                                             Volume 1 of 2

                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,         No. 02-50663
               v.                            D.C. No.
STEVE NAVARRO-VARGAS,                     CR-02-01706-MLH
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
         for the Southern District of California
        Marilyn L. Huff, District Judge, Presiding


UNITED STATES OF AMERICA,                  No. 03-50009
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-02-01479-BTM
JOSE ANTONIO LEON-JASSO,
                                              OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
           for the Southern District of California
       Barry T. Moskowitz, District Judge, Presiding

             Argued and Submitted En Banc
       October 14, 2004—San Francisco, California

                    Filed May 23, 2005




                           5511
5512         UNITED STATES v. NAVARRO-VARGAS
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
       Michael Daly Hawkins, Barry G. Silverman,
       Kim McLane Wardlaw, William A. Fletcher,
Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton,
     Jay S. Bybee, and Carlos T. Bea, Circuit Judges.

                Opinion by Judge Bybee;
                Dissent by Judge Hawkins
                 UNITED STATES v. NAVARRO-VARGAS                    5515
                             COUNSEL

Matthew C. Winter, Steven F. Hubachek, Federal Defenders
of San Diego, Inc., San Diego, California, for defendant-
appellant Steve Navarro-Vargas.

Patrick K. O’Toole, David W. Mitchell, Office of United
States Attorney, San Diego, California, for plaintiff-appellee
the United States.

Matthew C. Winter, Steven F. Hubachek, Federal Defenders
of San Diego, Inc., San Diego, California, for defendant-
appellant Jose Antonio Leon-Jasso.

Patrick K. O’Toole, Office of United States Attorney, San
Diego, California, for plaintiff-appellee the United States.


                              OPINION

BYBEE, Circuit Judge:

   This is the fourth challenge we have heard in this circuit1
to consider whether the model grand jury instructions violate
the Fifth Amendment by undermining the independence of the
grand jury. The Appellants contend that their indictments
should be dismissed because the district court misinstructed
the grand jury in its constitutional role. After examining the
history of the grand jury and the structure of the Grand Jury
Clause of the Fifth Amendment, we determine that these
instructions do not violate the Constitution. Accordingly, we
  1
    See United States v. Rivera-Sillas, 376 F.3d 887, 893-94 (9th Cir.
2004) (upholding the grand jury instructions against a challenge that they
improperly circumscribed the subject matter of the grand jury’s inquiries
and deliberations by instructing them not to consider the wisdom of crimi-
nal laws); United States v. Adams, 343 F.3d 1024, 1027 n.1 (9th Cir.
2003); United States v. Marcucci, 299 F.3d 1156, 1164-65 (9th Cir. 2002).
5516             UNITED STATES v. NAVARRO-VARGAS
affirm the district courts’ denial of Appellants’ motions to dis-
miss their indictments.

         I.   FACTS AND PROCEEDINGS BELOW

   Because these cases present the same issues, we consoli-
dated them for oral argument and disposition. In No. 02-
50663, Steve Navarro-Vargas (“Navarro-Vargas”) entered a
conditional guilty plea to importing marijuana in violation of
21 U.S.C. §§ 952 and 960 and possessing a controlled sub-
stance with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). In No. 03-50009, Jose Antonio Leon-Jasso
(“Leon-Jasso”) conditionally pled guilty to importing cocaine
into the United States and possessing a controlled substance,
also in violation of 21 U.S.C. §§ 952, 960 and 841. Each of
the Appellants contends that his Fifth Amendment rights were
violated because he was denied the unfettered judgment of the
grand jurors. Navarro-Vargas and Leon-Jasso also argue that
21 U.S.C. § 960 and 841 are unconstitutional on their face
because they require judges to determine sentencing factors.

   In each case the district court instructed the grand jury
using the model charge recommended by the Judicial Confer-
ence of the United States.2 The grand jury charge included the
following explanations and instructions (for convenience we
have numbered the paragraphs):3

      [1] The purpose of a Grand Jury is to determine
      whether there is sufficient evidence to justify a for-
      mal accusation against a person. If law enforcement
  2
    Congress has granted authority to the Judicial Conference of the United
States to “adopt rules and regulations governing the provisions and the
operation of the plans formulated” by current law dealing with grand jury
procedure. 28 U.S.C. § 1863(a).
  3
    This quoted section is the charge given to the grand jury by District
Judge Jeffrey Miller. There are minor differences between the model
charge and the charge given in these cases, which are irrelevant for our
purposes.
          UNITED STATES v. NAVARRO-VARGAS                5517
officials were not required to submit to an impartial
Grand Jury proof of guilt as to a proposed charge
against a person suspected of having committed a
crime, they would be free to arrest and bring to trial
a suspect no matter how little evidence existed to
support the charge.

[2] As members of the Grand Jury, you in a very real
sense stand between the government and the
accused. It is your duty to see to it that indictments
are returned only against those whom you find prob-
able cause to believe are guilty and to see to it that
the innocent are not compelled to go to trial.

....

[3] 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 designat-
ing certain activity as criminal. That is to be deter-
mined 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.

....

[4] [Y]our task is to determine whether the govern-
ment’s evidence as presented to you is sufficient to
cause you to conclude that there is probable cause to
believe that the accused is guilty of the offense
charged. To put it another way, you should vote to
indict where the evidence presented to you is suffi-
ciently strong to warrant a reasonable person’s
believing that the accused is probably guilty of the
offense with which the accused is charged.

....
5518            UNITED STATES v. NAVARRO-VARGAS
      [5] It is extremely important for you to realize that
      under the United States Constitution, the grand jury
      is independent of the United States Attorney and is
      not an arm or agent of the Federal Bureau of Investi-
      gation, the Drug Enforcement Administration, the
      Internal Revenue Service, or any governmental
      agency charged with prosecuting a crime. There has
      been some criticism of the institution of the Grand
      Jury for supposedly acting as a mere rubber stamp,
      approving prosecutions that are brought before it by
      governmental representatives. However, as a practi-
      cal matter, you must work closely with the govern-
      ment attorneys. The United States Attorney and his
      Assistant United States Attorneys will provide you
      with important service in helping you to find your
      way when confronted with complex legal problems.
      It is entirely proper that you should receive this
      assistance. If past experience is any indication of
      what to expect in the future, then you can expect
      candor, honesty, and good faith in matters presented
      by the government attorneys.

See also Model Grand Jury Charge, Report of the Proceedings
of the Judicial Conference of the United States 33 (March 12,
1986).4

   Navarro-Vargas and Leon-Jasso contend that the grand
jury’s independence was compromised when it was instructed
in paragraphs [3], [4], and [5] that it “should vote to indict”
the accused in each case in which it believed probable cause
  4
    Some federal jurisdictions also use a handbook to offer grand jurors
further explanation of their power and duties. UNITED STATES JUDICIAL
CONFERENCE COMMITTEE ON THE OPERATION OF THE GRAND JURY SYSTEM,
HANDBOOK FOR FEDERAL GRAND JURORS, at www.moed.uscourts.gov/Jury/
FederalHandbookForGrandJurors.pdf (last visited January 4, 2005);
UNITED STATES JUDICIAL CONFERENCE COMMITTEE ON THE OPERATION OF THE
GRAND JURY SYSTEM, FEDERAL GRAND JURY HANDBOOK (1980)). See also 4
WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 15.2(e) (2d ed. 1999).
                   UNITED STATES v. NAVARRO-VARGAS                     5519
exists, that it could not “judge the wisdom of the criminal
laws enacted by Congress,” and that government counsel
would use “candor, honesty, and good faith.” The Appellants
argue that this error is structural and requires dismissal of the
indictment.

  A divided panel of our court affirmed the convictions. 367
F.3d 896 (9th Cir. 2004). We vacated the panel’s opinion and
granted rehearing en banc. 382 F.3d 920 (9th Cir. 2004). We
review Appellants’ challenge to a denial of a motion to dis-
miss an indictment de novo. United States v. Haynes, 216
F.3d 789, 796 (9th Cir. 2000).

             II.    CONSTITUTIONALITY OF THE
                   GRAND JURY INSTRUCTIONS

   [1] The Grand Jury Clause of the Fifth Amendment pro-
vides that “[n]o 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. The
Clause is remarkably plain in its restrictions. It is also notable
for what it does not say. The Clause presupposes much about
grand juries.5 It does not prescribe the number of jurors. It
does not limit the grand jury’s function to returning or refus-
ing to return indictments. It does not state whether a person
appearing before the grand jury may be accompanied by
  5
    We take issue with the dissent’s comment that the Fifth Amendment
“says, plainly and simply, that no serious (felony) charge may be brought
without the approval of a group of citizens . . . who are entirely free to
charge what the government proposes, to charge differently, or to not
charge at all.” Dissent at 5559. This seems to beg the question and to read
a lot into the words “Grand Jury.” As we explain, we review the history
of the grand jury and examine its place in constitutional structure precisely
because the Fifth Amendment is not so “plain[ ] and simpl[e]” as to tell
us what grand juries do or do not do, and whether Congress or the courts
or the executive have any power to define that role.
5520              UNITED STATES v. NAVARRO-VARGAS
counsel, whether the rules of evidence apply, or whether its
proceedings may be disclosed for any purposes. See, e.g.,
United States v. Williams, 504 U.S. 36, 55 (1992) (exculpa-
tory evidence); United States v. Mandujano, 425 U.S. 564,
581 (1976) (plurality opinion) (right to counsel); Pittsburgh
Plate Glass Co. v. United States, 360 U.S. 395, 398-99 (1959)
(public disclosure); United States v. Proctor & Gamble, 356
U.S. 677, 681-82 (1958) (public disclosure); Costello v.
United States, 350 U.S. 359, 363-64 (1956) (use of hearsay).
The text of the Fifth Amendment simply provides for the right
to indictment by a grand jury and does not explain how the
grand jury is to fulfill this constitutional role. Either such
details were assumed by the framers of the Bill of Rights or
they decided to leave such details to Congress, the Executive,
and the Judiciary. Congress, in fact, has provided for rules to
govern grand jury proceedings. See 28 U.S.C. §§ 1861-63,
1870; FED. R. CRIM. P. 6, 7.6 Some of the task of defining the
  6
    “In the Process Act of 1789, Congress provided that the federal courts
in common law actions would follow the common law procedures of the
states in which they sat.” Ellen E. Sward, A History of the Civil Trial in
the United States, 51 U. KAN. L. REV. 347, 379 (2003) (citing An Act to
Regulate Processes in the Courts of the United States, ch. 21, § 2, 1 Stat.
93, 93-94 (Process Act of 1789, Sept. 29, 1789)). However, “[a]s the fed-
eral caseload grew in the late 1800s, procedural disuniformity created
increasing problems.” Robert J. Pushaw, The Inherent Powers of Federal
Courts and the Structural Constitution, 86 IOWA L. REV. 735, 754-55
(2001). Congress responded with the Rules Enabling Act of 1934
(“REA”), which provides:
      [T]he Supreme Court . . . shall have the power to prescribe by
      general rules . . . the forms of process, writs, pleadings, and
      motions, and the practice and procedure in civil actions at law.
      Said rules shall not abridge, enlarge nor modify the substantive
      rights of any party.
Act of June 19, 1934, ch. 651, § 1, Pub. L. No. 73-415, 48 Stat. 1064 (cur-
rent version at 28 U.S.C. § 2072(a)-(b)). The Supreme Court has upheld
the REA and Congress’s “undoubted power to regulate the practice and
procedure of federal courts” which it may exercise consistently with “the
statutes or Constitution of the United States.” Sibbach v. Wilson & Co.,
312 U.S. 1, 9-10 (1941). Congress has used its REA authority to promul-
gate the Federal Rules of Criminal Procedure which regulates modern fed-
eral grand jury procedure. Pushaw, supra, at 756.
                 UNITED STATES v. NAVARRO-VARGAS                      5521
grand jury’s function has also fallen to the courts. See, e.g.,
Williams, 504 U.S. at 50; Calandra, 414 U.S. at 349.7

   The Court has observed that the grand jury is an “English
institution, brought to this country by the early colonists and
incorporated into the Constitution by the Founders. There is
every reason to believe that our constitutional grand jury was
intended to operate substantially like its English progenitor.”
Costello, 350 U.S. at 362. Because the Constitution presumes
a role for the grand jury, the Fifth Amendment must be linked
to the grand jury’s origins. We review briefly the history of
the grand jury to understand its function and something of
why “[h]istorically, this body has been regarded as a primary
security to the innocent against hasty, malicious and oppres-
sive persecution . . . [and] stand[s] between the accuser and
the accused.” Wood v. Georgia, 370 U.S. 375, 390 (1962).

   [2] We look to history for guidance for another reason. The
Supreme Court has held that the right to due process of law
does not include, at a minimum, presentment or indictment by
a grand jury. In Hurtado v. California, 110 U.S. 516 (1884),
the Court held that the Due Process Clause of the Fourteenth
Amendment does not guarantee indictment by a grand jury to
   7
     The Supreme Court has been hesitant to create new rules of grand jury
procedure, and has determined that Congress is best suited to prescribe
rules. The Court noted in Williams that although a rule requiring the prose-
cutor to disclose exculpatory evidence to the grand jury may save judicial
time, the court “need not pursue the matter . . . [because] if there is an
advantage to the proposal, Congress is free to prescribe it.” Williams, 504
U.S. at 55; see also id. at 67 n.10 (Stevens, J., dissenting) (“[T]he Court
acknowledges that Congress has the power to regulate the grand jury, for
it concedes that Congress “is free to prescribe” a rule requiring the prose-
cutor to disclose substantial exculpatory evidence to the grand jury.”). See
also In re Grand Jury Subpoena for Attorney Representing Criminal
Defendant Reyes-Requena, 913 F.2d 1118, 1129 (5th Cir. 1990) (rejecting
amici curiae’s proposal that the court “promulgate detailed guidelines gov-
erning the enforcement of grand jury subpoenas against attorneys” since
“[r]equests for general rules should be addressed to Congress or to the
Judicial Conference of the United States”).
5522            UNITED STATES v. NAVARRO-VARGAS
state criminal defendants. Id. at 538. Since the Due Process
Clauses of the Fifth and Fourteenth Amendments are coexten-
sive, Plyler v. Doe, 457 U.S. 202, 210 (1982); Bolling v.
Sharpe, 347 U.S. 497, 498-99 (1954), the Fifth Amendment
does not, independent of the Grand Jury Clause, guarantee
grand jury indictment in federal criminal cases. Whether the
model grand jury instructions violate the Grand Jury Clause
depends on what the Clause’s cryptic reference to “Grand
Jury” means and whether independence (in the sense advo-
cated by the Appellants) is an irreducible element of what it
means to have a grand jury. And for that inquiry, our starting
point must be the grand jury’s history, recognizing that any
recounting of a near-millennia of history will give us only the
broadest contours of an ancient institution.

