[00:00:00] Speaker 00:
Case number 3104 at all, United States of America, the Eric Scurry, also known as E Appellant, Don Zucker for the Appellant, Dennis M. Hart for the Appellant, and Daniel Lenners for the Appellee.

[00:00:19] Speaker 06:
May I please record Jonathan Zucker on behalf of Appellant, request six minutes for rebuttal.

[00:00:24] Speaker 06:
I'm inclined to submit on the location argument and just to address the facial insufficiency argument in the brief.

[00:00:31] Speaker 06:
This case is controlled by this court's decision in US versus Glover.

[00:00:37] Speaker 06:
What's at issue here is the distinction between 2518, Section 1, which deals with unlawful, versus Section 2, which deals with facial insufficiency.

[00:00:47] Speaker 06:
Whoever clarified the difference between the two and what is of critical consequence here is that in a facial insufficiency argument,

[00:00:55] Speaker 06:
Glover ruled that the court is to apply a mechanical test.

[00:00:58] Speaker 06:
There's no room for judicial discretion.

[00:01:00] Speaker 06:
If the court finds that it is facially insufficient, the statutorily mandated remedy is suppression.

[00:01:08] Speaker 06:
In this case, Judge Lambert found that the order was facially insufficient because of the absence of the name of the designated US attorney.

[00:01:20] Speaker 05:
But you weren't saying that characterization is binding on us.

[00:01:24] Speaker 06:
Which characterization?

[00:01:25] Speaker 06:
That it's facially insufficient?

[00:01:26] Speaker 06:
I believe it is.

[00:01:28] Speaker 06:
I believe it is.

[00:01:29] Speaker 06:
I don't think there's any

[00:01:31] Speaker 05:
You get into whether it's... That's purely legal classification in the labor, right?

[00:01:36] Speaker 06:
Well, I'm not sure it is.

[00:01:39] Speaker 06:
Whether or not the warrant contained the designated U.S.

[00:01:45] Speaker 06:
attorney is a factual question.

[00:01:46] Speaker 06:
There's no dispute that that name wasn't on it.

[00:01:49] Speaker 06:
Now, whether as a result of that, and it's clear that the statute requires that... I'm talking about the characterization.

[00:01:55] Speaker 06:
Of facial insufficiency.

[00:01:56] Speaker 05:
And it's not disputed that the name was missing.

[00:01:58] Speaker 06:
Right.

[00:01:59] Speaker 06:
Right.

[00:01:59] Speaker 06:
That's an undisputed fact.

[00:02:01] Speaker 06:
There's no question about that.

[00:02:04] Speaker 06:
Whether the decision, then, that this makes it a facially insufficient warrant, I'm sorry, order, is, I would suggest, because the fact is undisputed, that the court should be bound.

[00:02:19] Speaker 06:
Now, if we choose to classify that as... I understand what you're saying.

[00:02:22] Speaker 05:
I mean, it's a purely legal classification.

[00:02:25] Speaker 05:
once the facts are absolutely clear, isn't it?

[00:02:30] Speaker 06:
I'd say it's mixed, but I understand the Court's point that whether or not an order is facially insufficient is a question of law.

[00:02:37] Speaker 06:
But the fact is not in dispute, and therefore I would say it's hard to come to any other conclusion since the statute clearly says the order has to name the designated U.S.

[00:02:49] Speaker 06:
attorney or designated assistant AG that's making the decision.

[00:02:54] Speaker 06:
Right.

[00:02:55] Speaker 06:
So I would say it's, you know, where should it be characterized in that?

[00:02:58] Speaker 06:
I don't think it can seriously be disputed that the order is facially deficient, whether we call that a question of fact or a question of law.

[00:03:04] Speaker 01:
So under the statute, had we the circumstances that existed in the Third Circuit where there was only one deputy assistant

[00:03:13] Speaker 01:
Would that make a difference?

[00:03:16] Speaker 06:
It could.

[00:03:17] Speaker 06:
It could, because I think that actually would probably be classified as potentially a technical defect that might be applicable.

[00:03:25] Speaker 06:
Certainly the Third Circuit found that way.

[00:03:27] Speaker 06:
I'd say it's probably inconsistent with Glover, but you certainly could.

[00:03:32] Speaker 06:
But the distinction you point is the significant distinction here.

[00:03:36] Speaker 06:
We cannot say

[00:03:38] Speaker 06:
We cannot say based on the face of the order alone who applied for this or who approved it.

[00:03:43] Speaker 06:
The application is really the best.

[00:03:44] Speaker 03:
You say on the basis of the order alone, but there wasn't any question in the application and affidavit that there was in fact approval by a duly authorized official.

[00:03:54] Speaker 06:
I'm not contesting that.

[00:03:55] Speaker 06:
But the application is fine.

[00:03:56] Speaker 06:
I raise no challenge to the application itself.

[00:03:59] Speaker 03:
And why don't we see the application as sort of part of the order, incorporated by reference in the order, the supporting document on which the order is based.

[00:04:10] Speaker 06:
because Glover and the statute says you have to look at the order, and the order is either facially sufficient or it's not.

[00:04:16] Speaker 06:
And if it's not facially sufficient, you cannot refer to and incorporate, I think it was the Moore case where they talked about other factors known to the issuing judge who approved it, about who would have actually done it and the structure of the office.

[00:04:30] Speaker 06:
And in this instance,

[00:04:32] Speaker 06:
It either stands or falls on the order itself.

[00:04:36] Speaker 06:
The statute is very clear on that.

[00:04:37] Speaker 01:
Let me ask you in the Supreme Court case where Assistant Attorney General Wilson's name was on the order, even though he was not the official who authorized the application, but rather one of his deputies.

[00:04:59] Speaker 06:
There were actually two that were decided on the same day, the Chavez and the Giordano case, and I think he was on all four.

[00:05:06] Speaker 01:
Let me finish my question.

[00:05:08] Speaker 06:
Oh, I'm sorry.

[00:05:09] Speaker 01:
So the order was facially incorrect in the sense that Assistant Attorney General Wilson was not the authorizing official, and there wasn't anything to suggest that he had delegated in this particular, in that particular case,

[00:05:29] Speaker 01:
his authorizing authority to a particular deputy.

[00:05:36] Speaker 01:
How does Glover fit with the Supreme Court's analysis?

[00:05:42] Speaker 06:
Because they involve two different sections of the statute.

[00:05:46] Speaker 06:
And I'm not sure whether you're talking about the Giordano or Chavez case, because that was the fact in both those.

[00:05:52] Speaker 06:
But those cases were not decided on facial sufficiency.

[00:05:55] Speaker 06:
In both those cases, the Supreme Court held that the orders themselves were facially sufficient.

[00:06:00] Speaker 06:
The issue was, were they lawful?

[00:06:02] Speaker 06:
And that's section two analysis.

