United States v. Steve Navarro-Vargas

limitеd continuance sought a could have Further- need. particularized

address arguments on

more, may raise his Hickey judgment, should he be from a final

appeal

convicted.

VII a time- doctrine is

The collateral order necessary exception to the

honored and However, interlocutory ap-

finality rule. collateral order doctrine under the

peals in- limited to properly

criminal cases

stances, jeopardy double such as colorable

claims, statutory or con- there are where the defen- guarantees

stitutional Hickey’s standing trial. As none

dants a colorable claim contentions raises

four doctrine, these collateral order

under the juris- lack of for

appeals are DISMISSED

diction. America,

UNITED STATES

Plaintiff-Appellee, NAVARRO-VARGAS,

Steve

Defendant-Appellant. 02-50663.

No. Appeals,

United States Court

Ninth Circuit. Dec. 2003.

Argued and Submitted 4,May 2004.

Filed

897 I Winter, Steven F. Huba- Matthew C.

chek, Diego, of Federal Defenders San On June Navarro-Vargas 2002 en- Inc., CA, Diego, for the defendant- San tered the United States from Mexico appellant. Tecate, through the California Port of En- Lam, Attorney, U.S. David W. try.

Carol C. A inspector United ’States Customs (on Mitchell, Attorney, the Asst. U.S. noticed that gasoline the tank of the vehi- brief), O’Toole, Atty. Patrick K. Asst. U.S. cle Navarro-Vargas driving was had been (oral Office, argument), Attorney’s U.S. with, tampered and a narcotic detector dog CA, Diego, plaintiff-appellee. for the San presence alerted to the of narcotics in the Upon inspectiоn,

vehicle. further 65.30 kilograms marijuana were discovered in 26, 2002, the vehicle. On June the Govern- ment filed a two count indictment Navarro-Vargas him charging with im- porting marijuana 65.30 kilograms of in 21 §§ violation of 952 and U.S.C. 960 and BEEZER, KOZINSKI, Circuit Before: possession marijuana with intent to dis- SCHWARZER,* Judges, and Senior in tribute violation of 21 U.S.C. Judge. District 841(a)(1). § BEEZER, Judge. Circuit Navarro-Vargas moved dismiss the indictment alleged based on defects in the Navarro-Vargas appeals Steve his con- given grand jury. to the instructions He viction, contending that the district court argued that erroneously the district court should have dismissed his indictment be- included instructing grand statements the (1) charge given by cause: the district it could not consider the wisdom grand jury court to the denied his Fifth punishment of criminal laws or in deter- right judg- ‍‌​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​​​​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​‌‌​​​‍Amendment1 to the unfettered mining whether to indict and that jurors by ment instructing grand jury must indict the accused each them not to consider the wisdom of crimi- grand jury proba- case which the finds nal laws and that should not be con- cause Navarro-Vargas ble exists. also possible punishment cerned about the indictment, (2) arguing moved dismiss the conviction; charge the event of §§ that 21 U.S.C. 841 and 960 were uncon- right violated his Fifth Amendment to the stitutional. The district court denied both grand jury’s independent exercise of its Navarro-Vargas mоtions and entered a by instructing discretion plea guilty conditional to Fed. if it probable pursuant should indict found (3) 11(a)(2), cause; reserving right R.Crim.P. his §§ U.S.C. 841 and challenge given jurisdiction are unconstitutional. We have instructions § pursuant constitutionality to 28 U.S.C. af- and the we §§ firm. U.S.C. 841 and 960.

* Schwarzer, presentment The Honorable William W a a Grand Senior or indictment of United States District for the Northern Jury, except arising in cases in the land or Cаlifornia, sitting by designation. District of forces, Militia, naval or in the when in actual danger.” public or service in time of War 1. The Fifth Amendment reads in relevant Const, part: person "No shall held U.S. amend. V. to answer for crime, capital, or otherwise infamous unless