A.     The Historical Role of Grand Jury

  1.    The Early English Grand Jury: Quasi-Prosecutor

   The modern grand jury is a direct descendant of the English
grand jury first employed more than 800 years ago.8 See
United States v. Dionisio, 410 U.S. 1, 17 n.15 (1973); Cos-
tello, 350 U.S. at 362; Ex parte Bain, 121 U.S. 1, 11 (1887).
Its origins belie its modern role as intermediary between the
people and their government. The earliest grand juries were
the tool of the Crown. In 1164, anxious to consolidate power
  8
   This historical summary is taken from 1 SARA SUN BEALE ET AL., GRAND
JURY LAW AND PRACTICE § 1:1 (2d ed. 2001); MARVIN E. FRANKEL & GARY
NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL (2d ed. 1977); 1
WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW (1922); 1 & 2 FRED-
ERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW
(2d ed. 1899); THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE
COMMON LAW (5th ed. 1956); RICHARD D. YOUNGER, THE PEOPLE’S PANEL:
THE GRAND JURY IN THE UNITED STATES, 1634-1941 (1963); Ric Simmons,
Re-Examining the Grand Jury: Is there Room for Democracy in the Crimi-
nal Justice System?, 82 B.U. L. REV. 1 (2002); Andrew D. Leipold, Why
Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L.
REV. 260 (1995); and Helene E. Schwartz, Demythologizing the Historic
Role of the Grand Jury, 10 AM. CRIM. L. REV. 701 (1972).
               UNITED STATES v. NAVARRO-VARGAS               5523
held by the church and feudal barons, King Henry II signed
the Constitutions of Clarendon, which created a jury “to
charge all laity who were to be tried in ecclesiastical courts.
Two years later he established the Assize of Clarendon, which
was composed of twelve men who would ‘present’ those sus-
pected of crimes to the royal courts.” Simmons, 82 B.U. L.
REV. at 4. See also 1 HOLDSWORTH, supra, at 321-22. These
acts reasserted the King’s power over his subjects and filled
his coffers with the proceeds from chattels confiscated after
conviction.

   During its first hundred years, the grand jury did not func-
tion as a shield to protect the accused, but as a sword to be
wielded on behalf of the Crown. Indeed, the grand jury was
“oppressive and much feared by the common people” because
of its “unfettered power” and because the King would “ma-
nipulate the grand juries through suggestive instructions and
fines levied against grand juries that failed to reach their quota
of accusations.” Schwartz, 10 AM. CRIM. L. REV. at 709; Sim-
mons, 82 B.U. L. REV. at 6. In this sense, the English grand
jury was somewhat like a quasi-prosecutor for the King.
United States v. Cox, 342 F.2d 167, 186-87 (5th Cir. 1965)
(Wisdom, J., concurring). Indeed, grand juries were expected
to bring charges based on their own knowledge, as well as
consider charges brought by prosecutors. A grand jury-
initiated charge was a “presentment,” while an “indictment”
was prepared by the prosecutor and laid before the jury. See
4 WILLIAM BLACKSTONE, COMMENTARIES 298-307 (1769) (“A
presentment, properly speaking, is the notice taken by a grand
jury of any offence from their own knowledge or observation,
without any bill of indictment laid before them at the suit of
the king.”), reprinted in 5 THE FOUNDERS’ CONSTITUTION 251
(P. Kurland & R. Lerner, eds. 1987). The distinction between
presentment and indictment is reflected in the text of our Fifth
Amendment.

   The first real evidence of the grand jury acting as a shield
to protect the accused was in 1681 when two London grand
5524            UNITED STATES v. NAVARRO-VARGAS
juries refused to indict the Earl of Shaftesbury and his fol-
lower Stephen Colledge, the political enemies of King
Charles II. The Trial of the Earl of Shaftesbury, 8 How. St. Tr.
759, 771-74 (1681) reprinted in 5 THE FOUNDERS’ CONSTITU-
TION 246-47; The Trial of Stephen Colledge, at Oxford, for
High Treason, 8 How. St. Tr. 549, 550 (1681). The King
wanted them held over for public proceedings before the
grand jury, but the grand jury insisted on conducting its
inquiry in private. Given its powerful influence, the Crown
expected a quick indictment pursuant to its charges. However,
the grand jury returned the equivalent of a no-bill in the mat-
ter, defying the Crown’s will both in holding private proceed-
ings and in its ultimate decision not to indict.9 The
Shaftesbury and Colledge cases established grand jury
secrecy, which continues to be a crucial element in grand
juries serving as an independent screen. As grand jury secrecy
became a matter of course, judges maintained less liberty to
“cross-examin[e] grand jurors about their findings.” FRANKEL
& NAFTALIS, supra, at 10.

  2.   The Colonial Grand Jury: Quasi-Legislative, Quasi-
       Administrative

  American colonists adopted the grand jury as integral to the
common law system. In one of the earliest codifications of the
grand jury’s role, the Pennsylvania Frame of Government,
adopted in 1696, provided that

   The form of Grand Inquest’s attests shall be in these words,
viz:
  9
    Insisting on the grand jury’s right to deliberate secretly, one juror
defended his position, stating: “[I]n private [the grand jurors] are more
free to examine things in particular, for the satisfying their own con-
sciences, and that without favour or affection; and we hope we shall do
our duty.” The Trial of the Earl of Shaftesbury, 8 How. St. Tr. 759, 771-
74 (1681) reprinted in 5 THE FOUNDERS’ CONSTITUTION 246-47.
              UNITED STATES v. NAVARRO-VARGAS                  5525
    Thou shalt diligently enquire, and true presentment
    make, of all such matters and things as shall be given
    thee in charge, or come to thy knowledge, touching
    this present service; the King’s counsel, thy fellows
    and thy own, thou shalt keep secret, and in all things
    thou shalt present the truth, and nothing but the truth,
    to the best of thy knowledge.

The Frame of Government of the Province of Pennsylvania
(1696), reprinted in 5 FRANCIS NEWTON THORPE, THE FEDERAL
AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER
ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES
3072 (1909). In America, the institution gained broad powers
to propose legislation and perform various administrative
tasks. Grand juries “exercised broad, unorthodox powers,”
inspecting roads, jails, and other public buildings; monitoring
public works expenditures, construction and maintenance;
proposing new legislation; and criticizing poor administration.
Simmons, 82 B.U. L. REV. at 10. The colonial grand jury still
performed a quasi-prosecutorial role by accusing individuals
suspected of crimes, but colonial grand juries demonstrated
greater independence than their English counterparts, due
in part to the relatively weak position of colonial govern-
ments. With their expanding quasi-legislative and quasi-
administrative roles, grand juries acquired greater popularity
because they were regarded as more representative of the peo-
ple. “Through presentments and other customary reports, the
American grand jury in effect enjoyed a roving commission
to ferret out official malfeasance or self-dealing of any sort
and bring it to the attention of the public at large,” becoming,
as James Wilson put it, a “ ‘great channel of communication,
between those who make and administer the laws, and those
for whom the laws are made and administered.’ ” AKHIL REED
AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 85
(1998) (quoting 2 THE WORKS OF JAMES WILSON 537 (R.
McCloskey, ed. 1967)). Following the English traditions
established in the Shaftesbury and Colledge cases, grand jury
secrecy remained an important part of grand jury proceedings
5526            UNITED STATES v. NAVARRO-VARGAS
in the colonies. Grand jurors pledged to an oath of secrecy,
and its violation was both a contempt and a crime. BEALE, ET
AL., supra, § 5:2 (citing 4 BLACKSTONE, COMMENTARIES at 226).


   While Colonial grand juries continued to serve as accusa-
tory bodies, they occasionally refused to return indictments in
high-profile cases. The most celebrated example in American
history is that of John Peter Zenger, a newspaper publisher
charged with libel after criticizing the Governor of New York.
Based on the jury instructions, it seems clear that Zenger was
guilty of the crime of libel. Nevertheless, three grand juries
refused to indict not because of insufficient evidence but
rather because the jurors were politically opposed to the pros-
ecutions. BEALE, ET AL., supra, § 1:3. See also YOUNGER,
supra, at 28 (discussing the Boston grand juries who refused
to indict editors of the Boston Gazette for libeling the gover-
nor of Massachusetts and refusing to indict leaders of the
Stamp Act Rebellion).

   As the Revolutionary War drew closer, the grand jury
became popular “at least as much from its success as a politi-
cal weapon as from its role in the criminal justice system.”
Leipold, 80 CORNELL L. REV. at 285. Colonial grand juries
publicly called for boycotts of British goods, condemned
British rule, criticized the use of the tea tax to pay British offi-
cials’ salaries, and indicted British soldiers for breaking and
entering into the homes of private citizens. Where the king’s
grand juries had once colluded with the king’s prosecutors, in
pre-Revolutionary America, colonial grand juries resisted the
king’s representatives in America. The historical division of
authority between grand juries and prosecutors became a fis-
sure exposing the political division between the colonists and
their king. Grand jurors, selected from the public, frustrated
prosecutors loyal to the king by refusing to indict those
charged under unpopular laws imposed by the Crown, often
on the urging of colonial judges.10 Grand jury presentments
  10
    Ralph Lerner, The Supreme Court as Republican Schoolmaster, 1967
SUP. CT. REV. 127, 134 (1967) (noting that before the Revolutionary War,
                 UNITED STATES v. NAVARRO-VARGAS                      5527
served an additional function during this time: they became
“excellent mediums of propaganda” as grand juries issued
“stinging denunciations of Great Britain and stirring defenses
of their rights as Englishmen.” YOUNGER, supra, at 34. In their
presentments, colonial grand juries reported on matters of
public interest and criticized public agencies or officials.
BEALE, ET AL., supra, §§ 1:8, 2:1.11

   Despite the apparent popularity of these acts of defiance,
when the original colonies drafted their first state constitu-
tions between 1776 and 1790, only three states guaranteed the
right to a grand jury in their constitution.12 Following the
adoption of the U.S. Constitution, however, eight of the thir-
teen original states recommended an amendment to ensure the
right to a federal grand jury. In early debates over the ratifica-

“Loyalist judges chastised grand juries for failing to make presentments
and indictments against libelers and tea-burners and other local revolution-
aries” and after the revolution state judges urged moderation in the treat-
ment of Loyalists).
   11
      See Lerner, 1967 SUP. CT. REV. at 134 (citing grand jury charge of
Virginia Judge Richard Parker (June, 1798), printed in Palladium (Frank-
fort, Ky.), Oct. 23, 1798, at 2 (charging a grand jury “not [to] think of
introducing politics” into a presentment and “to keep to the business of
grand juries as defined by the state legislature”)); David J. Katz, Note,
Grand Jury Charges Delivered by Supreme Court Justices Riding Circuit
During the 1790s, 14 CARDOZO L. REV. 1045, 1055-56 (1993) (even if the
grand jury did not indict anyone, it often delivered a presentment to
express the grand jury members’ views about current events, opining, for
example, on inadequate compensation for jury duty, urging the repeal of
Excise laws which levied federal taxes on liquor distillation, the absence
of a Bill of Rights from the Constitution, and the need to reduce the size
of the federal judiciary).
   12
      DEL. CONST. art. I, § 8 (1792), reprinted in 1 THORPE, supra, at 569;
N.C. CONST., Decl. of Rights, art. VIII (1776), reprinted in 5 THORPE,
supra, at 2787; PA. CONST. art. IX, § 10, reprinted in 5 THORPE, supra, at
3100. Two other state constitutions, while not guaranteeing the right to a
grand jury, made reference to the grand jury or to indictment. GA. CONST.
art. XLV (1777), reprinted in 2 THORPE, supra, at 784; N.Y. CONST. arts.
XXXIII, XXXIV (1777), reprinted in 5 THORPE, supra, at 2635.
5528           UNITED STATES v. NAVARRO-VARGAS
tion of the Constitution, before the Bill of Rights had been
written, some feared that “there is no provision . . . to prevent
the attorney-general from filing information against any per-
son, whether he is indicted by the grand jury or not; in conse-
quence of which the most innocent person in the
commonwealth may be taken by virtue of a warrant issued in
consequence of such information . . . .” Jon Van Dyke, The
Grand Jury: Representative or Elite?, 28 HASTINGS L.J. 37, 39
(1976) (quoting Abraham Holmes of the Massachusetts legis-
lature). Because of this fear, the Grand Jury Clause, located
in the Fifth Amendment, was adopted with little debate or dis-
cussion. Id.

