United States v. Denman ( 1996 )


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  •                     UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
    
    
    
                                          No. 95-40435
    
    
    
    UNITED STATES OF AMERICA,
                                                                          Plaintiff-Appellee,
                                             versus
    JON PAUL DENMAN and
    MELVIS T. DENMAN,
                                                                     Defendants-Appellants.
    
    
    
                           Appeal from the United States District Court
                                for the Eastern District of Texas
                                       November 14, 1996
    Before POLITZ, Chief Judge, JOLLY and BARKSDALE, Circuit Judges.
    POLITZ, Chief Judge:
    
          Jon Paul Denman and Melvis Tyrone Denman appeal their convictions for
    conspiracy to distribute cocaine base. For the reasons assigned, we affirm.
    
                                       BACKGROUND
    
          During an investigation of suspected cocaine trafficking, the Federal Bureau
    of Investigation obtained an order from the United States District Court for the
    
    Eastern District of Texas authorizing a wiretap of two telephone lines at the
    
    Houston home of Kendall Johnson. For 20 days in June 1994 the FBI intercepted,
    monitored, and recorded the calls at an FBI listening post in Nacogdoches, Texas.
    
    The wiretap evidence was filed during the trial of Jon Paul Denman and his cousin,
    Melvis Tyrone Denman, and both were convicted of conspiracy to distribute
    cocaine base in violation of 21 U.S.C. § 846.
    
          Sixteen persons were charged in the conspiracy; all pled guilty except the
    
    Denmans. The magistrate judge set an October 11, 1994 deadline for filing pretrial
    motions for Jon Denman and a November 14, 1994 deadline for Melvis Denman.
    
    A superseding indictment was filed on October 6. On the same day that pretrial
    
    motions were due, Melvis Denman’s court-appointed lawyer filed a motion to
    
    withdraw. He had filed no pretrial motions. On November 23 retained counsel
    sought to enroll for Melvis Denman and filed a motion seeking a continuance and
    revised scheduling order. The court granted the appointed lawyer’s motion to
    withdraw, enrolled new counsel, granted Melvis Denman’s motion for a
    
    continuance on the grounds that his new attorney needed time to prepare a complex
    case, and consolidated the two cases and set them for trial on January 4, 1995. The
    
    court denied the request for a new scheduling order and declined to allow the filing
    of any new pretrial motions, while allowing the withdrawal of appointed counsel,
    enrollment of new counsel, and the continuance of trial of the now consolidated
    
    cases. On December 13, 1994 Jon Denman’s court-appointed attorney was
    
    replaced by retained counsel.
          On January 3, 1995 the Denmans filed motions to suppress the wiretap
    
    evidence, contending that the court in the Eastern District of Texas had no
    
    jurisdiction to order a wiretap on phone lines located in the Southern District of
    
    Texas. The district court denied the motions as untimely because they were filed
    
    
                                             2
    beyond the date set by the court’s previous order and on the eve of trial.
          During voir dire the Denmans objected to the prosecution’s peremptory
    
    challenge of a black woman. Determining that the prosecution had a nonracial
    
    reason for the exclusion, the court overruled the objection. After a defense
    complaint about a conversation which took place between Mike Kelly, an agent
    
    who had worked on the government’s case, and two jurors, the judge conducted a
    
    hearing at which the jurors testified that the three had not discussed anything
    
    concerning the case. The court denied motions for a mistrial. The jury returned
    guilty verdicts. The Denmans timely appealed.
                                       ANALYSIS
    Admissibility of Wiretap Evidence.
    
          After refusing to extend the deadline for filing pretrial motions, the district
    court denied defendants’ motions to suppress the wiretap evidence as untimely,
    
    without consideration of the merits. Fed.R.Crim.P. 12(c) provides that the court
    may set a time for the making of pretrial motions or requests. Rule 12(f) provides
    that the failure of a party to make pretrial motions by the time set pursuant to
    
    Rule 12(c) constitutes waiver, but the court “for cause shown may grant relief from
    
    the waiver.” Under the Omnibus Crime Control and Safe Streets Act (“Title III”),
    “[a]ny aggrieved person in any trial, hearing, or proceeding in or before any court
    
    . . . may move to suppress the contents of any wire or oral communication
    
    intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds
    
    that . . . the order of authorization or approval under which it was intercepted is
    
    
                                             3
    insufficient on its face.” Such motion “shall be made before the trial, hearing, or
    proceeding unless there was no opportunity to make such motion or the person was
    
    not aware of the grounds of the motion.”1
    
             A decision to deny a suppression motion as untimely under Rule 12(f) is
    reviewed for abuse of discretion,2 giving due consideration to the movant’s reason
    
    for missing the relevant deadline and any prejudice the refusal might occasion. 3
    
