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United States v. Warshak

United States v. Warshak

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Published by Michael Schearer
United States v. Warshak
United States v. Warshak

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Categories:Types, Business/Law
Published by: Michael Schearer on Dec 14, 2010
Copyright:Attribution Non-commercial

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11/22/2012

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RECOMMENDED FOR FULL-TEXT PUBLICATION 
Pursuant to Sixth Circuit Rule 206File Name: 10a0377p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT_________________
U
NITED
S
TATES OF
A
MERICA
,
 
Plaintiff-Appellee,v.
S
TEVEN
W
ARSHAK
(08-3997/4085;
 
09-3176);H
ARRIET
W
ARSHAK
(08-3997/4087/4429);TCI
 
M
EDIA
,
 
I
NC
.
 
(08-3997/4212),
 
 Defendants-Appellants.
X----
>
,-------N
Nos. 08-3997/4085/4087/ 4212/4429; 09-3176
Appeal from the United States District Courtfor the Southern District of Ohio at Cincinnati.Nos. 06-00111; 06-00111-001; 06-00111-2; 06-00111-7S. Arthur Spiegel, District Judge.Argued: June 16, 2010Decided and Filed: December 14, 2010Before: KEITH, BOGGS, and McKEAGUE, Circuit Judges._________________
COUNSELARGUED:
Martin S. Pinales, STRAUSS & TROY, Cincinnati, Ohio, Martin G.Weinberg, Boston, Massachusetts, for Appellants. Benjamin C. Glassman, ASSISTANTUNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
ON BRIEF:
MartinS. Pinales, Candace Crouse, STRAUSS & TROY, Cincinnati, Ohio, Martin G.Weinberg, Boston, Massachusetts, Robert M. Goldstein, Boston, Massachusetts, forAppellants. Anne L. Porter, ASSISTANT UNITED STATES ATTORNEY, Cincinnati,Ohio, for Appellee. Kevin S. Bankston, ELECTRONIC FRONTIER FOUNDATION,San Francisco, California, for Amici Curiae.BOGGS, J., delivered the opinion of the court, in which McKEAGUE, J., joined.KEITH, J. (pp. 94–98), delivered a separate opinion concurring in the result.
1
 
Nos. 08-3997/4085/4087/4212/4429;09-3176
United States v. Warshak, et al.
Page 2
_________________OPINION_________________
BOGGS, Circuit Judge. Berkeley Premium Nutraceuticals, Inc., was anincredibly profitable company that served as the distributor of Enzyte, an herbalsupplement purported to enhance male sexual performance. In this appeal, defendantsSteven Warshak (“Warshak”), Harriet Warshak (“Harriet”), and TCI Media, Inc.(“TCI”), challenge their convictions stemming from a massive scheme to defraudBerkeley’s customers. Warshak and Harriet also challenge their sentences, as well astwo forfeiture judgments.Given the volume and complexity of the issues presented, we provide thefollowing summary of our holdings:(1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-visNuVox, his Internet Service Provider.
See Katz v. United States
, 389 U.S. 347 (1967).Thus, government agents violated his Fourth Amendment rights by compelling NuVoxto turn over the emails without first obtaining a warrant based on probable cause.However, because the agents relied in good faith on provisions of the StoredCommunications Act, the exclusionary rule does not apply in this instance.
See Illinoisv. Krull
, 480 U.S. 340 (1987).(2) The district court did not err in refusing to hold a full-fledged hearing under
Kastigar v. United States
, 406 U.S. 441 (1972), when determining whether governmentagents had improperly used privileged materials seized during a valid search of Berkeley’s headquarters.
Kastigar 
does not apply with full force outside the context of compelled testimony.
See United States v. Squillacote
, 221 F.3d 542 (4th Cir. 2000).(3) The district court did not abuse its discretion by failing to order thegovernment to provide discovery in a different format, as Federal Rule of CriminalProcedure 16 is silent on the issue of the form that discovery must take. Moreover, thegovernment did not duck its obligations under
 Brady v. Maryland 
, 373 U.S. 83 (1963),by providing the defendants with massive quantities of discovery.
See United States v.Skilling
, 554 F.3d 529 (5th Cir. 2009),
vacated in part on other grounds
, 130 S. Ct. 2896(2010). Finally, the district court did not err in refusing to grant the defendants acontinuance so that they could continue examining the discovery materials turned overby the government.
 
Nos. 08-3997/4085/4087/4212/4429;09-3176
United States v. Warshak, et al.
Page 3
(4) The district court did not err in refusing to grant Warshak a new trial basedon an alleged
 Brady
violation, as the purportedly exculpatory material did not rise to thelevel of materiality.
See
 
Kyles v. Whitley
, 514 U.S. 419 (1995).(5) The district court did not err in refusing to grant the defendants a new trial onthe basis of prosecutorial misconduct. Though the prosecution did make a number of improper remarks during its rebuttal argument, the remarks were not flagrant.
SeeUnited States v. Carter 
, 236 F.3d 777 (6th Cir. 2001).(6) The evidence was sufficient to support Warshak’s and Harriet’s respectiveconvictions for conspiracy to commit mail, wire, and bank fraud, in violation of 18 U.S.C. § 1349.
See Jackson v. Virginia
, 443 U.S. 307 (1979). Those convictions aretherefore sustained.(7) The evidence was sufficient to support Warshak’s convictions for mail fraud,in violation of 18 U.S.C. § 1341. Those convictions are therefore sustained.(8) The evidence was sufficient to support Warshak’s and Harriet’s respectiveconvictions for bank fraud, in violation of 18 U.S.C. § 1344. Furthermore, the districtcourt did not err in instructing the jury that, under certain circumstances, the governmentmay prove specific intent to defraud a bank by showing specific intent to defraud a thirdparty.
See United States v. Reaume
, 338 F.3d 577 (6th Cir. 2003). Those convictionsare therefore sustained.(9) The evidence was sufficient to support Warshak’s conviction for conspiracyto commit access-device fraud, in violation of 18 U.S.C. § 1029. That conviction issustained.(10) The evidence was sufficient to support Warshak’s and TCI’s respectiveconvictions for money laundering, in violation of 18 U.S.C. §§ 1956, 1957. Thoseconvictions are affirmed. By contrast, the evidence was insufficient to support Harriet’smoney-laundering convictions. Those convictions are therefore reversed.(11) The evidence was sufficient to support Warshak’s conviction for conspiracyto obstruct an FTC proceeding, in violation of 18 U.S.C. §§ 371, 1505. As aconsequence, that conviction is sustained.(12) The district court did not err in refusing to order the government to revealwhether or not it had conducted any additional surreptitious searches of Warshak’semails or communications. The discovery afforded by Federal Rule of CriminalProcedure 16 is limited to the evidence referred to in its express provisions,
United States v. Presser 
, 844 F.2d 1275, 1285 (6th Cir. 1988), and those provisions do notencompass the information sought by the defendants.(13) The district court failed to provide an adequate explanation of itsdetermination that the defendants should be held accountable for $411 million in losses.

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