[00:06:05] Speaker 06:
And that unlawfulness gets a different, I'm sorry, it's a section one analysis.

[00:06:09] Speaker 06:
I misspoke.

[00:06:11] Speaker 06:
I reversed them.

[00:06:12] Speaker 06:
It's a section one analysis.

[00:06:14] Speaker 06:
An unlawful gets a court concerns analysis.

[00:06:17] Speaker 06:
And there, the court ruled there were two in one case in which it was the executive assistant.

[00:06:24] Speaker 06:
The court had no problem finding that was unlawful and suppressing that.

[00:06:27] Speaker 06:
There were two in the other case where, again, it was said that it was Wilson in both cases, but it only turned out to be, I think, the same executive assistant.

[00:06:36] Speaker 06:
And the last one was actually approved by then Attorney General John Mitchell.

[00:06:42] Speaker 06:
And the court said because the Attorney General himself had approved it, therefore it was lawful.

[00:06:49] Speaker 06:
But again, that was a challenge under a different part of the statute.

[00:06:53] Speaker 06:
And the rule enunciated in Glover would not be applied because that was a core concerns analysis under unlawfulness, not under facial sufficiency, which is what we have here.

[00:07:05] Speaker 06:
My time's up.

[00:07:06] Speaker 06:
Anything else before I sit down?

[00:07:07] Speaker 01:
One quick question.

[00:07:11] Speaker 01:
The minimization issue that you raised?

[00:07:14] Speaker 06:
That was actually going to be addressed by another counselor.

[00:07:17] Speaker 06:
No problem.

[00:07:18] Speaker 06:
No problem.

[00:07:20] Speaker 01:
Who's arguing that, Mr. Hart?

[00:07:22] Speaker 06:
Yes.

[00:07:22] Speaker 01:
Thank you.

[00:07:24] Speaker 06:
Thank you.

[00:07:36] Speaker 07:
If it please the court, my name is Dennis Hart.

[00:07:38] Speaker 07:
I'm here on behalf of Eric Scurry.

[00:07:41] Speaker 07:
As the court knows, Mr. Scurry has some individual issues that I would like to address.

[00:07:47] Speaker 07:
Perhaps I should first address the issue of minimization.

[00:07:50] Speaker 07:
If the court has a question on that, I'd be happy to.

[00:07:52] Speaker 01:
Well, I didn't want to take your time.

[00:07:53] Speaker 01:
But my question is, have you abandoned that?

[00:07:56] Speaker 07:
We would submit on it.

[00:07:58] Speaker 07:
We have no further argument on it.

[00:07:59] Speaker 01:
All right.

[00:08:00] Speaker 01:
So you have no response to the government's

[00:08:03] Speaker 01:
citation to Cano Flores?

[00:08:05] Speaker 07:
That's correct.

[00:08:07] Speaker 07:
The issue that I would like to address in the minutes I have left are the requirement in the statute for a full and complete statement of the facts in the application.

[00:08:20] Speaker 07:
Now as the court knows, Mr. Scurry was the first wiretap authorized and all the others followed from that.

[00:08:28] Speaker 07:
And so an examination of Mr. Scurry's affidavit and application in the area of probable cause and necessity we think reveals deficiencies which affect all of the affidavits and applications that follow.

[00:08:44] Speaker 07:
Our argument is based on the

[00:08:49] Speaker 07:
Axiom that an informed decision is essential to deciding the issue of probable cause and necessity.

[00:08:59] Speaker 07:
And an informed decision by the authorizing judge is only possible with a full and complete statement of the facts.

[00:09:06] Speaker 07:
If someone says this is close enough, that doesn't satisfy the requirement of the statute.

[00:09:12] Speaker 07:
And the reason for that, I believe, is that the Congress recognized that wiretaps are an unusual

[00:09:22] Speaker 07:
an extraordinary effort by law enforcement, and that they should have very strict judicial scrutiny.

[00:09:28] Speaker 07:
So close enough is not good enough in a wiretap issue.

[00:09:33] Speaker 07:
In our reply brief, we've isolated two areas that we asked the court to consider.

[00:09:38] Speaker 07:
The first is the prior prosecution of Mr. Scurry.

[00:09:44] Speaker 07:
Mr. Scurry was prosecuted in this jurisdiction for the same offense two years earlier.

[00:09:51] Speaker 07:
He was acquitted before a different judge of the same offense, the same location, possibly by use of the same government witnesses.

[00:10:02] Speaker 07:
We know he was prosecuted by the same prosecutor.

[00:10:06] Speaker 01:
So that was one count?

[00:10:09] Speaker 07:
In the case for Judge Leon, it was one count, yes.

[00:10:12] Speaker 07:
Distribution.

[00:10:14] Speaker 07:
I brought a map which I cannot give to the court.

[00:10:20] Speaker 01:
No point in showing it then.

[00:10:23] Speaker 01:
So you think these charges are the same as that one count charge?

[00:10:30] Speaker 07:
Well, the distribution of cocaine.

[00:10:33] Speaker 07:
And by Google, they're about 300, 400 feet apart.

[00:10:38] Speaker 01:
So when you ask the district court to consider it,

[00:10:44] Speaker 01:
What did you intend that the district court do to find in your favor?

[00:10:51] Speaker 07:
I must admit I did not ask the district court to consider that.

[00:10:55] Speaker 01:
So this is plain error review?

[00:10:56] Speaker 01:
It is.

[00:10:58] Speaker 07:
All right.

[00:10:58] Speaker 07:
But if I take the position if it's plain enough to me when I look at the two docket sheets.

[00:11:03] Speaker 05:
Would a prior acquittal be admissible in a trial?

[00:11:09] Speaker 07:
It depends on the reason for its admission.

[00:11:12] Speaker 07:
My point is that it was

[00:11:15] Speaker 07:
It was a fact which should have been known to the authorizing judge, a fact which should have been made known.

[00:11:22] Speaker 05:
So what would the connection be?

[00:11:24] Speaker 07:
Well, the connection, Your Honor, is that the affidavit for the first scurry affidavit, the basis for the first scurry affidavit is based on the prior sales

[00:11:34] Speaker 07:
by CW1, CW2.

[00:11:37] Speaker 07:
We don't know who these people are, but there is a good reason to believe that they participated in the first trial of Mr. Scurry for the same fence.

[00:11:44] Speaker 05:
We're talking about proof beyond reasonable doubt versus probable cause.

[00:11:50] Speaker 07:
And that could be explained by the government.

[00:11:52] Speaker 07:
Our point is not that it's a slam dunk for Mr. Scurry.

[00:11:56] Speaker 07:
Our point is that the authorizing judge was never informed of this.

[00:12:00] Speaker 01:
So is your point that in applying for an affidavit, the government must list all the prior interactions with the criminal justice system?

[00:12:10] Speaker 07:
No, I'm not willing to go that far.

