U.S. v. Forrester

• Decision Date: 06 July 2007
• Docket Number: No. 05-50493.,No. 05-50410.,05-50410.,05-50493.
• Citation: 512 F.3d 500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Stephen FORRESTER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Dennis Louis Alba, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

512 F.3d 500

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

United States of America, Plaintiff-Appellee, v. Dennis Louis Alba, Defendant-Appellant.

No. 05-50410.

No. 05-50493.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2007.

Filed July 6, 2007.

Amended July 25, 2007.

Second Amendment January 7, 2008.

Benjamin L. Coleman, Coleman & Balogh LLP, San Diego, CA, for defendant-appellant Forrester.

Michael L. Crowley, San Diego, CA, for defendant-appellant Alba.

Todd W. Robinson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. Nos. CR-01-03177-TJW, CR-01-03177-1-TJW.

Before: RAYMOND C. FISHER, RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC AND AMENDED OPINION

ORDER

The amended opinion filed July 25, 2007, at slip opinion 9045-9066, 495 F.3d 1041 (9th Cir.2007), is amended as follows:

At slip op. 9059, 495 F.3d at 1048-49, second full paragraph, line 5: change the sentence beginning "We conclude that these surveillance techniques are constitutionally indistinguishable ..." to "We conclude that the surveillance techniques the government employed here are constitutionally indistinguishable ...".

At slip op. 9060, 495 F.3d at 1049, continuation paragraph, line 8: change the last two sentences in their entirety, beginning with "Analogously ..." and ending with "... Id. at 744." to "Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the "switching equipment that processed those numbers," e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers. Id. at 744."

At slip op. 9060, 495 F.3d at 1049, first full paragraph: change the paragraph beginning with "Second, e-mail to/from addresses ..." and ending at slip op. 9061 with "... enable only the discovery of addressing information.⁶" to: "Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/from addresses of a person's e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses — but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. Like IP addresses, certain phone numbers may strongly indicate the underlying contents of the communication; for example, the government would know that a person who dialed the phone number of a chemicals company or a gun shop was likely seeking information about chemicals or firearms. Further, when an individual dials a pre-recorded information or subject-specific line, such as sports scores, lottery results or phone sex lines, the phone number may even show that the caller had access to specific content information. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.⁶".

At slip op. 9065, 495 F.3d at 1052, second full paragraph, line 6: change the sentence beginning "We also hold that the government's monitoring ... Fourth Amendment purposes and that, ..." to "We also hold that the techniques the government used to monitor Alba's e-mail and Internet activity did not constitute a search for Fourth Amendment purposes and that, ...".

The mandate shall issue immediately in United States v. Forrester, No. 05-50410.

The parties in United States v. Alba, No. 05-50493, may file a petition for rehearing based on the amended opinion.

With these amendments the panel has voted to deny Appellant Alba's petition for rehearing and suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellant Alba's petition for rehearing and suggestion for rehearing en banc, filed August 21, 2007, is

DENIED.

6. Surveillance techniques that enable the government to determine not only the IP addresses that a person accesses but also the uniform resource locators ("URL") of the pages visited might be more constitutionally problematic. A URL, unlike an IP address, identifies the particular document within a website that a person views and thus reveals much more information about the person's Internet activity. For instance, a surveillance technique that captures IP addresses would show only that a person visited the New York Times' website at http://www. nytimes.com, whereas a technique that captures URLs would also divulge the particular articles the person viewed. See Pen Register Application, 396 F.Supp.2d [45,] at 49 [(D.Mass.2005)] ("[I]f the user then enters a search phrase [in the Google search engine], that search phrase would appear in the URL after the first forward slash. This would reveal content....").

OPINION

FISHER, Circuit Judge:

Defendants-appellants Mark Stephen Forrester and Dennis Louis Alba were charged with various offenses relating to the operation of a large Ecstasy-manufacturing laboratory, and were convicted on all counts following a jury trial. They now appeal their convictions and sentences.

Forrester moved to represent himself prior to trial. At the hearing on this motion, the district court carefully warned Forrester of the dangers of self-representation, but did not inform him of the charge against him and told him that he faced 10 years to life in prison whereas he actually faced a potential prison term of zero to 20 years. The omission and the misstatement compel us to hold that Forrester's waiver of his right to counsel was not knowing and intelligent and that the Sixth Amendment was violated when he was allowed to proceed pro se. Accordingly, we reverse Forrester's conviction and sentence.

Alba challenges the validity of computer surveillance that enabled the government to learn the to/from addresses of his e mail messages, the Internet protocol ("IP") addresses of the websites that he visited and the total volume of information transmitted to or from his account. We conclude that this surveillance was analogous to the use of a pen register that the Supreme Court held in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), did not constitute a search for Fourth Amendment purposes. Moreover, whether or not the surveillance came within the scope of the then-applicable federal pen register statute, Alba is not entitled to the suppression of the evidence obtained through the surveillance because there is no statutory or other authority for such a remedy.¹

I. BACKGROUND

Following a lengthy government investigation, Forrester and Alba were indicted on October 26, 2001, and arraigned shortly thereafter. Forrester was charged with one count of conspiracy to manufacture and distribute 3, 4-methylenedioxymethamphetamine ("Ecstasy") in violation of 21 U.S.C. §§ 841(a)(1), 846. Alba was also charged with that offense, as well as with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a), conspiracy to transfer funds outside the United States in promotion of an illegal activity in violation of 18 U.S.C. § 1956(a)(2)(A)(i), (h) and conspiracy to conduct financial transactions involving the proceeds of an illegal activity in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (h). Both defendants pleaded not guilty to all charges.

Forrester is represented by counsel on appeal. He also had legal representation from the time his indictment was filed until October 23, 2002, when the district court heard and granted his motion to represent himself, as well as during some of the post-trial proceedings. At the October 23 hearing, the court repeatedly warned Forrester that defendants who represent themselves rarely succeed. The court said to Forrester, for example, "I want to unequivocally tell you and strongly recommend to you that you don't do this. In most cases it's a disaster," and "in all cases it is not a good idea for a nonlawyer to oppose a lawyer in a criminal trial." Forrester, in turn, repeatedly assured the court that he understood the implications of his decision and wished to proceed pro se. He told the court that he was "aware of the consequences" and that "I'm coherent and I'm literate and I understand what my consequences are." Unfortunately, the court did not apprise Forrester of the charge against him at the hearing, and gave him incorrect information about the potential sentence that he faced. The court said that he faced "a mandatory minimum of ten years in jail and possibly up to life." In fact, Forrester faced no mandatory minimum and a maximum of 20 years in prison.²

The district court held a follow-up hearing on March 7, 2003 to find out how Forrester was coping with self-representation. The court confirmed that Forrester had access to discovery materials, instructed him to be more timely with his motions and rejected his request for the appointment of a...