             The Denmans contend that because the court-appointed attorneys filed no
    
    pretrial motions and the trial court considered Melvis Denman’s retention of a new
    attorney sufficient grounds for continuing the trial, it was unreasonable not to allow
    the new attorneys time to file motions. The government contends that the filing of
    the suppression motions the day before trial was untimely and was an attempt to
    
    abuse the rules. We will assume without deciding that the district court abused its
    discretion when it allowed counsel to enroll and continued the trial, but refused to
    
    extend the scheduling order, even briefly, to allow the newly-enrolled counsel to
    file pretrial motions. We therefore turn to consider whether the district court’s
    error was prejudicial. The only prejudice advanced by the defendants is that the
    
    evidence of the wiretaps should have been suppressed.
    
             The Denmans contend that the wiretap jurisdictionally was defective because
    it was authorized by a judge outside the judicial district in which the subject
    
       1
           18 U.S.C. § 2518(10)(a).
       2
          United States v. Knezek, 
    964 F.2d 394
     (5th Cir. 1992).
      3
       See Wainwright v. Sykes, 
    97 S. Ct. 2497
     (1977); United States v. Elam, 
    678 F.2d 1234
    (5th Cir. 1982); 1 C. Wright, Federal Practice and Procedure § 193.
                                                4
    telephones were located. The wiretap order was issued by a judge in the Eastern
    District of Texas where the calls were monitored and recorded; the tapped
    
    telephones were located in Houston within the Southern District of Texas.
    
             Title III provides that a judge may enter an order “authorizing or approving
    interception of wire, oral, or electronic communications within the territorial
    
    jurisdiction of the court in which the judge is sitting.”4 Intercept is defined as “the
    
    aural or other acquisition of the contents of any wire, electronic, or oral
    
    communication through the use of any electronic, mechanical, or other device.” 5
             The issue whether, for Title III jurisdictional purposes, an interception takes
    place only where the communication is initially seized by law enforcement, is res
    nova for our Circuit. Our colleagues in the Second Circuit, in United States v.
    
    Rodriguez,6 interpreted interception as used in Title III to include both the place
    where the lines are tapped and the place where the communications are heard by
    
    law enforcement. They held that a wiretap order may be issued by a court in either
    jurisdiction. Confronting a fact situation very similar to that in the instant case,
    Rodriguez rejected an argument that orders to wiretap New Jersey telephones were
    
    defective because they were issued by a district judge in New York. The court
    
    found that the location of an interception includes, but is not limited to, the situs of
    the telephone itself. Because the definition of interception encompasses the aural
    
    
       4
           18 U.S.C. § 2518(3).
       5
           18 U.S.C. § 2510(4).
       6
           
    968 F.2d 130
     (2d Cir.), cert. denied, 
    113 S. Ct. 139
    , 140 & 663 (1992).
                                                  5
    acquisition of the contents of the communication, “the interception must also be
    considered to occur at the place where the redirected contents are first heard.”7 The
    
    court reasoned that because aural is defined as “pertaining to the ear or the sense
    
    of hearing,” it follows that “the place where the contents of a wire communication
    are first to be heard and understood by human ears, other than those of the parties
    
    to the conversation, is the situs of an interception within the meaning of
    
    § 2510(4).”8 In a decision interpreting a similarly worded Oklahoma wiretap law,
    
    our colleagues in the Tenth Circuit adopted the Rodriguez holding that the location
    of an interception includes the place where law enforcement officers listened to the
    communication which they intercepted.9
              The Denmans contend that the contents of phone communications are
    
    acquired for Title III purposes only at the time the lines are tapped. They contend
    that United States v. Turk10 and United States v. Nelson11 support the proposition
    
    that interception occurs only where the communication initially was obtained. In
    Turk we rejected an argument that the police officers’ listening to an audiotape
    
    
       7
           Id. at 136.
       8
        Id. (quoting Webster’s New Internat’l Dictionary at 182 (2d ed. 1957). The phrase “or
    other” was inserted after aural in section 2510(4) in 1986 to ensure privacy protection for
    new forms of communication such as electronic pagers, electronic mail, and computer-to-
    computer communications, thus expanding the previous definition that had only applied
    where the contents of a communication could be overheard and understood by the human
    ear. Rodriguez at 136 (quoting 1986 U.S. Code Cong. & Admin. News 3556).
       9
           United States v. Tavarez, 
    40 F.3d 1136
     (10th Cir. 1994).
       10
            
    526 F.2d 654
     (5th Cir.), cert. denied, 
    429 U.S. 823
     (1976).
       11
            
    837 F.2d 1519
     (11th Cir.), cert. denied, 
    109 S. Ct. 82
     (1988).
                                                   6
    which had been made by an arrestee was an illegal interception under Title III. We
    held that an interception “requires, at the least, involvement in the initial use of the
    
    device contemporaneous with the communication to transmit or preserve the
    
    communication.”12 Turk acknowledged, however, without deciding, that “aural
    acquisition” might encompass two activities: the initial acquisition by a device and
    
    the hearing of the communication by the person responsible for the recording.
    
