United States v. Kenneth Friend

U
              United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 19-3225
                    ___________________________

                         United States of America,

                    lllllllllllllllllllllPlaintiff - Appellee,

                                       v.

                             Kenneth R. Friend,

                  lllllllllllllllllllllDefendant - Appellant.
                                   ____________

                 Appeal from United States District Court
             for the Western District of Missouri - Springfield
                              ____________

                      Submitted: November 18, 2020
                         Filed: March 31, 2021
                             ____________

Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.
                         ____________
COLLOTON, Circuit Judge.

       Kenneth Friend appeals an order of the district court1 denying his motion
to suppress evidence obtained through the government’s interception of his wire and
electronic communications. He argues that the court orders authorizing the
interceptions were insufficient on their face, because they allegedly failed to specify
the identity of the person who authorized the applications for the orders. We
conclude that even if the orders were insufficient, suppression of evidence is not
warranted, because investigators reasonably relied in good faith on the court orders.
We therefore affirm the judgment.

       The appeal arises from a prosecution of Friend for money laundering and
conspiracy to distribute methamphetamine. See 18 U.S.C. § 1956(a)(1)(A)(i); 21
U.S.C. § 846. During an investigation, federal investigators secured five court orders
authorizing the interception of Friend’s wire and electronic communications. After
a grand jury charged Friend, and the district court denied his motion to suppress all
intercepted communications and evidence derived therefrom, Friend entered a
conditional guilty plea. He reserved the right to appeal the order denying his motion
to suppress. The district court then imposed a sentence of 324 months’ imprisonment.

       Title III of the Omnibus Crime Control and Safe Streets Act of 1968 establishes
the procedure for law enforcement to intercept wire, oral, or electronic
communications. See 18 U.S.C. §§ 2510-2523. The statute provides that an order
authorizing the interception of communications “shall specify” several things,
including “the identity . . . of the person authorizing the application” for the order.


Id. § 2518(4)(d). The

statute also provides that an aggrieved person “may move to

      1
      The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, adopting the report and recommendation of the
Honorable David P. Rush, United States Magistrate Judge for the Western District of
Missouri.

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suppress the contents” of an intercepted communication, “or evidence derived
therefrom,” if “the order of authorization or approval under which it was intercepted
is insufficient on its face.”

Id. § 2518(10)(a)(ii).

Friend’s

complaint is that the court orders authorizing interception of his
communications do not include the name of an official who authorized the
applications for the orders. The orders state that the applications were “authorized
by a Deputy Assistant Attorney General, Criminal Division of the United States
Department of Justice, who has been specially designated by the Attorney General of
the United States to exercise power conferred upon him” to authorize an application.

       Section 2516(1) provides that applications may be authorized by, among
others, “any Deputy Assistant Attorney General . . . in the Criminal Division” of the
Department of Justice, if the official has been “specially designated by the Attorney
General.” In Friend’s case, the record shows that one of two Deputy Assistant
Attorneys General in the Criminal Division who were so designated by the Attorney
General—David Bitkower and Kenneth A. Blanco—approved each application. But
although the name of either Bitkower or Blanco was included in each application, the
official’s name was not specified in the orders entered by the court.

      Friend asserts that because § 2518(4)(d) requires an interception order to
specify “the identity . . . of the person authorizing the application,” the orders must
include the name of the authorizing official. As the orders in this case did not do so,
he maintains that each order was “insufficient on its face.” 18 U.S.C.
§ 2518(10)(a)(ii). Friend points to the Supreme Court’s observation in Dahda v.
United States, 

138 S. Ct. 1491

(2018), that § 2518(10)(a)(ii) “covers at least an
order’s failure to include information that § 2518(4) specifically requires the order
to contain.”

Id. at 1498

(citing § 2518(4)(a)-(e)). He also relies on United States v.
Scurry, 

821 F.3d 1

(D.C. Cir. 2016), where the court held that an interception order
was insufficient on its face when it identified the authorizing official as “Deputy

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Assistant Attorney General of the Criminal Division,” and there were five such
officials in the Criminal Division. See

id. at 8-12.

       But even accepting that an order is insufficient on its face if it fails to
“specify . . . the identity . . . of the person authorizing the application,” it does not
necessarily follow that an order must include the name of an authorizing official. The
D.C. Circuit, for example, concluded that an order is sufficient if it “points
unambiguously to a unique qualified officer holding a position that only one
individual can occupy at a time.”

Id. at 8-9.

