408 F.3d 1184 (9th Cir. 2005), 02-50663, United States v. Navarro-Vargas
|Docket Nº:||02-50663, 03-50009.|
|Citation:||408 F.3d 1184|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Steve NAVARRO-VARGAS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Antonio Leon-Jasso, Defendant-Appellant.|
|Case Date:||May 23, 2005|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted En Banc Oct. 14, 2004.
Matthew C. Winter, Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for defendants-appellants
Steve Navarro-Vargas, Jose Antonio Leon-Jasso.
Patrick K. O'Toole, David W. Mitchell, Office of United States Attorney, San Diego, CA, for plaintiff-appellee the United States.
Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-02-01706-MLH.
Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-02-01479-BTM.
Before SCHROEDER, Chief Judge, PREGERSON, HAWKINS, SILVERMAN, WARDLAW, W. FLETCHER, BERZON, RAWLINSON, CLIFTON, BYBEE, and BEA, Circuit Judges.
BYBEE, Circuit Judge.
This is the fourth challenge we have heard in this circuit 1 to consider whether the model grand jury instructions violate the Fifth Amendment by undermining the independence of the grand jury. The Appellants contend that their indictments should be dismissed because the district court misinstructed the grand jury in its constitutional role. After examining the history of the grand jury and the structure of the Grand Jury Clause of the Fifth Amendment, we determine that these instructions do not violate the Constitution. Accordingly, we affirm the district courts' denial of Appellants' motions to dismiss their indictments.
I. FACTS AND PROCEEDINGS BELOW
Because these cases present the same issues, we consolidated them for oral argument and disposition. In No. 02-50663, Steve Navarro-Vargas ("Navarro-Vargas") entered a conditional guilty plea to importing marijuana in violation of 21 U.S.C. §§ 952 and 960 and possessing a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In No. 03-50009, Jose Antonio Leon-Jasso ("Leon-Jasso") conditionally pled guilty to importing cocaine into the United States and possessing a controlled substance, also in violation of 21 U.S.C. §§ 952, 960 and 841. Each of the Appellants contends that his Fifth Amendment rights were violated because he was denied the unfettered judgment of the grand jurors. Navarro-Vargas and Leon-Jasso also argue that 21 U.S.C. § 960 and 841 are unconstitutional on their face because they require judges to determine sentencing factors.
In each case the district court instructed the grand jury using the model charge recommended by the Judicial Conference of the United States. 2 The grand jury charge included the following explanations and instructions (for convenience we have numbered the paragraphs): 3
 The purpose of a Grand Jury is to determine whether there is sufficient evidence to justify a formal accusation against a person. If law enforcement officials were not required to submit to an impartial Grand Jury proof of guilt as to a proposed charge against a person suspected of having committed a crime, they would be free to arrest and bring to trial a suspect no matter how little evidence existed to support the charge.
 As members of the Grand Jury, you in a very real sense stand between the government and the accused. It is your duty to see to it that indictments are returned only against those whom you find probable cause to believe are guilty and to see to it that the innocent are not compelled to go to trial.
 You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you. Furthermore, when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction. Judges alone determine punishment.
 [Y]our task is to determine whether the government's evidence as presented to you is sufficient to cause you to conclude that there is probable cause to believe that the accused is guilty of the offense charged. To put it another way, you should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person's believing that the accused is probably guilty of the offense with which the accused is charged.
 It is extremely important for you to realize that under the United States Constitution, the grand jury is independent of the United States Attorney and is not an arm or agent of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Internal Revenue Service, or any governmental agency charged with prosecuting a crime. There has been some criticism of the institution of the Grand Jury for supposedly acting as a mere rubber stamp, approving prosecutions that are brought before it by governmental representatives. However, as a practical matter, you must work closely with the government attorneys. The United States Attorney and his Assistant United States Attorneys will provide you with important service in helping you to find your way when confronted with complex legal problems. It is entirely proper that you should receive this assistance. If past experience is any indication of what to expect in the future, then you can expect candor, honesty, and good faith in matters presented by the government attorneys.
See also Model Grand Jury Charge, Report of the Proceedings of the Judicial Conference of the United States 33(March 12, 1986). 4
Navarro-Vargas and Leon-Jasso contend that the grand jury's independence was compromised when it was instructed in paragraphs , , and  that it "should vote to indict" the accused in each
case in which it believed probable cause exists, that it could not "judge the wisdom of the criminal laws enacted by Congress," and that government counsel would use "candor, honesty, and good faith." The Appellants argue that this error is structural and requires dismissal of the indictment.
A divided panel of our court affirmed the convictions. 367 F.3d 896 (9th Cir.2004). We vacated the panel's opinion and granted rehearing en banc. 382 F.3d 920 (9th Cir.2004). We review Appellants' challenge to a denial of a motion to dismiss an indictment de novo. United States v. Haynes, 216 F.3d 789, 796 (9th Cir.2000).
II. CONSTITUTIONALITY OF THE GRAND JURY INSTRUCTIONS
The Grand Jury Clause of the Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." U.S. CONST. amend. V. The Clause is remarkably plain in its restrictions. It is also notable for what it does not say. The Clause presupposes much about grand juries. 5 It does not prescribe the number of jurors. It does not limit the grand jury's function to returning or refusing to return indictments. It does not state whether a person appearing before the grand jury may be accompanied by counsel, whether the rules of evidence apply, or whether its proceedings may be disclosed for any purposes. See, e.g., United States v. Williams, 504 U.S. 36, 55, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (exculpatory evidence); United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality opinion) (right to counsel); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398-99, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) (public disclosure); United States v. Procter & Gamble, 356 U.S. 677, 681-82, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (public disclosure); Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (use of hearsay). The text of the Fifth Amendment simply provides for the right to indictment by a grand jury and does not explain how the grand jury is to fulfill this constitutional role. Either such details were assumed by the framers of the Bill of Rights or they decided to leave such details to Congress, the Executive, and the Judiciary. Congress, in fact, has provided for rules to govern grand jury proceedings. See 28 U.S.C. §§ 1861-63, 1870; FED. R. CRIM. P. 6, 7. 6 Some of
the task of defining the grand jury's function has also fallen to the courts. See, e.g., Williams, 504 U.S. at 50, 112 S.Ct. 1735; Calandra, 414 U.S. at 349, 94 S.Ct. 613. 7
The Court has observed that the grand jury is an "English institution, brought to this country by the early colonists and incorporated into the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor." Costello, 350 U.S. at 362, 76 S.Ct. 406. Because the Constitution presumes a role for the grand jury, the Fifth Amendment must be linked to the grand jury's origins. We review briefly the history of the grand jury to understand its function and something of why "[h]istorically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution ... [and] stand[s] between the accuser and the accused." Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).
We look to history for guidance for another reason. The Supreme Court has held that the right to due process of law does not include, at a minimum, presentment or indictment by a grand jury. In Hurtado...
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