so i would focus in initially both on my initial argument and i think the most important issue here and that's the computer surveillance that the government called a pen words to representing mr alba alba that's right it was actually his computer that that initially was taxed and that's essentially what happened i could just as easily call what they did they are a liar tap as the government calling it a pen register and that is pretty much the crux of the issue here is the constitutional dimension involved in this new electronic age where everybody is using e mails to communicate and how much  apply the government relies on falling back on on the decision twenty five year old decision concerning telephones the now somewhat archaic landline telephone technology and that and the decision was very specific to that in very narrowed in that regard and in fact it was in reaction to that decision that the congress passed legislation to make the government go in and make a showing before they could just automatically put these pen registers on your contention then counsel look at the analogy between penn registers and what happened here is is is an error is an error absolutely that and why do you think ok well several reasons first of all the definition of a pen register first defined very narrowly by the supreme court in smith versus maryland when they said the amendment doesn't apply secondly in the legislation that congress then passed and limited it specifically to telephones and the communication that goes on the telephones and of course that was a big part of the rationale behind the decision was the fact that it's just telephone numbers that a person would not have an expectation of privacy in just putting a number out in order to connect with someone else unlike any e mail where a person certainly has an expectation of privacy as to where it's going and in this case also where they're going on the internet which is part of picks up numbers dialed right well that'll then take a rocket scientist to go through where that number where it's gone where it's gone exactly and if the difference between that and an e mail ok the difference is first of first of all as to the e mail we don't know what information was sent out there if the declaration that was filed by the computer expert a former law enforcement officer in this area was that the information now contains among other things information as to potentially the subject matter of what was there who is there was to to see and then also this was not just limited to e mails this was also internet sites that went on both in the declaration and then the only thing we know which was in the warrant application that's all we know about what was sniffed out but as pointed out in the declaration once again an entire this is not a child porn case but a child porn case could be made out by the addresses of the pages that they went to all they do is go to those pages and show that there was child pornography the only if a pen register pick possibility that could arise except that all of those that we know of require some of that additional benefit cation and they require a credit card or something like that it's not just the number there you could accidentally dial that you wouldn't be able to do it in that regard  although there is somewhat of the analogy but i don't think that was foreseen by the supreme court in saying that the fourth amendment not apply in that situation the concept is that these are kind of general things they're available in the public sector i mean you can people can buy phone numbers people can buy e mail lists and do like every mass market or print in town does that what expectation of privacy your client had that's any different than the declaration spells it out as to what could be now can you point me to anything in the record that would help me understand what more than the e mail appeared what what what did they find the specific thing would be the excerpts of record of ours page fifty two through sixty sixty two which is mr mccain's declaration who as i pointed out is a former law enforcement who worked in the in the the packets that they travel in packets and the information is there i think it's it's very likely that included in that was also the subject matter  are we talking about with the expectation of privacy so i know when i'm going into the internet this new age internet i'm revealing one heck of a lot of stuff don't i voluntarily give up any expectation of privacy well i have no idea who you know when i go out on the internet maybe you foolish to do so but i don't do it with any x but i say i  now when emails are properly come about in discovery through warrants and through probable cause hearings and things like that people put all kinds of information from very private to trade secret information to  a reasonable expectation i believe it is and i and why would people put all of these are to put it in other words but the packets are what are you saying because the packets go beyond what is a good content of the email i don't know because i didn't even get the affidavit or the copy of the warrant that was denied to me it is opined that that's what happened based on the typical software that the experts fizzy clee go to the internet provider and download in what's called a mirrored port whereas where all the information that's coming from the computer when it goes through the initial internet provider the person that's providing you service goes onto a separate hot hard drive for the government so what you're saying basically is that there's the potential anyway on the record that we have it that going beyond a pen register is actually intercepting the conte well there's no doubt they do intercept the content but then they use software at least according to the represent representations of the government they use software to ferret out the content directly imbedded into into the e mail  that's what has been represented by the government