U.S. v. Berkos

• Decision Date: 09 September 2008
• Docket Number: No. 07-2294.,07-2294.
• Citation: 543 F.3d 392
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. BERKOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

543 F.3d 392

UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. BERKOS, Defendant-Appellant.

No. 07-2294.

United States Court of Appeals, Seventh Circuit.

Argued February 22, 2008.

Decided September 9, 2008.

Michelle L. Jacobs (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

John A. Meyer (argued), Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

BAUER, Circuit Judge.

Defendant-Appellant Daniel J. Berkos was charged with, and entered a conditional guilty plea to, willfully failing to pay more than $145,000.00 in child support for the support of his only son, Stuart Berkos ("Stuart"), in violation of 18 U.S.C. § 228(a)(3).¹ Berkos reserved his right to appeal the district court's rulings on two motions to suppress evidence obtained from two searches: one on an internet service provider in Texas, and the second on Berkos's Arizona residence.

I. BACKGROUND

Debra Berkos ("Debra") and Berkos were married on Valentine's Day of 1987 in Illinois. Debra gave birth to their son, Stuart, the next year. The wedded bliss ended shortly thereafter and the couple divorced in 1994. Debra was awarded sole custody of Stuart pursuant to the Judgment For Dissolution of Marriage, and Berkos was ordered to pay $1,019.31 per month in child support. Berkos consistently failed to make child support payments in accordance with the 1994 court order. In fact, Berkos made only one voluntary payment of $1,780.48 in 1996. The only other payments made toward Berkos's support obligation were involuntary Federal Tax intercepts, totaling $7,924.94; as of October 31, 2006, Berkos was $149,012.56 in arrears.

Sometime in 1996, Berkos moved from Illinois to California with his girlfriend, Darlene Pepevnik. Debra and Stuart remained in Illinois. While residing in California, Berkos lived with Pepevnik and worked for various companies, earning more than enough to satisfy his child support obligations, but he continued to avoid making payments.² Between December of 1996 and December of 1998, Berkos worked for Universal Scheduling Company. Berkos routinely deposited his earnings into bank accounts exclusively in Pepevnik's name. Between September of 1999 and March of 2000, Berkos was employed by ESI International. At Berkos's direction, his ESI International paychecks were directly deposited into Pepevnik's bank accounts; he listed her as his wife. Between October of 2000 and May of 2001, Berkos was employed by Conjoin Inc., where his paychecks were again directly deposited into Pepevnik's accounts, and he again represented to Conjoin Inc. that Pepevnik was his wife. While working for another company, Strategic Management Group ("SMG"), in November of 2002, SMG was served with a demand for wage withholding from the State of Illinois for the past due child support obligation. SMG provided Berkos with a copy of the letter on Friday, November 15, 2002. On the following Monday, Berkos submitted a letter of resignation, providing no explanation for his sudden decision to quit.

In Summer of 2005, Berkos and Pepevnik moved to Arizona. Pepevnik told her co-workers in California that she was moving to Tucson with Berkos. In Tucson, Pepevnik got a job with Dillards Department Store. Dillards's employment records stated that Pepevnik's reported home address was 8903 N. Majestic Mountain Drive, in Tucson.

During the government's investigation of Berkos, agents learned that Berkos and Pepevnik operated two companies, C-Level Sales and Sinsinawa, both of which were linked to websites hosted by Reseller-Center.com, of Houston, Texas. Based on that information, on February 10, 2006, the investigating agents applied for and obtained a warrant from a district court judge in the Northern District of Illinois—where the investigation was being conducted— compelling Reseller-Center.com to disclose electronic communications records related to C-Level Sales and Sinsinawa. The information established that Berkos solely operated these companies and had received substantial income from them from 2004 to 2006. The agents also discovered that C-Level Sales began renting and receiving mail at a UPS Mailbox in Tucson in July of 2005, and that C-Level Sales was paying the rent for the residence located a 8903 N. Majestic Mountain Drive.

