United States v. Forrester ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-50410
v.  D.C. No.
MARK STEPHEN FORRESTER, CR-01-03177-TJW
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 05-50493
Plaintiff-Appellee, D.C. No.
v.  CR-01-03177-1-
DENNIS LOUIS ALBA, TJW
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
January 12, 2007—Pasadena, California
Filed July 6, 2007
Before: Raymond C. Fisher, Richard R. Clifton and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Fisher
8069
8072 UNITED STATES v. FORRESTER
COUNSEL
Michael L. Crowley, and Benjamin L. Coleman, San Diego,
California, for the defendants-appellants.
UNITED STATES v. FORRESTER 8073
Todd W. Robinson, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
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 convic-
tion 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 sur-
veillance was analogous to the use of a pen register that the
Supreme Court held in Smith v. Maryland, 442 U.S. 735
(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
8074 UNITED STATES v. FORRESTER
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 For-
rester, 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
1
Alba’s remaining arguments are addressed in a concurrently filed
memorandum disposition. As requested by the parties, we vacate his con-
viction and sentence for conspiracy to manufacture and distribute Ecstasy.
We otherwise affirm Alba’s convictions and sentences, but reduce his
supervised release term from six to five years.
UNITED STATES v. FORRESTER 8075
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
new standby attorney. However, the court again did not
inform Forrester of the charge against him, nor did it correct
its error about his potential sentence. The court’s omission
and misstatement were not corrected at any other point before
trial.
During its investigation of Forrester and Alba’s Ecstasy-
manufacturing operation, the government employed various
computer surveillance techniques to monitor Alba’s e-mail
and Internet activity. The surveillance began in May 2001
after the government applied for and received court permis-
sion to install a pen register analogue on Alba’s computer.
The only data obtained during the first phase of the investiga-
tion were 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 imag-
ing and keystroke monitoring techniques, but Alba does not
2
The maximum was increased to 30 years when, just before trial, the
government filed an information informing the court of Forrester’s prior
felony drug convictions.
8076 UNITED STATES v. FORRESTER
challenge on appeal those techniques’ legality or the govern-
ment’s application to use them.
Forrester and Alba were tried by jury. At trial, the govern-
ment 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 approxi-
mately 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 manufac-
turing Ecstasy, that the defendants first tried to construct the
lab in two other locations before settling on Escondido, Cali-
fornia and that the Escondido lab was located inside an insu-
lated 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
district court sentenced them each to 360 months in prison
and six years of supervised release. Both defendants timely
appealed.
II. STANDARD OF REVIEW
The validity of a waiver of the right to counsel is reviewed
de novo. United States v. Erskine, 355 F.3d 1161, 1166 (9th
Cir. 2004). Conclusions of law underlying the denial of a
motion to suppress evidence are also reviewed de novo.
United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir.
2002).
III. DISCUSSION
A. Waiver of the Right to Counsel
Forrester argues that his waiver of the right to counsel at
the October 23, 2002 hearing was not knowing and intelligent
UNITED STATES v. FORRESTER 8077
because the district court failed to inform him of the charge
against him and misinformed him about the potential sentence
he faced. As a result, Forrester contends, his conviction and
sentence must be reversed. We agree with Forrester as to both
the constitutional violation and the requisite remedy.
[1] Faretta v. California, 422 U.S. 806 (1975), held that a
defendant has a constitutional right to represent himself but
that “the accused must knowingly and intelligently forgo
those relinquished benefits. . . . [H]e should be made aware
of the dangers and disadvantages of self-representation, so
that the record will establish that he knows what he is doing
and his choice is made with eyes open.” Id. at 835 (internal
quotations omitted). This court has gleaned a three-factor test
from Faretta, under which “[i]n order to deem a defendant’s
Faretta waiver knowing and intelligent, the district court must
insure that he understands 1) the nature of the charges against
him, 2) the possible penalties, and 3) the ‘dangers and disad-
vantages of self-representation.’ ” Erskine, 355 F.3d at 1167
(quoting United States v. Balough, 820 F.2d 1485, 1487 (9th
Cir. 1987)). On appeal, the burden of establishing the legality
of the waiver is on the government, id., and “courts indulge
in every reasonable presumption against waiver,” United
States v. Arlt, 41 F.3d 516, 520-21 (9th Cir. 1994) (quoting
Brewer v. Williams, 430 U.S. 387, 404 (1977)). See also
United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994)
(describing the government’s burden as “a heavy one”). Ordi-
narily, only the defendant’s colloquy with the court at the
Faretta hearing is relevant to the waiver analysis. Id. How-
ever, a “limited exception” exists whereby “a district court’s
failure to discuss each of the elements in open court will not
necessitate automatic reversal when the record as a whole
reveals a knowing and intelligent waiver.” Balough, 820 F.2d
at 1488.