    Turk does not limit the definition of interception to the initial acquisition by a
    
    device.
            In Nelson the Eleventh Circuit held that interception as used in Title III
    “refers to the place where a communication is initially obtained regardless of where
    the communication is ultimately heard.”13 Nelson, however, involved facts which
    
    are the mirror opposite of those in the case at bar: the wiretapped telephones were
    located in the authorizing judge’s jurisdiction but the signals were transmitted to
    
    a law enforcement listening post outside the judicial circuit. Thus, while the
    holding of Nelson is that the initial acquisition is an interception, the court did not
    rule out the possibility that the initial listening to the recording by the intercepting
    
    agent might also be considered part of the interception. In any event, Nelson noted
    
    that territorial jurisdictional limitations did not implicate Congress’s core concerns
    in passing Title III.14
    
    
       12
         Turk at 658 n.3.
       13
         Nelson at 1527.
       14
         Id.
                                               7
            We agree with the reasoning of the Second Circuit and now hold that
    interception includes both the location of a tapped telephone and the original
    
    listening post, and that judges in either jurisdiction have authority under Title III
    
    to issue wiretap orders. As the Rodriguez court noted, this interpretation aids an
    important goal of Title III, to protect privacy interests, by enabling one judge to
    
    supervise an investigation that spans more than one judicial district. “If all of the
    
    authorizations are sought from the same court, there is a better chance that
    
    unnecessary or unnecessarily long interceptions will be avoided.” 15
            Based on the foregoing, we conclude that even if the district court abused its
    discretion in refusing to extend the scheduling order to allow the defendants to file
    pretrial motions, there was no resultant prejudice and the error was therefore
    
    harmless.
    Batson Challenge.
    
            The Denmans challenge the prosecutor’s peremptory excusal of Betty
    Tanner, an African-American. The prosecution explained its action thusly:
            A:    Your honor, I did not strike Ms. Tanner because she is
                  African-American. I struck her because she is from the
                  town of San Augustine. This spring an article critical of
                  [a] San Augustine investigation was released in the New
                  Yorker magazine. I know from my experience that the
                  fallout from the so-called white tornado investigation that
                  there are hard feelings in San Augustine and she is a
                  relative of the individual [who] was investigated in that
                  case, and in view of the law enforcement in San
                  Augustine County does not have a favorable view of the
                  federal government because of that investigation. I know
                  that of my own personal experience. In addition,
    
       15
         Rodriguez at 136.
                                               8
                   Ms. Tanner was single. My own preference is for people
                   who are married and of that type have stability.
             Q:    I thought I did hear her say something where she was a
                   relation to some of the parties that y’all prosecuted.
             A:    She was related to Jeffery Tanner who is now deceased
                   who was a party in that case.
             Q:    What type of party?
             A:    He was investigated at the time. He was not prosecuted
                   because he was already in the state prison at the time the
                   indictments were returned in June or May of 1989.
    
             The court then stated:
                    I find that Mr. Bales has been able to articulate a non-racial
             reason, specifically the investigation that this court takes judicial
             notice of that occurred in San Augustine County and it has created
             hard feelings along with the articles that have been written by the
             citizens of San Augustine condemning law enforcement officers, so
             I’m going to allow his strike to remain.
             An allegation of racial discrimination in the use of peremptory challenges
    
    mandates a three-step inquiry: (1) the defendant must establish a prima facie case
    by raising an inference that the prosecution struck potential jurors because of their
    
    race; (2) the prosecution must articulate race-neutral and reasonably specific
    explanations for each challenged strike; and (3) the trial court must determine
    whether the defendant has proved intentional discrimination.16
    
             We review for clear error the trial court’s finding whether discrimination in
    
    violation of Batson occurred, giving great deference to the district court’s finding
    that the prosecutor’s explanation was credible.17
    
             The Denmans characterize as specious the prosecutor’s explanation that
    
    
      16
        Purkett v. Elem, 
    115 S. Ct. 1769
     (1995); Batson v. Kentucky, 
    106 S. Ct. 1712
     (1986).
       17
           United States v. Wallace, 
    32 F.3d 921
     (5th Cir. 1994).
                                                 9
    Tanner is from a town where the prosecutors conducted a high-profile
    investigation. They further contend that the fact that the juror was a relative of a
    
    target of the investigation is also pretextual because the woman testified that she
    
    was “not really close” to him. We entertain no doubt that a prosecutor may use a
    peremptory challenge to exclude a potential juror with a family relationship to a
    
    person targeted by the same prosecutor in a controversial, much-publicized
    
    criminal investigation. Indeed a challenge for cause would not be inappropriate.
    
