627 F.3d 759
9th Cir.2010Background
- Caruto was indicted for importation of cocaine and possession with intent to distribute 34.5 kg; district court instructed grand jury on several points; Caruto moved to dismiss the indictment on Fifth Amendment grand jury instruction grounds; district court denied; Caruto was retried and convicted; appellate review is de novo on grand jury instruction challenges; the challenged instructions addressed punishment, wisdom of the laws, magistrate involvement in probable cause, and independence from the U.S. Attorney.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of punishment instruction | Caruto argues the ‘whatsoever’ emphasis destroyed permissive nature. | Caruto contends the stronger emphasis voids Cortez-Rivera distinction. | No reversible error; instruction remained permissive and harmless. |
| Constitutionality of ‘wisdom of the laws’ elaboration | Caruto claims additions rendered instruction unconstitutional. | Govt. argues additions did not violate independence; paralleled Navarro-Vargas. | No constitutional violation; language did not disturb grand jury independence. |
| Magistrate judge probable cause explanation | Caruto asserts explanation improperly pressured independent judgment. | Court's discussion framed as timeline, not constraint on grand jury. | Harmless and non-structural; did not undermine independence. |
| Independence of grand jury from U.S. Attorney | Caruto claims language made grand jury appear part of U.S. Attorney's office. | Record shows instruction later clarified independence; no violation. | Instruction clarified independence; no Fifth Amendment violation. |
Key Cases Cited
- Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc; grand jury independence and structure of the Fifth Amendment inquiry)
- Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (dismissal prior to trial requires substantial influence on indictment)
- Marcucci, 299 F.3d 1156 (9th Cir. 2002) (constitutional instructions consistent with grand jury function)
- Navarro-Vargas (2nd cite), 408 F.3d 1184 (9th Cir. 2005) (see above for context on independence and function of grand jury)
- United States v. Williams, 504 U.S. 36 (1992) (grand jury secrecy and not providing exculpatory evidence to grand jury)