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 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 Americans and the dock was a grand jury made up of their fellow citizens, free to refuse a prosecutor’s entreaties or a king’s demands. 2

*1210 The grand jury requirement now lives in the Fifth Amendment. It says, plainly and simply, that no serious (felony) charge may be brought 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.

Two hundred fifteen years 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 Fifth Amendment and the grand jury institution.

The Challenged Instructions & The Remedy

Critical to an understanding of the serious constitutional issue we face is what the challenged grand jury instructions do say and the remedy the appellants do seek. As to the first, the grand jurors here were clearly and improperly told that their powers were limited to determining probable cause. They were also told that they could not consider the wisdom of the law or the possible punishment, and that they could expect “candor, honesty, and good faith in matters presented by the government attorneys.” As to the second, the appellants do not seek a nullification instruction. Instead, both Leon-Jasso and Navarro-Vargas propose that “the judge not tell the jury that the law requires that the grand jury not consider the wisdom of criminal laws or punishment, since the law is the exact opposite.”

A. Improperly Limiting Grand Jurors to Probable Cause Determination

The instructions begin by telling the grand jurors that what would follow outlines then- 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: ‘Tour 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.” Once, again, the instruction defines the purpose, or “task,” singularly, and even the majority concedes that “the terms ‘purpose’ and ‘task’ are singular, conveying that the jury has a unique purpose.” Once again, the unique purpose conveyed is determining probable cause. The instruction seems to compel the grand jury to indict as long as probable cause exists: “[Y]ou 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.”

The majority discounts the admonishment “should,” arguing that it is distinct from “must” or “shall.” Even “[a]s a mat *1211 ter of pure semantics,” the majority is incorrect to say that the use of the word “should” preserves the grand jury’s discretion. The word “should”- is used “to express a duty [or] obligation.” The Oxford AmeriCAN Diction And Language Guide 931 (1999); see also Merriam-Webster’s Collegiate Dictionary 1085 (10th ed.1998) (“used in auxiliary function to express obligation, propriety, or expediency”); The Amerioan Heritage Dictionary Of The English Language 1670 (3d ed. 1992) (“Used to express obligation or duty”); Dictionary.com, http://dictionary.reference. com/search?q=should (“Used to express obligation or duty”) (last checked Apr. 5, 2005). The “should” and'(‘shall” distinction is a lawyer’s distinction, not a difference most lay people sitting as grand jurors would be likely to understand. The instruction’s use of the word “should” is most likely to be understood as imposing an inflexible “duty or obligation” on grand jurors, and thus to circumscribe the grand jury’s constitutional independence.

This “should” admonishment is at odds with the grand jury’s broad independent role. As the Supreme Court held in Vasquez v. Hillery, 474 U.S. 254, 263 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986), “[t]he grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not.” (emphasis added).

The grand jury’s defining feature is its 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). The history of the adoption of the grand jury requirement in the Bill of Rights underscores its independent role, 3 and its independence was noted by courts at the founding of the 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 illfounded accusations.”).

B. Limiting Grand Jury’s Protective Role

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).

The significance of this second — and potentially protective — role should not be understated. Indeed, the strength of this understanding is emphasized in Vasquez . There, the Supreme Court said:

474 U.S. 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 undoubtedly possess these powers, and the majority so acknowledges, majority opinion at • 1200, the jurors in this case were misled by the instructions given to them, told that their powers were restricted to probable cause.This necessarily compromises their' independence. Further eroding the powers described in Gaither and Vasquez , the instructions admonish grand jurors:

This instruction.improperly limits the jurors’ discretion regarding the proper scope of application of federal criminal law, as well as matters of sentencing.

1. Questioning the Wisdom of the Law & Prosecutorial Discretion 4

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). 5 How is it then that the grand jury lacks the power to consider the wisdom of a law applied to a particular case? 6

*1213 The grand jury must have the power to consider the wisdom of a law because it performs what is undeniably a prosecutorial function. The Fifth Amendment’s command that a felony prosecution simply cannot proceed without the approval of the grand jury permits it to act as a check on prosecutorial discretion by the simple act of refusing to return an indictment. 7 The majority is concerned about this unfettered discretion, arguing that “[i]f a grand jury can sit in judgment of wisdom of the policy behind the law, then the power to return a no bill in such cases is the clearest form of ‘jury nullification.’ ” The majority doubts that the grand jury is well-suited to make such judgments on the wisdom of the law, though it appears to accept the concept of prosecutorial discretion in the hands of a United States Attorney: “a decision not to prosecute someone who would likely be indicted and could be convicted is a form of prosecutorial nullification.”

Prosecutorial discretion — the decision whether and how to bring charges against a particular defendant- — -is an important, even critical component of the criminal justice system, whether it be exercised by prosecutors or grand jurors. Not every potential crime can (or should) be investigated or prosecuted, and an important part of the prosecutorial.function is deciding which potential defendants to select for criminal prosecution, and how serious the charges should be. Prosecutors can, and often do, make such decisions based on their judgments as to how wise and important certain laws may be. 8

And herein lies the essential hypocrisy of the government’s position. Standing firmly in the defense of its exercise of discretion (amounting at times to nullification), it just as firmly argues that grand jurors are without authority to make similar judgments about which laws deserve vigorous enforcement and which ones do not, in deciding whom to indict, and on what charges. In the government’s eye, the grand jury is a mere instrument of prosecutorial will, a probable cause screening device obligated to act at the direction of the prosecutor and then only when the prosecutor has decided whom and how much to charge.

