United States Department of Justice, pursuant to the power delegated to that official by special des ignation of the Attorney General and vested in the Attorney General by Secti on 2516 of Title 18, United States Code . . . . 6 Despite this ambiguous language, however, Defendantknew from the time he learned of his indictment that Mary Lee Warren and Kevin V. DiGregory were the Department of Justice officials who had authorized the wiretap applications because he was provided at that time with copies of both the wiretap applications and the wiretap orders. 7
In United States v. Chavez , 416 U.S. 562 (1974), and United States v. Giordano , 416 U.S. 505 (1974), the Supreme Court consideredmotions to suppress under § 2518(10)(a). Chavez , 416 U.S. at 573-75; Giordano , 416 U.S. at 512-23. In Chavez , the Supreme Court reviewed an order that named Ac ting Assistant Attorney General Will Wilson as the autho rizing official, although the order had actually been authorized by the Attorney General. Id. at 573-74. The8 18 U.S.C. § 2518(4)(d) states:

Each order authorizing or approving the interceptio n of any wire, oral, or electronic communication under this chapter shall s pecify—

. . . (d) the identity of the agency authorized to interce pt the communications, and of the person authorizing the application; . . . . - 18 - defendant argued first that the order was facially insufficient under § 2518(10)(a)(ii) and second that it was unlawful und er § 2518(10)(a)(i). With respect to the defendant’s first argument—thatthe order was facially insufficient under § 2518(10)(a)(ii)—the Court heldthat because Will Wilson was a person legally empowered to authorize the application pursuant to § 2516(1), the order was facially sufficient, despite the factthat Wilson did not actually authorize the application. Chavez , 416 U.S. at 573-74. It concluded that an order is facially sufficient as long as it names “an auth orizing official who possessed statutory power to approve the making of the applic ation.” Id. at 574. This case, however, is distinguishable from Chavez . Section 2518(4)(d) requires that a wiretap order specifythe identityof the person authorizing the application. 8 The orders in this case did not specify the ident ity of any person. Instead, they listed by title every Department of J ustice official with legal authority to authorize an application. This genera l language fails to specify the identity of any person at all—anyone holding any ti tle identified in the wiretap9 This case is distinguishable from United States v . Traitz , 871 F.2d 368,

379 (3d Cir. 1989), which held that an order was fa cially sufficient when it identified the “Assistant Attorney General, Crimina l Division” as the authorizing official. Because there is only one Assistant Atto rney General of the Criminal Division, no confusion could possibly result from the fact that the authorizing official was identified by his title rather than hi s name. - 19 - order could have been the person who authorized the wiretap applications. 9
Because numerous offices with numerous officeholder s are listed in the instant orders, no individual has been identified as the au thorizing official. Thus, we find these orders to be facially insufficient in vi olation of § 2518(10)(a)(ii). In Chavez , however, after the Court concluded that the orderwas facially sufficient, it went on to consider whether the orde r was “unlawful” under § 2518(10)(a)(i). In considering this question, it articulated the appropriate framework for determining whether wiretap evidence must be suppressed under § 2518(10)(a). It found that the order in question w as “unlawful” under 10(a)(i) because it violated the statutory requirement of § 2518(4)(d). It went on to hold, however, that even where a wiretap is found to be “ unlawful” under (10)(a)(i), suppression is not required if the violated provisi on of Title III “does not establish a substantive role to be played in the re gulatory system.” Chavez , 416 U.S. at 578. This holding was reiterated in Giorda no , which stated that suppression is only required under (10)(a)(i) when there is a “failure to satisfy any of those statutory requirements that directly a nd substantially implement the- 20 -

