Citation Edit

United States v. Forrester, 512 F.3d 500 (9th Cir. 2007) (full-text).

Factual Background Edit

During the investigation of Mark Forrester and Dennis Alba’s ecstasy manufacturing operation, the government employed various computer surveillance techniques to monitor Alba’s e-mail and internet activity. The surveillance began after the government applied for and received court permission to install a pen register analogue known as a "mirror port" on Alba’s account with his internet service provider. The mirror port was installed at the internet service provider’s connection facility and enabled the government to learn the to/from addresses of Alba’s e-mail messages, the IP addresses of the websites that Alba visited and the total volume of information sent to or from his account. Later, the government obtained a warrant authorizing it to employ imaging and keystroke monitoring techniques.

Trial Court Proceedings Edit

Following a lengthy government investigation, Forrester and Alba were indicted on and arraigned shortly thereafter. Forrester was charged with one count of conspiracy to manufacture and distribute ecstasy. Alba was also charged with that offense, as well as with engaging in a continuing criminal enterprise, conspiracy to transfer funds outside the United States in promotion of an illegal activity, and conspiracy to conduct financial transactions involving the proceeds of an illegal activity. Both defendants pleaded not guilty to all charges.

Prior to trial, Forrester insisted on representing himself and stated that he understood the implications of his decision and wished to proceed pro se. The trial court properly warned him of the dangers of self-representation, but did not inform him of the charges against him and erroneously told him that he faced 10 years to life in prison, where he actually faced a potential prison term of 0 to 20 years.

Forrester and Alba were tried by jury. At trial, the government introduced extensive evidence showing that they and their associates built and operated a major ecstasy laboratory. Witnesses described the lab as "very, very large," and seized documents show that it was intended to produce approximately 440 kilograms of ecstasy (and $10 million in profit) per month. The government also presented evidence that Alba purchased precursor chemicals for ecstasy, that Forrester met with a Swedish chemist in Stockholm to learn about manufacturing ecstasy, that the defendants first tried to construct the lab in two other locations before settling on Escondido, California and that the Escondido lab was located inside an insulated sea/land container and contained an array of devices and chemicals used to make ecstasy. The jury convicted Forrester and Alba on all counts. The trial court sentenced them each to 360 months in prison and six years of supervised release. Both defendants appealed.

Appellate Court Proceedings Edit

Forrester argues that his waiver of the right to counsel was not intelligent because the trial court failed to inform him of the charge against him and misinformed him about the potential sentence he faced. He contends that, as a result, his conviction and sentence must be reversed. The appellate court held that his waiver of the right to counsel was not knowing and intelligent and that the Sixth Amendment was violated when he was allowed to proceed pro se.

Alba contends that the government’s surveillance of his e-mail and internet activity violated the Fourth Amendment and fell outside the scope of the federal pen register statute. The appellate court held that the surveillance techniques the government employed were constitutionally indistinguishable from the use of a pen register to obtain telephone numbers called from a suspect's number. The information did not reveal more about the underlying contents of communication than telephone numbers.

Whether or not the surveillance came within the scope of the federal pen register statute, Alba was not entitled to the suppression of the evidence obtained through the surveillance, because there was no statutory or constitutional authority for such a remedy. Last, even if suppression were a valid remedy, the appellate court held that any error in not excluding evidence was harmless as the evidence obtained through the computer surveillance was never introduced at trial and was used only as a minor portion of the government’s application for a court order authorizing imaging and keystroke monitoring.

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