Metropolitan News-Enterprise


Monday, July 9, 2007


Page 1


Court Tosses Conviction of Misinformed Pro Se Defendant


By TINA BAY, Staff Writer


A criminal defendant opting for self-representation did not knowingly waive his right to a lawyer where the court never informed him of the charge against him and misstated the potential sentence he faced, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Holding Mark Stephen Forrester’s Sixth Amendment right to counsel was violated, a unanimous panel reversed his conviction and 30-year prison sentence in connection with a drug-manufacturing operation in Escondido.

Forrester was charged in Oct. 2001 with conspiring to manufacture and distribute the substance popularly known as “Ecstasy.” He and his alleged partner in crime, Dennis Louis Alba, were accused of running an Ecstasy lab that was intended to produce about 440 kilograms of Ecstasy—and $10 million in profit—per month.

The pair pled not guilty to the charges.

A year later, Forrester, who had been represented by counsel from the time his indictment was filed, brought a motion to represent himself.

At the hearing on his motion, U.S. District Judge Thomas J. Whelan of the Southern District of California repeatedly warned Forrester that defendants who represent themselves rarely succeed.

His remarks included the admonishment, “I want to unequivocally tell you and strongly recommend to you that you don’t do this. In most cases it’s a disaster.” He also told Forrester that “in all cases it is not a good idea for a nonlawyer to oppose a lawyer in a criminal trial.”

Though he did offer caveats, Whelan did not inform the defendant of the charge against him. He also told Forrester incorrectly that he faced a mandatory minimum sentence of ten years to life in prison when, in fact, he faced no minimum sentence and a maximum of 20 years behind bars.

After Forrester gave repeated assurances that he was “coherent,” “literate,” and aware of the consequences of self-representation, Whelan granted his motion to appear pro se at trial as well as at some of the post-trial proceedings.

At a follow-up hearing in March, the judge addressed various concerns pertaining to Forrester’s self-representation, but again did not talk about the charge against him. Nor did he correct his previous error about the potential sentence Forrester faced.

The matter proceeded to trial, where the case against Forrester and Alba included evidence that Forrester had met with a Swedish chemist in Stockholm to learn about manufacturing Ecstasy, and that the Escondido lab was located inside an insulated sea/land container equipped with an array of devices and chemicals used to produce the drug. 

A jury convicted both defendants on all counts and Whelan sentenced each of them to 30 years in prison, followed by six years of supervised release.

Both defendants appealed, with Forrester contending that his conviction and sentence had to be overturned because his constitutional right to counsel was violated.

Alba’s argument for reversal focused on the Fourth Amendment.  He claimed the government subjected him to an unconstitutional search by using computer surveillance techniques that enabled it to learn the to/from addresses of his e-mail messages, the Internet protocol addresses of the websites he visited and the total volume of information transmitted to or from his account.

The panel rejected Alba’s contention, ruling the challenged surveillance was analogous to the use of a pen register, which is constitutional.

But the judges agreed with Forrester that his waiver of the right to counsel in 2002 had not been knowing and intelligent and thus violated the Sixth Amendment. The government failed to meet its heavy burden of showing that Forrester’s waiver was valid, they concluded.

Writing for the court, Judge Raymond C. Fisher said:

“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 that 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.”

The government contended Whelan’s error was harmless because Forrester would have waived counsel anyway, given that the actual penalty was lower than what the judge conveyed.

Fisher declined to adopt that view, saying it is “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 ensure he understood the possible penalties, he wrote.

Judges Richard R. Clifton and Milan D. Smith Jr. concurred in the opinion.

The case is United States v. Forrester, 05-50410.


Copyright 2007, Metropolitan News Company