United States v. Lopez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 05-50616
HECTOR RUBEN LOPEZ, a/k/a  D.C. No.
CR-01-00079-RJT
HECTOR RUBEN PIRATE, RUBEN
HECTOR, RUBEN “PIRATE” LOPEZ- OPINION
HECTOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior District Judge, Presiding
Submitted October 18, 2006*
Pasadena, California
Filed February 5, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Gould
*The panel finds this case appropriate for submission without oral argu-
ment pursuant to Federal Rule of Appellate Procedure 34(a)(2).
1309
1312 UNITED STATES v. LOPEZ
COUNSEL
Richard D. Rome, Esq., Van Nuys, California, for defendant-
appellant Hector Ruben Lopez.
Jerry A. Behnke, Assistant United States Attorney, Riverside,
California, for plaintiff-appellee United States of America.
OPINION
GOULD, Circuit Judge:
Hector Ruben Lopez appeals his guilty-plea conviction for
possession with intent to distribute methamphetamine, in vio-
lation of 21 U.S.C. § 841(a)(1). Lopez argues that his convic-
tion should be overturned because his federal prosecution was
initiated in retaliation for his refusal to cooperate with FBI
investigators, and because the police seized the incriminating
methamphetamine during an unconstitutional parole search.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm
the district court.
I
Under California law, every prisoner eligible for release on
state parole “shall agree in writing to be subject to search or
seizure by a parole officer or other peace officer at any time
of the day or night, with or without a search warrant and with
or without cause.” CAL. PENAL CODE ANN. § 3067(a) (West
2000). In 1998, Lopez was paroled for an earlier conviction.
As a condition of his parole, he agreed to and signed a notice
that stated, “[y]ou and your residence and any property under
UNITED STATES v. LOPEZ 1313
your control may be searched without a warrant by an agent
of the Department of Corrections or any law enforcement
officer.”
In June 2001, Lopez was a suspected member of an
Ontario, California gang known as the Ontario Black Angels
(“OBA”), with an outstanding warrant for his arrest because
he had absconded from parole supervision. On June 20, 2001,
Glen Willett, then a Senior Special Agent of the California
Department of Corrections, received information that Lopez
was located at a residence on Oakland Avenue, in Ontario,
California. During surveillance, Willett and Ontario Police
Department (“OPD”) officers observed Lopez’s mother and
brother, Joe Martel, enter the Oakland Avenue residence.
Martel was a known OBA gang member who was also on
parole. After Willett and OPD officers observed Martel, but
not Lopez’s mother, leave the Oakland Avenue residence,1 the
officers approached the residence and knocked on the front
door. Through a window in the door, Willett saw Lopez “peek
around the corner from a hallway.” Willett ordered Lopez to
open the door, but Lopez disappeared down the hallway out
of sight. A few minutes after Willett and the OPD officers
unsuccessfully tried to force entry, Lopez opened the door and
was arrested a few feet outside the front door. The officers
saw Lopez’s girlfriend, Valerie Etchart, in the residence,
ordered her outside the front door, and also detained her.
The officers conducted a protective sweep of the residence,
forcing entry into a back bedroom. In the hallway bathroom
toilet, officers found an empty clear plastic baggy. After the
residence was secured, the officers conducted a parole search
of the residence. During the parole search, officers found
plastic baggies containing methamphetamine and three hand-
guns.
1
After leaving the Oakland Avenue residence, OPD officers stopped
Martel, who displayed symptoms of being under the influence of a con-
trolled substance. Officers then arrested Martel for parole violations.
1314 UNITED STATES v. LOPEZ
On June 27, 2001, Bureau of Alcohol, Tobacco, Firearms,
and Explosives Special Agent David Silva told Assistant
United States Attorney Jerry Behnke of Lopez’s arrest and
requested federal prosecution of Lopez. Behnke accepted the
case for prosecution pending further investigation, and opened
a case file for Lopez on July 5, 2001.
In early July 2001, Behnke informed the Deputy District
Attorney assigned to Lopez’s case, Sully Moore, that he
would be seeking a federal indictment on Lopez. Moore told
Behnke that Lopez had a state court appearance set for mid-
July, that he would try to continue the case until the federal
indictment was filed, and that when it was filed, he would dis-
miss the state charges.
