U.S. v. Denman

• Decision Date: 14 November 1996
• Docket Number: No. 95-40435,95-40435
• Citation: 100 F.3d 399
• Parties: Page 399 100 F.3d 399 UNITED STATES of America, Plaintiff-Appellee, v. Jon Paul DENMAN AND Melvis T. Denman, Defendants-Appellants. United States Court of Appeals, Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 399

100 F.3d 399

UNITED STATES of America, Plaintiff-Appellee v Jon Paul DENMAN AND Melvis T. Denman, Defendants-Appellants.

No. 95-40435

United States Court of Appeals,

Fifth Circuit

November 14, 1996.

John Malcolm Bales, Assistant U. S. Attorney, Lufkin, TX, Traci Lynne Kenner, Assistant U. S. Attorney, Office of the United States Attorney, Tyler, TX. Mike Bradford, US Attorney, United States Attorneys Office, Sherman, TX, for plainitff-appellee.

Ronald D Maines, Maines & Harshman, Charted, Washington, DC., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Texas.

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 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"), "any 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 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 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 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 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...