United States v. Berkos, Daniel ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2294
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ANIEL J. B ERKOS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 148—Wayne R. Andersen, Judge.
____________
A RGUED F EBRUARY 22, 2008—D ECIDED S EPTEMBER 9, 2008
____________
Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
B AUER, 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
2 No. 07-2294
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 pay-
ments 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 inter-
cepts, totaling $7,924.94; as of October 31, 2006, Berkos
was $149,012.56 in arrears.
Sometime in 1996, Berkos moved from Illinois to Cali-
fornia with his girlfriend, Darlene Pepevnik. Debra and
1
Berkos was also charged with conspiracy to avoid support, in
violation of 18 U.S.C. § 371 (Count Two), and making a false
statement to a federal agent, in violation of 18 U.S.C. § 1001
(Count Three). Both counts were dismissed after Berkos
entered his conditional guilty plea to Count One.
No. 07-2294 3
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 resigna-
tion, 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
2
During their divorce proceedings, Berkos told Debra on
numerous occasions that it would be his life’s mission to “beat
the system.”
4 No. 07-2294
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
No. 07-2294 5
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 argu-
ment 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-
3
All charges against Pepevnik were dismissed on April 18,
2007.
6 No. 07-2294
of-district internet service provider located in the Southern
District of Texas. Perhaps inadvertently, Berkos’s argu-
ment presents the question of whether a violation
of Federal Rule of Criminal Procedure 41(b), which dis-
cusses 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 exe-
cuted—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 gov-
ernment failed to argue this in its brief (or at oral argu-
ment, 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
No. 07-2294 7
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 (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 (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 (1995); Kungys v. United States, 485 U.S. 759, 778 (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
8 No. 07-2294
investigation or equivalent State warrant.4
Section 2703(a), however, should not be viewed in
isolation, since it provides that when “a court with juris-
diction 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
4
Shortly after September 11, 2001, § 2703(a) was amended by
§ 220 of the Uniting and Strengthening America by Providing
Appropriate Tools to Intercept and Obstruct Terrorism Act of
2001, PL 107-56 (HR 3162) (the “USA Patriot Act”). Section 220
of the USA Patriot Act made two significant changes to
§ 2703(a), both broadening the government’s ability to obtain
warrants for electronic communications. First, search warrants
could be issued “using the procedures described in the Federal
Rules of Criminal Procedure,” (emphasis added), rather than
“under” those Rules, as was the case prior to § 220. Second,
search warrants could be issued “by a court with jurisdiction
over the offense under investigation,” rather than exclusively by
the court with geographical jurisdiction of the electronic
property sought by the warrant. Berkos inappropriately relies
on United States v. Beaumont, 972 F.2d 553 (5th Cir. 1992), for
the assertion that Rule 41 only authorizes the district in which
the property sought is located to issue a warrant, which was
true in 1992, but is not true in light of § 220. We note that
when Congress alters the words of a statute—as it did in this
case—we presume that it intended to change the statute’s
meaning. United States v. Wilson, 503 U.S. 329, 336 (1992).
However, we need not rely on the extensive legislative history
of the 2001 amendment since, as discussed herein, we can rely
on the plain language of the statute to reach our conclusion.
See Lock, 466 F.3d at 598 (absent clearly expressed Congressional
intent to the contrary, the plain language should be conclusive).
No. 07-2294 9
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 to search for and seize a person or property
located within the district[.]
Berkos does not challenge that the Northern District of
Illinois was the jurisdiction with authority over the
offense under investigation, and rightfully so, since
Berkos’s obligation to pay child support was ordered by
an Illinois court and the investigation of his failure to do
so was conducted in Illinois. Berkos’s disagreement with
the district court’s ruling lies in the § 2703(a) phrase
“pursuant to a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure.” The
problem with Berkos’s argument—that allowing out-of-
district warrants violates the procedures required by
Rule 41(b)—is that Rule 41(b) is a substantive provision,
not a procedural one. Section 2703(a) refers only to the
specific provisions of the Rules of Criminal Procedure,
namely, Rule 41, that detail the procedures for obtaining and
issuing warrants. The word “procedure” is defined as “a
specific method or course of action,” Black’s Law Dictio-
nary, 1241 (8th ed. 2004), or “a particular way of accom-
10 No. 07-2294
plishing something or acting.” Merriam Webster’s Colle-
giate Dictionary, 990 (11th ed. 2003). The common defini-
tion of “procedure” supports the conclusion that § 2703(a)
incorporates only those provisions of Rule 41 that
address the “specific method” or “particular way” to
issue a warrant.5 Moreover, Rule 41(b) is titled “Authority
to Issue a Warrant” and discusses the circumstances as
to when a court may issue a warrant, not the procedures
to be used for issuing the warrant. In fact, the procedures
for issuing a warrant are enumerated at Rule 41(e), which
of course, would apply to § 2703(a). See Fed. R. Crim. P.