On July 11, 2001, at his preliminary hearing attended by
two federal agents, Lopez pled guilty to a state charge of felon
in possession of a firearm. About a week later, Moore
informed Behnke that he had forgotten that a federal indict-
ment would be sought against Lopez, that he had accepted a
plea proposal from Lopez’s attorney, and only after the state
court concluded the plea proceedings did Moore remember
Behnke would be seeking a federal indictment against Lopez.
In late September 2001, FBI Special Agent Volk inter-
viewed Lopez, for a second time, about Lopez’s knowledge
of the OBA, and advised Lopez that he “could be looking at
serious federal time” unless he cooperated. Lopez refused to
cooperate. Lopez was thereafter indicted by a federal grand
jury for being a felon in knowing possession of firearms, in
violation of 18 U.S.C. § 924(c), and for possession of
methamphetamine with intent to distribute.
Lopez filed a motion to dismiss the federal indictment,
alleging that the federal prosecution was vindictive, in viola-
tion of his due process rights. He also filed a motion to sup-
press the evidence seized from the Oakland Avenue residence
on Fourth Amendment grounds. The district court denied both
UNITED STATES v. LOPEZ 1315
motions. Lopez pled guilty to possession of methamphet-
amine with intent to distribute, reserving the right to appeal
the denial of his motions to dismiss and suppress. Lopez was
sentenced to 169 months in prison, and he timely appealed.
II
We first address Lopez’s claim that the district court erro-
neously denied his motion to dismiss his indictment for vin-
dictive prosecution. Although we recognize that our standard
of review for a vindictive prosecution case is unsettled,2 we
have previously said that we review a district court’s decision
whether to dismiss an indictment based on improper govern-
ment conduct de novo. See United States v. Bridges, 344 F.3d
1010, 1014 (9th Cir. 2003).
[1] “A prosecutor violates due process when he seeks addi-
tional charges solely to punish a defendant for exercising a
constitutional or statutory right.” United States v. Hernandez-
Herrera, 273 F.3d 1213, 1217 (9th Cir. 2001) (citation omit-
ted). To establish a prima facie case of prosecutorial vindic-
tiveness, Lopez “must show either direct evidence of actual
vindictiveness or facts that warrant an appearance of such.”
United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995)
(internal quotation marks and citation omitted). If Lopez pro-
vides “[e]vidence indicating a realistic or reasonable likeli-
hood of vindictiveness” this “give[s] rise to a presumption of
vindictiveness on the government’s part.” United States v.
Garza-Juarez, 992 F.2d 896, 906 (9th Cir. 1993) (citation
omitted). The burden then shifts to the prosecution to show
that “ ‘independent reasons or intervening circumstances dis-
pel the appearance of vindictiveness and justify its deci-
2
See United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.
2001) (citation omitted) (recognizing that we have applied abuse of discre-
tion, clearly erroneous, and de novo standards). Because Lopez’s claim of
prosecutorial vindictiveness fails regardless of which standard is applied,
we need not decide today which is the proper standard of review.
1316 UNITED STATES v. LOPEZ
sions.’ ” Montoya, 45 F.3d at 1299 (quoting United States v.
Hooton, 662 F.2d 628, 633 (9th Cir. 1981)).
Lopez argues that the federal indictment filed against him
should be dismissed because the federal prosecution arose out
of the same facts as his state guilty plea, and the federal gov-
ernment indicted Lopez for “noncooperation” with the FBI in
its OBA gang investigation. In support, Lopez contends that
because the federal agents at his preliminary hearing did not
prevent Lopez’s state plea from going forward, despite the
prior agreement between Moore and Behnke to drop the state
charges once a federal indictment for Lopez was issued, the
federal government was under an obligation not to pursue his
federal prosecution. Furthermore, Lopez contends that the
FBI’s threat of “serious federal time” during an interview,
coupled with Lopez’s refusal to cooperate with the FBI,
proves vindictive prosecution.
