FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50365
Plaintiff-Appellee, D.C. No.
v. 3:07-CR-00222-
FRANCISCO NAVARRO, IEG-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
October 7, 2009—Pasadena, California
Filed June 11, 2010
Before: Andrew J. Kleinfeld and Richard C. Tallman,
Circuit Judges, and David G. Trager,* District Judge.
Opinion by Judge Kleinfeld
*The Honorable David G. Trager, United States District Judge for the
Eastern District of New York, sitting by designation.
8615
8618 UNITED STATES v. NAVARRO
COUNSEL
Ellis M. Johnston, III, Federal Defenders of San Diego, Inc.,
for the defendant-appellant.
Karen P. Hewitt, United States Attorney; Bruce R. Castetter,
Assistant U.S. Attorney; David P. Curnow, Assistant U.S.
Attorney; Andrew G. Schopler (argued), Assistant U.S. Attor-
ney; for the plaintiff-appellee.
OPINION
KLEINFELD, Circuit Judge:
We address a duress defense and a mistaken grand jury
charge.
I. Facts
Navarro worked as a general assistant, mechanic and occa-
sional courier for a drug smuggling organization in Tijuana,
Mexico. He had served time in a California state prison for
possessing marijuana for sale. After his release, he returned to
work for his old criminal association, and also provided infor-
mation on his associates to United States Immigration and
Customs Enforcement. His information may have assisted in
leading to the arrest of a leader of the criminal organization.
UNITED STATES v. NAVARRO 8619
Navarro was told to drive from Tijuana to Mexicali to pick
up some “parts,” evidently vehicle parts. While there, he
drank beer with “Ruben,” another lower level member of the
criminal organization, awaiting the call to tell him which
junkyard to go to for the parts. Ruben told him that the leaders
were suspicious about the leader’s arrest, making Navarro
very nervous. They got the call around midnight, with instruc-
tions to drive a truck with a load of drugs back to Tijuana and
across the border to Los Angeles. Ruben would ride along to
Navarro’s home in Tijuana to pick up a car. Navarro testified
that he believed he would be killed on the drive from Mexi-
cali to Tijuana and thrown someplace where his body would
not be found. That did not occur. Navarro and Ruben drove
to Tijuana. Navarro got something to eat in Tijuana and woke
up his wife at his house there, and his wife drove his truck to
the border while he slept.
They got caught at the San Ysidro border station. A dog
alerted to the left rear of the pickup truck, the authorities x-
rayed the truck and saw anomalies, an agent removed the left
taillight assembly, and over thirteen kilograms of heroin were
pulled out of the cavity between the truck bed and the left
exterior sheet metal. An Immigration and Customs Enforce-
ment agent talked to Navarro in his holding cell, and arranged
with him to do the scheduled heroin delivery in Los Angeles
under surveillance. Navarro told him he had assisted a federal
agency with information before, but could not remember the
names of the agency or his controlling agents or a phone num-
ber, and said he had not told the federal agents about the load
of heroin with which he had been caught. The controlled
delivery was supposed to be at a Taco Bell near a Jack in the
Box, but there turned out to be two, one on either side of the
Jack in the Box, and no one showed up to take delivery at the
Taco Bell Navarro picked.
Navarro was indicted for importing heroin1 and possession
1
21 U.S.C. §§ 952, 960.
8620 UNITED STATES v. NAVARRO
with intent to distribute.2 At trial he testified that he had acted
under duress. He claimed that the criminal organization sus-
pected that he was a “snitch,” so he had to pass the test of
smuggling the drugs across the border or they would kill him.
The district court gave the jury a duress instruction, over the
government’s objection. However, the jury convicted Navarro
on both counts of the indictment, and the court sentenced
Navarro to 240 months of imprisonment,3 the statutory mini-
mum considering his previous drug conviction.4
On appeal, Navarro argues that: (1) the district court inade-
quately responded to a prosecutorial misstatement of the law
in closing argument; (2) the grand jury charge was structural
error, entitling him to dismissal of the indictment; and (3) he
was entitled to have his prior conviction proved beyond a rea-
sonable doubt to the jury. The third argument necessarily fails
because of the Supreme Court decision in Almendarez-Torres
v. United States5 and numerous decisions of our court.6 The
first two arguments need attention here.
