                    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