[00:12:12] Speaker 01:
All right, so the best, I'm just trying to understand the argument.

[00:12:15] Speaker 01:
The best would be that if you had some reason to think the lead investigating detective or the FBI agent had some bias against your client,

[00:12:29] Speaker 01:
I'm just trying to understand what the judge would do with this information.

[00:12:32] Speaker 07:
Or could we include the same prosecutor?

[00:12:34] Speaker 01:
So the same prosecutor cannot be involved?

[00:12:37] Speaker 07:
Oh, not at all.

[00:12:38] Speaker 07:
Not at all.

[00:12:38] Speaker 07:
I don't mean to say that.

[00:12:39] Speaker 01:
That's what I know.

[00:12:40] Speaker 01:
So the judge says one count before acquitted, same prosecutor, same investigating officers, maybe same cooperating witnesses.

[00:12:53] Speaker 01:
So why doesn't that hurt your case as opposed to

[00:12:56] Speaker 07:
because the judge was never in a position to make that determination, because he was never told of this prior acquittal.

[00:13:04] Speaker 01:
I'm assuming these experienced district court judges may have an inkling that people who are charged with these vast drug conspiracies may have had some contact with the criminal justice system beforehand.

[00:13:19] Speaker 01:
I just want to know what it is.

[00:13:21] Speaker 01:
I can understand if you had some proffer of bias

[00:13:26] Speaker 01:
or something like that.

[00:13:28] Speaker 01:
But just the fact of a prior acquittal?

[00:13:33] Speaker 07:
Yes.

[00:13:34] Speaker 07:
Two years before, by the same location, the same offense, and the same prosecutor.

[00:13:39] Speaker 07:
I think that's too much of a coincidence to sweep under the rug.

[00:13:42] Speaker 07:
It has to be examined, and it don't... A coincidence of what?

[00:13:46] Speaker 03:
The coincidence is the

[00:13:48] Speaker 03:
unlawful activity that has to be included in the affidavit, the basis for the wiretap that there's probable cause that there's been criminal activity and not coincidentally there's going to be overlap where someone has an ongoing business in

[00:14:06] Speaker 03:
in illegal narcotics, I'm not sure that the evidence may overlap.

[00:14:13] Speaker 03:
It's a similar conduct.

[00:14:14] Speaker 03:
But I think what we're asking is, without more, what is so obviously probative about the prior court case that it is defective when it's excluded?

[00:14:28] Speaker 03:
And I think you could make arguments either way.

[00:14:31] Speaker 03:
Including it, if you have a proffer of bias or a bias theory that you're raising, maybe it's permissible.

[00:14:37] Speaker 03:
I'm not saying it would be required.

[00:14:39] Speaker 03:
Excluding it also has virtues.

[00:14:41] Speaker 03:
It's saying, look, we're just going to put before you fresh evidence, judge, you know, clean slate.

[00:14:47] Speaker 03:
Does it add up to something that the government can go after?

[00:14:52] Speaker 03:
I think we're just missing why this would be required without more of a theory of bias or retaliation.

[00:15:00] Speaker 07:
And I agree with most of what Your Honor says.

[00:15:03] Speaker 07:
I don't disagree with that.

[00:15:05] Speaker 07:
But my point is that he was never presented to the authorizing judge.

[00:15:09] Speaker 07:
there could be no determination of that irrelevancy or possible bias because it was kept silent by the application for the wiretap.

[00:15:21] Speaker 03:
But they could have a third cooperating witness whose information wasn't put before the judge and that's just a call on the part of the investigating officials unless you have gone further and made a case that there's something being hidden by its exclusion.

[00:15:39] Speaker 03:
And I don't see that there's even a sort of prima facie proffer on that point.

[00:15:46] Speaker 07:
Well, the only thing I can say is that the statute requires a full and complete statement of the surrounding facts.

[00:15:53] Speaker 07:
It seems obvious to me, at least, that that's a surrounding fact that was not disclosed in the initial application.

[00:15:59] Speaker 07:
I cannot argue that there was bias.

[00:16:01] Speaker 07:
I cannot argue that there's a smoking gun there.

[00:16:03] Speaker 07:
I cannot do that because it was never brought up.

[00:16:06] Speaker 03:
And one might say that it was biased to include it.

[00:16:09] Speaker 03:
A judge would say, oh, this is someone that we've put a lot of resources into.

[00:16:12] Speaker 03:
Let me see this person as more of a bad actor than I would have without that.

[00:16:17] Speaker 03:
So actually, in some ways, it's a less tainted way for the investigators to approach it, less tainted against the defense.

[00:16:28] Speaker 07:
If Your Honor wants to view it that way, I can't dispute that.

[00:16:32] Speaker 07:
It may well be correct.

[00:16:33] Speaker 07:
But my point is that the authorizing judge never had a chance to make that decision.

[00:16:39] Speaker 01:
What's your strongest case?

[00:16:43] Speaker 07:
Hopefully, it's this case.

[00:16:46] Speaker 01:
All right.

[00:16:46] Speaker 01:
I just want to be clear.

[00:16:48] Speaker 07:
My strongest case, I think, will be this case.

[00:16:51] Speaker 07:
Before I sit down, I wanted to remind the court.

[00:16:53] Speaker 07:
We had a second.

[00:16:54] Speaker 01:
Oh, so what you're saying is that

[00:16:59] Speaker 01:
affidavit was legally insufficient because it failed to let the district court judge know that the same prosecutor, the same witnesses.

[00:17:15] Speaker 07:
Possibly same witnesses.

[00:17:17] Speaker 07:
I don't know that.

[00:17:17] Speaker 01:
Had been involved in a prosecution two years earlier of your client for a drug crime

[00:17:29] Speaker 01:
that occurred in the same location as the conspiracy now at issue?

[00:17:38] Speaker 07:
Yes, Your Honor.

[00:17:39] Speaker 07:
All right.

[00:17:40] Speaker 07:
That's it.

[00:17:41] Speaker 07:
Thank you.

[00:17:52] Speaker 04:
Good morning, and may it please the Court, Dan Lenners for the United States.

[00:17:56] Speaker 04:
Appellants cite no case and the government is not aware of any in which any court has suppressed a wiretap.

[00:18:05] Speaker 04:
based on the kind of minor typographical issue, typographical error at issue in two of the wiretaps here.

[00:18:12] Speaker 03:
I have to say, Mr., is it Lennert's?

[00:18:14] Speaker 04:
Lennert's.

[00:18:14] Speaker 03:
Lennert's.

[00:18:15] Speaker 03:
That the characterization of this as a typographical error I think really is stretching it.

[00:18:21] Speaker 03:
I really don't think that does your position makes it as credible as

[00:18:26] Speaker 03:
you would like, because it's not the error on the part of someone typing something up.

[00:18:33] Speaker 03:
It's a failure of including information.

