United States v. Steve Navarro-Vargas

367 F.3d 896, 2004 U.S. App. LEXIS 8725, 2004 WL 943634

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2004
• Docket: 02-50663
• Status: Published

Opinions

BEEZER, Circuit Judge.

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 Amendment¹ 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 two count indictment against Navarro-Vargas charging him with importing 65.30 kilograms of marijuana in violation of 21 U.S.C. §§ 952 and 960 and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Navarro-Vargas moved to dismiss the indictment based on alleged defects in the instructions given to the grand jury. He argued that the district court erroneously included statements instructing the grand jury that it could not consider the wisdom of criminal laws or punishment in determining whether to indict and that the grand jury must indict the accused in each case in which the grand jury finds probable cause exists. Navarro-Vargas also moved to dismiss the indictment, arguing that 21 U.S.C. §§ 841 and 960 were unconstitutional. The district court denied both motions and Navarro-Vargas entered a conditional plea of guilty pursuant to Fed. R.Crim.P. 11(a)(2), reserving his right to challenge the instructions given to the grand jury and the constitutionality of 21 U.S.C. §§ 841 and 960.

II

We review de novo the denial of a motion to dismiss the indictment. United States v. Marcucci, 299 F.3d 1156, 1158 (9th Cir.2002), cert. denied, 538 U.S. 934, 123 S.Ct. 1600, 155 L.Ed.2d 334 (2003).

III

Navarro-Vargas argues that the district court's charge to the grand jury, which followed the model charge recommended by the Administrative Office of the United States Courts (the "model charge"), impermissibly circumscribed the subject matter of the grand jurors' inquiries and deliberations and runs counter to the history of the grand jury institution. The specific portion of the model charge at issue in this case is as follows:

You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is determined by Congress and not by you. Furthermore, when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction. Judges alone determine punishment.

In Marcucci, we examined the question whether "the district court should have granted [appellants'] motions to dismiss their indictments because the charge ² to the grand jurors in their cases improperly described the grand jury's constitutional role and functions, thus depriving appellants of their right to a grand jury's independent exercise of its discretion." 299 F.3d at 1159. The "specific complaint" at issue in Marcucci was "that the charge did not tell the grand jury that it could refuse to indict ... even if there was probable cause to support an indictment." Id. The Marcucci court noted that it was the first circuit court to examine the question "{w]hether th{e] standard charge is constitutional." Id. In Marcucci we quoted the same portion of the model charge challenged by Navarro-Vargas in this case and after an extensive analysis concluded "that the charge to the grand jury was not unconstitutional." Id. at 1159, 1164.

In a subsequently published opinion, United States v. Adams, we cited Marcucci for the proposition that "the model charge d[oes] not misstate the constitutional role and function of the grand jury." 343 F.3d 1024, 1027 n. 1 (9th Cir.2003). In Adams the defendant challenged his indictment based on the propriety of the model charge at issue in this case and in Marcucci. Id. The Adams court read Marcucci broadly as holding that the model charge did not impermissibly infringe on the grand jury's independent exercise of its discretion. Even if we might be disposed to adopt a narrower interpretation of Marcucci, we are not now free to do so in light of Adams. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001). We hold that the charge given in this case, which mirrored the model charge, is constitutional. We affirm the district court's denial of the motion to dismiss the indictment.

IV

Navarro-Vargas was not denied his Fifth Amendment rights when the district court instructed the grand jury that it should indict if it found probable cause. Navarro-Vargas's arguments to the contrary are foreclosed by our decision in Marcucci 299 F.3d at 1164. We affirm the district court’s denial of Navarro-Vargas’s motion to dismiss the indictment.

V

Navarro-Vargas contends that the district court erred in failing to dismiss the indictment because 21 U.S.C. §§ 841 and 960 are facially unconstitutional. This argument is foreclosed by our decision in United States v. Hernandez, 322 F.3d 592, 602 (9th Cir.2003). We affirm the district court’s denial of the motion.

AFFIRMED.

1 . The Fifth Amendment reads in relevant part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” U.S. Const, amend. V.

2 . The charge given to the grand jury by the district court in Marcucci was an almost verbatim recitation of the model charge recommended by the Administrative Office of the United States Courts. 299 F.3d at 1159.