CINCINNATI - A federal appeals court said Friday the owner of a company that distributes male sexual enhancement pills had no legal standing to challenge government efforts to obtain his private e-mails.
In a 9-5 decision, the 6th U.S. Circuit Court of Appeals ordered a lower court to vacate its preliminary injunction and to dismiss the constitutional claim made by Steven Warshak, president of Berkeley Premium Nutraceuticals.
Warshak had claimed that the government illegally obtained his e-mails in 2005 while investigating wire fraud, money laundering and other charges against him. Warshak, who was convicted on 93 counts in February, was seeking protection from any future government efforts to access his e-mail.
The majority, in a rare full-court decision, said it could not rule on speculation about what might be sought and rejected Warshak's argument that without a constitutional ruling, he would be exposed to future unconstitutional searches.
Judge Boyce Martin, in the minority dissent, wrote that the ruling gives unwarranted deferential treatment to the government.
"It is but another step in the ongoing degradation of civil rights in the courts in this country," Martin wrote.
Martin Weinberg, a lawyer for Warshak, said Friday he was considering an appeal to the U.S. Supreme Court.
"It was a purely procedural opinion," Weinberg said. "It leaves for another day a ruling on the merits of the Department of Justice's profoundly perilous policy of secretly seizing private e-mails without probable cause and without a search warrant."
Warshak could face more than 20 years in prison when sentenced in August. He and the company were ordered to forfeit cash, homes and cars worth more than $33 million.
The company distributes herbal products alleged to boost energy, manage weight, reduce memory loss and aid restful sleep. But its main moneymaker is Enzyte, which the company claims will improve sexual performance.
Ads for the product feature "Smiling Bob," a caricature with an exaggerated smile.
Federal prosecutors accused the company of bilking customers out of $100 million through a series of deceptive ads, manipulated credit card transactions and refusal to accept returns or cancel orders.
