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
COUNSEL

Michael L. Crowley, and Benjamin L. Coleman, San Diego,

California, for the defendants-appellants. 

8072 UNITED STATES v. FORRESTER
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 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

(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

UNITED STATES v. FORRESTER 8073
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

1Alba’s remaining arguments are addressed in a concurrently filed

memorandum disposition. As requested by the parties, we vacate his conviction 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. 

8074 UNITED STATES v. FORRESTER
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 selfrepresentation. 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 Ecstasymanufacturing 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 permission to install a pen register analogue on Alba’s computer.

The only data obtained during the first phase of the investigation 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 imaging and keystroke monitoring techniques, but Alba does not

2The 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. 

UNITED STATES v. FORRESTER 8075
challenge on appeal those techniques’ legality or the government’s application to use them. 

Forrester and Alba were tried by jury. At trial, the government introduced extensive evidence showing that they and

their associates built and operated a major Ecstasy laboratory.

Witnesses described the lab as “very, very large,” and seized

documents show that it was intended to produce approximately 440 kilograms of Ecstasy (and $10 million in profit)

per month. The government also presented evidence that Alba

purchased precursor chemicals for Ecstasy, that Forrester met

with a Swedish chemist in Stockholm to learn about manufacturing Ecstasy, that the defendants first tried to construct the

lab in two other locations before settling on Escondido, California and that the Escondido lab was located inside an insulated sea/land container and contained an array of devices and

chemicals used to make Ecstasy. 

The jury convicted Forrester and Alba on all counts. The

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

8076 UNITED STATES v. FORRESTER
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 disadvantages 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”). Ordinarily, only the defendant’s colloquy with the court at the

Faretta hearing is relevant to the waiver analysis. Id. However, 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” recomUNITED STATES v. FORRESTER 8077
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 indication that the court sought to ensure that Forrester understood the charge and grasped that conspiracy is a particularly

complex and confusing allegation to defend against. Furthermore, the district court did not accurately describe the “possible 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 comprehended 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 sanctions.”). 

[4] The government argues that there was no Sixth Amendment violation because the district court overstated the penal8078 UNITED STATES v. FORRESTER
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 commitment 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 influenced 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

UNITED STATES v. FORRESTER 8079
(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 overstated or understated Forrester’s potential penalty. By materially misstating the applicable sentence, the court failed to

fulfill its obligation to “insure that [the defendant] understands . . . 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. However, 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 intelligent. See Balough, 820 F.3d at 1489 (“[T]he mere fact that

a criminal defendant has been repeatedly exposed to the legal

3Moreover, even if the Sixth Amendment were not violated when a district 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 understanding of the nature of the charge . . . .”). 

8080 UNITED STATES v. FORRESTER
process and has even represented himself before cannot, without more, suffice to support a finding of a knowing and intelligent 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 understanding of the charge against him and potential penalties, nor have

we been able to locate any. Notably, Forrester was not specifically informed that he was being charged with conspiracy to

manufacture and distribute Ecstasy at any of the three arraignments 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 reversal and an opportunity to make an informed and knowing

choice.”).

B. Computer Surveillance

Alba contends that the government’s surveillance of his email and Internet activity violated the Fourth Amendment and

fell outside the scope of the then-applicable federal pen register statute.4

 We hold that the surveillance did not constitute a

4As mentioned earlier, Alba complains only about the initial surveillance 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 challenge the more intrusive imaging and keystroke monitoring that subseUNITED STATES v. FORRESTER 8081
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 suppression of any evidence (let alone the reversal of his convictions) 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 telephone 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 reasonable because “a person has no legitimate expectation of

privacy in information he voluntarily turns over to third parties.” Id. at 743-44. Therefore the use of a pen register is not

a Fourth Amendment search. Importantly, the Court distinguished pen registers from more intrusive surveillance techniques 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 evidence). 

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 omitted). 

8082 UNITED STATES v. FORRESTER
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 private, 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 constitutionality 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 techniques 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 expectation 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 messages 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

5Every 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] Internet 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’ ”). 

UNITED STATES v. FORRESTER 8083
requires people to “voluntarily turn[ ] over [information] to

third parties.” Id. at 744. 

[9] Second, e-mail to/from addresses and IP addresses constitute addressing information and reveal no more about the

underlying contents of communication than do phone numbers. When the government learns the phone numbers a person 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 person’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 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. The distinction between mere addressing and more content-rich information drawn by the Court in

Smith and Katz is thus preserved, because the computer surveillance techniques at issue here enable only the discovery of

addressing information.6

6Surveillance 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 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 . . . .”). 

8084 UNITED STATES v. FORRESTER
[10] The government’s surveillance of e-mail addresses

also may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail. In a line of cases dating back to the nineteenth

century, the Supreme Court has held that the government cannot 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 transmitted to third parties. See United States v. Jacobsen, 466

U.S. 109, 114 (1984) (stating that warrantless searches of letters 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 provided 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 inspection, 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 omitted). E-mail, like physical mail, has an outside address “visible” to the third-party carriers that transmit it to its intended

location, and also a package of content that the sender presumes 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

UNITED STATES v. FORRESTER 8085
monitoring here of the total volume of data transmitted to or

from Alba’s account. Devices that obtain addressing information 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 techniques that Alba challenges are not Fourth Amendment

searches. However, our holding extends only to these particular techniques and does not imply that more intrusive techniques 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 versions 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 register.” 

[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

7Unless otherwise noted, all citations are to the pre-October 2001 version of the pen register statute. 

8086 UNITED STATES v. FORRESTER
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 surveillance 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 knowingly violates subsection (a)” by installing or using a pen register 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 imprisonment, “we would ‘encroach upon the prerogatives’ of Congress 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)). 

UNITED STATES v. FORRESTER 8087
[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 evidence 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 thenapplicable 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 introduced at trial and was used only as a minor portion of the

government’s application for a court order authorizing imaging and keystroke monitoring. 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 certain chemicals websites. The remainder of the affidavit

included extensive — and more incriminating — evidence

obtained through physical surveillance, conventional pen registers, wiretaps and cooperating witness statements. Much of

this other evidence predated the start of the computer surveil8088 UNITED STATES v. FORRESTER
lance, and there is no indication that evidence obtained

through the computer surveillance was used to obtain authorization 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 intelligent. 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 thenapplicable pen register statute, Alba is not entitled to the suppression of evidence obtained through the monitoring.

Accordingly, we affirm Alba’s other convictions and sentences, 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. 

UNITED STATES v. FORRESTER 8089