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DEFENDANT WHO REFUSED TO COOPERATE AFTER BEING TOLD BY AN FBI AGENT THAT HE COULD BE FACING "SERIOUS FEDERAL TIME" FAILED TO PROVE VINDICTIVE PROSECUTION, NINTH CIRCUIT RULES

Date Posted to Site: 02/10/2007

A defendant who refused to cooperate with the government after being told by an FBI
agent that he could be facing "serious federal time" failed to prove vindictive
prosecution, the Ninth Circuit ruled Monday.

In this case, the defendant, Hector Ruben 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. In June
2001, state and local law enforcement officers learned of Lopez's whereabouts,
arrested him at his residence, and conducted a search of the house. During the search,
officers found plastic baggies containing methamphetamine and three handguns.

Later that month, a Bureau of Alcohol, Tobacco, Firearms, and Explosives Special
Agent told an Assistant United States Attorney (AUSA) about Lopez's arrest and
requested federal prosecution of Lopez. The AUSA accepted the case for prosecution pending
further investigation, and opened a case file for Lopez on July 5, 2001.

In early July 2001, the AUSA informed the state Deputy District Attorney assigned to
Lopez's case that he would be seeking a federal indictment on Lopez. The Deputy
District Attorney told the AUSA 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 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, the Deputy District Attorney informed the AUSA 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 that only after the state court concluded the plea
proceedings did he remember the AUSA would be seeking a federal indictment against Lopez.

In late September 2001, an FBI Special Agent interviewed Lopez, for a second time,
about his knowledge of the OBA, and advised Lopez that he "could be looking at
serious federal time" unless he cooperated. But Lopez refused to cooperate, and was
subsequently indicted by a federal grand jury for being a felon in knowing possession
of firearms, and for possession of methamphetamine with intent to distribute.

Lopez, among other things, then filed a motion to dismiss the federal indictment,
alleging that the federal prosecution was vindictive, in violation of his due process
rights. The district court denied the motion, and 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. He was sentenced to 169 months in prison,
and he timely appealed.

In its opinion of the Lopez case, the Ninth Circuit began by explaining, "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."
Before the appeals court, 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.

Furthermore, Lopez contends that because the federal agents at his preliminary
hearing did not prevent his state plea from going forward, despite the prior agreement
between the Deputy District Attorney and the AUSA 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. Lopez also contends that the FBI's threat
of "serious federal time" during an interview, coupled with his refusal to
cooperate with the FBI, proves vindictive prosecution.

The Ninth Circuit, however, disagreed with Lopez's contentions, concluding that he
did not present either direct evidence - or facts that warrant an appearance - of
vindictiveness. The court pointed out that although the AUSA and the Deputy District
Attorney did have an agreement to stay the state proceedings and that the Deputy
District Attorney would drop the state charges when the federal indictment was issued,
the Deputy District Attorney 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," the Ninth Circuit
determined.

As for the federal agents' failure to stop the state plea hearings, the appeals
court stated that it is possible they were unaware of the AUSA-Deputy District
Attorney agreement. Even if they were aware of that agreement, the court added, 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. The court explained, "As a separate sovereign, the federal government was still
entitled to prosecute Lopez for federal offenses, even ones stemming from the same
facts as his state guilty plea."

Turning to the issue of the FBI agent's threat of "serious federal time," the
Ninth Circuit determined that this "falls short of evidence of vindictiveness."
The court said that 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. The threat was simply an attempt to encourage Lopez to assist the FBI
in the OBA gang investigation, and does not establish vindictiveness by the federal
government, the court found.

Lastly, the Ninth Circuit stated that even if it were to assume, for the 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. Specifically, the district court found that both the
Deputy District Attorney-AUSA agreement, and the AUSA'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, the court found that the AUSA'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," the Ninth Circuit concluded.
Accordingly, the Ninth Circuit affirmed the lower court's decision.

The case is U.S. v. Lopez, U.S. Court of Appeals for the Ninth Circuit, No.
05-50616, February 5, 2007.




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