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 be brought against someone without the approval of a group of citizens, drawn at large from the community, who are entirely free to charge what the government proposes, to charge differently, or to not charge at all. Operating in secret and answerable to no one for its decisions, the grand jury is a truly unique institution. And while subject to the supervision of the judicial branch, it is part of no single branch of government. 3 Two hundred fifteen year’s have brought about some considerable changes in the grand jury. Its use as an investigative tool is more common now, as is criticism for its potential for abuse.

But regardless of its apparent virtues and vices, the requirement of the grand jury’s independent exercise of its discretion is a fixed star- in our constitutional universe. For that reason, it is important to consider whether the way in which our courts today instruct grand jurors comports with the constitutional history of the institution. By my lights, the majority downplays evidence that the grand jurors in these cases were improperly instructed to the effect that their powers were limited to determining probable cause. Furthermore, the majority fails to accord appropriate deference to the elevated status of the grand jury as indicated in the Supreme Court’s jurisprudence. 4

To begin, the majority mistakenly characterizes the appellants’ argument by contending that the appellants “insist” that the instructions “specifically tell the grand jury that it has no obligation to charge if it finds probable cause.” The appellants make no such demand. Rather, it is a suggestion, merely one of the possible resolutions proposed to cure the unconstitutional instructions. The appellants actually insist only on the following: that the instructions under consideration misleadingly and impermissibly conveyed to the grand jury that their sole function is to determine probable cause.

The instructions begin by telling the grand jurors that what would follow would outline their responsibilities. This prefatory emphasis is significant because the instructions go on to explain that “the purpose of the Grand Jury is to determine whether there is sufficient evidence to justify a formal accusation against a person.” A grand juror paying close attention would conclude that the purpose of the grand jury is singular and that its discretion is constrained by the instruction.

This impression is confirmed again later in the charge: “Your 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.” While there is little doubt that this is, standing alone, a proper statement of law, the instruction seems to compel the grand jury to indict as long as probable cause exists:

These instructions are at odds with the constitutional history of the grand jury requirement. The grand jury’s defining feature is independence. The Fifth Amendment deliberately inserts a group of citizens between the government’s desire to bring serious criminal charges and its ability to actually do so. “It is a constitutional fixture in its own right[,] ... [belonging] to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.” United States v. Williams, 504 U.S. 36, 47 , 112 S.Ct. 1735 , 118 L.Ed.2d 352 (1992) (internal citations omitted). Indeed, “the Fifth Amendment’s ‘constitutional guarantee presupposes an investigative body acting independently of either [the] prosecuting attorney or judge.’ ” Id. at 49 , 112 S.Ct. 1735 (quoting United States v. Dionisio, 410 U.S. 1, 16 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973)) (emphasis in original; internal quotations omitted). 5

The history of the adoption of the grand jury requirement in the Bill of Rights underscores its independent role. 6 And its independence was noted by courts at the founding of this Republic. See United States v. Smith, 27 F. Cas. 1186, 1188 (C.C.D.N.Y.1806) (No. 16341A) (“Grand juries are the offspring of free government; they are a protection against ill-founded accusations.”). This pedigree attests that the grand jury’s independence serves not only in the determination of probable cause, as these grand juries were instructed, but also to protect the accused from the other branches of government by acting as the “conscience of the community.” Gaither v. United States, 413 F.2d 1061 , 1066 n. 6 (D.C.Cir.1969) (“Since it has the power to refuse to indict even where a clear violation of law is shown, the grand jury can reflect the conscience of the community in providing relief where strict application of the law would prove unduly harsh.”) (citation, internal quotation omitted). Indeed, even the government acknowledges that the grand jury has a function beyond merely establishing probable cause: quoting United States v. Mechanik, 475 U.S. 66, 74 , 106 S.Ct. 938 , 89 L.Ed.2d 50 (1986) (O’Connor, J., concurring in the judgment) (quoting Wood v. Georgia, 370 U.S. 375, 390 , 82 S.Ct. 1364 , 8 L.Ed.2d 569 (1962)), the government avers that the grand jury serves the “invaluable function in our society of standing between the accuser and the accused ... to determine whether a charge is founded upon reason or dictated by an intimidating power or by malice and personal ill will.” And yet, the instructions in these cases say nothing about this function.

The significance of this second — and potentially protective — role should not be understated. Indeed, the strength of this understanding is emphasized in Vasquez v. Hillery, 474 U.S. 254 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986). There, the Supreme Court said:

Id. at 263 , 106 S.Ct. 617 . Judge Friendly’s dissent in Ciambrone itself cites powerful language on this protective role from another distinguished jurist, Judge John Minor Wisdom:

United States v. Cox, 342 F.2d 167, 189-90 (5th Cir.1965) (Wisdom, J., concurring specially).

Though grand jurors generally possess these acknowledged powers, the jurors in the cases before us were misled by these instructions, told that their powers are restricted to determining probable cause. This necessarily compromises their independence. The instructions admonish grand jurors further:

This instruction improperly limits the jurors’ discretion regarding the proper scope of application of federal criminal law, as well as matters of sentencing. Both limitations run afoul of traditional understandings of the grand jury. As to questioning the wisdom of a criminal law, consider the language from the Gaither decision: “Since it has the power to refuse to indict even where a clear violation of law is shown, the grand jury can reflect the conscience of the community in providing relief where strict application of the law would prove unduly harsh.” Gaither, 413 F.2d at 1066 n. 6 (citation, internal quotation omitted). 7 How is it then that the grand jury lacks the power to consider the wisdom of a law applied to a particular case?

As to the severity of punishment, the Supreme Court in Vasquez stated that the grand jury has “the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a non-capital offense[,] all on the basis of the same facts.” Vasquez, 474 U.S. at 263 , 106 S.Ct. 617 . If grand jurors can choose, per Vasquez , between capital and non-capital offenses, how could they not be influencing the determination of punishment?

Finally, the grand jury’s independence was further undermined when, in at least two of the three cases under consideration, the district court extolled the virtues of the representatives of the United States Attorney’s office. This enthusiasm followed only moments after the grand jury was told that they could expect “candor, hones *1170 ty and. good faith” from the prosecutors who would be working with the grand jurors. One can only wonder: how truthful can these declarations be when prosecutors are free to deprive the grand jurors of exculpatory evidence, United States v. Williams, 504 U.S. 36 , 112 S.Ct. 1735 , 118 L.Ed.2d 352 (1992), to provide unconstitutionally seized evidence, United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), and to present evidence otherwise inadmissible at trial, Costello v. United States, 350 U.S. 359 , 76 S.Ct. 406 , 100 L.Ed. 397 (1956)? ' More urgently, how independent can a grand jury be when they are told how wonderful the prosecutors are? The appellants quite properly assert that “a grand jury cannot be ‘independent’ if the prosecutors’ virtues are extolled to them without mention of the prosecutors’ ability to present to the grand jurors far less than the whole story.”

I am not persuaded that the grand jurors here were instructed properly on their independent role and function. Certainly, the instructions mention the idea of independence, telling the grand jurors, for example, that they stood between the accused and the government, and that they “should” indict, not that they must or shall indict. Indeed, the word “independent” also appears a couple times in the instructions. But both “reminders” of independence cited by the majority — and they really do take on the appearance of an after-thought — occur in the context of telling the grand jurors that their duty is to determine probable cause. 8 The majority doesn’t really grapple with the fact that although the grand jury is told it is independent, its independence is narrowly circumscribed. As to the “should” and “shall” distinction, it is a lawyer’s distinction. — not a difference to which most lay people sitting as grand jurors are likely alert.

Moreover, appellants correctly challenge the majority’s inference that the relief they seek is necessarily a nullification instruction. A grand jury could be instructed using the language of Vasquez , which does not suggest nullification. Or, it could be told either that a showing of probable cause is a necessary requirement for indictment without saying more, or that probable cause is a necessary consideration, but not the only one. Doubtless, some of these options may be more vexatious than others. My own predilection would offer language instructing the jurors that they are the conscience of the community and are not bound to indict in every case where a conviction can be obtained. This may have the effect of creating more dialogue among grand jurors and prosecutors. Such exchange would be a step in the direction of greater civic participation in the practice of federal criminal justice. Of course, my preferences are immaterial: if the instructions are unconstitutional, it is not the job of this panel to rewrite them here and now. Regardless of how new instructions might turn out, as they stand *1171 now they are constitutionally unsound because they actively mislead grand jurors into thinking they lack powers which, as articulated by Vasquez , are clearly vested in them. 9

Even if there were no liminal space between the instructions given and a nullification instruction, it is worth examining why the arguments against nullification in the petit jury context should not be uncritically applied to the grand jury context. As a preliminary matter, neither the Supreme Court nor the Ninth Circuit has prohibited a nullification — or, as some might call it, a full disclosure — instruction for grand juries. The cases prohibiting such instructions relate only to petit juries, not grand juries. 10 Second, there is an important distinction between - the two groups: with petit juries, jeopardy attaches, whereas with grand juries, a new prosecution effort can begin. See Williams, 504 U.S. at 49 , 112 S.Ct. 1735 . Because evidence can always be re-presented to a second grand jury, it is far from inevitable that justice will not be done if grand jurors were given a full disclosure instruction. Third, because the Framers placed a high value on the kinds of powers articulated by Vasquez for grand juries, it would be unjustifiably paternalistic to fail to tell the grand jurors the scope of their constitutional powers over charging decisions specifically entrusted to their judgment. Finally, it is a mistake to conclude that a full disclosure instruction to a grand jury would subvert the rule of law. If our constitutional system permits the grand jury to act either on its “conscience” or its “prejudice,” 11 *1172 then it hardly makes sense to say that a grand juror who chooses to not indict despite probable cause is acting lawlessly. Rather, that action lies fully within the discretion delegated by the Constitution. 12

Because the instructions in these cases actively misled the grand jurors into thinking their powers are more constrained than they in fact are, they are unconstitutional. Which raises the next question: if error, is it a structural error, or is it subject to harmless error review?

My answer, based on Vasquez , is that it is a structural error. In Vasquez , the Supreme Court presumed prejudice, concluding that the systematic exclusion of blacks from the grand jury pool amounts to structural error, for which prejudice to the defendant need not be shown. This result issued, despite the state’s argument that “requiring a State to retry a defendant, sometimes years later, imposes on it an unduly harsh penalty for a constitutional defect bearing no relation to the fundamental fairness of the trial.” Vasquez, 474 U.S. at 262 , 106 S.Ct. 617 . The Vasquez Court rejected this contention, noting that fundamental flaws, such as racial discrimination in the grand jury, “undermine[ ] the structural integrity of the criminal tribunal itself, and [are] not amenable to harmless-error review.” Id. at 263-64 , 106 S.Ct. 617 .

To determine whether the presumption of prejudice attaches, the Supreme Court demands that we employ a traditional test: to determine whether “the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair.” Bank of Nova Scotia v. United States, 487 U.S. 250, 257 , 108 S.Ct. 2369 , 101 L.Ed.2d 228 (1988). But the high court also stated that the courts should look to whether any inquiry into harmless error would require unguided speculation. Id.

The traditional test is ultimately unhelpful because it is hard to say with authority that the deprivation of an adequately-instructed grand jury is or is not “fundamentally unfair.” 13 But the latter, and slightly more helpful, test does seem satisfied here, even though at first blush, it appears that the defendants would have been convicted absent the error. Gamboa and Leyva were caught, after all, with massive amounts of drugs in their cars. Marcucci, notwithstanding his drug addictions and mental infirmities, knew what he was doing; in fact, after talking with the police, he admitted committing a “premeditated robbery.”

Nonetheless, this is an area of “unguided speculation.” Perhaps a grand jury would have exercised its discretion in favor of one or all of the defendants here because, among other things, Leyva was young and a first time offender; that marijuana (versus heroin or cocaine) was involved in both Gamboa and Leyva’s cases; and Marcucci, who apparently looks patently unthreatening, bungled a rather pathetic and non-intimidating but no less stupid crime. 14 Put differently, it’s conceivable that a grand jury made aware of *1173 its role as “conscience of the community” would have provided “relief where strict application of the law would prove unduly harsh.” Gaither, 413 F.2d at 1066 n. 6.

As one appellant noted, “a reviewing court can never know whether or not an unbiased and properly constituted grand jury would have simply declined to indict at all or might have charged a lesser offense.” Where structural error occurs, it is no adequate reply to point out that the appellants did not demonstrate that “irregularities” existed such that the presumption of regularity should be disturbed. For it is precisely the “regular” and “traditional” functioning of the grand jury — its potential to exercise either justice-guided discretion or compassion-based mercy even against a finding of probable cause — that was hobbled by the instructions of the proceedings in these cases. In short, the appellants were denied the “traditional functioning of the institution that the Fifth Amendment demands.” Williams, 504 U.S. at 51 , 112 S.Ct. 1735 . 15

Because the defendants here were convicted after a grand jury was erroneously instructed, and because the erroneous instructions constituted a substantial impediment to the regular functioning of the grand jury as envisioned by its constitutional history, I would reverse the convictions, dismiss these indictments, and allow the government to re-present evidence to a grand jury properly instructed as to its independent role. 16

. See Drew R. McCoy, The Last of the Fathers: James Madisoti & the Republican Legacy 89 (1989) ("He never forgot his daunting experience at the 1788 convention in Richmond; the Federalists' razor-thin margin of victory there had reflected the strength, among many delegates whom Madison greatly respected, of the fear that excessive power would accrue to the general government.”).

. See Leroy D. Clark, The Grand Jury: The Use and Abuse of Political Power 18 (1975). For other historical examples, see generally Marvin E. Frankel & Gary Naftalis, The Grand Jury: An Institution on Trial 9 (1977). To be sure, our historical experience also includes instances where the grand jury has acted to protect insiders against outsiders, and majorities against minorities. The grand juiy has als.o been criticized for serving as a modern-day Star Chamber. See generally Michael E. Deutsch, The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists, 75 J.Crim. L. & Criminology 1159, 1179-83 (1984); David J. Fine, Comment, Federal Grand Jury Investí- *1167 gation of Political Dissidents, 7 Harv. C.R.C.L. L.Rev. 432 (1972).

. The Grand Jury Clause of the Fifth Amendment stands in contrast to the Warrant Clause of the Fourth Amendment; the decision whether cause exists to prosecute cannot be made solely by permanent government officials. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 84-85 (1998).

. Though I have no quarrel with how this panel addressed the Apprendi or prosecutorial misconduct issues, I would not need to reach those issues because of the disposition suggested in this dissent.

. At least one scholar has suggested that the grand jury's alleged independence of the court makes it difficult for the Supreme Court to exercise its supervisory powers over it. See Susan W. Brenner, The Voice of the Community: A Case for Grand Jury Independence, 3 Va. J. Soc. Pol'y & L. 67 , 124-26 (1995). Although Brenner's conclusion rests on a somewhat historically suspect premise — there are some cases that state that the grand jury is an arm of the Court — her claim would nonetheless be consistent with what Williams held, specifically, that prosecutors are not constitutionally required to disclose exculpatory material to the grand jury.

. See sources cited in notes 1-3 and note 5.

. See also In re Kittle, 180 F. 946, 947 (S.D.N.Y.1910) (L.Hand, J.) ("One purpose of the secrecy of the grand jury's doings is to insure against this kind of judicial control. They are the voice of the community accusing its members, and the only protection from such accusation is in the conscience of that tribunal.”).

. While this is definitely the case with the first example offered by the majority, one may plausibly ask whether such qualification applies to the second time the instructions stressed the grand jury's independence from the government. My own view is that it does. Consider the instructions there: "You must depend on your own independent judgment, never becoming an arm of the United States Attorney’s Office. If the facts suggest that you should not indict, then you should not do so even in the face of the opposition or statements of the United States Attorney.” This language undercuts the argument that the instructions impermissibly biased the jury in favor of the U.S. Attorney’s Office, but not the general claim that they erroneously limited the grand jury to determining probable cause. As appellant Leyva put it, the grand jury was instructed to act independently as to only a portion of their responsibilities: the probable cause determination.

.The majority suggests that the authorities cited in this dissent are not strictly speaking authorities as they do not compel reversal. This is true. The non-Supreme Court cases are not binding both because they are out of circuit and because they are dicta.

As to Vasquez , however, it is not to be lightly disregarded. Though it is dicta, it was the majority opinion and reflected a venerated understanding of the grand jury. Cf. Sherman v. Community Consol. Dist. 21, 980 F.2d 437 , 448 (7th Cir.1992) ("Plaintiffs observe that the Court sometimes changes its tune when it confronts a subject directly. True enough, but an inferior court had best respect what the majority says rather than read between the lines. [W]e take [the Court's] assurances seriously. If the Justices are just pulling our leg, let them say so.”).

Moreover, the majority itself presents no cases that dictate the result here. Instead, its opinion quotes various commentators noting the diminishing of federal grand jury independence. See ante at 1162. The decline in the grand jury's autonomy, according to the majority, “would not be cured by a change in the language” of the charge. Id. at 1162. But nowhere does the majority explain why a constitutionally kosher instruction would fail to breathe any spirit into the otherwise and increasingly moribund body of- the grand jury. What we face is a matter of first-impression, and although we do not write on an entirely blank slate, it is an open-textured issue.

. See, e.g., United States v. Powell, 955 F.2d 1206, 1213 (9th Cir.1991); United States v. Simpson, 460 F.2d 515, 519-20 (9th Cir.1972).

. The difficulty of distinguishing between conscience and prejudice was highlighted long ago, as was one possible solution to the difficulty. See Thomas Hobbes, Leviathan 39-40 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651) ("But whatsoever is the object of any man's appetite or desire, that is it which he for his part calleth good; and the object of his hate and aversion, evil; and of his contempt, vile and inconsiderable. For these words of good, evil, and contemptible are ever used with relation to the person that useth them: there being nothing simply and absolutely so; nor any common rule of good and evil to be taken from the nature of the objects themselves; but from the person of the man, where there is no Commonwealth; or, in a Commonwealth, from the person that representeth it; or from an arbitrator or judge, whom men disagreeing shall by consent set up and make his sentence the rule thereof.”).

. The majority seems to suggest, ante at 1163, that the possibility of grand juries refusing to indict "based on local politics, racial or other discrimination, or anti-government sentiment” is an outcome so nefarious that we should prevent it, in part, by misleading the grand jurors about their powers. I agree that the possibility of such outcomes is real, but ours is not to question the choice the Framers appear to have made.

. See Hobbes, supra note 11. Cf. Brown v. Allen, 344 U.S. 443, 540 , 73 S.Ct. 397 (1953) ("We are not final because we are infallible, but we are infallible only because we are final.”) (Jackson, J., concurring).

.As the majority notes, what the grand jury might have done or might have known is speculative. It is a constitutional black box. But that doesn't render less likely the possibility that the grand jury, properly instructed, would provide relief from the strict applica *1173 tion of the law in its role as "conscience of the community.” Moreover, the majority provides no reason for its assertion that the factors discussed in the text, e.g., youth, ineptitude, or type of drug, should not influence a decision to indict as much as a decision to sentence a particular amount. A particularly merciful conscience of the community might think that it is precisely those factors that should preclude prosecution altogether. One could imagine a grand jury being reluctant to indict a poor mother whose lack of real opportunities forced her to prostitution or delivering drugs in order to pay for her children's food or shoes.

. If the error here were not structural, but rather merely subject to harmless error review, it would be inappropriate for us to rule because the district court, having determined there was no error on the grand jury question, never ruled on what prejudice, if any, was experienced by any of the defendants.

. While I am mindful that my proposed resolution would impose a burden on the government, the Supreme Court's decisions of late remind us that our obligations under the Constitution are not always measured against the metric of efficiency. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 , (2000) (O'Connor. J., dissenting) (noting that Apprendi will “unleash a flood of petitions by convicted defendants seeking to invalidate their sentences”); Ring v. Arizona, - U.S. - at-, 122 S.Ct. 2428 , 153 L.Ed.2d 556 at-(2002) (O’Connor, J., dissenting) (expressing similar fears that Ring will strain judicial resources).