  3.   The Post-Revolutionary and Nineteenth Century Grand
       Jury: Screening Function

   As they had in colonial times, nineteenth century grand
juries occasionally asserted their independence by refusing to
indict under unpopular laws, even when the grand jury was
instructed to indict if the facts satisfied the law. Prominently,
grand juries in Kentucky and Mississippi refused to indict for-
mer Vice President Aaron Burr, although he was finally
indicted in Virginia; refused to indict Americans who aided
French privateers in violation of the Neutrality Proclamation
of 1793; and resisted indicting those accused of violating the
controversial Alien and Sedition Acts. Throughout the nine-
teenth century, courts continued to recognize the necessity of
secrecy in grand jury proceedings. See United States v. Provi-
dence Tribune Co., 241 F. 524, 526 (D.R.I. 1917) (holding a
newspaper in contempt for publishing a grand jury proceeding
and noting that secrecy is essential to the proceedings of a
grand jury). This secrecy allowed grand juries to indepen-
dently determine whether to indict, despite a judge’s instruc-
tions.

  In many post-revolution cases, judges instructed the jurors
to enforce federal laws, even if the jury thought the laws
unjust or unconstitutional. Justice Chase instructed a Philadel-
                  UNITED STATES v. NAVARRO-VARGAS                        5529
phia grand jury that until a law is repealed, even if it is uncon-
stitutional, every citizen has a duty to “submit to it.” Katz, 14
CARDOZO L. REV. at 1058 (citing Grand Jury Charge (C.C.D.
Pa. Apr. 12, 1800) (Chase, J.)), in 3 THE DOCUMENTARY HISTORY
OF THE SUPREME COURT OF THE UNITED STATES, 1789-90: THE
JUSTICES ON CIRCUIT: 1790-1794, at 408, 413 (Maeva Marcus
ed., 1990) [hereinafter 3 DHSC]. Similarly, Chief Justice Jay
explained that a grand juror, just like a judge, must apply the
law of the land even if it is a subject of heated public debate
as the duty to enforce the law must override “individual scru-
ples and misgivings.” Lerner, 1967 SUP. CT. REV. at 147 (cit-
ing 3 JOHNSTON, CORRESPONDENCE AND PUBLIC PAPERS OF JOHN
JAY 485 (1891)). Duty to submit to the laws was a common
theme among grand jury charges contemporaneous with the
adoption of the Bill of Rights.13
  13
     Unidentified Grand Jury Charge No. 4 (Paterson, J.), in 3 DHSC at
462-64 (closing a grand jury charge with the instruction to “be obedient
to the laws; let us fear God, respect our government, and honor the consti-
tuted authorities of our country[ ]”). See Lerner, 1967 SUP. CT. REV. at 143
(noting the emphasis on duty in Chief Justice Jay’s grand jury charge
delivered in Richmond on May 22, 1793) (citing 3 JOHNSTON, CORRESPON-
DENCE AND PUBLIC PAPERS OF JOHN JAY 478-85 (1891)); Katz, 14 CARDOZO
L. REV. at 1056-57 (citing Grand Jury Charge (C.C.D.N.Y. Apr. 12,
1790)) (Jay, J.), in 2 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF
THE UNITED STATES, 1789-90: THE JUSTICES ON CIRCUIT: 1790-1794, at 25,
30 (Maeva Marcus ed., 1988) [hereinafter 2 DHSC] (Justice Jay noted in
a charge to a New York grand jury in 1790 that “civil liberty consists not
in a Right to every Man to do just what he pleases . . . . It is the Duty and
the Interest therefore of all good Citizens, in their several Stations, to sup-
port the Laws and the Government which thus protect their Rights and
Liberties[ ]”) and Grand Jury Charge (C.C.D.S.C. May 12, 1794) (Iredell,
J.), in 2 DHSC at 25, 26 (Justice Iredell spoke of an individual’s duty “to
conform his conduct to the same principles of neutrality” in a charge to
a Columbia grand jury) and Grand Jury Charge (C.C.D.R.I. Nov. 7, 1794)
(Cushing, J.), in 2 DHSC at 491, 492 (instructing a Providence grand jury
defined liberty as the right “to do whatever just laws made by a free repre-
sentative allow”) and Grand Jury Charge (C.C.D.Pa. May 4, 1795) (Pater-
son, J.), in 3 DHSC at 40, 42 (Justice Paterson stated in a charge to a
Philadelphia grand jury that “[t]o reverence and obey the laws is the first
political maxim and duty in a republican government . . . [and] civil liberty
and order consist in and depend upon submission to the laws.”)). See also
BEALE, ET AL., supra, § 1:4 (noting that the jury charge was used “as an
opportunity to describe the virtues of the new federal government, and to
stress the importance of enforcing federal laws”).
5530           UNITED STATES v. NAVARRO-VARGAS
   The conflict between Federalists and Republicans over the
Alien and Sedition Acts proved particularly nettlesome and
may be illuminating because it follows so closely on the adop-
tion of the Bill of Rights. “From the first, the new federal
judges regarded their addresses to grand juries as excellent
opportunities to deliver political orations. Though grand jury
charges originated for the purpose of instructing the jurors in
their duties, judges had long used them as a means of dis-
seminating political propaganda.” YOUNGER, supra, at 47.
Federalist judges, supporters of President John Adams and
defenders of the Alien and Sedition Acts, took advantage of
their right to instruct juries and “impress upon grand jurors
the necessity for the strict enforcement of federal laws.” Id. at
48. In a politically charged speech before a grand inquest,
Chief Justice Francis Dana of Massachusetts denounced Jef-
ferson and the Democratic Republican Candidates for Con-
gress as “apostles of atheism and anarchy, bloodshed and
plunder.” Id. at 54. On the other hand, Republican judges, tak-
ing a “slap at partisan federal judges[,]” advised juries that
their proper place was “as a strong barrier between the
supreme power of the government and the citizens,” rather
than as an instrument of the state. Id. at 54-55 (quoting Judge
Harry Innes). Nevertheless, these “partisan harangues . . . did
not stampede jurymen into returning indiscriminate indict-
ments on political grounds. Instead, jurors often reacted
against the heated charges and refused to indict.” Id. at 49.

  The political potential in the screening function of the
grand jury was also manifest during the Civil War era. Prior
to the war, Southern grand juries readily indicted those
involved in crimes related to abolition of the slave trade,
while Northern grand juries were slow to indict those charged
with violations of the fugitive slave laws. Following the Civil
War, Southern grand juries frustrated enforcement of
Reconstruction-era laws by refusing to indict Ku Klux Klan
members and others accused of committing crimes against
newly-freed blacks. “During the Reconstruction period, the
grand jury served as a principal weapon of Southern whites in
                 UNITED STATES v. NAVARRO-VARGAS                       5531
their struggle against radical Republicans and Negro rights.”
FRANKEL & NAFTALIS, supra, at 14; YOUNGER, supra, at 85-86,
90-93 (describing Southern juries who took “seriously the
task of maintaining control over slaves and free Negroes”
including warning against increasing rights for free blacks and
attempting to prevent antislavery literature and orators from
entering their states). See also FRANKEL & NAFTALIS, supra, at
15 (describing controversial grand jury proceedings concern-
ing such politically volatile issues as Mormon polygamy, the
conflict between big business and labor unions, and resistance
to “foreign radicalism”).

  4.    The Modern Grand Jury

   By the twentieth century, dramatic confrontations between
prosecutors and jurors in grand jury proceedings had become
rare. Currently, grand jurors no longer perform any other
function but to investigate crimes and screen indictments, and
they tend to indict in the overwhelming number of cases
brought by prosecutors.14 Because of this, many criticize the
modern grand jury as no more than a “rubber stamp” for the
prosecutor. BEALE, ET AL., supra, § 1:1.15 “Day in and day out,
  14
     See Federal Justice Statistics Resource Center, Federal Justice Statis-
tics Database, at http://fjsrc.urban.org (last visited January 5, 2005) (not-
ing that federal grand juries returned only twenty-one no-bills in 2001).
   At least one commentator notes that dismissals by grand juries may be
underreported by prosecutors, and others comment that grand juries are
serving as a more effective screen than it may seem. Simmons, 82 B.U.
L. REV. at 32-34 (suggesting that dismissal rates may be underreported by
prosecutors due to negligence or for fear that it could reflect poorly on the
office).
   15
      See Stuart Taylor, Jr., End of the Grand Jury Charade, AM. LAW.,
June 1992, at 32. See also Peter Arenella, Reforming the Federal Grand
Jury and the State Preliminary Hearing to Prevent Conviction Without
Adjudication, 78 MICH. L. REV. 463, 474 (1980) (arguing that “the grand
jury’s tendency to rubberstamp the prosecutor’s decisions stems far more
from the limited role the Supreme Court has assigned to it and the type
of evidence it receives than from any institutional incapacity”); William
5532              UNITED STATES v. NAVARRO-VARGAS
the grand jury affirms what the prosecutor calls upon it to
affirm — investigating as it is led, ignoring what it is never
advised to notice, failing to indict or indicting as the prosecu-
tor ‘submits’ that it should.” FRANKEL & NAFTALIS, supra, at
22. Or, as the Supreme Court of New York so colorfully put
it: “[M]any lawyers and judges have expressed skepticism
concerning the power of the Grand Jury. This skepticism was
best summarized by the Chief Judge of this state in 1985
when he publicly stated that a Grand Jury would indict a ‘ham
sandwich.’ ” In re Grand Jury Subpoena of Stewart, 545
N.Y.S.2d 974, 977 n.1 (Sup. Ct.), aff’d as modified, 548
N.Y.S.2d 679 (App. Div. 1989).16

   As the grand jury’s tendency to indict has become more
pronounced, some commentators claim that the modern grand
jury has lost its independence. Susan W. Brenner, The Voice
of the Community: A Case for Grand Jury Independence, 3
Va. J. Soc. Pol’y & L. 67, 100 (1995) (noting that the grand
jury’s nullification power allows it to insert an “influential,
accurate, and legitimate community voice” into the criminal
process); Gregory T. Fouts, Note, Reading the Jurors Their
Rights: The Continuing Question of Grand Jury Indepen-
dence, 79 IND. L.J. 323, 324 (2004) (arguing that the grand
jury is “no longer an independent body, but rather an arm of

J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY
174, 174 (1973) (arguing that the grand jury should be abolished; noting
that “the grand jury is the total captive of the prosecutor who, if he is can-
did will concede that he can indict anybody at any time, for almost any-
thing, before any grand jury”); Melvin P. Antell, The Modern Grand Jury,
Benighted Supergovernment, 51 A.B.A. J. 153, 153-54 (1965) (asserting
that the grand jury is an “archaic . . . instrument[ ]” that does little to safe-
guard defendants).
   16
      It is very difficult to determine whether the grand jury’s screening
function has been successful. The high indictment rate may reflect caution
on the part of federal prosecutors to bring marginal cases before a grand
jury and suffer the return of a no-bill. Leipold, 80 CORNELL L. REV. at 273-
78.
                 UNITED STATES v. NAVARRO-VARGAS                    5533
the prosecution”); Elizabeth G. Mckendree, Note, United
States v. Williams: Antonin’s Costello: How the Grand Jury
Lost the Aid of the Courts as a Check on Prosecutorial Mis-
conduct, 37 HOW. L.J. 49, 58, 80-82 (1993) (claiming that the
“contemporary grand jury falls far short of its historic ideal”
and arguing that the judiciary is the branch that should protect
the grand jury’s independence).

   Against this criticism, the Supreme Court has steadfastly
insisted that the grand jury remains as a shield against
unfounded prosecutions. See Williams, 504 U.S. at 47 (the
Grand jury “serv[es] as a kind of buffer or referee between the
Government and the people”); Mandujano, 425 U.S. at 571
(plurality opinion) (“the grand jury continues to function as a
barrier to reckless or unfounded charges”); Wood, 370 U.S. at
390 (describing the grand jury as a “primary security to the
innocent against hasty, malicious and oppressive persecution”
as it stands “between the accuser and the accused . . . to deter-
mine whether a charge is founded upon reason or . . . dictated
by an intimidating power by malice and personal ill will[ ]”);
Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v.
Henkel, 201 U.S. 43, 61 (1906). See also Branzburg v. Hayes,
408 U.S. 665, 686-87 (1972) (recognizing the dual function
of the grand jury “of determining if there is probable cause to
believe that a crime has been committed and of protecting cit-
izens against unfounded criminal prosecutions.”). But see
Dionisio, 410 U.S. at 17 (“The grand jury may not always
serve its historic role as a protective bulwark standing solidly
between the ordinary citizen and an overzealous prosecutor
. . . .”).

