United States v. Warshak, et al.
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.
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.
Case: 08-3997 Document: 006110815248 Filed: 12/14/2010 Page: 2