you know you know i'm still focused quite frankly if the court is going is there a problem maybe if we get down further down the road but i'm just focusing in on whether even if they do the filtering correctly and even if it's all that is up there that this is not a pen register this is not what we refer to as a pen register that and specifically of course it's called a pen register by the government specifically because to get the fourth amendment out of the way  get out in other words you're saying it's beyond a pen register even if they don't get into the body of the absolutely and in fact the little bit of case law that's out there i really think this is a first impression but in in  areas around the world we're feeling our way through it cell phones have come about that they have curtailed the right for example to determine the location of a person which they can do based on the cell phone where where the person is using the cell phone that is a legitimate reasonable expectation of privacy as to where you're using the cell phone without having a proper warrant in order to to do that and that's basically what we're asking for it shouldn't be  would obviously have been i'm saying obviously if it's understated the defendant's going to perhaps be lulled into the notion this the stakes art is great in this case the error was on the side of overstating it which one would think would be more in the line of causing him to think very seriously before he would decide to run that risk going to the penalty floor so i know there's no gives the defendant you know a defendant who's looking at zero to twenty years like mr forrester was could potentially set himself well you know if i plead guilty and ask for mercy from the court i may get it not such a bad sentence and i'm fifty some odd years old and maybe i'll outperform sixty or somewhere around there and i can still have the rest of my life if you told him he's looking at ten to life the odds are a lot higher he's going to save himself there's no way i'm getting out of jail for at least ten years and maybe all the way for the rest of my life i'm going to take the take the risks and go to trial so i think it's important that i support an argument that leads to i didn't plead guilty because i was misinformed but your client hasn't made that protest the only effect that's been offered is it's on his selection of whether or not to represent himself or whether a change have counsel and i just don't understand how the overstatement but leave the defendant to the wrong decision on that in the point of this colloquy among other things they want to to try discourage defendant from electing to represent himself how does overstatement cause a problem with that well i think i first i think the inquiry is whether the defendant made a decision knowingly intelligently the inquiry shouldn't be would just clients not complaining about that your client's not saying gee i went to trial when i wouldn't if i hadn't been misinformed by the court and that's potentially appealable if you were that's not an appeal being brought by your client your client is complaining here with regard to decision he didn't know what the penalties were and he was incorrectly told one penalties but even if the court says well we're not the penalties one we're not troubled by because it was an overemphasis and i think the court should be troubled by it he still is in a vase the nature of the charges at all he's been around the block he knows what's going on but the case law makes it clear that that's not sufficient to establish a no one intelligent waiver to establish that the defendant understood the nature of the charges in and one thing i do want to say  established law to know that you have to advise the defendant of these three things and you have to get the penalties correct and that just wasn't done in this case and the law is that when it's not done correctly automatic reversal is required and  it's our contention that the judge should be right that the defendant when you're making and know an intelligent decision the basic thing is what is that what is the penalties i'm facing the defendant should understand that whether it's here too much or you're too little i mean i guess the flip side would be must reverse i believe that erskine in the other cases in this circuit say that if the three if those three elements are not established reversal is required now there isn't a rare exception which allows the court to look at the entire record colloquy to see what the defendant understood at the time but if those three factors are not covered and the rest of the record before in this race in these where cases arrest the record warrant beforehand doesn't reveal an understanding i don't want you falling asleep during the government's arguments  you think that's highly unlikely good morning your honor scott robinson i'm in the system united states attorney in the southern district of california i represent united states in this appeal i'll cover them in the sequence that they were covered by my colleagues first with respect to the computer intercept i think it's important to clarify what exactly happened during the course of this investigation and the record bears this out it was a two step process the first step was that the united states government applied for received from chief judge hocked in the southern district of borneo pursuant to the pen register statute eighteen united states code section thirty one twenty seven a pen register on mr al those computer and that pen register was limited in terms of the information that was obtain that pen register was obtained by the united states government on may third of two thousand and one limited information derived from that pen register w then put into a title three affidavit wherein the government sought and obtained a court order pursuant to title three that is eighteen united states code section twenty five eighteen full blown electronic intercepts authority on that