congressional intention to limit the use of interce pt procedures to those situations clearly calling for the employment of this extraord inary investigative device.” Giordano , 416 U.S. at 527; United States v. Armendariz , 922 F.2d 602, 608 (10th Cir. 1991). Chavez and Giordano articulated this second requirement specifically w ith respect to motions to suppress under (10)(a)(i). C havez , 416 U.S. at 574-75; Giordano , 416 U.S. at 527-28. We now join our sister circu its in holding that this requirement is equally applicable to motions to sup press under § 2518(10)(a)(ii), which permits suppression if the order is facially insufficient. United States v.
Moore , 41 F.3d 370, 374 (8th Cir. 1994) (“[E]very circui t to consider the question has held that § 2518(10)(a)(ii) does not require suppression if the facial insufficiency of the wiretap order is no more than a technical defect.”); Traitz , 871 F.2d at 379; United States v. Lawson , 545 F.2d 557, 562 (7th Cir. 1975); United States v. Swann , 526 F.2d 147, 149 (9th Cir. 1975); United States v. Erdman , 515 F.2d 290, 293 (6th Cir. 1975); United States v. Acon , 513 F.2d 513, 517-19 (3d Cir. 1975); United States v. Robertson , 504 F.2d 289, 292 (5th Cir. 1974). Thus, because we have concluded that these orders a re facially insufficient, we apply this second requirement and ask whether th is failure to comply with- 21 -

Title III requires suppression in this case. Chave z , 416 U.S. at 574-75; Giordano , 416 U.S. at 524-29. We find that it does not. First, the only provision of Title III violated in this case is § 2518(4)(d), which requires that the authorizing official be ide ntified in the order. As noted in Chavez , this provision “does not establish a substantive role to be played in the regulatory system.” Chavez , 416 U.S. at 577-78; Lawson , 545 F.2d at 562 (“Because [§ 2518(4)(d)] was merely designed to fixresponsibility, it does not establish a substantive role and as a technical vio lation does not require suppression.”); cf. Giordano , 416 U.S. at 528 (holding that suppression was required when the violated provision “was intended to play a central role in the statutory scheme”); United States v. Donovan , 429 U.S. 413, 437 (1977) (not requiring suppression where “nothing in the legislative history suggests that Congress intended [the requirement at issue] to play ‘a central, or even functional, role in guarding against unwarranted use of wiretap ping or electronic surveillance’”) (citing Chavez , 416 U.S. at 578). Second, the purpose of § 2518(4)(d) is to fix respo nsibility with the person who authorized the application. Chavez , 416 U.S. at 572 (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., 101 (1968)). We find t hat the defects in the instant orders did not subvert this purpose. In this case, an appropriate official from the Department of Justice authorized every application, and Judge Kane knew that10 We note that, if the wiretap application in this ca se had in fact been

authorized by an official without authority to do s o, Defendant would have a remedy under § 2518(10)(a)(i). - 22 - official’s identity when he granted the orders. Ev en further, from the moment he knew of his indictment, Defendant himself knew the identity of the officials who authorized the applications. Thus, as the districtcourt found, the facial insufficiency here was a technical defect that did not disrupt the purposes of the wiretap statute or cause any prejudice to Defendant

. 10 See Traitz , 871 F.2d at 380 (holding that the purpose of § 2518(4)(d) was not u ndermined where the authorizing official was named in the wiretap appli cation but not in the wiretap order); Lawson , 545 F.2d at 562 (holding that the purpose of § 25 18(4)(d) was not undermined where the wiretap order named an officia l without statutory authority to authorize the application, but the Attorney Gene ral had in fact authorized the application); Swann , 526 F.2d at 149 (same). The district court’s denial of Defendant’s motion t o suppress is
AFFIRMED.

IV. SENTENCING At his sentencing hearing, Defendant requested a do wnward departure under Sentencing Guideline § 5K2.12. Defendant arg ued that he was coerced into- 23 -

committing his crimes because of his co-dependent r elationship with his drugaddicted wife. Tenth Circuit precedent makes clear that a districtcourt’s denial of a downward departure will be reviewed by an appellate court only if “the district court states that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstanc es proffered by the defendant.” United States v. Browning , 252 F.3d 1153, 1161 (10th Cir. 2001) (quoting Uni ted States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998)). Moreover, “ [t]he district court’s statement that it lacks authority to grant the requested downward departure must be unambiguous.” Id. (United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999)). In this case, the district court’s language indicat es that it simply did not think a departure was warranted for the type of coe rcion that Defendant alleged. The court did not state that psychological coercion could never be the basis of a downward departure, but that the coercion here was not serious enough to warrant one. This does not satisfy the requirement for app ellate review. As a result, we DISMISS this portion of Defendant’s appeal. For the foregoing reasons, Defendant’s conviction and sentence are
AFFIRMED.