In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2294

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL J. BERKOS,

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.

____________

ARGUED FEBRUARY 22, 2008—DECIDED SEPTEMBER 9, 2008

____________

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
2 No. 07-2294

Berkos was also charged with conspiracy to avoid support, in 1

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.

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
No. 07-2294 3

During their divorce proceedings, Berkos told Debra on 2

numerous occasions that it would be his life’s mission to “beat

the system.”

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. Between December of 1996 and December of

2

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
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

All charges against Pepevnik were dismissed on April 18, 3

2007.

18 U.S.C. § 1001. A magistrate judge in Tucson, Arizona 3

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-
6 No. 07-2294

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
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

Shortly after September 11, 2001, § 2703(a) was amended by

4

§ 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).

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
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-ofdistrict 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 Dictionary, 1241 (8th ed. 2004), or “a particular way of accom-
10 No. 07-2294

Furthermore, we note that Congress amended the relevant 5

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). 

plishing something or acting.” Merriam Webster’s Collegiate Dictionary, 990 (11th ed. 2003). The common definition 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. Moreover, Rule 41(b) is titled “Authority 5

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-
No. 07-2294 11

We agree with the government that Congress provided such 6

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 subscriber. 

tion of a search warrant in special circumstances.” Fed. 6

R. Crim. P. 41(a)(1). In sum, Rule 41(b) deals with substantive 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 application failed to establish probable cause that Berkos

occupied the residence. The district court rejected this

argument, finding that the affidavit adequately demonstrated 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
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 substantial and undisputed evidence that she lived there,

the warrant was supported by probable cause that evidence 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 address. 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 reasonably 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 standard). 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 AFFIRM the district

court’s denial of Berkos’s motions to suppress evidence.

9-9-08