very same ip address that is the computer belonging to mr alba so there was a two step process and i think the process is being blurred by counsel for mr alva the first part of that process the pen register process the only information being intercepted by the united states government at sept fourth in the record was address the information that is who is communicating with mr album via e mail the total amount of information being passed not the content of that information just the volume of information and that's analogous to the duration of a telephone call when you have a pen register you get the number called or the number being dolled in on a trap and trace in this case we had the address to which e mail was being sent and the address from which the mail was being sent and the duration of the call that is the functional equivalent of the duration of the call the amount of information being communicated now i agree with the court position that address and information with respect to e mail is akin to telephone numbers address and information the third thing that was being intercepted pursuant to that pen register authority was the ip the internet protocol addresses of the websites being accessed from mr albus computer that is he went to chemical sites to purchase chemicals for the manufacturing of ecstasy he went to chemical sites order laboratory equipment and again it was only after the fact that the government obtained full blown title three authority to intercept the content of the electronic communications to and from that computer that it became evident was the purpose of going on to those sites were so what we were getting during the initial phase that is may third through july when the pen register was in effect was only the address being information and as a legal matter that information is absolutely indistinguishable from that type of information  does not implicate fourth amendment concerns under the pen register statute for example if mr alba communicated with chem finder dot com you get an ip address and all of these terms are defined in the government  the government papers at the excerpts of court record page fifty four through fifty seven and these are unique and unique terminology time stand what we had was a pen register on an ip address that is a sequence of numbers that identifies this computer when it communicates with the internet and so what we were getting were internet sites that were being accessed from that computer only through resolution of those ip addresses communicating with mr abbott's computer were we able to learn what sites he was going to so you got numbers not names exactly it's when when we have a pen restaurant a telephone we get the telephone number we then have to go to a database to find out who the subscriber to that telephone number is it's no different from getting an ip address communicating with the target computer and then going online and resolving that ip address to find out who it is he's communicating with you've got the address you got the volume and they got the ip address what was the exactly and the i want to follow through get your so you get the the alpha address and then you get the volume and then you get the ip address so the recipient number i want to make sure i understand the devices the e mail address and the ip yes the the ip address is an address which identifies either a website or a computer when it communicate over the internet right but if i'm sending an e mail to joe blow at hotmail dot ip address he had a static ok so we only had one ip address that we had the court order for some services have dynamic that is every time you connect with the internet you're assigned an ip address for that session but that was not the case with respect to mr altus computer and that's the way that you could identify that in fact this was coming from his computer and tied to him that is correct your honor and him and then based upon that information and the other information developed during the course of investigation special agent coffey who was one of the case agents on this case submitted a detailed forty five page affidavit pursuant to twenty five eighteen of title eighteen to get full blown title three authority for that ip address and that's when the united states government began to intercept electronic communications to and from mr albus computer and the representation is made in mr alvarez pleadings before this court that he never received copies that documentation let me be clear what he received and what he did not receive he did not receive the government pen register pleadings because those pen register pleadings are not subject to discovery he did however receive all including the ones involving his computer the pleadings concerning the full blown title three authority on his computer and that's demonstrated by the record because the affidavit to obtain that first court authorization submitted by special agent coffee was submitted to judge gonzales on july sixth of two thousand and one and not only was he provided with that during the discovery process itself but the entire affidavit that was submit to obtain that authorization was appended as exhibit a to a motion response filed by the government in district court on november the twenty sixth of two thousand and two that appears in the excerpts of court records of page twenty eight through ninety seven so the representation that he was not provided with these pleading so that he couldn't litigate those pleadings it simply belied by the facts of the record and the facts of this case he was entitled under title three to litigate the propriety of the court order authorizing the full blown intercept because that implicates fourth amendment concerns the government readily concede that he was given all that information he and the other defendants litigated those very issues before the district court so that is not an issue that's before this court the only issue is whether or not the initial