[2] We disagree with Lopez, and conclude that his argu-
ments do not present either direct evidence, or facts that war-
rant an appearance, of vindictiveness. See Montoya, 45 F.3d
at 1299. Although Behnke and Moore did have an agreement
to stay the state proceedings and Moore would drop the state
charges when the federal indictment was issued, Moore
explained that given his caseload he forgot about that agree-
ment. That the state Deputy District Attorney forgot to stay
the plea proceedings pending a federal indictment does not
show proof of vindictiveness by the federal government in
proceeding with Lopez’s prosecution.
Moreover, although federal agents were present at Lopez’s
state plea hearing, it is possible that they were unaware of the
Moore-Behnke agreement. Even if they were aware of that
agreement, Lopez is incorrect that the FBI agents’ failure to
stop the state plea hearings produced an obligation on the part
of the federal government not to pursue the federal prosecu-
tion. As a separate sovereign, the federal government was still
entitled to prosecute Lopez for federal offenses, even ones
UNITED STATES v. LOPEZ 1317
stemming from the same facts as his state guilty plea. See
United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005).
[3] Also, the FBI’s threat of “serious federal time” falls
short of evidence of vindictiveness. A prosecutor, and pre-
sumably field officers too, may threaten a defendant with
prosecution during an interview or plea negotiations, and if
that defendant chooses not to cooperate or plead guilty, the
prosecutor is free to initiate a prosecution. See Bordenkircher
v. Hayes, 434 U.S. 357 (1978) (declining to find actual or
apparent vindictiveness where a prosecutor initiated a prose-
cution against a defendant for a more serious charge after the
defendant refused to plead guilty to existing allegations). The
FBI agents’ threat was an attempt to encourage Lopez to
assist them in the OBA gang investigation and does not estab-
lish vindictiveness by the federal government.
[4] Even if we were to assume, for sake of argument, that
Lopez has set forth facts that warrant an appearance, or raise
a presumption, of vindictiveness, the federal government gave
sufficient independent evidence to rebut this presumption.
The district court found that both the Moore-Behnke agree-
ment, and Behnke’s decision to pursue a federal prosecution
on the same facts supporting the state charges, occurred
before Lopez pled guilty to state charges, not after. Moreover,
Behnke’s decision on July 5, 2001, to pursue a federal indict-
ment of Lopez, occurred before the FBI’s warning to Lopez
in the late September interview. This independent evidence
rebuts any presumption that the federal government prose-
cuted Lopez because he refused to cooperate with an FBI
investigation. We conclude that the district court properly
denied Lopez’s motion to dismiss.
III
We next turn to Lopez’s argument that both the protective
sweep and the parole search of the Oakland Avenue residence
were unlawful under the Fourth Amendment, and that the evi-
1318 UNITED STATES v. LOPEZ
dence seized should be suppressed. We review a district
court’s denial of a motion to suppress de novo. See United
States v. Meek, 366 F.3d 705, 711 (9th Cir. 2004). The district
court’s factual findings are reviewed for clear error. See
United States v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004).
This issue is controlled by the recent United States
Supreme Court case Samson v. California, ___ U.S. ___, 126
S. Ct. 2193 (2006). Samson involved the suspicionless search
of a parolee’s person under the same California statute gov-
erning Lopez’s case.3 The Court granted a writ of certiorari to
address this question: Does a suspicionless search, conducted
under the authority of this California statute, violate the
Fourth Amendment? See Samson, 126 S. Ct. at 2196. The
Court held it did not.
[5] The Court began: “The essence of parole is release from
prison, before the completion of sentence, on the condition
that the prisoner abides by certain rules during the balance of
the sentence.” Id. at 2198 (citation and internal quotation
marks omitted). The Court concluded that under the totality
of the circumstances, “including the plain terms of the parole
search condition, . . . [Samson] did not have an expectation
of privacy that society would recognize as legitimate.” Id. at
2199.
[6] The Court explained that for inmates who elect parole,
the California parole-search statute mandates that a parolee
“submit to suspicionless searches by a parole officer or other
peace officer ‘at any time.’ ” Id. (citing CAL. PENAL CODE
ANN. § 3067(a)). This statute, reasoned the Court, served Cali-
fornia’s interest in reducing recidivism, promoting public
safety, and reintegrating parolees into productive society. Id.
at 2200-01 n.4. Because the petitioner in Samson signed a
3
The California parole-search statute provides that a parolee is subject
to a warrantless, suspicionless search by a law enforcement officer at any
time. See CAL. PENAL CODE ANN. § 3067(a).