On that view, an order may specify the
identity of the authorizing person by listing, say, “the Attorney General of the United
States” without naming “Merrick Garland,” even though a reader must look outside
the four corners of the order to discern who was serving in the specified office on the
specified date. The Third Circuit likewise concluded that an order was sufficient
where it identified the authorizing official as “Assistant Attorney General, Criminal
Division, United States Department of Justice.” Said the court: “It makes little
difference in law that the person authorizing an application for interception was
identified by title rather than by name.” United States v. Traitz, 

871 F.2d 368

, 379
(3d Cir. 1989).

       The Fourth Circuit addressed a related question in United States v. Brunson,

968 F.3d 325

(4th Cir. 2020). There, each order identified the authorizing official as
“the Deputy Assistant Attorney General of the Criminal Division of the Department
of Justice who signed off on the application leading to the issuance of the order.”

Id.
at 332.

The court concluded that the orders were not insufficient on their face
because the description led to but one person: a particular Deputy Assistant Attorney
General approved the applications, and his name was included in the applications
submitted to the district court. Therefore, “both the authorizing judge and Brunson
had a description sufficient to readily identify the one official who authorized the
application for the order.”

Id. at 333.

-4-

       The government argues that the orders in this case were sufficient on their face
because they, too, included a description that leads to a specific person who
authorized the applications. Each order stated that the associated application was
“authorized by a Deputy Assistant Attorney General, Criminal Division of the United
States Department of Justice, who has been specially designated by the Attorney
General of the United States to exercise power conferred upon him.” E.g., R. Doc.
987-3, at 3 (emphasis added). Each application, in turn, identified by name a specific
Deputy Assistant Attorney General as the authorizing official, and attached an order
of the Attorney General designating the specified attorney to approve applications.
Thus, as in Brunson, the authorizing judge and the person subject to interception—by
examining the order and the application—could readily identify the official who
authorized the application. Friend counters that Brunson was wrongly decided, either
because an order must include the name of an official to “specify” his “identity,” or
because an order cannot satisfy the statute by identifying the official indirectly
through reference to the application. See 

Brunson, 968 F.3d at 339-41

(Motz, J.,
dissenting).

       We need not resolve whether the orders in this case adequately specified the
identity of the person authorizing the application. Even assuming for the sake of
analysis that the orders were insufficient on their face, suppression of evidence was
not warranted. Because the suppression provision, § 2518(10)(a)(ii), is worded to
make the suppression decision discretionary, and the “legislative history expresses
a clear intent to adopt suppression principles developed in Fourth Amendment cases,”
this court has ruled that the statute incorporates the good-faith exception to the
exclusionary rule adopted in United States v. Leon, 

468 U.S. 897

(1984). See United
States v. Moore, 

41 F.3d 370

, 376 (8th Cir. 1994); see also United States v. Lomeli,

676 F.3d 734

, 742 (8th Cir. 2012). Under the circumstances here, the investigators
acted with an objectively reasonable good faith belief that the court orders were
sufficient.



                                         -5-
       The interception orders in this case were signed between August 26 and
November 4, 2014, and each order authorized interceptions for a period of thirty days.
As of those dates, at least one circuit had ruled that an order that specified “a duly
designated official of the Criminal Division” as the official who authorized the
application “did not violate any substantive requirement of Title III.” United States
v. Fudge, 

325 F.3d 910

, 917-18 (7th Cir. 2003). As discussed, the Fourth Circuit
concluded last year that orders similar to those in this case were not insufficient on
their face, because they described the authorizing official in a way that allowed for
ready identification of a specific person when the orders were considered together
with the applications. 

Brunson, 968 F.3d at 332-33

. Friend cites no authority as of
2014 holding that a comparable order was insufficient on its face. Cf. United States
v. Gray, 

521 F.3d 514

, 526-28 (6th Cir. 2008) (where order identified “no official at
all,” but record showed that a statutorily designated official gave authorization, the
violation was “technical rather than substantive in nature,” and did not require
suppression); United States v. Radcliff, 

331 F.3d 1153

, 1161-63 (10th Cir. 2003)
(concluding that order was insufficient on its face where it “listed by title every
Department of Justice official with legal authority to authorize an application,” but
declining to suppress evidence).

      Given the state of the law in 2014, and even today in light of Brunson, it was
objectively reasonable for investigators to rely on the court orders at issue to intercept
Friend’s communications. Suppression of evidence is therefore not warranted.

      The judgment of the district court is affirmed.
                     ______________________________




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