[2] Here the district court clearly apprised Forrester of the
“dangers and disadvantages of self-representation” at the
Faretta hearing. It “unequivocally” and “strongly” recom-
8078 UNITED STATES v. FORRESTER
mended against waiving his right to counsel, told him that
“[i]n most cases it’s a disaster” and described in detail the
many unfamiliar tasks he would have to carry out if he took
charge of his own defense. However, the district court failed
to advise Forrester of the “nature of the charge[ ] against
him.” Erskine, 355 F.3d at 1167. There is no mention of the
conspiracy charge in the hearing transcript, let alone any indi-
cation that the court sought to ensure that Forrester under-
stood the charge and grasped that conspiracy is a particularly
complex and confusing allegation to defend against. Further-
more, the district court did not accurately describe the “possi-
ble penalties” faced by Forrester. Id. The court told him that
he faced 10 years to life in prison, whereas he actually faced
the materially different sentence range of zero to 20 years in
prison.
[3] On this record, the government cannot meet its burden
of showing that Forrester’s waiver of the right to counsel was
knowing and intelligent — especially given our case law that
the government has a heavy burden and that we must indulge
in all reasonable presumptions against waiver. See Arlt, 41
F.3d at 520; Mohawk, 20 F.3d at 1484. Of course, Forrester
may have correctly understood the charge against him and the
potential penalties, but the government has failed to prove that
he did so. There is simply no evidence in the Faretta hearing
transcript, which is ordinarily the only part of the record to
which we look, that Forrester was informed of or compre-
hended the charge and penalties. See Mohawk, 20 F.3d at
1485 (“We think Mohawk’s decision to waive his right to
counsel may well have been knowing and intelligent — but
we are not free from doubt. . . . We therefore hold that the
government has failed to carry its burden . . . .”); United
States v. Crowhurst, 596 F.2d 389, 390 (9th Cir. 1979) (per
curiam) (“[A]n accused individual must specifically be made
aware of the charges and their possible penalties and sanc-
tions.”).
[4] The government argues that there was no Sixth Amend-
ment violation because the district court overstated the penal-
UNITED STATES v. FORRESTER 8079
ties that Forrester faced. According to the government, a
defendant’s right to counsel is not thereby violated because he
would have been more likely to waive that right had he
known the actual, lower penalties he faced. The first flaw in
this argument — which the government fails to support with
any legal authority — is that it is not clear how a defendant’s
decision to waive his right to counsel may be affected by
incorrect information about his potential sentence. It may be,
as in Erskine, that a defendant is more likely to waive his
right to counsel when he is told the stakes are lower than they
actually are. On the other hand, as Forrester contends, it may
be that a middle-aged defendant is more prone to roll the dice
with self-representation when he distrusts his lawyer and is
told that, no matter what he does, he will be in jail for at least
a decade if he is convicted. Had Forrester known that the
stakes were lower and that he faced no mandatory minimum
sentence, he may have been more likely to keep his attorney
despite his misgivings about the attorney’s skill and commit-
ment to his case. Cf. United States v. Stubbs, 279 F.3d 402,
411 (6th Cir. 2002) (“When the maximum possible sentence
exposure is overstated, the defendant might well be influ-
enced to accept a plea agreement he would otherwise reject.”)
(internal quotation marks omitted). The causal connection the
government suggests exists between information about one’s
potential sentence and waiver of the right to counsel may be
plausible, but it is far from inevitable.
[5] The second problem with the government’s sentence
overstatement argument is that it is in essence a harmless
error claim. The government contends, though not in so many
words, that even though Forrester was unaware of the actual
penalty he faced, there was no harm because he would have
waived counsel even if he had been properly informed. But
this court has repeatedly rejected harmless error analysis in
the Faretta waiver context. See Erskine, 355 F.3d at 1167
(“[T]he failure to meet the requirements for a valid Faretta
waiver constitutes per se prejudicial error, and the harmless
error standard is inapplicable.”); Mohawk, 20 F.3d at 1484
8080 UNITED STATES v. FORRESTER
(invalid Faretta waiver “requires automatic reversal of a
defendant’s conviction”); Balough, 820 F.2d at 1490; cf.
