FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

No. 05-50616 v.

D.C. No. HECTOR RUBEN LOPEZ, a/k/a  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 argument pursuant to Federal Rule of Appellate Procedure 34(a)(2). 

1309
COUNSEL

Richard D. Rome, Esq., Van Nuys, California, for defendantappellant 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 violation of 21 U.S.C. § 841(a)(1). Lopez argues that his conviction 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

1312 UNITED STATES v. LOPEZ
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 handguns. 

1After leaving the Oakland Avenue residence, OPD officers stopped

Martel, who displayed symptoms of being under the influence of a controlled substance. Officers then arrested Martel for parole violations. 

UNITED STATES v. LOPEZ 1313
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 midJuly, that he would try to continue the case until the federal

indictment was filed, and that when it was filed, he would dismiss 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 indictment 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 interviewed 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 violation of his due process rights. He also filed a motion to suppress the evidence seized from the Oakland Avenue residence

on Fourth Amendment grounds. The district court denied both

1314 UNITED STATES v. LOPEZ
motions. Lopez pled guilty to possession of methamphetamine 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 erroneously denied his motion to dismiss his indictment for vindictive 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 government 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 additional charges solely to punish a defendant for exercising a

constitutional or statutory right.” United States v. HernandezHerrera, 273 F.3d 1213, 1217 (9th Cir. 2001) (citation omitted). To establish a prima facie case of prosecutorial vindictiveness, 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 provides “[e]vidence indicating a realistic or reasonable likelihood 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 dispel the appearance of vindictiveness and justify its deci2

See United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.

2001) (citation omitted) (recognizing that we have applied abuse of discretion, 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. 

UNITED STATES v. LOPEZ 1315
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 government 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 arguments do not present either direct evidence, or facts that warrant 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 agreement. 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 prosecution. As a separate sovereign, the federal government was still

entitled to prosecute Lopez for federal offenses, even ones

1316 UNITED STATES v. LOPEZ
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 presumably 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 prosecution 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 establish 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 agreement, 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 indictment 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 prosecuted 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 eviUNITED STATES v. LOPEZ 1317
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 governing 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 California’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

3The 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). 

1318 UNITED STATES v. LOPEZ
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 Samson. Like the petitioner in Samson, Lopez signed a parole condition 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 California’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 expectation of privacy in his person, we reason that a parolee has no

legitimate expectation of privacy in his residence either, at

4Although 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. 

UNITED STATES v. LOPEZ 1319
least when the parolee is present. Any other rule would diminish 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 warrantless search of a probationer’s residence5

 was valid where

the probationer’s reasonable expectation of privacy was “significantly 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 residence. We hold that because Lopez signed a Notice and Conditions of Parole submitting himself and his residence to a

warrantless, suspicionless search, the parole search in question 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 dismiss 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

5For 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) (citation and internal quotation marks omitted). 

6We 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 reasonableness 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. 

1320 UNITED STATES v. LOPEZ
sweep nor the parole search in question violated the Fourth

Amendment. 

AFFIRMED.

UNITED STATES v. LOPEZ 1321