[00:18:35] Speaker 03:
They didn't misspell someone's name or call an AAG, a deputy AAG.

[00:18:41] Speaker 03:
It's not a typographical error.

[00:18:43] Speaker 03:
It's an omission.

[00:18:45] Speaker 03:
It's an omission.

[00:18:45] Speaker 03:
And the problem is, I understand, and we've seen the cases from other jurisdictions that say this is a technical error and we'll overlook it.

[00:18:55] Speaker 03:
The problem for us is that we have precedent in our circuit, the Glover case, which seems to repudiate the analysis that the other circuits have used, which is the technical defect analysis.

[00:19:08] Speaker 03:
And so what's your argument that given that we're not allowed to use a core concerns analysis under section two in our circuit, how do you get us there?

[00:19:21] Speaker 04:
Excuse me, Your Honor.

[00:19:22] Speaker 04:
Glover merely says that if an order is facially insufficient, that it must be suppressed.

[00:19:30] Speaker 04:
It doesn't address the question of what constitutes a facial insufficiency.

[00:19:35] Speaker 04:
And Glover recognizes that there could be space and

[00:19:39] Speaker 04:
We submit that based upon 40 years of precedent and other circuits, there should be space between a perfect order and an order that is insufficient on its face.

[00:19:50] Speaker 04:
This order was not facially insufficient.

[00:19:53] Speaker 04:
It contained all of the statutory requirements.

[00:19:56] Speaker 04:
It made clear that the judge had considered

[00:19:59] Speaker 04:
the application and the materials submitted by the government and had approved that application based upon the fact that the surveillance had been authorized by a deputy assistant attorney general who had that authority under a very specific AG memorandum.

[00:20:15] Speaker 03:
Although it didn't include all of the statutory requirements, did it?

[00:20:18] Speaker 03:
Because under 4D, one of the requirements that has to be in each order is the identity of the person authorizing the application.

[00:20:30] Speaker 03:
And that wasn't in the order.

[00:20:33] Speaker 04:
There were asterisks.

[00:20:34] Speaker 04:
The name wasn't.

[00:20:36] Speaker 04:
The identity was, in terms of their title, the level at the Department of Justice of the person who authorized the application.

[00:20:44] Speaker 04:
a deputy assistant attorney general who was authorized to do so by a specific attorney general.

[00:20:50] Speaker 05:
But counsel argued that there are more than one person who fills that such a slot.

[00:20:57] Speaker 04:
That's correct, Your Honor.

[00:20:58] Speaker 04:
There are multiple people.

[00:21:00] Speaker 04:
The record doesn't establish how many, but we know from the record that at least three different deputy assistant attorneys general authorized the wiretap applications at issue here.

[00:21:11] Speaker 04:
We would point the court to the Ninth Circuit's decision in Stafel, which addressed when an order or an authorization is facially insufficient.

[00:21:21] Speaker 04:
And the Ninth Circuit set forth a test that

[00:21:25] Speaker 04:
It's facially sufficient if, on the basis of the information that appears on the face of the order, it could reasonably be believed that it meets all of the statutory requirements.

[00:21:34] Speaker 01:
So when Congress was concerned about identifying the authorizing official, am I correct in understanding your argument to be that even if

[00:21:50] Speaker 01:
that Congress's concern is satisfied so long as the attorney general title is referred to in the order?

[00:22:03] Speaker 01:
In other words, why would Congress have put that language in the statute if all it meant was that so long as the attorney general or his authorized designee approve the application?

[00:22:19] Speaker 04:
Yes, Sharon.

[00:22:19] Speaker 04:
Chavez discussed why the language was put forth in the statute, and it was to fix responsibility.

[00:22:25] Speaker 04:
And responsibility can be fixed in multiple ways.

[00:22:28] Speaker 01:
And for what purpose?

[00:22:31] Speaker 04:
It appears that in the wake of Watergate and other issues, that they wanted to make sure you could identify the parties responsible for authorizing a particular wiretap application.

[00:22:44] Speaker 04:
There's no question that responsibility was fixed here.

[00:22:46] Speaker 04:
There's no dispute that we know who the Deputy Assistant Attorneys General are who authorize these.

[00:22:53] Speaker 01:
How they change, as you know.

[00:22:55] Speaker 01:
I mean, somebody resigns, gets another job, and we're trying to track down who it is who actually authorizes.

[00:23:05] Speaker 01:
Don't you see any difference?

[00:23:07] Speaker 01:
I mean, I realize 1968 was a very different time in terms of

[00:23:14] Speaker 01:
the attitude about wiretaps.

[00:23:18] Speaker 01:
The war on drugs has changed things, but changed the law.

[00:23:25] Speaker 01:
Let me just put it that way.

[00:23:26] Speaker 01:
But I mean, what's left to the requirement if it doesn't matter if a name is on there, much less whose name?

[00:23:37] Speaker 01:
I mean, suppose it just said a deputy attorney general, Joe Smith.

[00:23:43] Speaker 01:
who is a deputy attorney general, but had nothing to do with this case.

[00:23:48] Speaker 01:
But there is a name on it.

[00:23:49] Speaker 01:
That's what I'm trying to understand in sort of the Supreme Court's point that I was discussing with counsel.

[00:23:55] Speaker 04:
Yes, Your Honor.

[00:23:56] Speaker 04:
Chavez makes clear that identifying an official who could, under the statute, authorize a wiretap.

[00:24:03] Speaker 01:
Who could, even if he didn't.

[00:24:07] Speaker 04:
Yes, which he did not in Chavez.

[00:24:10] Speaker 04:
Nevertheless, that order is not facially insufficient.

[00:24:15] Speaker 04:
And the Supreme Court looked and found that the order at issue in Chavez was actually authorized by the attorney general.

[00:24:24] Speaker 04:
And Chavez, very narrowly, could stand for the proposition, as the Ninth Circuit has recognized,

[00:24:30] Speaker 04:
You simply look to see if there is a potential authorizing official on the face of the order.

[00:24:36] Speaker 04:
But the Ninth Circuit has recognized that Chavez more broadly stands for the proposition that the Supreme Court is concerned about whether

[00:24:44] Speaker 04:
the documents before the district court fixed responsibility.

[00:24:47] Speaker 04:
And here, they clearly did.

[00:24:49] Speaker 04:
Everyone knows.

[00:24:50] Speaker 01:
But do you see any difference?

[00:24:52] Speaker 01:
I understand here what Congress is trying to get at.

[00:24:56] Speaker 01:
Suppose that you have four deputies, and one just signs off on anything.

[00:25:02] Speaker 01:
Everybody knows, take it to Joe.

[00:25:04] Speaker 01:
He'll sign off.

[00:25:06] Speaker 01:
Whereas Jim is a real stickler.

[00:25:11] Speaker 01:
every T has to be properly crossed, every I dotted.

[00:25:15] Speaker 01:
Does Congress care which of those two has authorized?