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since
the right of self-representation is a right that when exercised
usually increases the likelihood of a trial outcome unfavorable
to the defendant, its denial is not amenable to ‘harmless error’
analysis.”). It is thus irrelevant whether the district court over-
stated or understated Forrester’s potential penalty. By materi-
ally misstating the applicable sentence, the court failed to
fulfill its obligation to “insure that [the defendant] under-
stands . . . the possible penalties,” and Forrester’s waiver was
therefore not knowing and intelligent. Erskine, 355 F.3d at
1167.3
The government also invokes the “limited exception” that
allows courts to consider the record as a whole rather than
solely the Faretta hearing transcript when determining the
validity of a waiver. See Balough, 820 F.2d at 1488. How-
ever, this limited exception is meant to be applied only in
“rare cases.” United States v. Harris, 683 F.2d 322, 324 (9th
Cir. 1982); see also United States v. Rylander, 714 F.2d 996,
1005 (9th Cir. 1983) (“It is an unusual case where, absent [a
proper] colloquy, a knowing and intelligent waiver of counsel
will be found.”). In addition, Forrester’s active involvement in
his own defense, although probative, is insufficient to show
that his waiver of the right to counsel was knowing and intel-
ligent. See Balough, 820 F.3d at 1489 (“[T]he mere fact that
a criminal defendant has been repeatedly exposed to the legal
3
Moreover, even if the Sixth Amendment were not violated when a dis-
trict court materially overstates a defendant’s potential sentence at a
Faretta hearing, there is still the issue of the conspiracy charge against
Forrester, whose nature the district court did not explain to Forrester at the
hearing or anywhere else in the record. See United States v. Dujanovic,
486 F.2d 182, 186 (9th Cir. 1973) (“We cannot visualize a less minimal
requirement than the District Court shall not grant a request to waive
counsel . . . without . . . determining on the record that the demand to
waive counsel . . . is competently and intelligently made with understand-
ing of the nature of the charge . . . .”).
UNITED STATES v. FORRESTER 8081
process and has even represented himself before cannot, with-
out more, suffice to support a finding of a knowing and intel-
ligent waiver.”). Finally, the government, both in its briefing
and at oral argument, was unable to point to any evidence in
the record that concretely establishes Forrester’s understand-
ing of the charge against him and potential penalties, nor have
we been able to locate any. Notably, Forrester was not specifi-
cally informed that he was being charged with conspiracy to
manufacture and distribute Ecstasy at any of the three arraign-
ments at which he was present; nor, at the March 7, 2003
follow-up hearing, did the district court correct its error as to
Forrester’s potential sentence or discuss the charge against
him.
[6] We therefore hold that Forrester’s waiver of the right to
counsel was not knowing and intelligent and that the Sixth
Amendment was violated as a result. Because harmless error
analysis does not apply in this context, we have no choice but
to reverse Forrester’s conviction and sentence. Cf. United
States v. Keen, 96 F.3d 425, 429-30 (9th Cir. 1996)
(“Regrettably, given the overwhelming evidence of Keen’s
guilt and the inconvenience a retrial would impose . . . this
discussion appears insufficient. . . . [He] is entitled to a rever-
sal and an opportunity to make an informed and knowing
choice.”).
B. Computer Surveillance
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 then-applicable federal pen regis-
ter statute.4 We hold that the surveillance did not constitute a
4
As mentioned earlier, Alba complains only about the initial surveil-
lance through which the government obtained the to/from addresses of his
e-mail messages, the IP addresses of the websites that he visited and the
total volume of information sent to or from his account. He does not chal-
lenge the more intrusive imaging and keystroke monitoring that subse-
8082 UNITED STATES v. FORRESTER
Fourth Amendment search and thus was not unconstitutional.
We also hold that whether or not the computer surveillance
was covered by the then-applicable pen register statute — an
issue that we do not decide — Alba is not entitled to the sup-
pression of any evidence (let alone the reversal of his convic-
tions) as a consequence.
1. The Fourth Amendment
[7] The Supreme Court held in Smith v. Maryland, 442 U.S.
735 (1979), that the use of a pen register (a device that
records numbers dialed from a phone line) does not constitute
a search for Fourth Amendment purposes. Id. at 745-46.
