U.S. v. Forrester

• Decision Date: 05 January 2010
• Docket Number: No. 09-50029.,09-50029.
• Citation: 592 F.3d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Stephen FORRESTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

592 F.3d 972

UNITED STATES of America, Plaintiff-Appellee, v. Mark Stephen FORRESTER, Defendant-Appellant.

No. 09-50029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2009.

Filed January 5, 2010.

Benjamin L. Coleman and Ethan A. Balogh, Coleman & Balogh LLP, Attorneys for defendant-appellant Mark Stephen Forrester.

Karen P. Hewitt, Bruce R. Castetter, Todd W. Robinson, and Stewart M. Young, Attorneys for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding. D.C. No. 3:01-cr-03177-W-2.

Before: CYNTHIA HOLCOMB HALL, THOMAS G. NELSON and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Defendant-Appellant Mark Stephen Forrester (Forrester) appeals his conviction and sentence for conspiracy to manufacture and distribute ecstasy in violation of 21 U.S.C. §§ 846 and 841(a)(1). Forrester and his codefendants operated a large ecstasy laboratory that was under surveillance for over a year before being closed by law enforcement authorities. Forrester represented himself at trial, and was convicted and sentenced to 30 years in prison. We previously remanded Forrester's case based on our finding that Forrester unintelligently waived his right to counsel. On remand, Forrester pleaded guilty, and was again sentenced to 30 years. He raises five issues on appeal. First, he claims that the district court erred by failing to allow him to argue that ecstasy should be categorized as a Schedule III, rather than a Schedule I, controlled substance, and that 21 U.S.C. § 841(b) is unconstitutional. Second, he asserts that he has a present right to accept the government's original plea offer—which he originally rejected— because he had been misadvised by the district court concerning his maximum sentence exposure. Third, Forrester alleges that his conspiracy indictment was unconstitutionally vague. Fourth, he argues that the district court erred in denying his motion to suppress all fruits of the wiretap. Finally, he claims that the district court erred in sentencing him to 30 years in prison.

We affirm Forrester's conviction, but vacate his sentence, and remand for further proceedings consistent with this opinion.

FACTS, PRIOR PROCEEDINGS, AND JURISDICTION

Law enforcement authorities conducted a lengthy investigation into an elaborate conspiracy to manufacture ecstasy. Investigators tracked the conspiracy for over a year using an array of surveillance techniques. They traced chemical purchases, used confidential informants to infiltrate the operation, followed Forrester to Stockholm where he met with chemists, and discovered a clandestine laboratory in Escondido, California. Agents raided the lab and seized large volumes of ecstasy and precursor chemicals.

In October 2001, Forrester and his codefendants were charged with conspiracy to manufacture and distribute ecstasy. On October 23, 2002, the district court held a Faretta hearing to determine whether Forrester was competent to represent himself. The judge found that he was but, during the hearing, the district judge misinformed Forrester that he was facing a sentence of 10-years-to-life, when he was actually facing a sentence of 0-to-20 years. Forrester represented himself from that point in the proceedings until his initial appeal.

On July 3, 2003, the government approached Forrester and his codefendant Dennis Alba (Alba) with a deal. They informed Forrester and Alba that if they did not both plead guilty that same day, the government would file an enhancement pursuant to 21 U.S.C. § 851 requesting that Forrester's maximum sentence be increased from 20 to 30 years. Forrester and Alba both declined the offer and, on July 18, 2003, a jury found Forrester guilty. He was sentenced to 30 years on May 26, 2003. Forrester appealed on May 31, 2003. We found that Forrester had unknowingly and unintelligently waived his right to counsel because the district judge misinformed him regarding his maximum sentence, United States v. Forrester, 512 F.3d 500, 506-09 (9th Cir.2008) (Forrester I), and remanded the case to the district court. On remand, Forrester entered a conditional guilty plea, and was sentenced again to 30 years. He now appeals for the second time.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

STANDARDS OF REVIEW

In addressing Forrester's first claim regarding the classification of ecstasy as a Schedule I substance, we review de novo the district court's construction or interpretation of a statute. See Beeman v. TDI Managed Care Servs., Inc., 449 F.3d 1035, 1038 (9th Cir.2006). The district court's decision to preclude a defendant's proffered defense is also reviewed de novo. See United States v. Batterjee, 361 F.3d 1210, 1216 (9th Cir.2004).

Forrester next argues that his failure to accept the plea was involuntary. The voluntariness of a guilty plea is subject to de novo review. See United States v. Gaither, 245 F.3d 1064, 1068 (9th Cir. 2001).