forster's desire and the factual basis therefore on the twenty third of october and that was in a very involved hearing where in judge whalen went through the dangers of self representation the pitfalls of self reference in taishan and basically tried to talk mr forster out of self representation he advised him of the penalties attendant to the offense of conviction and the government concedes that those were over advised it's unfortunate that it was purely a function of the fact that these defendants were involved in manufacturing laboratory site which was intended to generate revenue in the amount of eight million dollars per month this  extraordinarily large lap and therefore from the judge's perspective it's a drug case it's a huge drug case and so he therefore advised mr forrester albeit incorrectly that this was one of the most serious drug cases which would call in question the ten year mandatory minimum up to a life term of imprisonment the hook on the government the correct of your honor i think the representation was made that this was a notice hearing where the government was aware what was going to take place it was not  went down the court not knowing what was going to take place and mr forrester was there by himself at which time the court conducted the fray here and it's unfortunate that the government did not admit i did not correct judge whalen when he so advised mr forrester and i wish i had but at that point we were trying to figure out what was going on and the court proceeded upon the inquiry having done many of these in state court on its own but ok here's the here's the dilemma  argue there's no set formula but there are three elements that have to be communicated and george will and clearly did an excellent job on the nature of risk and all of that kind of thing but the two omissions are the nature of the charges and the incorrect statement of the penalty so you say it's unfortunate it is but there thing we can do you can talk more about that and the council argues there's nothing in the record to show that he was actually advised of the charges and you in fact so there's a very complicated big deal case where's the evidence that this guy knew exactly what the charges were that he was facing yes your honor with respect to the advisement of penalties the inquiry is not whether it was a strict compliance with the advisement of penalties for example in mr case at the time that he decided to represent himself the penalties were zero to twenty years thereafter the government filed notice pursuant to section eight fifty one of title twenty one that it intended to seek an enhanced penalty based upon mr forster's many prior felony drug convictions therefore even tad judge whalen properly advised mr forrester at the time of the forever hearing that it was zero to twenty that advisement would have in fact turned out to not be true based upon the posture of the case at sometime thereafter it was filed on july the third of two thousand and three so it was after both of the hearings where mr forster was engaged in the colloquy with the district court about the decision to represent himself so that cuts against the strict interpretation noise of the second for the second hearing occurred on march the seventh of two thousand and three which really speaks to the extent to which judge whalen was concerned with mr forster decision to represent himself because judge will encounter that hearing that is the march seventh hearing on his own mr forrester didn't ask for it the government did not ask for judge whalen was concerned that mr forrester was representing himself in this very important case and put it on calendar just to make sure that mr ford was noticed it was noticed to be expected we were told we were going to have a hearing again you didn't know this was a hearing you know and i don't mean that by way of excuse her stand there were two bites at the apple to get into the proper penalty and get into the nature of the charges yes as i understand it first hearing was the surprise second hearing was notice but the content wasn't you didn't know it was a reasoned no i i did not know the perfect station of the revisiting of the fret away or no your honor judge whalen put that on calendar on his own motion and been in the new file your enhanced the nine months after yes just just before trial the government did not file that until immediately before try then he'd already been representing them so say now then he knew what the penalty was at least that was then being sought but meanwhile for the nine months or whatever after he had been representing himself that was with the misinformation about the penalty what about the charges  i don't mean to say that the filing of the a fifty one noticed can be bootstrapped into his knowledge at the time of the thought i know you're not sane but you're saying that you said that it would have been erroneous because the ultimate lead got changed that's driven mooted out but that's not the issue the question is what did he know at the time he made this decision i would agree to the extent that it inquiries what did he know at the time but the true inquiry under the fred a decision is whether the waiver was knowing in intentional  where in the forever decision is there the three prong factor in that screen or ballo and in fact the screen itself the court said eg knowledge of fact we have never required district court to reciting particular scripture when making their inquiry each formulation recognises that careful assessment is essential to protecting the quick turn fifth and sixth amendment rights and that appears at page one one six eight of that opinion so there is no strict formulation and in fact in the rare circumstances the court can look at the entire record and that is particularly appropriate in the case with mr forster because ten months for ten months prior to his decision to represent himself mr forrester was assisted by counsel he was assisted a private investigator