II to indict ... even if there was support cause to an indictment." Id. The We review de novo the denial of a Marcucci court noted that it was the first mоtion to dismiss the indictment. United question circuit court to examine the States v. charge "{w]hether th{e] standard is consti (9th Cir.2002), denied, 934, cert. quoted tutional." Id. In Marcucci we the 1600, (2003). 123 S.Ct. 155 L.Ed.2d 334 portion charge same of the model chal lenged by Navarro-Vargas in this case and III analysis after an extensive concluded "that Navarro-Vargas argues that charge grand jury to the was not un charge grand jury, district court's to the сonstitutional." Id. at 1164. charge which followed the model recom subsequently published opinion, In a by mended the Administrative Office of Adams, United States v. we cited Marcuc (the the United States Courts "model proposition ci for the that "the model charge"), impermissibly circumscribed the charge d[oes] not misstate the constitu subject grand jurors' inqui matter of the grand jury." tional role and function of the ries and deliberаtions and runs counter to (9th Cir.2003). 343 F.3d 1027 n. 1 In history grand jury of the institution. challenged Adams the defendant his in specific portion charge of the model at propriety dictment based on the issue in this case is as follows: charge model at issue in this case and in judge You cannot the wisdom of the Marcucci. Id. The Adams court read by Congress, criminal laws enacted broadly holding Marcucci that the mod is, whether or not therе should or should charge impermissibly infringe el did not designating not be a federal law certain grand jury's independent exercise of activity as criminal. That is determined might its discretion. Even if we be dis by Congress by you. and not Further- posed adopt interpretation a narrower more, deciding when whether or not to Marcucci, we are not now free to do so indict, you should not be concerned light of Adams. Seе Hart v. Massan punishment about in the event of convic- ari, (9th Cir.2001). 266 F.3d Judges punish- tion. alone determine charge given case, We hold that the in this ment. charge, which mirrored the model is con question In we examined the stitutional. We affirm the district court's whether "the district court should have denial of the motion to dismiss the indict granted [appellants'] motions to dismiss ment. charge their indictments because the 2 to grand jurors imprоperly in their cases IV grand jury's described the constitutional Navarro-Vargas functions, depriving appel was not denied his

role and thus right grand jury's rights lants of their to a inde Fifth Amendment when the district grand jury pendent court instructed the exercise of its discretion." 299 "specific complaint" F.3d at 1159. The at should indict if it found cause. charge Navarro-Vargas's arguments issue in Marcucci was "that the did to the con trary by not tell the that it could refuse are foreclosed our decision in charge given grand jury by 2. The the mended the AdministrativeOffice of the district court in Marcucciwas an almostver- UnitedStates Courts.299F.3d at 1159. charge batim recitation of the model recom- presented at 1164. affirm tion 299 F.3d We there but as to the more Marcucci the district court’s denial of Navarro-Var- general question whether a “should” or motion tо dismiss the indictment. gas’s “should not” imper- instruction missibly constrains the discre-

V says not, tion. Marcucci it does and I Navarro-Vargas contends that the dis- accept controlling that as in our case. in failing trict court erred to dismiss the logic But Marcucci’s precisely works §§ indictment because 21 841 and ‍‌​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​​​​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​‌‌​​​‍U.S.C. part reverse as to the other of the chal facially unconstitutional. This ar- 960 are lenged Quite clearly, instruсtion. the dis by our gument is foreclosed decision grand jurors trict court told the Hernandez, States v. United permitted were not to take the wisdom of Cir.2003). (9th 602 affirm the district We in deciding the laws into account whether of the motion. court’s denial to an prohibition return indictment. This AFFIRMED. mandatory, hortatory; not it seeks to KOZINSKI, Judge, dissenting grand jury’s by in constrain the discretion Circuit part. limiting may the matters it consider in indict, deciding whether to and it does so argues charge given

Defendant that the respect with to an issue that could be jury by the district court grand to the highly relevant to a decision jurors’ impermissibly grand limits the dis- and, so, whether to indict at all if whether by in ways: instructing cretion two them to indict for a more or less serious offense. they that “should not concerned about 254, 263, Vasquez Hillery, See v. 474 U.S. punishment” they judge and that “cannot (1986). by the wisdom of the criminal laws enаcted 106 S.Ct. 88 L.Ed.2d 598 Un Congress” deciding whether to indict. majority, like the I can find no source added.) majority rejects (Emphases The authority impose for the district court to challenges. both grand jury. such a limitation on the The instruction thus violates United States v. Marcucci, agree I that United States Williams, 36, 50, S.Ct. (9th Cir.2002), requires 299 F.3d 1156 us (1992), imposes 118 L.Ed.2d 352 in that it to the first issue resolve the defen- impermissible procedure rule of for the slightly dant. Marcucci involved a differ- part grand jury ent of the same instruc- operation grand jury. Alternatively, of the tion, jurors that that grand one instructs I believe the instruction constitutes an un they if probable “should” indict find authorized substantive interference cause. Id. at 1159. Over Haw- jury’s grand district court with the tradi dissent, ma- vigorous kins’s the Marcucci tional discretion.