41(e). Finally, because § 2703(a) has its own jurisdictional
provision authorizing district courts to issue warrants
only where it has “jurisdiction over the offense,” Rule 41
itself provides that the Rule may “not modify any statute
regarding search or seizure, or the issuance and execu-
5
Furthermore, we note that Congress amended the relevant
language of § 2703(a), striking “under the Federal Rules of
Criminal Procedure” everywhere it appeared and replacing that
language with “using the procedures described in the Federal
Rules of Criminal Procedure.” See PL 107-56, § 220(a)(1). The
word “procedures” was also modified by “described in,” which
further expressed Congress’s intent that only the procedural
aspects of Rule 41 apply to § 2703(a). See id. If all provisions of
Rule 41 (or the Federal Rules of Criminal Procedure, for that
matter) were strictly procedural, the phrase “described in”
would be meaningless. See Gustafson, 513 U.S. at 574-75 (federal
courts should avoid interpreting statutes in a way that renders
words or phrases meaningless or redundant).
No. 07-2294 11
tion of a search warrant in special circumstances.” 6 Fed.
R. Crim. P. 41(a)(1). In sum, Rule 41(b) deals with sub-
stantive judicial authority—not procedure—and thus
does not apply to § 2703(a).
B. Warrant To Search Majestic Mountain Residence
Berkos also argues that the district court erred in failing
to suppress evidence obtained from the search of the
Majestic Mountain residence. Specifically, Berkos asserts
that the affidavit in support of the search warrant ap-
plication failed to establish probable cause that Berkos
occupied the residence. The district court rejected this
argument, finding that the affidavit adequately demon-
strated the connection between the Majestic Mountain
residence, Pepevnik, Berkos, and Berkos’s companies.
When a search is authorized by a warrant, we give
“great deference” to the issuing judge’s conclusion that
probable cause has been established. United States v. Garcia,
528 F.3d 481, 485 (7th Cir. 2008) (quoting United States v.
McIntire, 516 F.3d 576, 578 (7th Cir. 2008)). So long as there
is “substantial evidence in the record” to support the
issuing judge’s probable cause determination, we will
6
We agree with the government that Congress provided such
a “special circumstance” through § 2703(a) since warrants
pursuant to § 2703(a) do not directly infringe upon the personal
privacy of an individual, but instead compel a service provider
to divulge records maintained by the provider for the sub-
scriber.
12 No. 07-2294
defer to that decision. United States v. Curry, No. 07-2455,
___ F.3d ___, 2008 WL 3563636, at *8 (7th Cir. Aug. 15,
2008) (quoting United States v. Koerth, 312 F.3d 862, 865
(7th Cir. 2002)). “[T]he task of the issuing magistrate is
simply to make a practical, commonsense decision
whether, given all the circumstances set forth in the
affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.” Id. (citation omitted).
We can dispose of Berkos’s second argument with
much less effort than the first. Berkos ignores the fact that
there was significant evidence that Berkos’s co-defendant,
Pepevnik, resided at the Majestic Mountain home. The
affidavit for the search warrant alleged that Pepevnik
received mail there through the United States Postal
Service, and that she maintained internet service in her
name at that residence. Because Pepevnik was also
initially charged in this case and because there was sub-
stantial and undisputed evidence that she lived there,
the warrant was supported by probable cause that evi-
dence of the conspiracy to avoid support, such as bank
records showing Berkos’s funds being funneled into
accounts in her name, would be found at the residence.
Such evidence is properly admissible against Berkos
since it is relevant to the existence of the conspiracy.
See Fed. R. Evid. 402; see also United States v. Price, 418 F.3d
771, 779-80 (7th Cir. 2005).
Even if Pepevnik had not been a co-defendant, the
affidavit was sufficient to allow a reasonable person to
believe that there was a strong likelihood that evidence
No. 07-2294 13
of Berkos’s criminal conduct would be found there. Berkos
and Pepevnik lived together for several years before
(according to Pepevnik’s California co-workers) moving
together to Tucson, Arizona. Pepevnik received mail at
the residence, while Berkos had no known mailing ad-
dress. Berkos’s company, C-Level Sales, maintained a
mailbox at a Tucson UPS Store at which both Berkos and
Pepevnik received mail beginning around the same time
as Pepevnik’s move to Tucson, and C-Level Sales paid
the rent for the Majestic Mountain residence. A rea-
sonably prudent person would conclude that Pepevnik
and Berkos maintained a personal relationship and that
Berkos was likely residing with her at the residence
paid for by his company. See United States v. Lake, 500 F.3d
629, 632 (7th Cir. 2007) (reiterating probable cause stan-
dard). Accordingly, there was substantial evidence in the
record to support the issuing judge’s probable cause
determination, and therefore the district court properly
determined that the evidence seized from the Majestic
Mountain residence was admissible.
III. CONCLUSION
For the reasons set forth above, we A FFIRM the district
court’s denial of Berkos’s motions to suppress evidence.
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