Forrester also contests the sufficiency of the conspiracy indictment, which we review de novo. United States v. Berger, 473 F.3d 1080, 1097 (9th Cir.2007).

We next address a number of issues with regard to the wiretap application. We review de novo the district court's interpretation of the wiretap statute. United States v. Luong, 471 F.3d 1107, 1109 (9th Cir.2006). A bifurcated standard of review applies to wiretap necessity findings. First, we review de novo whether a wiretap application is supported by a full and complete statement of the facts in compliance with 18 U.S.C. § 2518(1)(c). United States v. Rivera, 527 F.3d 891, 898 (9th Cir.2008). If a wiretap is adequately supported, then we review the district court's necessity finding for abuse of discretion. United States v. Lynch, 437 F.3d 902, 912 (9th Cir.2006).

Finally, Forrester raises three sentencing issues. We review ex post facto challenges to sentencing decisions de novo. United States v. Ortland, 109 F.3d 539, 543 (9th Cir.1997). Similarly, we review de novo whether the district court failed to make sufficient findings. United States v. Carter, 219 F.3d 863, 866 (9th Cir.2000). Whether the method used by the district court to approximate the quantity of drugs was proper under the Guidelines is reviewed de novo, and factual findings related to the capability of a drug operation are reviewed for clear error. United States v. Chase, 499 F.3d 1061, 1068 (9th Cir.2007).

DISCUSSION

Forrester appeals his conviction and sentence. First, he argues that ecstasy should be classified as a Schedule III substance, and that his maximum sentence must be determined by a jury. Second, he asserts that misinformation regarding his maximum sentence rendered his rejection of a plea deal unintelligent. Third, he claims that his conspiracy indictment was unconstitutionally vague. Fourth, he alleges that the district court erred in denying his motion to suppress all fruits of the wiretap. Finally, he claims that his sentence was improper.

I. Controlled Substance Scheduling

The Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., establishes five categories or "schedules" of controlled substances. Ecstasy has been classified as a Schedule I controlled substance since March 23, 1988. See 53 Fed.Reg. 5156 (Final Rule dated Feb. 22, 1988—Schedules of Controlled Substances; Scheduling of 3, 4 Methylenedioxymethamphetamine (MDMA) into Schedule I of the Controlled Substances Act; Remand). Violations involving Schedule I substances carry more severe penalties than those in Schedule III because the drugs have a high potential for abuse and no generally accepted medical benefits.¹ 21 U.S.C. § 812(b)(1). Forrester claims that the district court erred by failing to allow him to present a defense that ecstasy should be categorized as Schedule III rather than as Schedule I, which defense, had it been allowed, would have subjected him to a lower maximum penalty, as set forth in 21 U.S.C. § 841(b)(1)(D). Alternatively, he argues that § 841(b) violates the Fifth and Sixth Amendments because it allows a maximum sentence to be determined by a fact not found by the jury.

A. Collateral Attack on a Scheduling Order

The Attorney General (AG) has designated ecstasy as a Schedule I controlled substance under the CSA.² The CSA allows the AG to schedule a substance on a temporary basis when doing so is "necessary to avoid an imminent hazard to the public safety." 21 U.S.C. § 811(h).³

Forrester argues that the Schedule III definition more accurately describes ecstasy than does the one in Schedule I, and that "the scheduling of ecstasy has been questioned by the medical community." Forrester further argues that denying him the opportunity to argue that ecstasy should be designated a Schedule III controlled substance violates Touby v. United States, 500 U.S. 160, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Specifically, Forrester believes that he has a right to collaterally attack the substance of the scheduling order because Congress has not explicitly foreclosed such review. This is an issue of first impression in this circuit.

In Touby, the petitioners were convicted of conspiring to manufacture "Euphoria," a designer drug that was temporarily placed under Schedule I. 500 U.S. at 162, 111 S.Ct. 1752. The primary question in Touby was whether the AG's power to temporarily schedule a substance violated the non-delegation doctrine. Id. at 164-67, 111 S.Ct. 1752. The Court also considered whether the temporary scheduling statute was unconstitutional because it bars judicial review. Id. at 168-69, 111 S.Ct. 1752. The Court held that (1) direct, pre-enforcement review of a permanent scheduling order is plainly authorized by 21 U.S.C. § 877 and that petitioners wishing to challenge the order can do so when the temporary order becomes permanent, (2) the AG's compliance with his delegated duties may always...