[00:25:22] Speaker 04:
That's not clear, Your Honor.

[00:25:24] Speaker 04:
The Supreme Court's discussion of fixing responsibility looked at the level of authorization within the Department of Justice.

[00:25:32] Speaker 04:
They discussed the fact that there could be no question in a case where the Assistant Attorney General

[00:25:38] Speaker 04:
was thought by the district court to have authorized the intercept, that if the attorney general himself is the one who did it, that the district court would nevertheless have approved it.

[00:25:48] Speaker 04:
At least in Chavez, the Supreme Court saw Congress's focus on the level of responsibility within the Department of Justice and not the name of the particular individual, which, as this court noted, changes somewhat routinely.

[00:26:01] Speaker 03:
But is the identity of the agency and the person authorizing?

[00:26:05] Speaker 03:
And I think there's a natural understanding that if it's a job title that includes a category of people, that each one of those people can think, well, I have a little anonymity.

[00:26:18] Speaker 03:
Whereas we all know if responsibility is fixed on you by name, if it's an error, you're going to come out and fix it.

[00:26:26] Speaker 03:
If it's your job category, are you going to have

[00:26:29] Speaker 03:
an incentive to come out and fix it and or, I mean I think Judge Rogers was pointing out that people gain, part of the way they gain reputations for being either a stickler or lax is that their name is affixed to work over time and it seems that one of the things that

[00:26:49] Speaker 03:
that the decisions in this area tell us is that Congress was concerned that this not be an institutional, bureaucratic kind of decision, but that it be a decision that people are, you know, putting their reputations on.

[00:27:04] Speaker 04:
And there's no question that that's exactly what occurred here.

[00:27:08] Speaker 04:
The Deputy Assistant Attorneys General signed their own name to the authorization memos.

[00:27:15] Speaker 05:
That takes us to the question of what is the order.

[00:27:19] Speaker 05:
I mean, for certain purposes, it's clear that the order is different from the application.

[00:27:25] Speaker 05:
But to what extent do the application and order travel together?

[00:27:32] Speaker 05:
Under department policy and rules?

[00:27:37] Speaker 04:
As a matter of practice, they are submitted to the district court all as part of the same package, and the district court has them before it at the same time.

[00:27:46] Speaker 04:
So they have the application, the authorization memo,

[00:27:49] Speaker 04:
the proposed order, and then the order to the telecommunications company that's going to assist with the intercept.

[00:27:57] Speaker 04:
These are all together before the district court at the same time.

[00:28:00] Speaker 04:
The district court signs the order, which says it has considered the other materials, including, in this case, the authorization memos that very specifically identified the specific deputy assistant attorney general responsible for authorizing it.

[00:28:14] Speaker 05:
And then it goes into a sealed file of some sort?

[00:28:18] Speaker 05:
When I say it, I mean the whole package.

[00:28:22] Speaker 04:
I don't know how the district court keeps its record keeping.

[00:28:25] Speaker 01:
What happens to the order?

[00:28:28] Speaker 03:
My understanding is that the order alone gets returned to the investigative agency, and the order is a public document.

[00:28:37] Speaker 03:
What about the supporting documentation?

[00:28:39] Speaker 01:
I trust that would remain under seal because of the confidential nature of... Your understanding, counsel, I want to be clear as to what the Justice Department's view is on that.

[00:28:51] Speaker 04:
I would have to ask my colleagues about which documents are returned to the Assistant U.S.

[00:28:56] Speaker 04:
Attorney and the law enforcement agents.

[00:28:58] Speaker 04:
My understanding is that all of the documents remain under seal.

[00:29:02] Speaker 03:
Including the order.

[00:29:03] Speaker 04:
Including the order because otherwise one could figure out who's being wiretapped.

[00:29:08] Speaker 04:
And in this case, they were all under seal at the time appellants filed their brief.

[00:29:13] Speaker 04:
It was only when the US Attorney's Office moved the district court to unseal all of the materials before filing our brief that we then filed the applications, orders, and our brief in the public record.

[00:29:28] Speaker 05:
Would the seal prevent defense counsel from getting access to the backup papers?

[00:29:39] Speaker 04:
My understanding is they were all provided to defense counsel in discovery here.

[00:29:42] Speaker 05:
Well, in this case, but it was the department that caused the seal to be lifted, right?

[00:29:48] Speaker 04:
No, they were all provided to defense counsel in discovery below.

[00:29:51] Speaker 04:
In discovery below, okay.

[00:29:52] Speaker 04:
Which is the basis for their motion before the district court.

[00:29:55] Speaker 04:
I see, okay, okay.

[00:29:56] Speaker 01:
At that point... When the sealed documents are provided to counsel, they're provided solely to defense counsel.

[00:30:05] Speaker 01:
I'm just trying to understand literally what happens to this order.

[00:30:15] Speaker 04:
Your Honor, I'm informed that the application and the order are placed under seal during the course of the investigation, that they are provided to defense counsel after the

[00:30:24] Speaker 04:
investigation itself is unsealed.

[00:30:26] Speaker 04:
In other words, an indictment has returned and the defendants have been arrested and appointed counsel.

[00:30:31] Speaker 01:
So as a practical matter, the judge signs the order.

[00:30:35] Speaker 01:
All the papers are sealed.

[00:30:39] Speaker 01:
The assistant US attorney in the case gets a copy of all the sealed documents.

[00:30:47] Speaker 01:
And what happens in the field?

[00:30:52] Speaker 04:
the Assistant United States Attorney prepares and is signed by the law enforcement agencies.

[00:30:57] Speaker 04:
So there's no reason to get that back from the district court.

[00:30:59] Speaker 04:
The order, once it's signed by the district court, I would assume a copy is given to the Assistant United States Attorney.

[00:31:06] Speaker 04:
And the district court gives its authorization to law enforcement to initiate the wiretap at that time by signing the order, as well as another document that's not in the record here, which is

[00:31:20] Speaker 04:
an order to the communications provider to the degree its assistance is needed as part of the wiretap.

[00:31:28] Speaker 01:
So is your interpretation then sort of no harm, no foul, and that Congress's concern about privacy and setting up a series of hoops

[00:31:48] Speaker 01:
through which the government has to jump successfully.

[00:31:53] Speaker 01:
Does not matter?

[00:31:56] Speaker 04:
It's not that it does not matter, Your Honor.

[00:31:58] Speaker 04:
It's that there's a difference between a perfect order and a facially insufficient order, and that

[00:32:05] Speaker 01:
But you agree we're not talking about typos in the way that Judge Pillard suggested.

[00:32:09] Speaker 01:
Somebody didn't misspell a name or a word.

[00:32:13] Speaker 04:
That's correct, Your Honor.

[00:32:13] Speaker 04:
It was an inadvertent omission of a name that was known to the district court at the time it signed the order.