jority held that “should” is different from I arguments not rehearse the about will pre- “shall” or “must” that it does not responsibility our constitutional to main grand jury exercising clude the from its independence tain the of the indict, not to if it find discretion even does forcefully mar eloquently that are there is cause. Id. at 1164. by Judge shaled Hawkins his Marcucci While, I impression, as a matter of first at dissent. might persuasive Judge find more Haw- (Hawkins, J., (Haw- dissenting). Judge Hawkins point, kins’s on this at 1170 view id. kins, J., says all that can or need be said on the dissenting), accept I as Marcucci and, merely subject to to binding, precise ques- anything not as for want of useful judg- based on their add, by make such decisions simply incorporate I his discussion important certain ment as to how wise and reference.* Stuntz, The may See William laws be. emphasize points I two do want Law, 100 Pathological Politics Criminal specific particularly germane (2001) (“[Prosecu- 505, 599 Mich. L.Rev. to us—whether question presented discretion not to enforce tors have the jury may consider the wisdom grand harsh.”). prose- A the laws are too when indict. deciding law in whether to While that securities fraud is cutor who believes entity, independent is an (or perhaps offense particularly serious any government, part not branch gain press him a lot of cover- one will Williams, 47, 112 504 U.S. at S.Ct. more resources age) may choose devote accurately performs function it is most investigating prosecuting prosecutorial. described crime, defen- particularly high-profile as to prose- jury usually acts as a check example A is New York dants. recent by occasionally refusing cutorial discretion Spitzer, who has Attorney General Eliot prosecu- that the to return an indictment “attaek[ing] the madе a name for himself seeks, at Vasquez, tor U.S. industry vengeance.” fund with a [mutual] 617, investigate, although it can also ‍‌​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​​​​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​‌‌​​​‍S.Ct. Dwyer, Mara Der Hovanesian & Paula Williams, 48, 112 504 U.S. at S.Ct. see Next?, Spitzer Will Eliot Strike Where 1735, presented not to it bring charges and (in- Online, 26, Feb. 2004 Business Week by Vasquez, a 474 U.S. at prosecutor, see omitted) (Spitzer’s quotation ternal marks 263, discre- 106 S.Ct. 617. Prosecutorial against financial services crimes is crusade bring to tion—the decision whether “bring[] light cases to intended to a defendant —is charges against particular laws.”). push[ Washington tighten ] widely recognized having important as an Egelko, also Bob Medical Pot Advo- See political component. every potential Not Chron., 1, Guilty, cate Found S.F. Feb. (or should) investigated crime can or 2003, a (calling at A1 the conviction of prosecuted, important part and an marijuana medical advocate “a prominent deciding prosecutorial function is which seeking to triumph prosecutors for federal criminal potential defendants to select for pot as override California’s endorsement of charges prosecution, and how serious the can, do, a DEA official’s reporting and often medicine” and should be. Prosecutors * following My cоlleagues majority "[t]he foot- claim that Adams The also relies on broadly holding read Marcucci as that Adams, court v. F.3d 1024 note in United States impermissibly charge in- the model did not (9th Cir.2003): fringe grand jury's independent on the exer- discretion,” reject argument We that Adams's indict- and that we are conse- cise of its by reading quently Adams’s broad bound constitutionally ment was infirm because of However, Maj. op. at 898. Adams Marcucci. improper instruction when the doesn’t tell us on what basis given empaneled. was The instruction being challenged, we can't instruction was so by the model the district court mirrored by challenge tell whether the raised Navarro- charge recommended the Administrative rejected. Vargas A court was considered Office of the United States Courts. In Unit- instruction con- cannot declare (9th ed 299 F.3d 1156 States grоss en and immunize it from all stitutional Cir.2002), charge we ruled that the model challenges. Because future constitutional did not misstate the constitutional role and explication Adams cited Marcucci without or grand jury. function of the Marcucci con- elucidation, broadly it can be read no more trols here. nothing itself. Adams adds than Marcucci analysis. Id. at 1027 n. 1. our “ Case, Times, 16, 2002, N.Y. thing is no such der Nov. at B3. that ‘[t]here stаtement ”); Larry commentator, marijuana’ Neumeis- In the words of one as medical “has ter, Spate Trials Set to Unprecedented long apparent been to the most casual Press State & Spring, Assoc. Start ... [Morgenthau] has no [t]hat observer Before Wire, prose- (reporting Local Jan. carrying intention of out a law with which the “excesses of punishing cutors’ focus on Fettmann, profoundly disagrees.” he su- explaining America” and corporate pra. spectrum On the other end of the percep- wants to create a government “the Philadelphia Attorney Lynne District every a Martha Stewart tion that time Abraham, penalty who seeks the death as (inter- along, prosecuted” she’ll be comes often as the law allows. In the New omitted)). marks quotation nal reported рrosecutor York Times that “no country penalty uses the death Conversely, prosecutors often choose Rosenberg, more.” Tina pursuing resources to certain Deadliest devote fewer D.A., Times, 16, 1995, 6, July § believe are not N.Y. at 22. punishments crimes or important, perhaps surprise or even unwise. It’s therefore no as Abraham al., Wayne R. LaFave et Criminal quoted saying, See was “When it comes to (ex- (2d ed.1999) 13.2(a), § Procedure at 13 I penalty, passionate. the death am I prosecutors often decline to plaining truly manifestly believe it is correct.” Id. they are enforce criminal laws