Saturday, January 09, 2010

Case o' The Week: Can't See the Forrester for the Trees - Constitutional Right to Knowingly and Intelligently Reject a Deal

You have a constitutional right to an attorney who doesn't screw-up the description of a plea agreement. You have a constitutional right to be correctly advised of statutory maximum exposures when you make a decision to represent yourself. Do you have a constitutional right to be properly advised of the statutory maximum when you reject a plea agreement? An interesting question, and one that is neatly sidestepped by the Ninth Circuit in the latest iteration of a hard-fought case. United States v. Forrester, __ F.3d __, 2010 WL 10984 (9th Cir. Jan. 5, 2010), decision available here.

: Hard-fought case by former San Diego AFPD Ben Coleman.

Facts: Forrester was charged with conspiracy to manufacture and distribute ecstasy from a big L.A. lab. Id. at *1. He went pro per, and survived a Faretta hearing – but was advised of the wrong stat max during the hearing. Id. at *5. Five days before trial, he and his co-d were offered a package deal that capped their exposure at twenty years. If rejected, the government would file a § 851 enhancement that increased Forrester’s stat max to 30. Id. The pair rejected the deal, were convicted at trial, and Forrester got 30. Id. The Ninth remanded on the first appeal, finding a defective waiver of counsel because of the misadvisement of the stat max. Id.

On remand, Forrester moved the district court to strike the § 851 enhancement because he had been mis-advised of the potential penalties at the Faretta hearing. Id. The district court refused, Forrester pleaded guilty, and got thirty - again. Id.

[Ed. Note: Thirty again? Forrester could have presumably insisted on another trial on remand, at considerable expense in resources. To again max him out at thirty years despite the fact he pleaded guilty the second round - seems bad form. This case was remanded yet again by the Ninth for sentencing errors; hopefully Mr. Forrester will come in below thirty this third time around].

Issue(s): (Among many): “Forrester argues that, once a plea offer has been made, a defendant has a right to be accurately informed about his potential exposure before deciding to reject it. He relies on Nunes v. Mueller, a habeas case in which an attorney misinformed the defendant that he had received a plea offer for 22 years as opposed to 11 years . . . . In Nunes, we suggested that the right to make an informed decision about a plea is a corollary to the right to voluntarily and intelligently plead guilty.” Id. at *6.

Held:Nunes was based on the well-founded constitutional right to effective assistance of counsel . . . . For Nunes to apply here, we would have to find that Forrester suffered a similar unconstitutional deprivation of rights that tainted his rejection of the plea offer. We decline to do so on these facts. Though a defendant may have a right to voluntarily and intelligently reject a plea offer, we need not reach that question in this case because any error was harmless.” Id. at *6.

Of Note: Forrester bristles with issues. One holding of first impression in the opinion relates to wiretaps. Author Judge M. Smith holds that the government can redact portions of a wiretap affidavit and refuse to give redacted sections to the defense, if the government is willing (and able) to disclaim reliance on those redacted portions. Id. at *8-*9. It is another disappointing blow in the sisyphian task of Title III litigation, but note that the holding is narrow – if the government refuses to disclose a portion (typically, relating to an informant), it can’t rely on information in that portion of the affidavit to defend against a necessity or Franks challenge.

How to Use: Is there a constitutional right to be informed of the details of a plea – and the risks in rejecting it? The panel artfully dodges that question in Forrester, because the co-D rejected the deal anyway and it was a package (hence harmless error).

Judge M. Smith agrees that there is a Sixth Amendment right to effective assistance of counsel, that includes a duty to convey and correctly advise regarding plea offers. Id. at *5-*6. But Forrester presented the question in more stark terms – because the defendant was pro per, the Sixth Amendment wasn’t in play. This is an interesting issue to bear in mind when stuck as advisory or “stand-by” counsel for pro per defendants: maybe there is a constitutional obligation for the court, or the government, to correctly advise a defendant about the benefits and consequences of a plea? And how does that jive with Rule 11, which prohibits a district judge from knowing about the details plea discussions before trial? May be a fertile field for future challenges.

For Further Reading: Forrester II familiar? That’s because Forrester I got a good deal of press for creating new (and bad) Fourth Amendment law on searches of IP addresses. See 512 F.3d 500 (9th Cir. 2008). For a blog on the unfortunate first Forrester, visit the posting, "Finding Forrester" here.

Image of the Hon. Milan D. Smith from . Image of the poster from the movie, "Finding Forrester," from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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