Metropolitan News-Enterprise


Wednesday, May 5, 2004


Page 3


Ninth Circuit Rules Grand Jury May Be Instructed It Cannot Weigh Wisdom of Criminal Laws


By a MetNews Staff Writer


A federal grand jury deciding whether to return an indictment on drug charges may be instructed it “cannot” consider the wisdom of criminal laws passed by Congress, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The language, which is included in the model charge recommended by the Administrative Office of the United States Courts, did not violate the Fifth Amendment right of Steve Navarro-Vargas to the unfettered judgment of the grand jurors, a divided panel of the court said.

Judge Alex Kozinski dissented, arguing that his colleagues were misapplying the Ninth Circuit’s 2002 decision in United States v. Marcucci, 299 F.3d 1156.

Navarro-Vargas was charged with drug law violations after customs authorities discovered 65 kilograms of marijuana in his vehicle as he entered the United States from Mexico. U.S. District Judge Marilyn L. Huff of the Southern District of California denied a motion to dismiss the indictment in which Navarro-Vargas argued the charge was improper.

The model charge tells grand jurors:

“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.”

Navarro-Vargas also objected to the immediately following sentence of the charge, which informed the grand jurors they “should not be concerned about punishment in the event of conviction,” and to another part of the charge which told the grand jurors they should indict if they found probable cause.

All three arguments were foreclosed by Marcucci, Senior Judge Robert R. Beezer said.

Beezer said that last year in United States v. Adams, the Ninth Circuit had “read Marcucci broadly as holding that the model charge did not impermissibly infringe on the grand jury’s independent exercise of its discretion.”

He explained:

“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.”

Kozinski said he agreed that Marcucci settled the issue of whether an instruction telling grand jurors they “should” indict if they found probable cause and not consider punishment was proper, though he added that if the matter were one of first impression he “might find more persuasive” the dissent authored in that case by Judge Michael Daly Hawkins.

But the Marcucci court did not consider the portion of the instruction telling grand jurors they “cannot” weigh wisdom of criminal laws, Kozinski asserted.

The dissenting jurist wrote:

“This prohibition is mandatory, not hortatory; it seeks to constrain the grand jury’s discretion by limiting the matters it may consider in deciding whether to indict, and it does so with respect to an issue that could be highly relevant to a grand jury’s decision whether to indict at all and, if so, whether to indict for a more or less serious offense.”

The grand jury’s function is primarily prosecutorial, and to carry out that function properly it must have discretion to decide when to bring charges and what charges to bring, Kozinski argued.

“Not every potential crime can (or should) be investigated or prosecuted, and an important part of the prosecutorial function is deciding which potential defendants to select for criminal prosecution, and how serious the charges should be,” he explained. “Prosecutors can, and often do, make such decisions based on their judgment as to how wise and important certain laws may be.”

The majority’s reliance on Adams was misplaced, Kozinski said, pointing out that the broad view of Marcucci cited by Beezer was contained in an Adams footnote which provided no details about what alleged defects in the grand jury instructions had been challenged.

“A court cannot declare a grand jury instruction constitutional en gross and immunize it from all future constitutional challenges,” Kozinski said. “Because Adams cited Marcucci without explication or elucidation, it can be read no more broadly than Marcucci itself.”

Senior U.S. District Judge William W. Schwarzer of the Northern District of California, sitting by designation, concurred in the opinion authored by Beezer.

The case is United States v. Navarro-Vargas, 02-50663.


Copyright 2004, Metropolitan News Company