United States v. David Francis Marcucci, United States of America v. Christopher Leyva-Garcia, United States of America v. David Gamboa-Aristegui

Because these cases present the major issue in common, we consolidate them for disposition. The appellants collectively claim that their indictments should have been dismissed because the district court’s charge to the grand jury misstated its constitutional role and function. Separately, they raise issues concerning Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and prosecu-torial misconduct. We affirm the convictions for the reasons set out below.

FACTS AND PROCEEDINGS BELOW

In 2001, Christopher Leyva-Garcia (“Leyva”) conditionally pled guilty to an indictment charging him with possessing and importing just under fifty kilograms of marijuana. His plea permitted appeal on two issues: the grand jury issue identified above, and an Apprendi claim that the statute under which he was charged was facially unconstitutional, or at least, requires reconstruction such that the government must show mens rea as to drug type and quantity.

In an unrelated incident in the spring of 2001, David Gamboa-Aristegui (“Gamboa”) also conditionally pled guilty to an indictment charging him with importing and possessing over 22 kilograms of marijuana,…

Dissenting:

When Congressman James Madison sat down to write out a series of proposed amendments to the freshly-adopted Constitution, he was painfully aware of the ratification process in which the absence of a Bill of Rights had provoked such strident opposition. Fresh in the minds of the former colonists was their treatment at the hands of the British Crown and those colonial institutions that protected them from what they saw as the arrogant exercise of executive authority. Opponents of the proposed constitution wanted assurances that what they viewed as the best of those protections would continue in the new government. 1 On any short list of those protective devices would have been the grand jury. When King George Ill’s colonial appointees sought sedition charges against John Peter Zenger for his editorials critical of the Crown and when participants in the Boston Tea Party faced criminal charges, what stood between them and the dock was a grand jury made up of a group of their fellow citizens free to refuse a prosecutor’s entreaties or a king’s demands. 2

*1167 The grand jury requirement now lives in the Fifth Amendment. It says that no serious (felony) federal charges may…

299 F.3d 1156 UNITED STATES of America, Plaintiff-Appellee, v. David Francis MARCUCCI, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Christopher Leyva-Garcia, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. David Gamboa-Aristegui, Defendant-Appellant. No. 01-50468. No. 01-50524. No. 01-50547. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 5, 2002. Filed August 16, 2002. Steven F. Hubachek (argued), Office of the Federal Defenders, and David J. Zugman, San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney, Richard C. Cheng, Assistant United States Attorney, on the Marcucci brief, MiYung Park, Assistant United States Attorney, on the Gamboa-Aristegui brief, Pennie M. Carlos, Assistant United States Attorney, on the Leyva-Garcia brief and argued all cases, United States Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding, Barry T. Moskowitz, District Judge, Presiding, Judith N. Keep, Chief District Judge, Presiding. D.C. Nos. CR-00-0357-TW,…