United States v. Steve Navarro-Vargas, United States of America v. Jose Antonio Leon-Jasso

408 F.3d 1184 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. No. 02-50663. No. 03-50009. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc October 14, 2004. Filed May 23, 2005. 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. Carol C. Lam, United States Attorney, David W. Mitchell, Assistant U.S. Attorney (on brief), Patrick K. O'Toole, Assistant U.S. Attorney (at oral argument and rehearing en banc), United States Attorney's Office, San Diego, CA, for plaintiff-appellee. 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…

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 N avarro-V argas (“N avarro-V ar-gas”) 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,…

Dissenting.

The majority tells us that a constitutionally created institution, designed precisely to filter prosecutorial desire through citizen judgment, must give way to the unbridled exercise of prosecutorial discretion. The majority arrives at this remarkable conclusion by relying principally upon British history and the use of the grand jury in England prior to King George III. Yet the presence of the grand jury in our constitutional system is a uniquely American institution, born out of concern for unchecked government power and the experience of American colonists that led them to separate themselves from the very history the majority embraces.

History of the Grand Jury Requirement

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 their reliance on devices that protected them- from what they saw as 'the arrogant exercise of the Crown’s authority. Opponents of the proposed…