[00:32:21] Speaker 04:
That is, on the materials in the record that were provided to defense counsel that was never attempted to be hidden.

[00:32:27] Speaker 04:
There's no question that this was a lawful wiretap and that it did dot all the i's and cross all the t's.

[00:32:34] Speaker 04:
It's merely the inadvertent admission of a name that was known to everyone at the time the district court entered the order from the order itself.

[00:32:43] Speaker 04:
And that does not make the order facially insufficient.

[00:32:47] Speaker 04:
By looking at the documents on the face, one would reasonably believe

[00:32:51] Speaker 04:
that the statutory commands had been complied with, and in fact, they had been complied with.

[00:32:56] Speaker 01:
So because Congress was so concerned about privacy, constitutional rights, et cetera, why should this court not require strict compliance instead of allowing sloppiness to prevail?

[00:33:21] Speaker 04:
If this court were to reverse a district court, it would do so in the face of 40 years of every other court who had looked at an issue like this, not suppressing the contents of the wiretap.

[00:33:32] Speaker 01:
Well, I understand your point about Glover creating a circuit split.

[00:33:38] Speaker 01:
But I think, as far as this panel is concerned, we're bound by Glover.

[00:33:44] Speaker 01:
What happened 40 years is irrelevant as far as this panel is concerned.

[00:33:51] Speaker 04:
It's not Glover we're taking issue with, Your Honor.

[00:33:53] Speaker 04:
It's the ultimate outcome of finding that these other courts who have looked at the question, Your Honor asked about

[00:34:00] Speaker 04:
Congress's intent with regard to privacy.

[00:34:02] Speaker 04:
The other courts who have looked at this question have found that part of the reason suppression isn't required is because it wasn't a core concern of Congress's this type of omission from the board.

[00:34:13] Speaker 01:
What I'm getting at is just that this court has rejected that type of analysis.

[00:34:21] Speaker 03:
And for reasons that are rooted in the statute, so even if we were to put Glover aside, the question remains how you can give meaning to subsection two and also have your technical errors exception.

[00:34:41] Speaker 03:
Like what is something that's inadequate on its face, insufficient on its face,

[00:34:47] Speaker 03:
that isn't also just unlawful under subsection one, that would not be excused by the exception you're urging us to adopt.

[00:34:58] Speaker 03:
Like, doesn't it render subsection two a nullity, were we to rule?

[00:35:04] Speaker 04:
No, Your Honor, if the district court omitted any analysis of probable cause from its order, but nevertheless the application set forth sufficient probable cause for the authorization of a wiretap and all the other statutory requirements were complied with, that order would clearly be facially insufficient, but the wiretap itself would not be unlawful.

[00:35:23] Speaker 03:
Why would it be facially insufficient

[00:35:26] Speaker 03:
if this isn't officially insufficient.

[00:35:28] Speaker 03:
You're saying it's skipping one of the requirements of the statute.

[00:35:32] Speaker 03:
And one of the requirements of the statute under, what is it, 4D is that the order identify the person.

[00:35:40] Speaker 03:
And it may be more words that are emitted if probable cause isn't in there, but it's jumping over a category of information that the statute appears to require to be included.

[00:35:50] Speaker 04:
satisfy the statutory requirement in that case because one, looking at the order, wouldn't know from its face that the statute had in fact been completed.

[00:35:58] Speaker 03:
That's true here, too.

[00:35:59] Speaker 03:
You look at the order and you say, well, there's no person identified here.

[00:36:02] Speaker 03:
And I don't know how big of a category the Deputy Assistant Attorney General of the Criminal Division is, but this could be 10 people.

[00:36:11] Speaker 03:
No person has been identified.

[00:36:14] Speaker 04:
I disagree, Your Honor.

[00:36:15] Speaker 04:
I believe that looking at the face of this order, one would reasonably believe that the statutory command had been complied with because the district court said it considered the application, considered the underlying authorization materials, that a deputy assistant attorney general who was clearly known to the district court given that there was an asterisk and merely an inadvertent omission, it's not as though

[00:36:39] Speaker 04:
who had been specifically authorized to exercise that authority by a specific attorney general order.

[00:36:46] Speaker 03:
Why do you say the asterisk makes clear that the court knew who the authorizing deputy assistant attorney general was?

[00:36:54] Speaker 04:
Because the district court referenced that it had considered the underlying materials.

[00:36:59] Speaker 04:
And it noted the order under which the attorney general had authorized that person to authorize intercepts.

[00:37:06] Speaker 04:
that order applies to a limited number of people.

[00:37:09] Speaker 03:
Why doesn't the order, which as you say is typically drawn up by the government, why doesn't the gap that's so obvious with asterisks in it, the fact that that remains in the order assigned, why doesn't that instead make us think the district judge didn't look at this at all?

[00:37:28] Speaker 04:
reason to conclude from this record that the district court didn't consider those materials.

[00:37:31] Speaker 04:
There was a lengthy affidavit which clearly established probable cause.

[00:37:34] Speaker 03:
How do we know though?

[00:37:35] Speaker 03:
These are not procedures that take place on a record.

[00:37:40] Speaker 04:
I believe this court's case law makes clear that they assume that the district court's act

[00:37:46] Speaker 03:
in conformity with the statements they make and their orders, and there's no reason... Well, the statements that the government serves up to them and in order that the government's giving them, as you... I mean, that's how you characterized it.

[00:37:56] Speaker 04:
That the district court nevertheless signs after considering all of the materials.

[00:38:00] Speaker 03:
Right.

[00:38:01] Speaker 03:
And we just have a question mark about that because the district judge knows that asterisks are not a name and shouldn't be in a final document.

[00:38:09] Speaker 03:
So just circling back on the point that we had had about whether the order and the application travel together.

[00:38:17] Speaker 03:
In the application submitted by the government for interceptions

[00:38:26] Speaker 03:
This is at the supplemental appendix, ending up on page 64, the government requests that the order, the application and the accompanying affidavit and interim reports be sealed, except that copies of the orders

[00:38:46] Speaker 03:
in full or redacted form may be served on the FBI, the US attorney, and the service providers as necessary to effectuate the court's order.

[00:38:53] Speaker 03:
So it does seem like the order itself is the operative document that gets separated and circulated as telling people what's going on throughout the investigative team.

[00:39:05] Speaker 03:
Is that right?

[00:39:06] Speaker 04:
That seems like a fair characterization, Your Honor.

[00:39:09] Speaker 03:
Tell me what the test is that you would have us adopt.

[00:39:13] Speaker 04:
We think the Ninth Circuit's test in Staffelt is apt.

[00:39:18] Speaker 03:
The Ninth Circuit is really dealing with a slightly different issue, isn't it?

[00:39:20] Speaker 03:
It's dealing with the sufficiency of the application, not with the facial insufficiency of an order.