But grand jurors have been traditionally viewed as the “conscience of the community,” a.function that partakes far more of judgment and discretion than of the narrow ministerial role that the challenged instructions assign to them. 9 Because the petit jury may not take into account community values to decide whether to convict, it is even more important to foster this traditional function of the grand, jury — a body not subject to the prohibition against double jeopardy or other procedural constraints that apply once the case proceeds, to trial. See Williams, 504 U.S. at 49 , 112 S.Ct. 1735 ; United States v. R. Enters., Inc., 498 U.S. 292, 298 , 111 S.Ct. 722 , 112 L.Ed.2d 795 (1991).

*1214 2. Severity of the Punishment

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? They are exerting such influence, and they should be able to continue to do so, not boxed in by jury instructions that seek to eradicate this important function.

3. Instructions as Structural Protections

After long historical exegesis, the majority apparently agrees that a grand jury has the power to refuse to indict someone even when the prosecutor has established probable cause that this individual has committed a crime. See majority opinion at 1200 (“[Significantly, the grand jury may refuse to return an indictment even ‘where a conviction can be obtained.’ ”) (quoting Vasquez, 474 U.S. at 263 , 106 S.Ct. 617 ).

■ We part company; however, when it comes to how to protect this power of the grand jury. The majority believes that the “structure” and “function” of the grand jury — particularly the secrecy of its proceedings and unreviewability of many of its decisions — sufficiently protects that power. See majority opinion at 1200-1202, 1206. But the majority fails to see that the instructions given a grand jury shape its structure and function. Typical grand juries, including the grand jury in these cases, hear evidence from the prosecutor and receive instructions from the judge. Those instructions do not include a reference to Vasquez or a discussion of the full range of the grand jury’s powers, and include the language we have discussed, which jurors are likely to understand as precluding the authority to refuse to indict if there is probable cause. Conscientious grand jurors, instructed as were the jurors in these cases, will believe they lack any authority beyond that on which they are instructed, and will act accordingly.

Instructing a grand jury that it lacks power to do anything beyond making a probable cause determination thus unconstitutionally undermines the very structural protections that the majority believes saves the instruction. The power to deliberate in secret is valuable, but limiting the factors included in that deliberation circumscribes that power. Similarly, the power to make unreviewable decisions is a serious power indeed, but limiting the range of considerations that impact those decisions undermines that power. Given the “almost invariable assumption of the law that jurors follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 206 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987), we must assume that grand jurors followed the instructions offered in this case and, therefore, that the instructions undermined the very structural factors on which the majority rests its decision.

Indeed, there is something supremely cynical about saying that it is fine to give jurors erroneous instructions because nothing will happen if they disobey them. Grand jurors come in with no knowledge of - the system,, but, one would hope, a desire to fulfill their assigned role, not to flout it. Indeed, our legal system assumes that jurors have this desire, an assumption embodied in the Richardson presumption that jurors will fulfill their role as instructed by those in authority.

C. Praising the Government Attorneys

Further invading the independence of the grand jury was the court’s instruction *1215 that it could expect “candor, honesty, and good faith in matters presented by the government attorneys.” In. Leon^Jasso’s case, the judge also told the grand jurors that the prosecutors were “wonderful public servants.” What these instructions do not tell grand jurors is that prosecutors are free to deprive the grand jurors of exculpatory evidence, Williams, 504 U.S. at 45-47 , 112 S.Ct. 1735 , 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). How independent can a grand jury be when they are told how wonderful the prosecutors are? The majority concedes that the “candor, honesty, and good faith” instruction is “unnecessary language,” but attempts to justify its constitutionality by demonstrating that this language has been included for some time and claiming that the laudatory remarks do not threaten the constitutional relationship between the prosecutor and grand jury. Appellants, however, have the better argument: the grand jury’s independence is diluted by this instruction, which encourages deference to prosecutors. By undermining the grand jury’s independence, this part of the grand jury instruction is also unconstitutional.

The Petit Jury Analogy

Arguing from a remedy not sought to an institution not involved, the majority relies upon the rejection of nullification instructions in the petit jury context. 10 But this argument ignores 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 represented 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.

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 on its “conscience,” 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.

The petit jury analogy not only fails, it also provides a powerful reason for allowing the grand jury the independence to consider, for example, the wisdom of the law under which a suspect is to be prosecuted: we no longer permit petit juries to exercise such discretion, see, e.g., Powell, 955 F.2d at 1213; Simpson, 460 F.2d at 518-20, 11 for the perfectly sensible reason that petit jurors decide guilt or innocence in accordance with clearly established legal standards. If grand juries, too, cannot exercise su.ch discretion, then considerations such as the wisdom of the law will be isolated from any citizen’s review, subject only to the prosecutor’s discretion.