  5.   The Model Charge

   The first model grand jury charge was issued in 1978 by
the Judicial Conference of the United States.17 Model Grand
  17
    No uniform federal handbook or model instructions for grand juries
existed until the 1970s. In 1974, the Judicial Conference Committee on the
5534              UNITED STATES v. NAVARRO-VARGAS
Jury Charge, Report of the Proceedings of the Judicial Con-
ference of the United States 77 (September 21, 1978). The
original model charge is very similar to the one used by fed-
eral judges today, and includes all of the phrases challenged
by Appellants as unconstitutional. Model Charge to Grand
Juries, Report of the Committee on the Operation of the Jury
System 3, 5, 15 (September 1978). In 1986, the Judicial Con-
ference revised and shortened the model grand jury charge.
Model Grand Jury Charge, Report of the Proceedings of the
Judicial Conference of the United States 33 (March 12, 1986).
This is the most recent revision of the model charge and con-
tains the phrases to which Appellants have objected here. Id.
at A-4, A-6, A-12.18

   At least nine states have addressed issues similar to those

Operation of the Jury System published a Handbook for Federal Grand
Jurors at the direction of the Judicial Conference of the United States.
UNITED STATES JUDICIAL CONFERENCE COMMITTEE ON THE OPERATION OF THE
GRAND JURY SYSTEM, HANDBOOK FOR FEDERAL GRAND JURORS (1974). This
handbook was designed to explain the general nature of the duties of grand
juries and of “the institution on which they will serve.” Id. at 4. It was not
designed to replace the instructions given by federal judges but only to
supplement them. Id. In 1977, the Judicial Conference and the Congressio-
nal Committee on the Administration of the Criminal law agreed that there
should be a model grand jury charge promulgated. Grand Jury Reform,
Report of the Proceedings of the Judicial Conference of the United States
84 (September 15, 1977). See also Model Charge to Grand Juries, Report
of the Committee on the Operation of the Jury System 20 (March 1978).
   18
      There is another model grand jury charge in circulation that has not
been approved by the Judicial Conference. It is located in the Benchbook
for U.S. District Court Judges. It claims to be “substantially the same in
form” as the one approved by the Judicial Conference in 1986, but it does
not contain any of the three phrases challenged as unconstitutional. See
FEDERAL JUDICIAL CENTER 1996, BENCHBOOK FOR U.S. DISTRICT COURT
JUDGES § 7.04 204 n.1 (4th ed. 2000 rev.). Even this instruction states that
“the purpose” and “task” of the grand jury is “to determine whether there
is sufficient evidence . . . to determine if there is ‘probable cause’ to
believe the person committed a crime.” Id. at 205. It is unclear what per-
centage of district courts use this model charge as opposed to the one
issued by the Judicial Conference in 1986.
                  UNITED STATES v. NAVARRO-VARGAS                         5535
before us and have arrived at different conclusions. The
majority of the states have adopted instructions similar to the
federal model instructions. Florida’s instructions expressly
instruct the grand jury that it “should vote to return a ‘true
bill’ ” if it finds “ ‘probable cause’ that a crime has been com-
mitted[.]” 31 Florida Grand Jury Instructions, FLORIDA STAN-
DARD JURY INSTRUCTIONS IN CRIMINAL CASES § 2.6 (4th ed.
2004). Hawai‘i’s model charge instructs jurors that “[i]f the
answer is “yes,” [that probable cause exists] then “you are to
return . . . an indictment.” Hawai‘i Model Grand Jury Charge
11.19 Virginia’s model charge uses even stronger language in
instructing that if there is probable cause that a law has been
violated, it is the grand jury’s “positive and sworn duty to
indict.” Regular Grand Jury Instructions, 1-1 VIRGINIA CRIMI-
NAL BENCHBOOK FOR JUDGES AND LAWYERS 1 (2004). Similarly,
Massachusetts’ model charge instructs the grand jury that if
the jurors believe “sufficient evidence” is presented, “it is
your duty to return . . . an indictment.” Massachusetts Grand
Jury: General Instructions 2 (December 1993). Ohio’s model
grand jury instructions state that indictments “shall be
returned against those who are probably guilty of criminal
acts.” 4 Ohio Jury Instructions § 401.04 (2003). In California,
by statute, “a grand jury shall find an indictment when all the
evidence before it, taken together, if unexplained or uncontra-
dicted, would, in its judgment, warrant a conviction by a trial
jury.” CAL. PENAL CODE § 939.8 (West 2005) (emphasis
added).
  19
     Florida’s instructions also instruct the grand jury that its duty is “only”
to determine whether there is probable cause. 31 Florida Grand Jury
Instructions, FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES
§ 2.4 (4th ed. 2004). Hawai‘i, Massachusetts, and Minnesota’s instructions
similarly refer to the “purpose” and “function” of the grand jury as a sin-
gular task. Hawai‘i Model Grand Jury Charge 1; Massachusetts Proposed
Grand Jury Charge 3 (April 11, 2003); Grand Jury Charge, Fourth Judicial
District Court State of Minnesota, at http://www.courts.state.mn.us/
districts/fourth/Jury/jogjchg.htm (last visited March 9, 2005).
5536             UNITED STATES v. NAVARRO-VARGAS
   By contrast, in two states, New York and Minnesota, the
model grand jury instructions use language stating that the
grand jury “may” indict if the government proves its case
rather than “should” indict. See, e.g., New York State Office
of Court Administration, Criminal Jury Instructions New
York (2d ed. rev. June 10, 2002), at http://www.nycourts.gov/
cji/1-General/CJI2d.Grand-Jury.Revised.pdf (last visited
March 9, 2005); Grand Jury Charge, Fourth Judicial District
Court State of Minnesota, at http://www.courts.state.mn.us/
districts/fourth/Jury/jogjchg.htm (citing MINN. R. CRIM. P.
18.06, subd. 2). But see BEALE, ET AL., supra, § 9.10 (discuss-
ing differences between New York and the U.S. procedures).20
The Minnesota instruction goes further to instruct the grand
jury that it “is not obliged to return an indictment, even
though you find there is probable cause, if you do not feel
there is a reasonable prospect of a conviction.” Grand
Jury Charge, Fourth Judicial District Court State of Min-
nesota, at http://www.courts.state.mn.us/districts/fourth/Jury/
jogjchg.htm. In addition, Arkansas’ model charge broadly
instructs the grand jury that it is to “inquire into all public
offenses committed in this county and to indict such persons
whom you think guilty.” 1 ARKANSAS’ CIRCUIT JUDGES’ BENCH-
BOOK FOR CRIMINAL AND CIVIL DIVISIONS app. 58 (rev. Oct. 2,
2003).

  Finally, we note that a number of courts have considered
whether petit juries should be informed of their nullification
power. The courts have uniformly rejected the idea. See
United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992)
(determining that a district court did not err in refusing to pro-
vide a jury nullification instruction); United States v. Trujillo,
  20
     On the other hand, the only state court (New York) we are aware of
that has confronted the issue of grand jury nullification refused to decide
whether the grand jury has the power to nullify the law. People v. Jose C.,
487 N.Y.S.2d 499, 502 (Sup. Ct. 1985) (“Neither is this court deciding
whether our grand juries possess or lack the power ‘to nullify the law by
refusing to indict notwithstanding the presentation to it of evidence suffi-
cient to sustain an indictment.’ ”) (internal citation omitted).
                 UNITED STATES v. NAVARRO-VARGAS                    5537
714 F.2d 102, 105-06 (11th Cir. 1983) (“While a jury does
have the power to bring a verdict . . . its duty is to apply the
law as interpreted and instructed by the court.”) (internal cita-
tions omitted); United States v. Dougherty, 473 F.2d 1113,
1137 (D.C. Cir. 1972) (“An explicit instruction to a jury con-
veys an implied approval that runs the risk of degrading the
legal structure requisite for true freedom, for an ordered lib-
erty that protects against anarchy as well as tyranny”); United
States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969)
(“Today jurors may have the power to ignore the law, but
their duty is to apply the law as interpreted by the court, and
they should be so instructed.”); United States v. Moylan, 417
F.2d 1002, 1005-09 (4th Cir. 1969); People v. Fernandez, 26
Cal. App. 4th 710, 712 (1994) (“We hold that the trial court
did not have to advise the jury of its power to nullify a ver-
dict”); People v. Partner, 180 Cal. App. 3d 178, 186 (1986)
(“We agree that the jury should not be instructed on so-called
jury nullification.”).

   We have reviewed, briefly, the history of the grand jury in
an effort to understand something about its role and historic
independence. The historical record is decidedly checkered;
the role of the grand jury has alternatively expanded and con-
tracted since it was instituted in the twelfth century.21 The
colonial grand jury had the broadest powers as a quasi-
legislative, administrative and prosecutorial institution, bring-
ing charges, screening indictments brought by prosecutors,
supervising public projects, and proposing legislation. In both
  21
     The dissent accuses the majority of “relying principally upon British
history and the use of the grand jury in England prior to King George III”
to distort “a uniquely American institution.” Dissent at 5558. The grand
jury is, of course, not “uniquely American.” Its independence was rein-
forced during the colonial period, but its core functions were defined in
the English experience. Contrary to the dissent, the Supreme Court has
observed that “[t]here is every reason to believe that our constitutional
grand jury was intended to operate substantially like its English progeni-
tor.” Costello, 350 U.S. at 362. We have reviewed both English and Amer-
ican history to understand those core functions and their origins.
5538            UNITED STATES v. NAVARRO-VARGAS
pre- and post-revolutionary America, the grand jury was used
by prosecutors and judges as a political tool for, alternately,
indicting or refusing to indict individuals who were accused
of violating unpopular or controversial laws. While we cele-
brate grand jury independence in defense of the First Amend-
ment in the case of Peter Zenger and those accused of
violating the Alien and Sedition Acts, and we praise grand
jury resistance to the morally-obnoxious fugitive slave laws,
we must acknowledge as well that grand juries have also
refused to enforce lawful and wise legislation, including some
of the most important legislation in American history: the
Reconstruction laws implementing the Thirteenth, Fourteenth,
and Fifteenth Amendments. Grand jury independence, evi-
dently, has historically served causes both good and ill.

   Looking over this record, we observe that the weight of
U.S. history favors instructing the grand jury to follow the law
without judging its wisdom. We candidly admit, however,
that the evidence is not overwhelming and the record is not
uniform in this regard. We are left to consider the role of fed-
eral grand juries on the terms on which the Constitution gave
us the right in the first place: by understanding the grand
jury’s place in the larger structure of our tripartite system.

B.     The Structural Role of the Grand Jury

   The grand jury belongs to no branch of government, but is
a “constitutional fixture in its own right.” Williams, 504 U.S.
at 47. Although no branch may control the grand jury, each
branch enjoys some power to direct or check the grand jury’s
actions. “[T]radition and the dynamics of the constitutional
scheme of separation of powers define a limited function for
both court and prosecutor in their dealings with the grand
jury.” United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir.
1977). The Fifth Amendment’s guarantee to indictment by a
grand jury “presupposes an investigative body ‘acting inde-
pendently of either prosecuting attorney or judge’ whose mis-
sion is to clear the innocent, no less than to bring to trial those
              UNITED STATES v. NAVARRO-VARGAS                5539
who may be guilty.” Dionisio, 410 U.S. at 16-17 (footnote
omitted) (quoting Stirone, 361 U.S. at 218). Thus,

    the grand jury has been accorded wide latitude to
    inquire into violations of criminal law. No judge pre-
    sides to monitor its proceedings. It deliberates in
    secret and may determine alone the course of its
    inquiry. The grand jury may compel the production
    of evidence or the testimony of witnesses as it con-
    siders appropriate, and its operation generally is
    unrestrained by the technical procedural and eviden-
    tiary rules governing the conduct of criminal trials.

Calandra, 414 U.S. at 343.

   The grand jury does not belong to the judicial branch, but
it is “subject to the supervision of a judge” in some respects.
Branzburg, 408 U.S. at 688. The court summons the grand
jury and ensures that it is properly constituted. FED. R. CRIM.
P. (6)(a)(1). The district court may extend the grand jury’s
service or discharge it. Id. 6(g). The grand jury may subpoena
testimony, but it depends on the judiciary for enforcement,
and the court may decline enforcement and quash the sub-
poena. Calandra, 414 U.S. at 346 n.4. The grand jury may be
“clothed with great independence in many areas, but it
remains an appendage of the court, powerless to perform its
investigative functions without the court’s aid, because pow-
erless itself to compel the testimony of witnesses.” Brown v.
United States, 359 U.S. 41, 49 (1959), overruled in part by
Harris v. United States, 382 U.S. 162 (1965).

   On the other hand, the grand jury, while not within the
executive branch, shares investigative duties with federal
prosecutors. See Butz v. Economou, 438 U.S. 478, 510 (1978)
(“[T]he public prosecutor, in deciding whether a particular
prosecution shall be instituted or followed up, performs much
the same function as a grand jury.”) (interior quotations and
citations omitted). Indeed, in some respects, the grand jury
5540          UNITED STATES v. NAVARRO-VARGAS
has even broader latitude than prosecutors. Grand jurors “may
act on tips, rumors, evidence offered by the prosecutor, or
their own personal knowledge” in making its decisions.
Dionisio, 410 U.S. at 15. The privilege of acting on “their
own personal knowledge” is, of course, a vestige of the earli-
est grand juries, which were expected to bring their own
charges, and it is reflected in the Fifth Amendment’s refer-
ence to “presentment.”

   Grand juries and prosecutors serve as a check on one
another. The grand jury, acting on its own information, may
return a presentment, may request that the prosecutor prepare
an indictment, or may review an indictment submitted by the
prosecutor. The prosecutor has no obligation to prosecute the
presentment, to sign the return of an indictment, or even to
prosecute an indictment properly returned. See United States
v. Batchelder, 442 U.S. 114, 124 (1979) (“[W]hether to prose-
cute and what charge to file or bring before a grand jury are
decisions that generally rest in the prosecutor’s discretion.”);
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (assuming
probable cause exists, the decision of whether and what to
charge “rests entirely in [the prosecutor’s] discretion”);
United States v. Nixon, 418 U.S. 683, 693 (1974) (“Executive
Branch has exclusive and absolute discretion to decide
whether to prosecute a case”); Confiscation Cases, 74 U.S. (7
Wall.) 454, 457 (1869) (“Public prosecutions, until they come
before the court to which they are returnable, are within the
exclusive discretion of the district attorney”); Cox, 342 F.2d
at 182 (Brown, J., concurring); id. at 193 (Wisdom, J., con-
curring). Similarly, the grand jury has no obligation to prepare
a presentment or to return an indictment drafted by the prose-
cutor. The grand jury thus determines not only whether proba-
ble cause exists, but also whether to “charge a greater offense
or a lesser offense; numerous counts or a single count; and
perhaps most significant of all, a capital offense or a noncapi-
tal offense — all on the basis of the same facts.” Vasquez v.
Hillery, 474 U.S. 254, 263 (1986). And, significantly, the
grand jury may refuse to return an indictment even “where a
               UNITED STATES v. NAVARRO-VARGAS              5541
conviction can be obtained.” Id. (citing United States v. Ciam-
brone, 601 F.2d 616, 629 (2d Cir. 1979) (Friendly, J., dissent-
ing)).