    Because the prosecution need only articulate a non-racial explanation for a
    peremptory challenge, the trial court’s implicit finding that the Denmans failed to
    prove intentional discrimination is not erroneous.
    Communication with Jurors.
    
          Jon Denman appeals the district court’s denial of appellants’ motion for
    mistrial based on communications between Mike Kelly, an agent who worked on
    
    the government’s case, and two jurors. On the third day of trial, Melvis Denman’s
    attorney notified the judge that he had observed during the trial
          on at least three, possibly four occasions where during the breaks or
          prior to court convening, and if I’m not mistaken, maybe one time
          after court had let out, that various members of the jury would be
          standing around in a very informal social manner . . . and that Mike
          Kelly, who is a member of the Deep East Texas Drug Task Force who
          has been identified and pointed out by the government in this case as
          an agent who has worked on this case . . . engaged in a conversation
          [with] a woman [who] was on this jury panel.
    
          Upon learning of the matter, the court immediately conducted a hearing
    outside the presence of the jury. Under cross-examination by defense counsel,
    
    Kelly testified that as he was leaving the courthouse during a recess one of the
    
                                            10
    jurors jokingly said to him that it was too early to leave because he did not work
    “bankers’ hours.” Kelly testified that they discussed a state trooper whom the juror
    
    knew who did work “bankers’ hours” giving safety speeches. Kelly testified that
    
    he did not discuss the case with the jurors. Under interrogation by the court the two
    jurors testified that they did not discuss the case with Kelly, but had talked only
    
    about going home that day, about the Department of Public Safety, and about a
    
    state trooper one of them knew. The court instructed the jurors not to talk to
    
    anyone other than the bailiffs, ordered Kelly to remain outside the courthouse until
    the trial ended, and denied the motion for a mistrial.
            We review for abuse of discretion a trial judge’s denial of a motion for
    mistrial based on allegations of improper extrajudicial conduct by jurors. 18
    
            In a criminal case, any private communication, contact, or tampering
            directly or indirectly, with a juror during a trial about the matter
            pending before the jury is, for obvious reasons, deemed presumptively
            prejudicial . . . . The presumption is not conclusive, but the burden
            rests heavily upon the Government to establish, after notice to and
            hearing of the defendant, that such contact with the juror was harmless
            to the defendant.19
    The trial court is required to conduct a hearing to determine the circumstances of
    
    the communication, its impact on the juror, and whether prejudice resulted.20 We
    
    have required a two-step inquiry: (1) whether the challenged interchange was
    about the matter pending before the jury, and (2) whether the defendant was
    
    
       18
         United States v. Burke, 
    496 F.2d 373
     (5th Cir.), cert. denied, 
    95 S. Ct. 229
     (1974).
       19
         Remmer v. United States, 
    74 S. Ct. 450
    , 451 (1954) (citations omitted).
       20
         Smith v. Phillips, 
    102 S. Ct. 940
     (1982).
                                               11
    prejudiced by the discussion.21 In some cases, even when the pending case was not
    discussed, fraternizing between jurors and third parties may prejudice the defendant
    
    and require reversal. An appellate court may order reversal when the trial court
    
    conducted an insufficient investigation to determine whether such communications
    were clearly not prejudicial.22
    
            We conclude that the trial court’s investigation was sufficient to make a
    
    reasonable determination that the communication, while improper, was clearly not
    
    prejudicial.    The testimony of Kelly and the jurors establishes that the
    communication was not about the pending matter and that the contact was
    insignificant enough to eliminate concern that the Denmans might be prejudiced.
    Under examination by defense counsel, Kelly testified that this was the first time
    
    he had spoken with a juror in the case other than to exchange greetings.
            By thoroughly investigating the matter, subjecting Kelly to cross-
    
    examination by defense counsel, cautioning the jury, and banning Kelly from the
    courthouse, the trial judge took effective steps to ensure the impartiality of the jury.
    Under these circumstances, we are not prepared to say that the court’s overruling
    
    of the Denmans’ motion for a mistrial was an abuse of discretion.
    
            The judgments appealed are AFFIRMED.
    
    
    
    
       21
         Burke.
       22
         United States v. Betner, 
    489 F.2d 116
     (5th Cir. 1974).
                                               12