Caruto

Elide Caruto was convicted of importation of cocaine and of possession of cocaine with intent to distribute. She appeals from the district court’s denial of her motion to dismiss the indictment against her. She principally challenges four instructions given to the grand jury, claiming that each violated the Grand Jury Clause of the Fifth Amendment. We affirm.

I. Background

Caruto was charged by the government and indicted by a grand jury for importation of, and possession with intent to distribute, 34.5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841 (a)(1), 952, and 960. A jury convicted Caruto after a trial, but we reversed her conviction on grounds unrelated to this appeal and remanded for a new trial. See United States v. Caruto, 532 F.3d 822 (9th Cir.2008) (reversing because the prosecutor’s emphasis on omissions in Caruto’s post-arrest statement violated due process).

On remand before Judge Hayes, Caruto moved to dismiss the indictment. She argued that instructions given by District Judge Larry A. Burns to the grand jury that handed up Caruto’s indictment violated the Fifth Amendment. We describe the challenged instructions in detail below. The district…