and he was also assisted by legal assistant for his attorney the record makes clear that he was actively engaged in his defense he had assessed the evidence against him he knew that his case was proceeding perhaps in a different direction from that of his codefendant mr alba that's documented in correspondence so this is the type of unique case which brings it outside the scope of the usual inquiry the cases that are cited in the defense briefs are cases where the  defendant in the early stages of his representation decides i don't want the assistance of an attorney i want to represent myself this is markedly contrast with after ten months of litigating he had four court appearances where the district court ruled on thirty five different motions quite clearly judge whalen knew the mr forster was acutely aware of the nature of the charges against him and the extent to which the defense sites rule eleven please colloquy cases that say you have to advise a defendant of the intelligent the district court must ensure that he understands one the nature of the charges against him to the possible penalties and three the dangers and disadvantages of s presentations in a loop that's the ninth circuit formulation of heredity those are the fundamentals how you wrap them in language is the true there's problem here is you're resorting now to the exception but you're as i understand what you're trying to argue is that doesn't have to necessarily hit all those three points under the that the district court ensured that he knew the nature of the charges and the district or ensured that he understood the accurate penalty mr fortune was present through ten months worth of court proceedings wherein the charges against him were discussed let me be but that's not what this says it doesn't say that it was there the idea is to ask the defendant you were there were you awake were you yes were you listening did you understand what the attorneys were saying do you understand that the charges you are facing there's no interplay between the district court and the defendant that's the problem here that that is  preferred procedure but in the limited purchase required it is not required your honor i would submit dead in the exceptional circumstance when you don't have that it's specific advisement by the district court you can look outside the record as to what other facts existed and so if the defendant acknowledged at the time of sentencing that i've known all along ok i was sure does that when he said no but the record went on the facts of this record do you have he knew or has acknowledged that he knew other than the circumstantial evidence that the defendant was in the courtroom just being in the courtroom is not sufficient as i understand our cases would make any sense defendants are always in the courtroom so if that's all it takes you could blow past the three requirements of erskin and just say well no the defendant's been in trial all the time so i agree he was he would if he was passively in the courtroom and that was the only record that this court had before it in terms of what was going on in his case and then i would submit that it was not the case or what is of specifically that you know that shows anything to show that he understood the nature of the charges the penalty we all know it was he had unusually active participation in his defense is documented by the letters typical that the governments of interest part of the excerpts of court record what is that they are but his knowledge of the because of the charge because on his behalf his attorney filed substantive motions that were challenging the government's evidence in this case it discussed the charges that were pending against that at all of the motion hearings it was it was clearly evident that it was a conspiracy to manufacture and distribute ecstasy and i would note that this offense is characterized as a difficult offense to grasp it's not a difficult offense for someone who's been thrice convicted of felony narcotics offenses who is actively participating in his defense and who has demanded to read and review each and every pleadings submitted by his attorney on pleadings that actually show and state the nature of the charges  on the various investments and i would direct the court to for example page twenty nine of the government's excerpts of court records and this appears in all of the government's motion responses where a statement of case includes the charges against the defendant and there it speaks to defend alba being charged with a c c e offense and count two charges on the rest of the defendants with participating in conspiracy to manufacture and distribute ecstasy a including defendant forster were charging count two with a conspiracy that's recited in these papers yes ok and what's the evidence that he reviewed the he wrote his attorney correspondence asking his attorney to copy him on all motions that were being filed on his behalf and i don't have a cite to the to the record but it is in the government's pleadings where that is that letter itself is part of the record counsel whose obligation whose burden is it under  see that the three pronged requirement set out in her skin has been feel fulfilled as if the government says that this is the court is it the defendants who is it whose is it in the district court i would assume it's the district court's burden but clearly the government has an interest in making sure that the record is clear for appellate purposes on screwing up the defendant's burden is that no it is not so in this particular instance i know you're making a valiant effort to find where he knowingly admitted that he knew what the charges were yes but is there anything in writing or in the record where the despondent that the defendant specifically stated you know i've that because mr forster was so actively participating in his defense that he knew exactly what the charges were against him in judge whalen going through the colloquy was