   The grand jury’s discretion — its independence — lies in
two important characteristics: the absolute secrecy surround-
ing its deliberations and vote and the unreviewability of its
decisions. At least since the seventeenth century, the grand
jury has deliberated in secret, and neither the judge nor the
prosecutor may question the grand jury’s findings, conclu-
sions, or motives. In fact, the 1974 version of the Federal
Handbook for Grand Jurors notes that “[t]he secrecy imposed
upon grand jurors is a major source of protection for them.”
UNITED STATES JUDICIAL CONFERENCE COMMITTEE ON THE OPERA-
TION OF THE GRAND JURY SYSTEM, HANDBOOK FOR FEDERAL
GRAND JURORS 14 (1974). With this instruction, the Handbook
seems to recognize that secrecy is part of the reason that
grand jurors have immunity for actions brought against them
in their capacity as grand jurors. Today, under Federal Rule
of Criminal Procedure 6(e)(7), grand jurors may not disclose
their deliberations or vote, on penalty of imprisonment. See
18 U.S.C. § 401.

   The grand jury’s decision to indict or not is unreviewable
in any forum; its decision is final. See Costello, 350 U.S. at
362-63 (“ ‘No case has been cited, nor have we been able to
find any, furnishing an authority for looking into and revising
the judgment of the grand jury upon the evidence’ ”) (quoting
United States v. Reed, 27 Fed. Cas. 727, 738 (C.C.N.D.N.Y.
1852)). See also United States v. Bruce, 394 F.3d 1215, 1231
(9th Cir. 2005) (“[W]e may not presume to correct the deci-
sions of the grand jury . . . except through our judgments, any
more than we can, except through our judgments, correct the
prosecutorial decisions of the executive.”). It is true that the
district court may convene another grand jury and the prose-
cutor may seek another indictment, but there is no check on
the grand jury’s refusal or failure to return an indictment. Like
other officers of the court, the grand jury enjoys absolute
5542            UNITED STATES v. NAVARRO-VARGAS
immunity from civil or criminal suit for its acts, which pre-
vents any inquiry into the grand jury’s motivations. See
Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976) (Grand
jurors possess absolute immunity because like a judge they
must “exercise a discretionary judgment on the basis of evi-
dence presented to them.”); Yaselli v. Goff, 12 F.2d 396, 403
(2d Cir. 1926) (Grand jurors and other judicial officers are not
liable “in a civil suit for a judicial determination, however
erroneous it may be, and however malicious the motive which
has produced it.”). See, e.g., Turpen v. Booth, 56 Cal. 65
(1880); Hunter v. Mathis, 40 Ind. 356 (1872). It is the fact that
its judgments are unreviewable and its deliberations unknow-
able that gives the grand jury its independence.

   Indeed, the grand jury is uniquely unaccountable; grand
jurors are insulated from public oversight in ways that no
other government instrumentality is. Judges must issue their
decisions on the public record; prosecutors must inform the
accused of the nature of the charges and conduct a public trial.
U.S. CONST. amend. VI. Decisions by judges and prosecutors
are subject to review and public criticism; and, in extreme
cases, judges and executive officers may be impeached for
their decisions and, if convicted, removed from office. U.S.
CONST. art. I, § 3, cl. 7. Grand juries are not subject to these
constraints. The grand jury that refused to indict the Earl of
Shaftesbury insisted on keeping its deliberations secret and
thus avoided the king’s retribution. The American jury that
refused to indict Peter Zenger could do so because there was
no retort to its response of “no bill.” And grand jurors who
failed to indict those critical of the President under the Alien
and Sedition Acts were free to do so in defiance of their
instructions precisely because there was no recrimination or
inquiry to be had into their acts. Their names — unlike the
subjects of investigation, the prosecutors, and instructing
judges — are lost to history.22
  22
    Moreover, because grand jury proceedings are secret, we can only
speculate as to the motives for these grand juries refusing to return the
                 UNITED STATES v. NAVARRO-VARGAS                      5543
   Grand jury independence is a two-edged sword, of course,
because the same privilege is due grand jurors who refuse to
indict for violations of civil rights laws or who take into
account the race or gender of the accused or the victim when
deciding to return a no bill. In all of these cases, for better or
for worse, it is the structure of the grand jury process and its
function in our system that makes it independent.23

C.     Appellants’ Objections to the Model Instructions

   With this in mind, we turn to the Appellants’ arguments.
They challenge three instructions that in their view “demean”
the grand jury’s historical responsibility. Appellants do not
ask us to rewrite the instructions in any particular way, but
they suggest that no instruction would be better than an incor-
rect instruction. We consider each challenged instruction in
turn.

  1.    “The Wisdom of the Criminal Laws”

   Navarro-Vargas and Leon-Jasso first challenge the passage
that states:

       You cannot judge the wisdom of the criminal laws

indictments. In fact, the model charge being challenged here specifically
instructs grand jurors that they “may not disclose the contents of [their]
deliberations and the vote of any juror even to government attorneys.” See
also FEDERAL JUDICIAL CENTER 1996, BENCHBOOK FOR U.S. DISTRICT COURT
JUDGES § 7.04 (4th ed. 2000 rev.).
   23
      “Given the ‘almost invariable assumption of the law that jurors follow
their instructions,’ ” instructing a grand jury not to judge the wisdom of
Congress’s laws hardly “undermines the very structural protections” of the
institution. Cf. Dissent at 5568 (quoting Richardson v. Marsh, 481 U.S.
200, 206 (1987)). Instead, that “invariable assumption” is an illustration
of the grand jury’s independence: We must presume that grand jurors will
follow instructions because, in fact, we are prohibited from examining
jurors to verify whether they understood the instruction as given and then
followed it.
5544           UNITED STATES v. NAVARRO-VARGAS
    enacted by Congress, that is, whether or not there
    should or should not be a federal law designating
    certain activity as criminal. That is to be determined
    by Congress and not by you.

   Appellants contend that this passage unconstitutionally
misinstructs the grand jury as to its role and function. They
assert that no authority supports the district court’s decision
to circumscribe the subject matter of the grand jurors’ inqui-
ries and deliberations. According to Appellants, this limitation
“run[s] counter to the whole history of the grand jury institu-
tion, in which laymen conduct their inquiries unfettered by
technical rules.” Br. of Appellant at 7 (citing Costello, 350
U.S. at 364). In addition, Appellants argue that federal courts
have limited powers to fashion rules of grand jury procedure
and that they cannot use this power to reshape the grand jury
institution, “substantially altering the traditional relationships
between the prosecutor, the constituting court, and the grand
jury itself.” Br. of Appellant at 8 (citing Williams, 504 U.S.
at 50). They further contend that since the grand jury has the
power to charge greater or lesser offenses, Vasquez, 474 U.S.
at 263, it can surely judge the wisdom of a particular law in
determining whether to indict. Appellants submit that this
faulty instruction constitutes structural error requiring dis-
missal of the indictment. Cf. Bank of Nova Scotia v. United
States, 487 U.S. 250, 256-57 (1988).

   [3] We first wish to observe that the instruction is not con-
trary to any long-standing historical practice surrounding the
grand jury. We know of no English or American practice to
advise grand juries that they may stand in judgment of the
wisdom of the laws before them. Indeed, there is strong evi-
dence to support the current instruction. We have previously
cited the attestation or oath required of grand jurors in an
early and influential colonial constitution which enjoined the
jurors to “diligently enquire and true presentment make, of all
such matters and things as shall be given thee in charge, or
come to thy knowledge.” See 5 THORPE, supra, at 3072. We
                 UNITED STATES v. NAVARRO-VARGAS                      5545
have also cited evidence of charges given shortly after the
adoption of the Bill of Rights in which federal judges charged
grand juries with a duty to submit to the law and to strictly
enforce it. See supra note 13.

   The phrase “wisdom of the laws” is not a term of art. We
might assume that the phrase means that juries cannot ques-
tion whether the law represents good policy. If a grand jury
can sit in judgment of wisdom of the policy behind a law,
then the power to return a no bill in such cases is the clearest
form of “jury nullification.”24 The “wisdom of the laws”
might also refer to a broader power of substantive constitu-
tional review — the power to determine that the law is uncon-
stitutional and, therefore, void. AMAR, supra, at 98 & n.64.
See Marbury v. Madison, 5 U.S. 137, 180 (1803) (“[A] law
repugnant to the constitution is void . . . [and] courts, as well
as other departments, are bound by that instrument.”). We
doubt that the grand jury is particularly well suited to make
either of these judgments, although, as we discuss below,
there is no check on the ability of the grand jury to do so. The
grand jury can only choose to indict or not in the cases before
  24
     The popular phrase “jury nullification” curiously echoes arguments by
James Madison and Thomas Jefferson for state nullification of congressio-
nal acts, arguments that we have long since rejected. The resolutions
drafted by Madison and Jefferson supported, of course, Virginia and Ken-
tucky’s claims that the Alien and Sedition Acts violated the First Amend-
ment. Kentucky Resolutions of 1798 and 1799 in 4 JONATHAN ELLIOT, THE
DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION 545 (2d ed. 1888); Virginia Resolutions of 1798 in
4 ELLIOT, supra, at 528. Any question of state nullification was resolved
against the states in Marbury v. Madison, 5 U.S. 137 (1803), which estab-
lished the Court as the “final arbiter of the Constitution.” Christian G.
Fritz, Alternative Visions of American Constitutionalism: Popular Sover-
eignty and the Early American Constitutional Debate, 24 HASTINGS CONST.
L.Q. 287, 346-47 (1997). Even at the time of the Resolutions, no other
state endorsed them and “several Federalist legislatures replied with
strongly nationalist resolutions denying the right of state assemblies to
pass on the validity of federal statutes.” H. Jefferson Powell, The Original
Understanding of Original Intent, 98 HARV. L. REV. 885, 926 (1985).
5546             UNITED STATES v. NAVARRO-VARGAS
it. It cannot make judgments about any other cases, and since
the jurors’ deliberations are secret, no judge, prosecutor, or
grand jury can rely on its reasoning in the future. Further-
more, the grand jury has few tools for informing itself of the
policy or legal justification for the law; it receives no briefs
or arguments from the parties. The grand jury has little but its
own visceral reaction on which to judge the “wisdom of the
law.”

   [4] By contrast, if the president or the attorney general
determines that a law is either unwise or unconstitutional, he
may decline to enforce the law and will do so systematically
and, often, publicly. 28 U.S.C. § 530D(a) (requiring notice to
Senate of Department of Justice’s decision not to defend an
act of Congress). See also Cox, 342 F.2d at 182 (Brown, J.,
concurring); id. at 193 (Wisdom, J., concurring). And, as we
have noted, he is answerable for his judgment. Similarly, if a
court finds that a law is unconstitutional, the judgment
extends to all cases within the court’s jurisdiction, and the
decision is public and subject to review. The grand jury is, by
design, isolated from other influences. The prospect of a
grand jury here and there deciding for itself that a law lacked
“wisdom” is an invitation to lawlessness and something less
than the equal protection of the laws.25 See AMAR, supra, at
103 (“[Accepting the] argument for jury review would have
vested in fundamentally local bodies a power that approached
de facto nullification in a wide range of situations. Existence
of such a power in local bodies to nullify Congress’s Recon-
struction statutes might have rendered the Civil War Amend-
ments a virtual dead letter.”); FRANKEL & NAFTALIS, supra, at
23 (“[I]t is not profitable to mourn the grand jury’s ‘loss’ of
  25
    The dissent demonstrates the problem when it notes that it is “con-
ceivable that a grand jury made aware of its role as ‘conscience of the
community’ would have provided ‘relief where strict application of the
law would prove unduly harsh.’ ” Dissent at 5572 (quoting Gaither v.
United States, 413 F.2d 1061, 1066 n.6 (D.C. Cir. 1969)). While there will
always be risks that grand juries will behave inconsistently, the Grand Jury
Clause does not require that we invite such caprice.
                UNITED STATES v. NAVARRO-VARGAS                5547
independence [because] an independent grand jury would be
intolerable[.]”).

   We recognize and do not discount that some grand jurors
might in fact vote to return a no bill because they regard the
law as unwise at best or even unconstitutional. For all the rea-
sons we have discussed, there is no post hoc remedy for that;
the grand jury’s motives are not open to examination. More-
over, there is no ex ante solution either; there is nothing to
prevent a grand jury from engaging in nullification or sub-
stantive constitutional review, not even the model grand jury
instructions. History demonstrates that grand juries do not
derive their independence from a judge’s instruction. Instead,
they derive their independence from an unreviewable power
to decide whether to indict or not.

   [5] The question before us is whether judging the wisdom
of the law is so integral to the role of the grand jury that it is
constitutional error for the district court to instruct against it.
We cannot say that the instruction is so contrary to the grand
jury’s role that it violates the Fifth Amendment. Or, put
another way, we cannot say that the grand jury’s power to
judge the wisdom of the laws is so firmly established that the
district court must either instruct the jury on its power to nul-
lify the laws or remain silent.

  2.     “Should” Indict if Probable Cause Is Found

  Navarro-Vargas and Leon-Jasso also claim that the follow-
ing passage misinstructs the grand jury:

       [Y]our task is to determine whether the govern-
       ment’s evidence as presented to you is sufficient to
       cause you to conclude that there is probable cause to
       believe that the accused is guilty of the offense
       charged. To put it another way, you should vote to
       indict where the evidence presented to you is suffi-
       ciently strong to warrant a reasonable person’s
5548             UNITED STATES v. NAVARRO-VARGAS
       believing that the accused is probably guilty of the
       offense with which the accused is charged.

Appellants claim that this passage is unconstitutional because
it instructs grand jurors that they “should” indict if they find
probable cause, but does not explain that they can refuse to
indict even if they find probable cause. Further, Appellants
argue that the instructions use the singular terms “purpose”26
and “task” in advising the grand jurors that their sole respon-
sibility is to make probable cause determinations. Even
though the instructions indicate that the jurors “should” indict
if they find probable cause, Appellants believe that the model
charge reasonably read, imposes upon the grand jury a duty
to indict if they find probable cause. Appellants argue that this
improper instruction deprives them of the “traditional func-
tioning of the institution that the Fifth Amendment demands.”
Br. of Appellants at 18 (citing Williams, 504 U.S. at 51).

