United States v. Navarro-Vargas

United States Court of Appeals for the Ninth Circuit · 2005 · Criminal Procedure

408 F.3d 1184 (9th Cir. 2005)

Updated July 27, 2026

Criminal ProcedureGrand JuryFifth AmendmentGrand Jury Clausegrand jury independencemodel grand jury instructionsprobable causejury nullification

Facts

In each case, the district court instructed the grand jury with the Judicial Conference's model charge. The challenged portions told grand jurors that they could not judge the wisdom of criminal laws enacted by Congress, that they should vote to indict when the evidence established probable cause, and that they could expect candor, honesty, and good faith from government attorneys. Defendants argued these instructions undermined the grand jury's constitutional independence and required dismissal of the indictments. They also argued that 21 U.S.C. §§ 841 and 960 were facially unconstitutional because they allowed judges to determine sentencing factors.

Issue

Do the challenged federal model grand jury instructions violate the Fifth Amendment's Grand Jury Clause by undermining the grand jury's independence? Also, are 21 U.S.C. §§ 841 and 960 facially unconstitutional under Apprendi?

Rule

The Fifth Amendment requires indictment by a grand jury, but the grand jury's constitutional independence derives from the structure of the institution—especially secrecy of deliberations and the unreviewability of its decisions—not from an entitlement to instructions affirmatively recognizing a power to nullify or judge the wisdom of criminal laws. Accordingly, instructions stating that grand jurors should indict upon probable cause, should not judge the wisdom of Congress's criminal laws, and may expect candor, honesty, and good faith from prosecutors are constitutional when read as a whole and when they preserve the grand jury's status as independent from the prosecutor. Sections 841 and 960, as construed to require material facts to be submitted to the jury and proved beyond a reasonable doubt, are not facially unconstitutional.

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In federal court in Phoenix, a grand jury received instructions stating that its role was to decide whether the evidence established probable cause, that it should return an indictment if probable cause existed, and that it should not decide whether Congress acted wisely in criminalizing the conduct. After indictment, Dana Mercer moves to dismiss, arguing the instructions were unconstitutional because they failed to tell grand jurors they could refuse to indict despite probable cause.

How should the court rule?

Explanation. The motion should be denied. The majority held that grand jury independence is protected structurally—especially by secrecy of deliberations and unreviewability of charging decisions—not by a constitutional entitlement to instructions describing a power to nullify. Thus, an instruction that jurors should indict on probable cause, without affirmatively advising they may refuse, does not itself violate the Fifth Amendment.