According to the Court, people do not have a subjective
expectation of privacy in numbers that they dial because they
“realize that they must ‘convey’ phone numbers to the tele-
phone company, since it is through telephone company
switching equipment that their calls are completed.” Id. at
742. Even if there were such a subjective expectation, it
would not be one that society is prepared to recognize as rea-
sonable because “a person has no legitimate expectation of
privacy in information he voluntarily turns over to third par-
ties.” Id. at 743-44. Therefore the use of a pen register is not
a Fourth Amendment search. Importantly, the Court distin-
guished pen registers from more intrusive surveillance tech-
niques on the ground that “pen registers do not acquire the
quently took place (though he does argue that the information obtained
through those techniques should be suppressed as tainted derivative evi-
dence).
Alba did not explicitly move to suppress evidence obtained through the
computer surveillance before the district court. However, both parties have
briefed the constitutional and statutory issues raised by the surveillance,
and the government does not contend that Alba has waived his Fourth
Amendment and statutory claims. See Tokatly v. Ashcroft, 371 F.3d 613,
618 (9th Cir. 2004) (“[I]t is well-established that the government can
‘waive waiver’ implicitly by failing to assert it.”) (internal quotation omit-
ted).
UNITED STATES v. FORRESTER 8083
contents of communications” but rather obtain only the
addressing information associated with phone calls. Id. at 741;
see also id. at 743 (“Although petitioner’s conduct may have
been calculated to keep the contents of his conversation pri-
vate, his conduct was not and could not have been calculated
to preserve the privacy of the number he dialed.”); cf. Katz v.
United States, 389 U.S. 347 (1967) (legitimate expectation of
privacy exists in contents of phone conversation).
[8] Neither this nor any other circuit has spoken to the con-
stitutionality of computer surveillance techniques that reveal
the to/from addresses of e-mail messages, the IP addresses of
websites visited and the total amount of data transmitted to or
from an account.5 We conclude that these surveillance tech-
niques are constitutionally indistinguishable from the use of
a pen register that the Court approved in Smith. First, e-mail
and Internet users, like the telephone users in Smith, rely on
third-party equipment in order to engage in communication.
Smith based its holding that telephone users have no expecta-
tion of privacy in the numbers they dial on the users’ imputed
knowledge that their calls are completed through telephone
company switching equipment. 442 U.S. at 742. 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 these mes-
sages are sent and these IP addresses are accessed through the
equipment of their Internet service provider and other third
parties. Communication by both Internet and telephone
5
Every computer or server connected to the Internet has a unique IP
address. A website typically has only one IP address even though it may
contain hundreds or thousands of pages. For example, Google’s IP address
is 209.85.129.104 and the New York Times’ website’s IP address is
199.239.137.200. See In re Application of the United States of America for
an Order Authorizing the Use of a Pen Register and Trap on [xxx] Inter-
net Service Account/User Name [xxxxxxxx@xxx.com], 396 F. Supp. 2d 45,
48 (D. Mass. 2005) (“Pen Register Application”) (citing government
application that defined “IP address” as a “ ‘unique numerical address
identifying each computer on the [I]nternet’ ”).
8084 UNITED STATES v. FORRESTER
requires people to “voluntarily turn[ ] over [information] to
third parties.” Id. at 744.
[9] Second, e-mail to/from addresses and IP addresses con-
stitute addressing information and reveal no more about the
underlying contents of communication than do phone num-
bers. When the government learns the phone numbers a per-
son has dialed, it may be able to determine the persons or
entities to which the numbers correspond, but it does not
know what was said in the actual conversations. Similarly,
when the government obtains the to/from addresses of a per-
son’s e-mails or the IP addresses of websites visited, it does
not find out the contents of the messages or the particular
pages on the websites the person viewed. At best, the govern-
ment 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. The distinction between mere address-
ing and more content-rich information drawn by the Court in
Smith and Katz is thus preserved, because the computer sur-
veillance techniques at issue here enable only the discovery of
addressing information.6
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 prob-
lematic. A URL, unlike an IP address, identifies the particular document
within a website that a person views and thus reveals much more informa-
tion about the person’s Internet activity. For instance, a surveillance tech-
nique that captures IP addresses would show only that a person visited the
New York Times’ website at http://www.nytimes.com, whereas a tech-
nique that captures URLs would also divulge the particular articles the
person viewed. See Pen Register Application, 396 F. Supp. 2d at 49 (“[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 . . . .”).