   [6] This instruction does not violate the grand jury’s inde-
pendence. The language of the model charge does not state
that the jury “must” or “shall” indict, but merely that it
“should” indict if it finds probable cause. As a matter of pure
semantics, it does not “eliminate discretion on the part of the
grand jurors,” leaving room for the grand jury to dismiss even
if it finds probable cause. Marcucci, 299 F.3d at 1159.27
  26
     The singular term “purpose,” referred to by Appellants, is used earlier
in the model charge:
      The purpose of a Grand Jury is to determine whether there is suf-
      ficient evidence to justify a formal accusation against a person.
      If law enforcement officials were not required to submit to an
      impartial Grand Jury proof of guilt as to a proposed charge
      against a person suspected of having committed a crime, they
      would be free to arrest and bring to trial a suspect no matter how
      little evidence existed to support the charge.
   27
      The first model grand jury charge approved by the Judicial Confer-
ence left even less room for the grand jury to exercise its discretion. It
instructed the grand jury: “It is your duty to see to it that indictments are
returned against those who you find probable cause to believe are guilty
and not against the innocent.” Model Charge to Grand Juries, Report of the
Committee on the Operation of the Jury System 3 (September 1978).
               UNITED STATES v. NAVARRO-VARGAS              5549
   [7] Even assuming that the grand jury should exercise
something akin to prosecutorial discretion, the instruction
does not infringe upon that discretion. The analogy that the
Court recognized between the grand jury and the prosecutor
is useful for understanding the source of both the grand jury’s
and prosecutor’s discretion. See Economou, 438 U.S. at 510.
Under Article II, § 3, the president “shall take Care that the
Laws be faithfully executed.” That duty can be delegated to
subordinates, including the attorney general and the U.S.
attorneys serving in each judicial district. Myers v. United
States, 272 U.S. 52, 163-64 (1926) (“[A]rticle 2 grants to the
President the executive power of the government — i.e., the
general administrative control of those executing the laws,
including the power of appointment and removal of executive
officers — a conclusion confirmed by his obligation to take
care that the laws be faithfully executed[.]”); Ponzi v. Fassen-
den, 258 U.S. 254, 262 (1922). U.S. attorneys, operating with
limited resources, are literally incapable of seeing that each
and every federal law is executed. Allocating their resources,
they decide whether those resources are better put to prosecut-
ing narcotraficantes, 21 U.S.C. § 1906; government fraud, 18
U.S.C. § 1031, and public corruption, 18 U.S.C. § 666; or to
pursuing unlawful transportation of dentures, 18 U.S.C.
§ 1821; disruption of zoos, circuses, and rodeos, 18 U.S.C.
§ 43; or parking violations committed on federal lands, 36
C.F.R. § 4.13. See Wayte v. United States, 470 U.S. 598, 607
(1985) (The government relies on “[s]uch factors as the
strength of the case, the prosecution’s general deterrence
value, the Government’s enforcement priorities, and the
case’s relationship to the Government’s overall enforcement
plan” in determining which cases to prosecute.); LAFAVE, ET
AL., supra, § 13.2(d) (pointing out that with the great assort-
ment of crimes and limited government resources often prose-
cutors are choosing who “will” be prosecuted rather than who
will not be prosecuted). It is also possible that an attorney
general might decide not to enforce, or at least to underen-
force, politically controversial laws or laws that, in the attor-
ney general’s view, are unconstitutional. In effect, a decision
5550           UNITED STATES v. NAVARRO-VARGAS
not to prosecute someone who would likely be indicted and
could be convicted is a form of prosecutorial nullification. See
Cox, 342 F.2d at 169-70 (Attorney General instructed U.S.
Attorney not to seek indictment even though the grand jury
voted to indict and the district court placed him under civil
contempt of court for refusing to indict.).

   Notwithstanding Article II’s instruction to take care that the
laws are faithfully executed, the president and those who rep-
resent him have broad independence in their prosecutorial
decisions. The president’s independence arises not out of any
constitutional direction to exercise prosecutorial discretion,
prosecutorial nullification, or substantive constitutional
review, but out of the lack of any check on the president’s
ability to do so. The president operates virtually without
check on decisions not to charge violations. There are, of
course, long-term checks on the president. Congress has broad
powers of inquiry and may, if necessary, impeach a president
for his decisions. In extreme cases, courts may make judg-
ments about selective prosecutions that violate the promise of
due process or equal protection of the laws. United States v.
Armstrong, 517 U.S. 456, 464 (1996) (The equal protection
component of the Due Process Clause of the Fifth Amend-
ment prohibits selective prosecutions based on “race, religion,
or other arbitrary classification[.]”); United States v. Olvis, 97
F.3d 739, 743 (4th Cir. 1996). The people have a check by
bringing political pressure on the president and, if the presi-
dent seeks a second term, to offer a referendum vote at the
ballot box on the president’s judgment in enforcing the laws.

  In this respect, the grand jury has even greater powers of
nonprosecution than the executive because there is, literally,
no check on a grand jury’s decision not to return an indict-
ment. The grand jury has no accountability at the ballot box,
before Congress, the President, or the courts. The grand jury’s
duty to follow the Constitution is no less than the President’s
duty to take care that the laws are faithfully executed. It is the
grand jury’s position in the constitutional scheme that gives
                 UNITED STATES v. NAVARRO-VARGAS                 5551
it its independence, not any instructions that a court might
offer.

   [8] Even though the terms “purpose” and “task” are singu-
lar, conveying that the grand jury has one purpose, these
instructions do not undermine the grand jury’s purpose and
function. The instructions remind the grand jury that it has
“extensive powers” and in “a very real sense stand[s] between
the government and the accused.” Admittedly, the instructions
do not explain to the grand jury what its “extensive powers”
are or have been in the past, including its power to refuse to
indict even when a conviction can be obtained. However, the
instructions remind the grand jury of its independence from
the federal government and leave room for it to refuse to
indict. Consequently, we conclude that this instruction is not
inconsistent with the Fifth Amendment.

  3.     The “Candor, Honesty, and Good Faith” of
         Government Attorneys

  Finally, Appellants claim that the following passage inap-
propriately instructs the grand jury:

       The United States Attorney and his Assistant United
       States Attorneys will provide you with important
       service in helping you to find your way when con-
       fronted with complex legal problems. It is entirely
       proper that you should receive this assistance. If past
       experience is any indication of what to expect in the
       future, then you can expect candor, honesty, and
       good faith in matters presented by the government
       attorneys.

Appellants claim that this vote of confidence by the judge to
the honesty of the government attorneys further undermines
the independence of the grand jury. They argue that the grand
jury is told to independently evaluate probable cause but that
5552            UNITED STATES v. NAVARRO-VARGAS
this independence is diluted by this instruction that encour-
ages deference to prosecutors.28

   [9] We also reject this final contention and hold that
although this passage may include unnecessary language, it
does not violate the Constitution. The “candor, honesty, and
good faith” language, when read in the context of the instruc-
tions as a whole, does not violate the constitutional relation-
ship between the prosecutor and grand jury. The contested
passage may be surplusage, but it is not unprecedented.
Apparently, these laudatory comments about the prosecutor
have been included in grand jury materials for some time.
Model Grand Jury Charge, Report of the Proceedings of the
Judicial Conference of the United States A-12 (March 12,
1986); Model Grand Jury Charge, Report of the Proceedings
of the Judicial Conference of the United States 15 (September
21, 1978) (“If past experience is any indication of what to
expect in the future, then you can expect candor, honesty, and
good faith efforts in every matter presented by the govern-
ment.”). See also Cox, 342 F.2d at 177 (Rives, Gewin, and
Bell, J., concurring in part and dissenting in part) (quoting
The Manual for Grand Jurors, Cong. Rec. A1115, (Feb. 21,
1952) (noting that the U.S. Attorney is “an intelligent, experi-
enced individual acting in all sincerity” but that “he is from
the viewpoint of the grand jury, only a lawyer, an agent of the
Federal Department of Justice and by law he is the only legal
advisor to the grand jury”). The instructions balance the praise
for the government’s attorney by informing the grand jurors
that some have criticized the grand jury as a “mere rubber
stamp” to the prosecution and reminding them that the grand
jury is “independent of the United States Attorney[.]”

  We do not regard this reference in the same way that we do
  28
     See, e.g., Fouts, 79 IND. L.J. at 342-43 (suggesting that the phrase
“candor, honesty, and good faith” should be removed, and the language
relating to the independence of the grand jury be moved to the beginning
of the instruction).
                 UNITED STATES v. NAVARRO-VARGAS                    5553
vouching for witnesses. See United States v. Combs, 379 F.3d
564, 574-76 (9th Cir. 2004) (improper vouching by prosecutor
for government witness constituted plain error requiring
reversal); United States v. Ortiz, 362 F.3d 1274, 1278 (9th
Cir. 2004). The U.S. attorney is not testifying, but is present-
ing the testimony of others. The phrase is not vouching for the
prosecutor, but is closer to advising the grand jury of the pre-
sumption of regularity and good faith that the branches of
government ordinarily afford each other. United States v.
Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (“The presump-
tion of regularity supports the official acts of public officers,
and, in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official
duties.”); Nat’l Treasury Employees Union v. Reagan, 509 F.
Supp. 1337, 1342 (D.D.C. 1981) (“[T]he judiciary is legally
bound to give deference to the presumption of regularity of
the actions taken by a coordinate and equal branch of govern-
ment (here the executive) unless it is contrary to law.”).

   Again, the question before us is whether this language is
unconstitutional, not whether it is overly deferential or unnec-
essary. This passage would be problematic if it misinstructed
the grand jury that it was an agent of the U.S. attorney and not
an independent body acting as a check to the prosecutor’s
power. However, it does not do this. It reminds the grand jury
that it stands between the government and the accused and is
independent. The laudatory language is likely unnecessary,
but it surely does not threaten the constitutional relationship
between the prosecutor and grand jury.

  [10] In upholding the model grand jury instructions against
Appellants’ constitutional challenge, we do not necessarily
hold that the current instructions could not or should not be
improved. We recognize the commentary pointing to discrete
changes that tend to reduce the independence of the modern
grand jury29 and the commentary urging reform in expanding
  29
   One change is that federal grand juries no longer use their presentment
power. While presentments used to be a source for grand juries to express
5554             UNITED STATES v. NAVARRO-VARGAS
the grand jury’s duty and role in the criminal process.30 We
even concede that there may be more done to further increase
the shielding power of the modern federal grand jury. How-
ever, we are not a drafting committee for the grand jury instruc-
tions.31 We are not faced with the question of how to reform
the modern grand jury but whether its model instructions are

their grievances and views about current events, in 1946, the Federal
Rules of Criminal Procedure omitted any reference to the presentment
power. Renee B. Lettow, Note, Reviving Federal Grand Jury Present-
ments, 103 YALE L.J. 1333, 1343 (1994) (“For all practical purposes, the
Federal Rules of Criminal Procedure have abolished the grand jury’s pre-
sentment power.”).
   30
      Despite pleas by commentators for reform, Congress has not
attempted to reform the federal grand jury for several years. Mark J. Kad-
ish, Behind the Locked Door of An American Grand Jury: Its History, Its
Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1, 63 (1996) (noting that
“the last major effort by Congress at federal grand jury reform” was the
Grand Jury Reform Act of 1985, H.R. 1407, 99th Cong. (1985)). In the
late 1970s, Congress considered reforming the grand jury after alleged
abuses of the system by President Nixon’s Justice Department. Leipold, 80
CORNELL L. REV. at 272. Congress even considered several proposals to
abolish the grand jury requirement from the Fifth Amendment. Id. (citing
Grand Jury Reform: Hearings on H.R. 94 Before the Subcomm. on Immi-
gration, Citizenship, and International Law of the House Comm. on the
Judiciary, 95th Cong. 995-1002 (1977) (text of four proposed amend-
ments); id. at 1003 (summary of proposals)).
   31
      In fact, we note that the Committee on Court Administration and Case
Management is currently considering proposed revisions to the Model
Grand Jury Charge approved by the Judicial Conference in 1986. Commit-
tee Activities, Report of the Proceedings of the Judicial Conference of the
United States 13 (Sept. 21, 2004). In March 2005, the Committee submit-
ted a proposed model grand jury charge to the Judicial Conference. Com-
mittee on Court Administration and Case Management, Addendum to the
Report of the Judicial Conference: Model Grand Jury Charge app. 1
(March 2005). After a comprehensive review of the two existing model
grand jury charges, the one in the Benchbook for U.S. District Court
Judges and the Model Grand Jury Charge approved by the Judicial Con-
ference in 1986, the Committee recommended a draft model grand jury
charge that included all three phrases that Appellants challenge here. Id.
at App. D-2, D-7, D-8.
                 UNITED STATES v. NAVARRO-VARGAS                     5555
constitutional. To answer this question, we hold that the pro-
visions of the model grand jury instructions challenged here
are constitutional.

          III.   FACIAL CONSTITUTIONALITY OF
                   21 U.S.C. §§ 841 and 960

   [11] Appellants argue that 21 U.S.C. §§ 841 and 960 are
unconstitutional on their face because they permit the judge
to determine the sentencing factors by a preponderance of the
evidence, in violation of Apprendi v. New Jersey, 530 U.S.
466 (2000).32 We rejected facial challenges to sections 841
and 960 in United States v. Buckland, 277 F.3d 1173,
amended, 289 F.3d 558, 563-68 (9th Cir. 2002) (en banc)
(Section 841), and United States v. Mendoza-Paz, 286 F.3d
1104, 1110 (9th. Cir. 2002) (Section 960). See also United
States v. Jimenez, 300 F.3d 1166, 1171 (9th Cir. 2002);
United States v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002);
United States v. Varela-Rivera, 279 F.3d 1174, 1175 n.1 (9th
Cir. 2002).