On March 1, 2006, a criminal complaint was issued against Berkos and Pepevnik for failure to support and conspiring to avoid support, in violation of 18 U.S.C. §§ 228(a)(3) and 371, respectively, and against Berkos for making a false statement to a federal agent, in violation of 18 U.S.C. § 1001.³ A magistrate judge in Tucson, Arizona authorized a search warrant for the Majestic Mountain residence on that same day. On March 2, 2006, agents arrested both Berkos and Pepevnik at their Majestic Mountain residence and executed the search warrant, seizing various documents and items from the home.

II. DISCUSSION

Berkos makes two arguments on appeal: (1) that the district court erred in finding that evidence obtained by the search warrant for the electronic communications of Reseller-Center.com relating to C-Level Sales and Sinsinawa was admissible despite the jurisdictional limitations of Rule 41(b) of the Federal Rules of Criminal Procedure; and (2) that the district court erred in finding that probable cause supported the search warrant for the Majestic Mountain residence. We address each argument in turn.

A. Warrant Pursuant to 18 U.S.C. § 2703(a)

Berkos's first argument on appeal presents the question of whether a magistrate judge in the Northern District of Illinois may properly issue a search warrant ordering the search and production of electronic evidence pursuant to 18 U.S.C. § 2703(a), where the warrant is directed to an out-of-district internet service provider located in the Southern District of Texas. Perhaps inadvertently, Berkos's argument presents the question of whether a violation of Federal Rule of Criminal Procedure 41(b), which discusses authority to issue search warrants, merits invoking the exclusionary rule. In Berkos's opinion, Rule 41(b)'s jurisdictional limitation—that a magistrate with authority within the district in which the warrant is to be executed—renders the warrant for Resellers-Center.com invalid. The district court rejected Berkos's argument, and found the warrant to be proper and the evidence obtained from Reseller-Center.com admissible.

This Court has held that "violations of federal rules do not justify the exclusion of evidence that has been seized on the basis of probable cause and with advance judicial approval." United States v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir.2008); United States v. Trost, 152 F.3d 715, 722 (7th Cir.1998). The remedy of allowing a defendant to go free based on a violation of Rule 41's requirements for obtaining a proper search warrant would be "wildly out of proportion to the wrong." Cazares-Olivas, 515 F.3d at 730. This alone merits affirming the district court's denial of Berkos's first motion to suppress. However, the government failed to argue this in its brief (or at oral argument, for that matter), and thus cannot avail itself of its benefit. Accordingly, we address the merits of Berkos's argument.

In reviewing a district court's decision to deny a motion to suppress evidence, we review its legal conclusions de novo and its factual findings for clear error. United States v. Hicks, 531 F.3d 555, 558 (7th Cir.2008). Berkos's argument presents us with a legal question—an issue of statutory construction—and so we review the district court's decision de novo. See United States v. Henderson, 376 F.3d 730, 731-32 (7th Cir.2006).

Statutory interpretation begins with the plain language of the statute. We "assume that the legislative purpose [of the statute] is expressed by the ordinary meaning of the words used." United States v. Lock, 466 F.3d 594, 598 (7th Cir.2006) (quoting Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982)). Absent clearly expressed Congressional intent to the contrary, the plain language should be conclusive. Id. The language and design of the statute as a whole may also provide guidance in determining the plain meaning of its provisions. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). We avoid interpreting a statute in a way that renders a word or phrase redundant or meaningless. Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 574-75, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995); Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988).

The relevant statute, Title 18 U.S.C. § 2703(a) provides, in pertinent part, that:

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.⁴

Section 2703(a), however, should not be viewed in isolation, since it provides that when "a court with jurisdiction over the offense" issues an out-of-district warrant for the seizure of electronic communications, it must do so "using the procedures described in the Federal Rules of Criminal Procedure." Thus, we must consider the interplay between Federal Rule of Criminal Procedure 41, which discusses the issuance of search warrants, and § 2703(a). Rule 41(b), in pertinent part, reads:

Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant...