United States v. Steve Navarro-Vargas

Steve Navarro-Vargas appeals his conviction, contending that the district court should have dismissed his indictment because: (1) the charge given by the district court to the grand jury denied his Fifth Amendment 1 right to the unfettered judgment of the grand jurors by instructing them not to consider the wisdom of criminal laws and that they should not be concerned about the possible punishment in the event of conviction; (2) the charge violated his Fifth Amendment right to the grand jury’s independent exercise of its discretion by instructing the grand jury that it should indict if it found probable cause; and (3) 21 U.S.C. §§ 841 and 960 are unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

On June 13, 2002 Navarro-Vargas entered the United States from Mexico through the Tecate, California Port of Entry. A United ’States Customs inspector noticed that the gasoline tank of the vehicle Navarro-Vargas was driving had been tampered with, and a narcotic detector dog alerted to the presence of narcotics in the vehicle. Upon further inspection, 65.30 kilograms of marijuana were discovered in the vehicle. On June 26, 2002, the Government filed a…

dissenting in part.

Defendant argues that the charge given to the grand jury by the district court impermissibly limits the grand jurors’ discretion in two ways: by instructing them that they “should not be concerned about punishment” and that they “cannot judge the wisdom of the criminal laws enacted by Congress” in deciding whether to indict. (Emphases added.) The majority rejects both challenges.

I agree that United States v. Marcucci, 299 F.3d 1156 (9th Cir.2002), requires us to resolve the first issue against the defendant. Marcucci involved a slightly different part of the same grand jury instruction, one that instructs grand jurors that they “should” indict if they find probable cause. Id. at 1159 . Over Judge Hawkins’s vigorous dissent, the Marcucci majority held that “should” is different from “shall” or “must” in that it does not preclude the grand jury from exercising its discretion not to indict, even if it does find there is probable cause. Id. at 1164 . While, as a matter of first impression, I might find more persuasive Judge Hawkins’s view on this point, id. at 1170 (Hawkins, J., dissenting), I accept Marcucci as binding, not merely as to the precise question…

367 F.3d 896 UNITED STATES of America, Plaintiff-Appellee, v. Steve NAVARRO-VARGAS, Defendant-Appellant. No. 02-50663. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2003. Filed May 4, 2004. Matthew C. Winter, Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Carol C. Lam, U.S. Attorney, David W. Mitchell, Asst. U.S. Attorney, (on the brief), Patrick K. O'Toole, Asst. U.S. Atty. (oral argument), U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. Before: BEEZER, KOZINSKI, Circuit Judges, and SCHWARZER, * Senior District Judge. BEEZER, Circuit Judge. 1 Steve Navarro-Vargas appeals his conviction, contending that the district court should have dismissed his indictment because: (1) the charge given by the district court to the grand jury denied his Fifth Amendment 1 right to the unfettered judgment of the grand jurors by instructing them not to consider the wisdom of criminal laws and that they should not be concerned about the possible punishment in the…