because grand juries There’s no reason cannot or Hardwick, outdated); see also Bowers v. political judg should not make similar 186, 198 n. 106 S.Ct. vigorous ments about which laws deserve (1986) J., (Powell, concurring) L.Ed.2d 140 not, enforcement and which ones do (“The history of nonenforcement Geor- [of indict, deciding whom to and on what sodomy the moribund gia’s suggests law] charges. As explains, Hawkins today criminalizing character of laws this grand jurors traditionally viewed as conduct.”). type private, of consensual “ community’ of ” —-a the ‘conscience the Attorney Manhattan example, For District partakes judg function that far more of Morgenthau Robert is known for his “fer- ment and discretion than of the narrow opposition capital punishment.” to vent merely weighing ministerial role of the Fettmann, Editorial, Morgy Eric the ‘Ex- evidence to determine cause that treme’; Post, DA Penalty, v. Death N.Y. challenged assigns instruction to them. the 7, 2004. New York was consid- Jan. When (Hawkins, 299 F.3d at 1168-69 Mor- ering reinstating penalty, the death J., Simmons, Re dissenting); see also Ric declaring that genthau op-ed authored an Jury: There examining the Grand Is “actually penalty the death hinders the Democracy Room in the Criminal Jus Morgen- crime.” M. fight Robert for System?, tice 82 B.U. L.Rev. 39-44 thau, Editorial, What Prosecutors Won’t (2002) grand ju (presenting cases where You, Times, 7, 1995, at A25. Tell N.Y. Feb. despite strong to indict evi ries refused Though penalty ultimately the death was violated). that a criminal law was dence York, Morgenthau in New has reinstated a law The decision whether to enforce Tabak, it. sought never See Ronald J. far-away legislature by a com enacted Capital Empirical Studies the Modem of in local commu mencing prosecution the Sentencing System: Empirical How Stud- necessarily imply some sec nity seems Positively the Politics the ies Can Affect 1431, ond-guessing legislature’s of the decision Penalty, L.Rev. Death 83 Cornell (1998); in In Saulny, pass place. the law the first Morgenthau Susan conscience, community’s the Penalty Triple-Mur- acting Death as the Rules Out in district, very jurors particular there is little state grand must decide whether conduct control, control, and no local over appears prohibitions that to fall within the almost Gleeson, prosecutors. does indeed merit federal See John particular of а statute Capital im- Punishment: punishment. Supervising criminal It seems almost Federal judgments Why Attorney the General Should possible to make such without Defer light Attorneys Against in Recommend considering the law’s wisdom when U.S. Penalty, that the Death L.Rev. (finding local realities. See Id. at 49 Va. (2003) (“In rates, ‍‌​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​​​​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​‌‌​​​‍that grand system a federal “[djuring high times crime to states’ juries likely accept rightly great are more defen- accords deferencе [a of the argument carrying prerogatives, dant’s that he was an the federalization penalty limited to cases illegal handgun protection] for and dismiss death should be case, heightened in and de- though legal the even there are no which there is a interest, justi- that grounds doing “[d]uring for so” but times monstrable federal one crime, relatively grand juries imposition capital prosecution will fies the of а low reject permit refuse to usually argument such an and indict on communities defendant”). courts.”). in An study indepen- the A recent of New them their own grand juries grand interposes York confirms the dent —one jury’s community’s community’s prosecutorial role as the conscience. local values on grand jurors by policies in cases decisions that are controlled “[T]he [the studied] making discretionary, non-legаl Washington ... set in as to the enforcement were judgments passed Washington to whether the defendants of laws like —seems (and prosecuted. important safeguard entirely be As the first should usually only) community input grand jury’s means of consistent with the tradition- justice system, challenged grand into the criminal al function. Yet moral, jury political, exercises its own instruction seeks to neutralize this judgment reviewing prosecu- aspect social discretion. bring tor’s decision to the case.” Id. at 46 Second, allowing (perhaps even encour (footnotes omitted). aging) to consider the wis community judgment suspect This kind of dom of the law under which a is to particularly particularly important prosecuted urgent, strikes me as seems prosecutions, merely given longer petit juries permit and not be- we no federal See, Wаshington usually e.g., cause much farther to exercise such discretion. Powell, 1206, away geographically capi- than the state United States v. 955 F.2d (9th Cir.1991); prosecutors locally tal. State are elected United States v. (9th 515, regu- Simpson, and must stand for re-election on a 518-20 Cir. 1972). will, Simmons, They necessity, lar basis. take also L.Rev. See B.U. (“[T]he community’s the local values into account. at 47 has become the сontrast, Attorneys, by primary United States are vehicle for members of the com appointed by munity participate the President and never in and influence the justice system.”). juries, In daily have to stand for election. their criminal Petit grand juries, integral part operations, supervised unlike are Justice, function, adjudicative Department prosecutori- whose which is suffused policies they implement. Except array procedural protections. al for with an courtesy, conceptions process, the tradition of senatorial which Given modern of due gives say wholly petit the state’s senators some who it would be intolerable to allow Attorney jurors up they go will be the in a to make the law as United States rather, jurors, must decide Petit along. America, UNITED STATES of strictly in accordance innocence