UNITED STATES v. LOPEZ 1319
parole order submitting to suspicionless search conditions, the
Court held that “the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a
parolee.” Id. at 2202.4
[7] The protective sweep and parole search at issue in
Lopez’s motion to suppress must be viewed in light of Sam-
son. Like the petitioner in Samson, Lopez signed a parole con-
dition allowing him, his residence, and any property under his
control to be “searched without a warrant” by any law
enforcement officer. Under Samson, the officers had authority
to conduct a full parole search at the moment they knocked
on Lopez’s front door to arrest him. Because a protective
sweep is a less extensive search than a parole search, Samson
necessarily makes both the protective sweep, and the parole
search, lawful.
[8] Samson involved a suspicionless search of a parolee’s
person, not of a parolee’s residence. However, we conclude
that this is not a significant difference in light of the Supreme
Court’s rationale. The California parole-search statute at issue
in Samson also governed Lopez’s conditions of parole. Lopez
signed a Notice and Conditions of Parole form that gave
Lopez notice that his person, his property, and his residence
were subject to a warrantless, suspicionless search at any
time. The Supreme Court founded its holding in Samson on
the conclusion that under a parole-search statute, such as Cali-
fornia’s, parolees do “not have an expectation of privacy that
society would recognize as legitimate.” Id. at 2199. If under
the California parole-search statute, a parolee has no expecta-
tion of privacy in his person, we reason that a parolee has no
legitimate expectation of privacy in his residence either, at
4
Although Samson was issued by the United States Supreme Court after
the facts of Lopez’s conviction, Lopez’s case is on direct review and under
the doctrine of Griffith v. Kentucky, 479 U.S. 314, 328 (1987), any new
constitutional rule of criminal procedure applies to his case during his
appeal on direct review.
1320 UNITED STATES v. LOPEZ
least when the parolee is present. Any other rule would dimin-
ish the protection to society given by the search condition of
parole, permitting search at any time. See also United States
v. Knights, 534 U.S. 112, 119-120 (2001) (holding that a war-
rantless search of a probationer’s residence5 was valid where
the probationer’s reasonable expectation of privacy was “sig-
nificantly diminished” because of the probation conditions he
was informed of, and agreed to).6 Together, Samson and
Knights stand for the principle that under parole conditions a
parolee has notice of and agrees to, officers may conduct a
warrantless, suspicionless search of a parolee’s person or resi-
dence. We hold that because Lopez signed a Notice and Con-
ditions of Parole submitting himself and his residence to a
warrantless, suspicionless search, the parole search in ques-
tion did not violate the Fourth Amendment.
IV
In summary, the record shows that there was no legal error.
First, the district court properly denied Lopez’s motion to dis-
miss his indictment for vindictive prosecution. Second, we
hold that under Samson, because the California parole-search
statute governed Lopez’s parole, and Lopez signed a Notice
and Conditions of Parole submitting himself and his residence
to a warrantless, suspicionless search, neither the protective
5
For Fourth Amendment purposes, “[w]e have consistently recognized
that there is no constitutional difference between probation and parole.”
Motley v. Parks, 432 F.3d 1072, 1083 n.9 (9th Cir. 2005) (en banc) (cita-
tion and internal quotation marks omitted).
6
We note that Knights left open the issue decided in Samson:
We do not decide whether the probation condition so diminished,
or completely eliminated, Knights’s reasonable expectation of
privacy . . . that a search by a law enforcement officer without
any individualized suspicion would have satisfied the reasonable-
ness requirement of the Fourth Amendment. The terms of the
probation condition permit such a search, but we need not
address the constitutionality of a suspicionless search . . . .
Knights, 534 U.S. at 120 n.6.
UNITED STATES v. LOPEZ 1321
sweep nor the parole search in question violated the Fourth
Amendment.
AFFIRMED.