[00:39:25] Speaker 04:
The Ninth Circuit applies the same facial insufficiency test to both applications and orders.

[00:39:32] Speaker 04:
And so the test set forth in Staffelt, while that case itself dealt with an application,

[00:39:37] Speaker 04:
broadly use the terms application or orders.

[00:39:40] Speaker 03:
Tell us the test.

[00:39:42] Speaker 04:
I'm sorry?

[00:39:42] Speaker 03:
Tell us the test that you'd like us, like what's the term, like what's the analysis or what's the requirement?

[00:39:48] Speaker 04:
Yes, Your Honor.

[00:39:48] Speaker 04:
An application or an order is facially sufficient if, on the basis of the information that appears on its face, it could reasonably be believed that it meets all the statutory requirements, including the requirement that a duly empowered Justice Department official authorize the application for the particular wiretap being sought unless that the wiretap is warranted.

[00:40:08] Speaker 04:
That's quoted in our brief.

[00:40:10] Speaker 04:
It's the Ninth Circuit Staff Health Decision 451 of 3rd, 578 at 582.

[00:40:17] Speaker 01:
Going back to my question, if we could, when we said in Glover, there is no room for judicial discretion, when I read that, I thought that means this circuit is saying strict conformance with the statutory requirement.

[00:40:39] Speaker 01:
As you've described the process, the application, the affidavit,

[00:40:46] Speaker 01:
a proposed order is submitted to the district court by the Assistant U.S.

[00:40:50] Speaker 01:
Attorney.

[00:40:51] Speaker 01:
Is that correct?

[00:40:52] Speaker 04:
Yes, Your Honor.

[00:40:53] Speaker 01:
Why doesn't the Assistant U.S.

[00:40:55] Speaker 01:
Attorney put the name of the person in the proposed order as opposed to an asterisk?

[00:41:07] Speaker 04:
The Assistant United States Attorney should have.

[00:41:10] Speaker 04:
When the Assistant United States Attorney prepares the application

[00:41:15] Speaker 04:
that and the affidavit and the proposed order, it then is submitted to main justice for ultimate approval.

[00:41:24] Speaker 04:
There's a section within the criminal division called the Office of Enforcement Operations.

[00:41:29] Speaker 04:
They are responsible for ensuring compliance with both the statutory and internal Justice Department requirements.

[00:41:37] Speaker 04:
Once that is signed off by that office, it then goes to a deputy assistant attorney general for his or her approval.

[00:41:44] Speaker 04:
And it is only once that approval is obtained that the materials then go back to the assistant United States attorney who then submits them to the judge.

[00:41:53] Speaker 04:
It is at that point that the assistant United States attorney should then fill in the name that was before then unknown to him or her of the approving officer before submitting it to the court.

[00:42:03] Speaker 04:
That one step.

[00:42:07] Speaker 04:
did not occur in two of the wiretaps at issue here.

[00:42:10] Speaker 01:
One quick question here.

[00:42:12] Speaker 01:
I know your position that the district court erred when it found that the order was facially insufficient.

[00:42:27] Speaker 01:
In Glover, we said that the technical violation on which the district court relied was wrong.

[00:42:37] Speaker 01:
and we reverse that.

[00:42:40] Speaker 01:
Doesn't that limit our ability to adopt the Ninth Circuit's approach?

[00:42:46] Speaker 04:
No, Your Honor.

[00:42:50] Speaker 04:
The district court's finding of facial insufficiency is a legal conclusion that this court reviews de novo.

[00:42:55] Speaker 04:
The factual finding is not in dispute that there was an asterisk in the place of the name.

[00:43:00] Speaker 04:
Glover says that if the court finds facial insufficiency, it must suppress.

[00:43:06] Speaker 04:
Glover leaves open the question at issue here of what constitutes facial insufficiency.

[00:43:11] Speaker 01:
But it rejected the view that the district court's technical notion was a proper way to interpret the statute, didn't it?

[00:43:22] Speaker 04:
It rejected an importation of the core concerns test into the, if you find facial insufficiency, can it nevertheless be a technical error that doesn't require suppression?

[00:43:32] Speaker 04:
It said no, if you find facial insufficiency, suppression is required.

[00:43:36] Speaker 04:
It then went on to say, even if in this case we think that there's a difference between perfection and facial insufficiency, which the government believes there is and the Ninth Circuit has found there is,

[00:43:47] Speaker 04:
The mistake in that case was nevertheless a core concern and wasn't a mere technical insufficiency that would save the application in that case.

[00:43:59] Speaker 04:
If there are no further questions, no.

[00:44:02] Speaker 04:
We would ask that the judgments of the district court be affirmed.

[00:44:04] Speaker 04:
Thank you.

[00:44:08] Speaker 04:
Thank you.

[00:44:08] Speaker 01:
All right, council for, just let me get this on the record, council for?

[00:44:13] Speaker 06:
Savoy.

[00:44:16] Speaker 01:
For whom?

[00:44:17] Speaker 06:
Well, it's actually for all the defendants that are affected by this.

[00:44:20] Speaker 06:
All right, for everyone.

[00:44:25] Speaker 06:
I misspoke, Judge Rogers, in my response to you earlier this morning.

[00:44:28] Speaker 06:
It was the traits case I was relying on.

[00:44:30] Speaker 06:
That's the one where there was a single person who held that position.

[00:44:34] Speaker 01:
Which case?

[00:44:34] Speaker 01:
Traits.

[00:44:35] Speaker 01:
U.S.

[00:44:35] Speaker 06:
versus traits.

[00:44:36] Speaker 01:
Right.

[00:44:38] Speaker 06:
But again, I'm just correcting, you know, I misspoke with the site.

[00:44:42] Speaker 01:
Right.

[00:44:42] Speaker 06:
That's the one.

[00:44:43] Speaker 01:
But we were talking about the same set of circumstances.

[00:44:45] Speaker 06:
Right.

[00:44:46] Speaker 06:
Right.

[00:44:47] Speaker 06:
The ruling is correct.

[00:44:48] Speaker 06:
I just gave you the wrong site.

[00:44:49] Speaker 06:
And Morton was the one that talked about you can't look outside the warrant and incorporate other things in assessing the rear, which is slightly different.

[00:44:58] Speaker 05:
What other things were at issue there?

[00:45:01] Speaker 06:
I frankly don't even recall what was at issue in Morton.

[00:45:04] Speaker 06:
It was not facial sufficiency.

[00:45:05] Speaker 06:
I will concede that.

[00:45:06] Speaker 05:
But it makes a difference whether the outside things

[00:45:10] Speaker 05:
are in the application and supporting memo or just out in the world.

[00:45:17] Speaker 06:
That's probably a fair statement.

[00:45:18] Speaker 05:
To put it more explicitly, the things that go before the judge versus things that don't necessarily go before the judge.