*1216 If the majority’s view of the grand jury prevails, then the prosecutor will have discretion over all matters 'concerning indictment, whereas the constitutional institution of the grand jury will not. The prosecutor, a “single employee of the state” not only should not have sole discretion, such sole discretion is not the system envisioned by the Fifth Amendment. Cf. Apprendi v. New Jersey, 530 U.S. 466, 498 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) (Scalia, J., concurring) (“[I]t is not arguable that, just because one thinks it is a better system [to allow the' judge, a single employee of the state, to determine sentencing factors by a preponderance of the evidence], it must be, or is even more likely to be, the system envisioned by a Constitution that guarantees trial by jury.”) Adopting a system where discretion is solely in the hands of the prosecutor would result in a “perilous decline” in the grand jury institution, analogous to the decline in the petit jury institution caused by judges determining sentencing factors that increase punishment beyond what is authorized by the jury verdict. See Bing v. Arizona, 536 U.S. 584, 611-12 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) (Scalia, J., concurring).

Structural Error

These instructions are unconstitutional because they actively mislead grand jurors into thinking their powers are more constrained than they are. Which raises the next question: if error, is it a structural error, or is it subject to harmless error review?

The 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 amounted to structural error, for which prejudice to the defendant need not be shown. This result issued, despite the 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 thfe 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 courts should look to whether any inquiry into harmless error would require unguided speculation. Id.

And, this is indeed an area of “unguided speculation.” Perhaps a grand jury would have exercised its discretion in favor of one or all of the defendants here; among other things, Navarro-Vargas is a young man with no serious criminal record, except one previous drug conviction. The judge exercised discretion in favor of Navarro-Vargas by sentencing him to the “low end of the guidelines.” The judge in Leon-Jasso’s case noted his military commendation, the impact of a prison term on his family, and his honesty in admitting his conduct, when he granted a two-level downward departure for sentencing, and then sentenced at the bottom of the range. Put differently, it is conceivable that a grand jury made aware of its role as “conscience of the community” would have provided “relief where strict application of the *1217 law would prove unduly harsh.” Gaither, 413 F.2d at 1066 n. 6.

“[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.” United States v. Marcucci, 299 F.3d 1156, 1173 (9th Cir.2002) (Hawkins, J., dissenting) (citation, internal quotation omitted). Where structural error occurs, it is no adequate reply 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 these instructions. 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 .

Because the defendants here were convicted after their grand juries were erroneously instructed, and because the erroneous instructions constituted a substantial impediment to the regular functioning of the grand jury as envisioned by the Constitution, 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. 12

. See Drew R. McCoy, The Last of the Fathers: James Madison & 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 & Gaiy 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 jury has also been criticized for serving as a *1210 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 Investigation of Political Dissidents, 7 Harv. C.R.C.L. L.Rev. 432 (1972).

. See sources cited in notes 1-2.

. Judge Kozinski was kind enough to refer to and draw upon my earlier dissent in United States v. Marcucci, 299 F.3d 1156, 1166-73 (9th Cir.2002) (Hawkins, J., dissenting), in his dissent from the now-withdrawn panel opinion. United States v. Navarro-Vargas, 367 F.3d 896, 899-903 (9th Cir.2004) (Kozinski, J., dissenting). I return the “favor” here by heavily drawing upon his dissent in this section.

. 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.”).

.Citizen grand jurors seem to instinctively feel this concern. Consider the following question posed recently to an ethics colum- , nist:

. Vasquez, 474 U.S. at 263 , 106 S.Ct. 617 . The grand jury can also investigate, see Williams, 504 U.S. at 48 , 112 S.Ct. 1735 , and, if it wishes, bring charges not presented to it by a prosecutor, see Vasquez, 474 U.S. at 263 , 106 S.Ct. 617 .

. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L.Rev. 505,. 599 (2001) ("[Pjrosecutors have the discretion not to enforce when the laws are too harsh.'').

.See Ríe Simmons, Re-examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System?, 82 B.U. L.Rev. 1, 39-44 (2002) (listing cases where grand juries refused to indict despite strong evidence that a criminal law was violated).

. See, e.g., United States v. Powell, 955 F.2d 1206, 1213 (9th Cir.1991); United States v. Simpson, 460 F.2d 515, 518-20 (9th Cir. 1972).

. See also Simmons, supra note 9 at 47 ("[T]he grand jury has become the primary vehicle for members of the community to participate in and influence the criminal justice system.”).

. Mindful of arguments that this 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., Blakely v. Washington, 542 U.S. 296 , -, 124 S.Ct. 2531, 2543 , 159 L.Ed.2d 403 (2004)

("[Ojur decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice.”); Apprendi, 530 U.S. at 551 , 120 S.Ct 2348 (O’Connor J., dissenting) (noting that' Apprendi will "unleash a flood of petitions by convicted defendants seeking to invalidate their sentences”); Ring, 536 U.S. at 620-21 , 122 S.Ct. 2428 (O'Connor.J., dissenting) (expressing similar fears that Ring will strain judicial resources).