   [12] Appellants now claim that the Supreme Court’s deci-
sion in Harris v. United States, 536 U.S. 545, 552 (2002), has
undermined the method of statutory construction employed in
Buckland and followed in Mendoza-Paz. We rejected a simi-
lar argument in United States v. Hernandez, 322 F.3d 592,
600-02 (9th Cir. 2003). We adopt our reasoning in Hernandez
and reaffirm that 21 U.S.C. §§ 841 and 960 require material
facts to be submitted to the jury and proved beyond a reason-
able doubt, consistent with Apprendi. So construed, Sections
841 and 960 are not facially unconstitutional.
  32
    We review this challenge to the constitutionality of a statute de novo.
United States v. Serang, 156 F.3d 910, 913 (9th Cir. 1998).
5556          UNITED STATES v. NAVARRO-VARGAS
                    IV.   CONCLUSION

  For the foregoing reasons, the decision of the district court
denying Appellants’ motion to dismiss their indictments is
AFFIRMED.
UNITED STATES v. NAVARRO-VARGAS        5557
                              Volume 2 of 2
5558           UNITED STATES v. NAVARRO-VARGAS




HAWKINS, Circuit Judge, with whom Circuit Judges
PREGERSON, WARDLAW, W. FLETCHER, and BERZON
join, Dissenting:

   The majority tells us that a constitutionally created institu-
tion, designed precisely to filter prosecutorial desire through
citizen judgment, must give way to the unbridled exercise of
prosecutorial discretion. The majority arrives at this remark-
able conclusion by relying principally upon British history
and the use of the grand jury in England prior to King George
III. Yet the presence of the grand jury in our constitutional
system is a uniquely American institution, born out of concern
for unchecked government power and the experience of
American colonists that led them to separate themselves from
the very history the majority embraces.

          History of the Grand Jury Requirement

   When Congressman James Madison sat down to write out
a series of proposed amendments to the freshly-adopted Con-
stitution, he was painfully aware of the ratification process in
which the absence of a Bill of Rights had provoked such stri-
dent opposition. Fresh in the minds of the former colonists
was their treatment at the hands of the British Crown and their
reliance on devices that protected them from what they saw
as the arrogant exercise of the Crown’s authority. Opponents
of the proposed constitution wanted assurances that what they
                 UNITED STATES v. NAVARRO-VARGAS                      5559
viewed as the best of those protections would continue in the
new government.1 On any short list of those protective
devices would have been the grand jury. When King George
III’s colonial appointees sought sedition charges against John
Peter Zenger for his editorials critical of the Crown, and when
participants in the Boston Tea Party faced criminal charges,
what stood between Americans and the dock was a grand jury
made up of their fellow citizens, free to refuse a prosecutor’s
entreaties or a king’s demands.2

   The grand jury requirement now lives in the Fifth Amend-
ment. It says, plainly and simply, that no serious (felony)
charge may be brought without the approval of a group of cit-
izens, drawn at large from the community, who are entirely
free to charge what the government proposes, to charge differ-
ently, or to not charge at all. Operating in secret and answer-
able to no one for its decisions, the grand jury is a truly
unique institution.

   Two hundred fifteen years have brought about some con-
siderable changes in the grand jury. Its use as an investigative
tool is more common now, as is criticism for its potential for
  1
     See Drew R. McCoy, The Last of the Fathers: James Madison & the
Republican Legacy 89 (1989) (“He never forgot his daunting experience
at the 1788 convention in Richmond; the Federalists’ razor-thin margin of
victory there had reflected the strength, among many delegates whom
Madison greatly respected, of the fear that excessive power would accrue
to the general government.”).
   2
     See Leroy D. Clark, The Grand Jury: The Use and Abuse of Political
Power 18 (1975). For other historical examples, see generally Marvin E.
Frankel & Gary Naftalis, The Grand Jury: An Institution on Trial 9
(1977). To be sure, our historical experience also includes instances where
the grand jury has acted to protect insiders against outsiders, and majori-
ties against minorities. The grand jury has also been criticized for serving
as a modern-day Star Chamber. See generally Michael E. Deutsch, The
Improper Use of the Federal Grand Jury: An Instrument for the Intern-
ment of Political Activists, 75 J. Crim. L. & Criminology 1159, 1179-83
(1984); David J. Fine, Comment, Federal Grand Jury Investigation of
Political Dissidents, 7 Harv. C.R.-C.L. L. Rev. 432 (1972).
5560          UNITED STATES v. NAVARRO-VARGAS
abuse. But regardless of its apparent virtues and vices, the
requirement of the grand jury’s independent exercise of its
discretion is a fixed star in our constitutional universe. For
that reason, it is important to consider whether the way in
which our courts today instruct grand jurors comports with
the constitutional history of the Fifth Amendment and the
grand jury institution.

       The Challenged Instructions & The Remedy

   Critical to an understanding of the serious constitutional
issue we face is what the challenged grand jury instructions
do say and the remedy the appellants do seek. As to the first,
the grand jurors here were clearly and improperly told that
their powers were limited to determining probable cause.
They were also told that they could not consider the wisdom
of the law or the possible punishment, and that they could
expect “candor, honesty, and good faith in matters presented
by the government attorneys.” As to the second, the appel-
lants do not seek a nullification instruction. Instead, both
Leon-Jasso and Navarro-Vargas propose that “the judge not
tell the jury that the law requires that the grand jury not con-
sider the wisdom of criminal laws or punishment, since the
law is the exact opposite.”

A. Improperly Limiting Grand Jurors to Probable
Cause Determination

   The instructions begin by telling the grand jurors that what
would follow outlines their responsibilities. This prefatory
emphasis is significant because the instructions go on to
explain that “the purpose of the Grand Jury is to determine
whether there is sufficient evidence to justify a formal accusa-
tion against a person.” A grand juror paying close attention
would conclude that the purpose of the grand jury is singular
and that its discretion is constrained by the instruction.

  This impression is confirmed again later in the charge:
“Your task is to determine whether the government’s evi-
               UNITED STATES v. NAVARRO-VARGAS              5561
dence as presented to you is sufficient to cause you to con-
clude that there is probable cause.” Once again, the
instruction defines the purpose, or “task,” singularly, and even
the majority concedes that “the terms ‘purpose’ and ‘task’ are
singular, conveying that the jury has a unique purpose.” Once
again, the unique purpose conveyed is determining probable
cause. The instruction seems to compel the grand jury to
indict as long as probable cause exists: “[Y]ou should vote to
indict where the evidence presented to you is sufficiently
strong to warrant a reasonable person’s believing that the
accused is probably guilty of the offense with which the
accused is charged.”

   The majority discounts the admonishment “should,” argu-
ing that it is distinct from “must” or “shall.” Even “[a]s a mat-
ter of pure semantics,” the majority is incorrect to say that the
use of the word “should” preserves the grand jury’s discre-
tion. The word “should” is used “to express a duty [or] obliga-
tion.” THE OXFORD AMERICAN DICTION AND LANGUAGE GUIDE
931 (1999); see also MERRIAM-WEBSTER’S COLLEGIATE DICTIO-
NARY 1085 (10th ed. 1998) (“used in auxiliary function to
express obligation, propriety, or expediency”); THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1670 (3d ed.
1992) (“Used to express obligation or duty”); Dictionary.com,
http://dictionary.reference.com/search?q=should (“Used to
express obligation or duty”) (last checked Apr. 5, 2005). The
“should” and “shall” distinction is a lawyer’s distinction, not
a difference most lay people sitting as grand jurors would be
likely to understand. The instruction’s use of the word
“should” is most likely to be understood as imposing an
inflexible “duty or obligation” on grand jurors, and thus to
circumscribe the grand jury’s constitutional independence.

   This “should” admonishment is at odds with the grand
jury’s broad independent role. As the Supreme Court held in
Vasquez v. Hillery, 474 U.S. 254, 263 (1986), “[t]he grand
jury does not determine only that probable cause exists to
5562              UNITED STATES v. NAVARRO-VARGAS
believe that a defendant committed a crime, or that it does
not.” (emphasis added).

   The grand jury’s defining feature is its independence. The
Fifth Amendment deliberately inserts a group of citizens
between the government’s desire to bring serious criminal
charges and its ability to actually do so. “It is a constitutional
fixture in its own right[,] . . . belong[ing] to no branch of the
institutional Government, serving as a kind of buffer or ref-
eree between the Government and the people.” United States
v. Williams, 504 U.S. 36, 47 (1992) (internal citations omit-
ted). Indeed, “the Fifth Amendment’s ‘constitutional guaran-
tee presupposes an investigative body acting independently of
either [the] prosecuting attorney or judge.’ ” Id. at 49 (quoting
United States v. Dionisio, 410 U.S. 1, 16 (1973)) (emphasis
in original; internal quotations omitted). The history of the
adoption of the grand jury requirement in the Bill of Rights
underscores its independent role,3 and its independence was
noted by courts at the founding of the Republic. See United
States v. Smith, 27 F. Cas. 1186, 1188 (C.C.D.N.Y. 1806)
(No. 16341A) (“Grand juries are the offspring of free govern-
ment; they are a protection against illfounded accusations.”).

B.     Limiting Grand Jury’s Protective Role

   The grand jury’s independence serves not only in the deter-
mination of probable cause, as these grand juries were
instructed, but also to protect the accused from the other
branches of government by acting as the “conscience of the
community.” Gaither v. United States, 413 F.2d 1061, 1066
n.6 (D.C. Cir. 1969) (“Since it has the power to refuse to
indict even where a clear violation of law is shown, the grand
jury can reflect the conscience of the community in providing
relief where strict application of the law would prove unduly
harsh.”) (citation, internal quotation omitted).
  3
     See sources cited in notes 1-2.
              UNITED STATES v. NAVARRO-VARGAS                 5563
   The significance of this second — and potentially protec-
tive — role should not be understated. Indeed, the strength of
this understanding is emphasized in Vasquez. There, the
Supreme Court said:

    In the hands of the grand jury lies the power to
    charge a greater offense or a lesser offense; numer-
    ous counts or a single count; and perhaps most sig-
    nificant of all, a capital offense or a noncapital
    offense — all on the basis of the same facts. More-
    over, “[the] grand jury is not bound to indict in every
    case where a conviction can be obtained.” United
    States v. Ciambrone, 601 F.2d 616, 629 (CA2 1979)
    (Friendly, J., dissenting).

474 U.S. at 263. Judge Friendly’s dissent in Ciambrone itself
cites powerful language on this protective role from another
distinguished jurist, Judge John Minor Wisdom:

    By refusing to indict, the grand jury has the unchal-
    lengeable power to defend the innocent from govern-
    ment oppression by unjust prosecution. And it has
    the equally unchallengeable power to shield the
    guilty, should the whims of the jurors or their con-
    scious or subconscious response to community pres-
    sures induce twelve or more jurors to give sanctuary
    to the guilty.

United States v. Cox, 342 F.2d 167, 189-90 (5th Cir. 1965)
(Wisdom, J., concurring specially).

   Though grand jurors undoubtedly possess these powers,
and the majority so acknowledges, majority opinion at 5540,
the jurors in this case were misled by the instructions given
to them, told that their powers were restricted to probable
cause. This necessarily compromises their independence. Fur-
ther eroding the powers described in Gaither and Vasquez, the
instructions admonish grand jurors:
5564             UNITED STATES v. NAVARRO-VARGAS
     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 to be 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 convic-
     tion. Judges alone determine punishment.

This instruction improperly limits the jurors’ discretion
regarding the proper scope of application of federal criminal
law, as well as matters of sentencing.

  1. Questioning the Wisdom of the Law &
  Prosecutorial Discretion4

   As to questioning the wisdom of a criminal law, consider
the language from the Gaither decision: “Since it has the
power to refuse to indict even where a clear violation of law
is shown, the grand jury can reflect the conscience of the
community in providing relief where strict application of the
law would prove unduly harsh.” Gaither, 413 F.2d at 1066 n.6
(citation, internal quotation omitted).5 How is it then that the
grand jury lacks the power to consider the wisdom of a law
applied to a particular case?6
   4
     Judge Kozinski was kind enough to refer to and draw upon my earlier
dissent in United States v. Marcucci, 299 F.3d 1156, 1166-73 (9th Cir.
2002) (Hawkins, J., dissenting), in his dissent from the now-withdrawn
panel opinion. United States v. Navarro-Vargas, 367 F.3d 896, 899-03
(9th Cir. 2004) (Kozinski, J., dissenting). I return the “favor” here by
heavily drawing upon his dissent in this section.
   5
     See also In re Kittle, 180 F. 946, 947 (S.D.N.Y. 1910) (L. Hand, J.)
(“One purpose of the secrecy of the grand jury’s doings is to insure against
this kind of judicial control. They are the voice of the community accusing
its members, and the only protection from such accusation is in the con-
science of that tribunal.”).
   6
     Citizen grand jurors seem to instinctively feel this concern. Consider
the following question posed recently to an ethics columnist:
                 UNITED STATES v. NAVARRO-VARGAS                      5565
   The grand jury must have the power to consider the wis-
dom of a law because it performs what is undeniably a pro-
secutorial function. The Fifth Amendment’s command that a
felony prosecution simply cannot proceed without the
approval of the grand jury permits it to act as a check on pro-
secutorial discretion by the simple act of refusing to return an
indictment.7 The majority is concerned about this unfettered
discretion, arguing that “[i]f a grand jury can sit in judgment
of wisdom of the policy behind the law, then the power to
return a no bill in such cases is the clearest form of ‘jury nulli-
fication.’ ” The majority doubts that the grand jury is well-
suited to make such judgments on the wisdom of the law,
though it appears to accept the concept of prosecutorial dis-
cretion in the hands of a United States Attorney: “a decision
not to prosecute someone who would likely be indicted and
could be convicted is a form of prosecutorial nullification.”