guilt or Plaintiff-Appellee, scrupulously clearly established and with cry that standards. Yet the legal defined community should not be a member of the NAVIDAD-MARCOS, Jose Luis independent unless an convicted of a crime Defendant-Appellant. that such a peers of his believes group com- would be consistent with conviction No. 03-10234. values, is not without historical

munity Appeals, United States Court of See, e.g., http://fija.org/ plausibility. Ninth Circuit. 2004) (last (quot- links.htm visited Mar. sup- by the Founders ing statements Argued April Submitted 2004. view). petit jury Because the port this 5,May Filed 2004. this, important more may not do is even this traditional function foster subject body not —a jeopardy or oth- prohibition against double apply once procedural

er constraints Williams, to trial. See proceeds

the ease 1735; 49, 112 at S.Ct. United U.S. Enters., Inc., v. R.

States (1991); 722, 112 L.Ed.2d 795 S.Ct. (Hawkins, J., 299 F.3d at 1171

dissenting). challenged instruction exercising from

precludes the thus, I be

one of its core functions

lieve, en constitutes an unauthorized ‍‌​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​​​​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​‌‌​​​‍authority. on the

croachment Hawkins, I

Like believe the error is

structural, subject not to defea- and thus analysis. error

sance based harmless

Id. at 1172-73. reasons, articulated

For these and those

by Judge scholarly Hawkins his dissent Manned, I would defendant’s vacate and remand with instructions

conviction

that the district court dismiss the indict-

ment, government with leave for the

seek a new indictment from a by the erroneous instruction.

not infected

Case Details

Case Name: United States v. Steve Navarro-Vargas

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 4, 2004

Citation: 367 F.3d 896

Docket Number: 02-50663

Court Abbreviation: 9th Cir.