UNITED STATES v. FORRESTER 8085
[10] The government’s surveillance of e-mail addresses
also may be technologically sophisticated, but it is conceptu-
ally indistinguishable from government surveillance of physi-
cal mail. In a line of cases dating back to the nineteenth
century, the Supreme Court has held that the government can-
not engage in a warrantless search of the contents of sealed
mail, but can observe whatever information people put on the
outside of mail, because that information is voluntarily trans-
mitted to third parties. See United States v. Jacobsen, 466
U.S. 109, 114 (1984) (stating that warrantless searches of let-
ters and sealed packages are “presumptively unreasonable”);
United States v. Van Leeuwen, 397 U.S. 249, 251-52 (1970)
(mail is “free from inspection . . . except in the manner pro-
vided by the Fourth Amendment,” but postal authorities could
nonetheless detain mail without warrant based on suspicious
appearance and circumstances); Ex parte Jackson, 96 U.S.
727, 733 (1877) (“Letters and sealed packages of this kind in
the mail are as fully guarded from examination and inspec-
tion, except as to their outward form and weight, as if they
were retained by the parties forwarding them in their own
domiciles.”); see also United States v. Hernandez, 313 F.3d
1206, 1209-10 (9th Cir. 2002) (“Although a person has a
legitimate interest that a mailed package will not be opened
and searched en route, there can be no reasonable expectation
that postal service employees will not handle the package or
that they will not view its exterior.”) (internal citation omit-
ted). E-mail, like physical mail, has an outside address “visi-
ble” to the third-party carriers that transmit it to its intended
location, and also a package of content that the sender pre-
sumes will be read only by the intended recipient. The privacy
interests in these two forms of communication are identical.
The contents may deserve Fourth Amendment protection, but
the address and size of the package do not.
Finally, the pen register in Smith was able to disclose not
only the phone numbers dialed but also the number of calls
made. There is no difference of constitutional magnitude
between this aspect of the pen register and the government’s
8086 UNITED STATES v. FORRESTER
monitoring here of the total volume of data transmitted to or
from Alba’s account. Devices that obtain addressing informa-
tion also inevitably reveal the amount of information coming
and going, and do not thereby breach the line between mere
addressing and more content-rich information.
[11] We therefore hold that the computer surveillance tech-
niques that Alba challenges are not Fourth Amendment
searches. However, our holding extends only to these particu-
lar techniques and does not imply that more intrusive tech-
niques or techniques that reveal more content information are
also constitutionally identical to the use of a pen register.
2. The Then-Applicable Pen Register Statute
Alba claims that the government’s computer surveillance
was not only unconstitutional but also beyond the scope of the
then-applicable pen register statute, 18 U.S.C. § 3121-27
(amended October 2001).7 Under both the old and new ver-
sions of 18 U.S.C. § 3122, the government must apply for and
obtain a court order before it can install and use a pen register.
When the surveillance at issue here took place in May-July
2001, the applicable statute defined a pen register as a “device
which records or decodes electronic or other impulses which
identify the numbers dialed or otherwise transmitted on the
telephone line to which such device is attached.” 18 U.S.C.
§ 3127(3). Notwithstanding the government’s invocation of
this provision and application for and receipt of a court order,
Alba maintains that the computer surveillance at issue here
did not come within the statutory definition of a “pen regis-
ter.”
[12] Even assuming that Alba is correct in this contention,
he would not be entitled to the suppression of the evidence
obtained through the computer surveillance. As both the
7
Unless otherwise noted, all citations are to the pre-October 2001 ver-
sion of the pen register statute.
UNITED STATES v. FORRESTER 8087
Supreme Court and this court have emphasized, suppression
is a disfavored remedy, imposed only where its deterrence
benefits outweigh its substantial social costs or (outside the
constitutional context) where it is clearly contemplated by the
relevant statute. See, e.g., Hudson v. Michigan, 126 S. Ct.
2159, 2163 (2006) (“Suppression of evidence . . . has always
been our last resort, not our first impulse.”); United States v.
Lombera-Camorlinga, 206 F.3d 882, 887 (9th Cir. 2000) (en
banc) (citing “the infrequency with which we have allowed an
exclusionary remedy for a non-constitutional harm”). Alba
does not point to any statutory language requiring suppression
when computer surveillance that is similar but not technically
equivalent to a pen register is carried out. Indeed, he does not
even identify what law or regulation the government may
have violated if its surveillance did not come within the scope
of the then-applicable pen register statute. The suppression of
evidence under these circumstances is plainly inappropriate.