   Prosecutorial discretion — the decision whether and how to
bring charges against a particular defendant — is an impor-
tant, even critical component of the criminal justice system,
whether it be exercised by prosecutors or grand jurors. Not
every potential crime can (or should) be investigated or prose-
cuted, 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. Prosecu-

    I’m on a grand jury. We’ve been given cases involving someone
    who views pornography on his computer behind locked doors
    and someone caught in the presence of marijuana. The assistant
    D.A. indicates that I shouldn’t abstain from voting, but my con-
    science won’t let me sleep if I make felons out of such people.
    May I vote not to indict?
Randy Cohen, Aren’t Juries Grand?, N.Y. Times Magazine, at 28 (Mar.
20, 2005).
   7
     Vasquez, 474 U.S. at 263. The grand jury can also investigate, see Wil-
liams, 504 U.S. at 48, and, if it wishes, bring charges not presented to it
by a prosecutor, see Vasquez, 474 U.S. at 263.
5566            UNITED STATES v. NAVARRO-VARGAS
tors can, and often do, make such decisions based on their
judgments as to how wise and important certain laws may be.8

   And herein lies the essential hypocrisy of the government’s
position. Standing firmly in the defense of its exercise of dis-
cretion (amounting at times to nullification), it just as firmly
argues that grand jurors are without authority to make similar
judgments about which laws deserve vigorous enforcement
and which ones do not, in deciding whom to indict, and on
what charges. In the government’s eye, the grand jury is a
mere instrument of prosecutorial will, a probable cause
screening device obligated to act at the direction of the prose-
cutor and then only when the prosecutor has decided whom
and how much to charge.

   But grand jurors have been traditionally viewed as the
“conscience of the community,” a function that partakes far
more of judgment and discretion than of the narrow ministe-
rial role that the challenged instructions assign to them.9
Because the petit jury may not take into account community
values to decide whether to convict, it is even more important
to foster this traditional function of the grand jury—a body
not subject to the prohibition against double jeopardy or other
procedural constraints that apply once the case proceeds to
trial. See Williams, 504 U.S. at 49; United States v. R. Enters.,
Inc., 498 U.S. 292, 298 (1991).

  2.   Severity of the Punishment

  As to the severity of punishment, the Supreme Court in
  8
    See William J. Stuntz, The Pathological Politics of Criminal Law, 100
Mich. L. Rev. 505, 599 (2001) (“[P]rosecutors have the discretion not to
enforce when the laws are too harsh.”).
  9
    See Ric Simmons, Re-examining the Grand Jury: Is There Room for
Democracy in the Criminal Justice System?, 82 B.U. L. Rev. 1, 39-44
(2002) (listing cases where grand juries refused to indict despite strong
evidence that a criminal law was violated).
               UNITED STATES v. NAVARRO-VARGAS              5567
Vasquez stated that the grand jury has “the power to charge
a greater offense or a lesser offense; numerous counts or a
single count; and perhaps most significant of all, a capital
offense or a non-capital offense[,] all on the basis of the same
facts.” Vasquez, 474 U.S. at 263. If grand jurors can choose,
per Vasquez, between capital and non-capital offenses, how
could they not be influencing the determination of punish-
ment? They are exerting such influence, and they should be
able to continue to do so, not boxed in by jury instructions
that seek to eradicate this important function.

  3.   Instructions as Structural Protections

   After long historical exegesis, the majority apparently
agrees that a grand jury has the power to refuse to indict
someone even when the prosecutor has established probable
cause that this individual has committed a crime. See majority
opinion at 5540-41 (“[S]ignificantly, the grand jury may
refuse to return an indictment even ‘where a conviction can
be obtained.’ ”) (quoting Vasquez, 474 U.S. at 263).

   We part company, however, when it comes to how to pro-
tect this power of the grand jury. The majority believes that
the “structure” and “function” of the grand jury — particu-
larly the secrecy of its proceedings and unreviewability of
many of its decisions — sufficiently protects that power. See
majority opinion at 5540-43, 5551. But the majority fails to
see that the instructions given a grand jury shape its structure
and function. Typical grand juries, including the grand jury in
these cases, hear evidence from the prosecutor and receive
instructions from the judge. Those instructions do not include
a reference to Vazquez or a discussion of the full range of the
grand jury’s powers, and include the language we have dis-
cussed, which jurors are likely to understand as precluding the
authority to refuse to indict if there is probable cause. Consci-
entious grand jurors, instructed as were the jurors in these
cases, will believe they lack any authority beyond that on
which they are instructed, and will act accordingly.
5568           UNITED STATES v. NAVARRO-VARGAS
   Instructing a grand jury that it lacks power to do anything
beyond making a probable cause determination thus unconsti-
tutionally undermines the very structural protections that the
majority believes saves the instruction. The power to deliber-
ate in secret is valuable, but limiting the factors included in
that deliberation circumscribes that power. Similarly, the
power to make unreviewable decisions is a serious power
indeed, but limiting the range of considerations that impact
those decisions undermines that power. Given the “almost
invariable assumption of the law that jurors follow their
instructions,” Richardson v. Marsh, 481 U.S. 200, 206 (1987),
we must assume that grand jurors followed the instructions
offered in this case and, therefore, that the instructions under-
mined the very structural factors on which the majority rests
its decision.

   Indeed, there is something supremely cynical about saying
that it is fine to give jurors erroneous instructions because
nothing will happen if they disobey them. Grand jurors come
in with no knowledge of the system, but, one would hope, a
desire to fulfill their assigned role, not to flout it. Indeed, our
legal system assumes that jurors have this desire, an assump-
tion embodied in the Richardson presumption that jurors will
fulfill their role as instructed by those in authority.

C.     Praising the Government Attorneys

   Further invading the independence of the grand jury was
the court’s instruction that it could expect “candor, honesty,
and good faith in matters presented by the government attor-
neys.” In Leon-Jasso’s case, the judge also told the grand
jurors that the prosecutors were “wonderful public servants.”
What these instructions do not tell grand jurors is that prose-
cutors are free to deprive the grand jurors of exculpatory evi-
dence, Williams, 504 U.S. at 45-47, to provide
unconstitutionally seized evidence, United States v. Calandra,
414 U.S. 338 (1974), and to present evidence otherwise inad-
missible at trial, Costello v. United States, 350 U.S. 359
                UNITED STATES v. NAVARRO-VARGAS                 5569
(1956). How independent can a grand jury be when they are
told how wonderful the prosecutors are? The majority con-
cedes that the “candor, honesty, and good faith” instruction is
“unnecessary language,” but attempts to justify its constitu-
tionality by demonstrating that this language has been
included for some time and claiming that the laudatory
remarks do not threaten the constitutional relationship
between the prosecutor and grand jury. Appellants, however,
have the better argument: the grand jury’s independence is
diluted by this instruction, which encourages deference to
prosecutors. By undermining the grand jury’s independence,
this part of the grand jury instruction is also unconstitutional.

                     The Petit Jury Analogy

   Arguing from a remedy not sought to an institution not
involved, the majority relies upon the rejection of nullification
instructions in the petit jury context.10 But this argument
ignores an important distinction between the two groups: with
petit juries, jeopardy attaches, whereas with grand juries, a
new prosecution effort can begin. See Williams, 504 U.S. at
49. Because evidence can always be re-presented to a second
grand jury, it is far from inevitable that justice will not be
done if grand jurors were given a full disclosure instruction.

   Because the Framers placed a high value on the kinds of
powers articulated by Vasquez for grand juries, it would be
unjustifiably paternalistic to fail to tell the grand jurors the
scope of their constitutional powers over charging decisions
specifically entrusted to their judgment. Finally, it is a mis-
take to conclude that a full disclosure instruction to a grand
jury would subvert the rule of law. If our constitutional sys-
tem permits the grand jury to act on its “conscience,” then it
hardly makes sense to say that a grand juror who chooses to
not indict despite probable cause is acting lawlessly. Rather,
  10
   See, e.g., United States v. Powell, 955 F.2d 1206, 1213 (9th Cir.
1991); United States v. Simpson, 460 F.2d 515, 518-20 (9th Cir. 1972).
5570            UNITED STATES v. NAVARRO-VARGAS
that action lies fully within the discretion delegated by the
Constitution.

   The petit jury analogy not only fails, it also provides a pow-
erful reason for allowing the grand jury the independence to
consider, for example, the wisdom of the law under which a
suspect is to be prosecuted: we no longer permit petit juries
to exercise such discretion, see, e.g., Powell, 955 F.2d at
1213; Simpson, 460 F.2d at 518-20,11 for the perfectly sensible
reason that petit jurors decide guilt or innocence in accor-
dance with clearly established legal standards. If grand juries,
too, cannot exercise such discretion, then considerations such
as the wisdom of the law will be isolated from any citizen’s
review, subject only to the prosecutor’s discretion.

   If the majority’s view of the grand jury prevails, then the
prosecutor will have discretion over all matters concerning
indictment, whereas the constitutional institution of the grand
jury will not. The prosecutor, a “single employee of the state”
not only should not have sole discretion, such sole discretion
is not the system envisioned by the Fifth Amendment. Cf.
Apprendi v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia, J.,
concurring) (“[I]t is not arguable that, just because one thinks
it is a better system [to allow the judge, a single employee of
the state, to determine sentencing factors by a preponderance
of the evidence], it must be, or is even more likely to be, the
system envisioned by a Constitution that guarantees trial by
jury.”) Adopting a system where discretion is solely in the
hands of the prosecutor would result in a “perilous decline”
in the grand jury institution, analogous to the decline in the
petit jury institution caused by judges determining sentencing
factors that increase punishment beyond what is authorized by
the jury verdict. See Ring v. Arizona, 536 U.S. 584, 611-12
(2002) (Scalia, J., concurring).
  11
     See also Simmons, supra note 9 at 47 (“[T]he grand jury has become
the primary vehicle for members of the community to participate in and
influence the criminal justice system.”).
                UNITED STATES v. NAVARRO-VARGAS                 5571
                         Structural Error

   These instructions are unconstitutional because they
actively mislead grand jurors into thinking their powers are
more constrained than they are. Which raises the next ques-
tion: if error, is it a structural error, or is it subject to harmless
error review?

   The answer, based on Vasquez, is that it is a structural
error. In Vasquez, the Supreme Court presumed prejudice,
concluding that the systematic exclusion of blacks from the
grand jury pool amounted to structural error, for which preju-
dice to the defendant need not be shown. This result issued,
despite the argument that “requiring a State to retry a defen-
dant, sometimes years later, imposes on it an unduly harsh
penalty for a constitutional defect bearing no relation to the
fundamental fairness of the trial.” Vasquez, 474 U.S. at 262.
The Vasquez Court rejected this contention, noting that funda-
mental flaws, such as racial discrimination in the grand jury,
“undermine[ ] the structural integrity of the criminal tribunal
itself, and [are] not amenable to harmless-error review.” Id. at
263-64.

   To determine whether the presumption of prejudice
attaches, the Supreme Court demands that we employ a tradi-
tional test: to determine whether “the structural protections of
the grand jury have been so compromised as to render the
proceedings fundamentally unfair.” Bank of Nova Scotia v.
United States, 487 U.S. 250, 257 (1988). But the high court
also stated that courts should look to whether any inquiry into
harmless error would require unguided speculation. Id.

   And, this is indeed an area of “unguided speculation.” Per-
haps a grand jury would have exercised its discretion in favor
of one or all of the defendants here; among other things,
Navarro-Vargas is a young man with no serious criminal
record, except one previous drug conviction. The judge exer-
cised discretion in favor of Navarro-Vargas by sentencing him
5572             UNITED STATES v. NAVARRO-VARGAS
to the “low end of the guidelines.” The judge in Leon-Jasso’s
case noted his military commendation, the impact of a prison
term on his family, and his honesty in admitting his conduct,
when he granted a two-level downward departure for sentenc-
ing, and then sentenced at the bottom of the range. Put differ-
ently, it is conceivable that a grand jury made aware of its role
as “conscience of the community” would have provided “re-
lief where strict application of the law would prove unduly
harsh.” Gaither, 413 F.2d at 1066 n. 6.

   “[A] reviewing court can never know whether or not an
unbiased and properly constituted grand jury would have sim-
ply declined to indict at all or might have charged a lesser
offense.” United States v. Marcucci, 299 F.3d 1156, 1173 (9th
Cir. 2002) (Hawkins, J., dissenting) (citation, internal quota-
tion omitted). Where structural error occurs, it is no adequate
reply that the appellants did not demonstrate that “irregulari-
ties” existed such that the presumption of regularity should be
disturbed. For it is precisely the “regular” and “traditional”
functioning of the grand jury—its potential to exercise either
justice-guided discretion or compassion-based mercy even
against a finding of probable cause—that was hobbled by
these instructions. In short, the appellants were denied the
“traditional functioning of the institution that the Fifth
Amendment demands.” Williams, 504 U.S. at 51.

   Because the defendants here were convicted after their
grand juries were erroneously instructed, and because the
erroneous instructions constituted a substantial impediment to
the regular functioning of the grand jury as envisioned by the
Constitution, I would reverse the convictions, dismiss these
indictments, and allow the government to re-present evidence
to a grand jury properly instructed as to its independent role.12
  12
    Mindful of arguments that this would impose a burden on the govern-
ment, the Supreme Court’s decisions of late remind us that our obligations
under the Constitution are not always measured against the metric of effi-
ciency. See, e.g., Blakely v. Washington, 124 S. Ct. 2531, 2543 (2004)
                 UNITED STATES v. NAVARRO-VARGAS                       5573




(“[O]ur decision cannot turn on whether or to what degree trial by jury
impairs the efficiency or fairness of criminal justice.”); Apprendi, 530 U.S.
at 551 (O’Connor. J., dissenting) (noting that Apprendi will “unleash a
flood of petitions by convicted defendants seeking to invalidate their sen-
tences”); Ring, 536 U.S. at 620-21 (O’Connor. J., dissenting) (expressing
similar fears that Ring will strain judicial resources).
