United States v. Enrique Cortez-Rivera

Enrique Cortez-Rivera appeals from his conviction following a conditional guilty plea for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. He asserts that the district court should have dismissed his indictment because the model instructions given to the grand jurors unconstitutionally invaded the province of the grand jury. He asserts also that the district court erred in denying his motion to suppress the marijuana found during a border search because the search damaged his vehicle, thereby requiring that the customs officers have reasonable suspicion prior to commencing the search.

We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. The model charge given to the grand jury did not violate Cortez-Rivera’s Fifth Amendment right to indictment by a grand jury. The model instruction did not infringe upon the grand jury’s independence because it used the term “should” rather than “shall,” giving the grand jury leeway to depart from the instruction. This leeway, albeit slight, is sufficient to immunize the instruction from constitutional infirmity. Additionally, we hold that a defendant who moves to suppress evidence discovered during a border search…