[00:45:25] Speaker 06:
I would agree with you as a general proposition, but I think in determining whether or not an order is facially sufficient, you cannot consider things that are outside the order.

[00:45:34] Speaker 05:
I understand obviously the linguistic argument, but putting aside core concerns, is there any concern manifested in the statute

[00:45:45] Speaker 05:
that is invaded, pronounced, impinged upon by a rule that allows looking at the application and supporting the documents that go to the judge.

[00:45:57] Speaker 06:
I misinterpreted what your question was going to be.

[00:45:59] Speaker 06:
I would say in this case,

[00:46:06] Speaker 06:
If I could make a couple quick points first.

[00:46:08] Speaker 06:
Regarding the core concerns test, that is not applicable here.

[00:46:11] Speaker 05:
Absolutely.

[00:46:11] Speaker 05:
Absolutely.

[00:46:12] Speaker 05:
That's why I said.

[00:46:13] Speaker 05:
And when the government talks... That's why my question was directed to any concern, totally regardless of whether it's core or completely trivial.

[00:46:24] Speaker 06:
I would say the response is yes.

[00:46:26] Speaker 06:
And what is of concern here, you have to look at the history of Title III.

[00:46:33] Speaker 06:
The concerns to be addressed were really well laid out in just this Douglas' dissent in the Chavez-Giordano analysis.

[00:46:42] Speaker 06:
Because when this Title III was put into effect, it was considered such a departure and such an infringement on privacy concerns that all these different

[00:46:52] Speaker 06:
safeguards were imposed.

[00:46:54] Speaker 06:
One was the safeguard that it's not just anybody.

[00:46:57] Speaker 06:
It has to be either the AG or a specialty designated person to make sure they're reviewed.

[00:47:01] Speaker 06:
But the other safeguard was that a report had to be filed by the judiciary listing what warrants were issued and who the

[00:47:11] Speaker 06:
special assistant, who the designated assistant was, so that the public could review these and supervise these, and there would be exactly what Judge Rogers was implying before.

[00:47:21] Speaker 05:
There would be some scrutiny.

[00:47:22] Speaker 05:
So this report is a new thing to me anyway.

[00:47:25] Speaker 05:
So how is this report prepared?

[00:47:29] Speaker 06:
I have no experience in it, and I believe it's repaired by the judges, and it's reported listing every Title III wiretap, and they're supposed to include within it the name of the... Well, I mean, if it's the judge who prepares it, and there's a slot on the form for the authorizing person, would not the judge

[00:47:50] Speaker 05:
look beyond the order.

[00:47:53] Speaker 05:
I understand this is linguistically tricky because it's not on the face of the order, but in filling in that form, wouldn't he go to the supporting documents?

[00:48:02] Speaker 06:
He or she could have access to that, of course.

[00:48:04] Speaker 06:
But in this instance, no report was prepared, I assume, because Judge Kennedy retired before the reports would do that year.

[00:48:11] Speaker 06:
So there is no report.

[00:48:12] Speaker 06:
But the point at issue is the point that Judge Rogers implicitly was making about the additional level of scrutiny that's required.

[00:48:19] Speaker 06:
And that's why the name of the requesting or the authorizing

[00:48:25] Speaker 06:
AG or Deputy AG is so critical here.

[00:48:28] Speaker 06:
And that's why the statute says without it, it's facially insufficient.

[00:48:33] Speaker 06:
If we require it to be there and it's strictly a Section 2 violation, it's facially insufficient.

[00:48:40] Speaker 06:
If it's facially insufficient, the mandatory remedy is suppression.

[00:48:45] Speaker 06:
It's to enforce upon the prosecutors

[00:48:49] Speaker 06:
that level of scrutiny, and so that their actions can be evaluated.

[00:48:55] Speaker 06:
I know we've discussed this in the court concerns, but the prosecutors talked about 40 years of history flying in the face of this decision.

[00:49:03] Speaker 06:
But the 40 years of history and all of those cases cited in their footnote number 11 are all based upon section one on lawfulness.

[00:49:14] Speaker 06:
None of them, from what I've seen, are based on facial insufficiency.

[00:49:18] Speaker 03:
We really don't have, do we, an example of something that would be facially insufficient that wouldn't be excused by the rule that the prosecutor has proposed, do we?

[00:49:28] Speaker 06:
I can't imagine one.

[00:49:29] Speaker 06:
I mean, I think the only example... I mean, I can't imagine there'd be anything that was facially insufficient that wouldn't be... that they wouldn't come up with an argument that was excused because the application covers all the core concerns.

[00:49:39] Speaker 03:
I mean, I think the example was probable cause, but that's not required to be in the order the way the identity of the authorizing person is or the nature and location of the type of communication and the identity of the target.

[00:49:51] Speaker 03:
Those are the things that are required to be in the order.

[00:49:53] Speaker 06:
The judge is supposed to have found those, and they don't necessarily need to list them in their order.

[00:49:57] Speaker 06:
They just have found them based on, assumingly, on the application.

[00:50:03] Speaker 06:
I guess one technical, and I'm trying to remember the case, it was a case where the judge had not signed the order, and it was said it's facially insufficient.

[00:50:14] Speaker 03:
It's in our brief here.

[00:50:15] Speaker 03:
Right.

[00:50:15] Speaker 03:
And the court sustained it, saying that it's a matter of internal court procedure, whether a judge's signature is required or not to make the order effective, but that that's not something that the statute governs.

[00:50:29] Speaker 06:
Exactly, exactly.

[00:50:30] Speaker 06:
I think the argument there was it was technically insufficient on its face because it wasn't signed by the judge and the ruling was it doesn't have to be, essentially.

[00:50:39] Speaker 06:
It doesn't have to have the actual physical signature.

[00:50:41] Speaker 06:
So I guess that's about as close as I could come.

[00:50:44] Speaker 03:
I haven't seen a case that actually would fit within the category of facially insufficient that would not be swept away by the exception.

[00:50:57] Speaker 03:
Or that would not also be invalid under subsection one.

[00:51:01] Speaker 06:
Right.

[00:51:02] Speaker 06:
And that's where you get into the whole issue brought up in Geodano about the surplusage.

[00:51:05] Speaker 06:
That if you apply core concerns under section one, then section two and three become virtually surplusage and virtually meaningless.

[00:51:13] Speaker 06:
So if there's to have any effect, and that's what Glover was so strong on.

[00:51:18] Speaker 06:
You have to read them as having some effect.

[00:51:21] Speaker 06:
If you read them as being encompassed in Section 1 and excused by court concerns, then they basically get wiped out.

[00:51:27] Speaker 06:
And they shouldn't be wiped out.

[00:51:29] Speaker 06:
Congress passed them.

[00:51:31] Speaker 01:
All right.

[00:51:31] Speaker 01:
Thank you.

[00:51:32] Speaker 06:
Anything else?

[00:51:32] Speaker 01:
We'll take the cases under advisement.