Our conclusion is bolstered by the fact that suppression still
would not be appropriate even if the computer surveillance
was covered by the pen register statute. Assuming the surveil-
lance violated the statute, there is no mention of suppression
of evidence in the statutory text. Cf. id. at 883-84 (holding
that suppression of evidence was not an appropriate remedy
for a violation of Article 36 of the Vienna Convention when
nothing in the text of the treaty suggested such a remedy).
Instead, the only penalty specified is that “[w]hoever know-
ingly violates subsection (a)” by installing or using a pen reg-
ister without first obtaining a court order “shall be fined under
this title or imprisoned not more than one year, or both.” 18
U.S.C. § 3121(d). Where the legislature has already specified
a remedy for a statutory violation, here fines and imprison-
ment, “we would ‘encroach upon the prerogatives’ of Con-
gress were we to authorize a remedy not provided for by
statute.” United States v. Frazin, 780 F.2d 1461, 1466 (9th
Cir. 1986) (quoting United States v. Chanen, 549 F.2d 1306,
1313 (9th Cir. 1977)).
8088 UNITED STATES v. FORRESTER
[13] Indeed, two circuits have explicitly held (and we have
implied) that evidence obtained in violation of the pen register
statute need not be suppressed. See United States v. Fregoso,
60 F.3d 1314, 1320 (8th Cir. 1995) (“[T]he statutory scheme
[of the pen register statute] does not mandate exclusion of evi-
dence for violations of the statutory requirements.”); United
States v. Thompson, 936 F.2d 1249, 1249-50 (11th Cir. 1991)
(“We hold that information obtained from a pen register
placed on a telephone can be used as evidence in a criminal
trial even if the court order authorizing its installation does
not comply with the statutory requirements.”); cf. United
States v. Butz, 982 F.2d 1378, 1383 (9th Cir. 1993) (refusing
to suppress evidence obtained in violation of state pen register
statute). The statutory text, our general reluctance to require
suppression in the absence of statutory authorization, other
circuits’ holdings and our own indirect precedent all therefore
lead us to conclude that suppression is inappropriate even if
the computer surveillance came within the scope of the then-
applicable pen register statute.
Finally, even if suppression were a valid remedy, any error
in not excluding evidence was harmless. The evidence
obtained through the computer surveillance was never intro-
duced at trial and was used only as a minor portion of the
government’s application for a court order authorizing imag-
ing and keystroke monitoring. There was more than enough
other evidence in that application to generate probable cause
even if the to/from addresses of Alba’s e-mails, the IP
addresses he accessed and the volume of data transmitted to
or from his account had been suppressed. The discussion of
the computer surveillance spanned only four pages of the 45-
page supporting affidavit for the application, and revealed
only that Alba had sent e-mails to Forrester and accessed cer-
tain chemicals websites. The remainder of the affidavit
included extensive — and more incriminating — evidence
obtained through physical surveillance, conventional pen reg-
isters, wiretaps and cooperating witness statements. Much of
this other evidence predated the start of the computer surveil-
UNITED STATES v. FORRESTER 8089
lance, and there is no indication that evidence obtained
through the computer surveillance was used to obtain authori-
zation for any of the other surveillance techniques discussed
in the affidavit. See Nix v. Williams, 467 U.S. 431, 443-44
(1984) (warrant based in part on tainted evidence still valid if
there were independent sources that created probable cause).
IV. CONCLUSION
We reverse Forrester’s conviction and sentence because his
waiver of the right to counsel was not knowing and intelli-
gent. As requested by the parties, and for the reasons set forth
in the concurrently filed memorandum disposition, we vacate
Alba’s conviction and sentence for conspiracy to manufacture
and distribute Ecstasy. We also hold that the government’s
monitoring of Alba’s e-mail and Internet activity was not a
search for Fourth Amendment purposes and that, whether or
not the monitoring came within the scope of the then-
applicable pen register statute, Alba is not entitled to the sup-
pression of evidence obtained through the monitoring.
Accordingly, we affirm Alba’s other convictions and sen-
tences, meaning that his prison term remains 360 months
while his supervised release term is reduced from six to five
years.
Forrester’s conviction and sentence are REVERSED.
Alba’s convictions and sentences are AFFIRMED IN PART
AND REVERSED IN PART.