very much aware of the fact that mr forster was so actively engaged in his defense he knew exactly what the charges were against him and when he did this please colloquy he did so trying to talk mr forster out of representing himself and the fact that he was so aware of the charges against him is it is relevant to the extent that even in the value opinion the court goes on to say that i'm sorry lost my taste that judge con ski and judge paul in their concurring opinion in the ballo opinion that is the one that sets force three prong factor and it's a three sentence and i just like to read to the court district courts are well aware of their duty under florida law to make sure a defendant who wants to represent himself knows what he's doing and makes his choice with eyes wide open district judges deal with criminal defendants every day they are in the best position to evaluate whether the defendant decision is made knowingly intelligently they can consider the level of understanding  defendant his background and prior experience with the legal system the deliberation with which he has made the decision to proceed without counsel and his seriousness of purpose we ought to give a district judges determination greater deference and rely far less on of mechanical formulas and the nice work that is never required the rogue recitation of the mechanical formula and indeed in the frederick case itself there is nowhere discussed anything other than the fact that a district court accepting a waiver ascertain that the cues knowingly and intelligently chose to forego the benefits of representation of counsel although defended need not himself have the skill and experience of a lawyer in order to competently intelligently to choose the representation he should be a made made aware of the dangers and disadvantages of self representation so that the record will stablish that quote he knows what he is doing and his choice is made with eyes wide open judge whalen bend over backwards actually calendaring a second hearing to ensure that mr forster knew exactly what he was doing and the record confirms that and that's why this is kind of unfortunate as he clearly did bend over backwards to try to explain this to the thing that at least i'm wrestling with is we've got a three prong test that seems to be jurisdictional the government bears the burden to show that he knowingly got that information one is the length of the sentence and the other has to do with the nature of the charges and i'm still struggling with other than what i would call conjecture i'm not seen any evidence where the defendant admitted that he understood this i know we've got pleadings very likely he may and he was obviously a very active person it may be a sad and unnecessary expense but the reality is he is a critic has rights under the law and erskin case is pretty clear about that it seems to jurisdictional why am i wrong you're wrong to the extent that the record as a whole demonstrates that mr forster was in fact aware of the nature of the charges pending against him he was charged with a simple offense of conspiring to manufactur distribute ecstasy the evidence at trial was that he formed a laboratory he knew he was manufacturing ecstasy and he also distributed that ecstasy he knew the charges pending against him there's no other way to read this record and i would have and i would agree with the court that there is no specific statement i can point to to show that he knew that but react read as a total record and in its totality there can be no other conclusion than mr forrester knew exactly what he was facing when he decided to represent himself three ninety six which is contained at page one ten of my excerpts of record what that shows is the day before in october twenty second two thousand and two the parties met before magistrate judge porter to take the threat of waiver a proceed pro se set for ten twenty three o two at nine am for judge whalen that's exactly what happened they went there she didn't feel comfortable doing a friend a waiver so they put it over till the next day so that judge whalen could do it everybody knew what was going to happen and you know it was the government thank you for your time you know because i think it's very very important that i that i clear up some important parts what my colleague on the government side pointed out that that this information led to the title three application yes it did that exactly makes my point on the prejudice that came from this these what i call taps what they call pen registers and really what it is is someone somewhere between because we don't know what information came from that the second most important thing out of this is that don't confuse the numbers that they said that they get numbers back to analogize into a phone number what's in the affidavit there those numbers go to specific pages of websites i specific web site as i understand it from the from the affidavit have lots of numbers that address on the initial essentially point out the specific page of the website it's not like the phone number of the website and likewise the information is blurred as to these packets and that is pointed out in the declaration as to the information the the only software that's available was available according to him when he was a us customs and it must have been used although we don't know because i don't have the court order i don't have the affidavit as to what was submitted to to get that court order so struggling in the dark and i never received the materials that they got from the pen register only afterwards the full emails there so i don't know how it was limited but this off the only software that was available gave all of what they call header materials information there that gives a lot more information than just a phone number and the fact that it led to the title three application is the very point of the prejudice of having this and just doing it in the dark by calling it a pen register