2
Id. § 841(a)(1).
3
He was sentenced to 240 months of imprisonment for each of his two
convictions, importing and possessing, with the two sentences running
concurrently.
4
21 U.S.C. § 841(b)(1)(A) provides a mandatory minimum sentence of
twenty years for a violation of § 841(a)(1) if the offender commits the
offense “after a prior conviction for a felony drug offense has become
final.”
5
523 U.S. 224, 230-35 (1998); see also Apprendi v. New Jersey, 530
U.S. 466, 490 (2000).
6
See, e.g., United States v. Garcia-Hernandez, 569 F.3d 1100, 1103 (9th
Cir. 2009); United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97
(9th Cir. 2006); United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th
Cir. 2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th
Cir. 2005).
UNITED STATES v. NAVARRO 8621
II. Analysis
A. Duress defense.
Navarro argues that the prosecutor misstated the law of
duress during his rebuttal closing argument by telling the
jurors that the threat had to be express. He claims this was
prejudicial because it misled the jury into thinking there can
be no duress absent an express threat. Defense counsel
objected immediately. The district court overruled the objec-
tion, and instructed the jury that “lawyers can argue their
interpretation of the law. The law is that it’s an immediate
threat of death or serious bodily injury, and you can read the
instruction for yourselves[.]” Navarro unsuccessfully moved
for a mistrial on this ground. The government argues that it
did not misstate the law, and even if it did, any error was
harmless because Navarro did not take advantage of a reason-
able opportunity to escape the threatened harm when he
arrived at the border station.
Generally, a district court’s decision to overrule an objec-
tion raised during closing argument,7 and its denial of a
motion for a mistrial,8 are reviewed for an abuse of discretion.
In United States v. Segna9 we held that a prosecutor’s
unobjected-to erroneous and misleading statements of law
shifting the burden of proof were plain error requiring rever-
sal, even though the judge correctly instructed the jury on bur-
den of proof, because in that particular case, it was “highly
probable that the prosecutor’s argument materially affected
the verdict and thereby seriously prejudiced Segna.”10 Navarro
argues that Segna controls here.
7
United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984); cf. Her-
ring v. New York, 422 U.S. 853, 862 (1975) (dicta).
8
United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008).
9
555 F.2d 226 (9th Cir. 1977).
10
Id. at 230-32.
8622 UNITED STATES v. NAVARRO
The district court instructed the jury that to establish a
defense of duress, the defendant must prove by a preponder-
ance of evidence three things: (1) immediate threat of death
or serious bodily; (2) well-founded fear that the threat would
be carried out; and (3) no reasonable opportunity to escape the
threatened harm:11
Duress legally excuses the crime of importation of
heroin and possession with intent to distribute her-
oin.
The defendant must prove duress by a preponder-
ance of the evidence. A preponderance of the evi-
dence means that you must be persuaded that the
things the defendant seeks to prove are more proba-
bly true than not true.
A defendant acts under duress only if at the time of
the crime charged:
1. There was an immediate threat of death or serious
bodily injury to the defendant or a family member of
the defendant if the defendant did not participate in
the commission of the crime;
2. The defendant had a well-founded fear that the
threat of death or serious bodily injury would be car-
ried out; and
3. The defendant had no reasonable opportunity to
escape the threatened harm.
If you find that each of these things has been proved
11
See United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir.
2008).
UNITED STATES v. NAVARRO 8623
by a preponderance of the evidence, your verdict
should be for the defendant.12
Navarro does not challenge the instruction.
The prosecutor, discussing duress in his rebuttal argument,
told the jury that it had to follow the judge’s instructions, and
then went on with this interpretation:
There has to be an immediate threat and it has to be
not just a generalized threat. Again, being a confi-
dential informant might be dangerous. They might
even, somebody might even threaten to kill you if
they found out that you were a snitch, but what’s
important here is that they have to say, do this or we
will kill you, and there’s no evidence that that
[defense counsel objects here] happened.
Navarro’s counsel objected, and the court furnished this
admonition to the jury:
The lawyers can argue their interpretation of the law.
The law is that it’s an immediate threat of death or
serious bodily injury, and you can read the instruc-
tions for yourselves, ladies and gentlemen, but
remember you’re to consider all the instructions
together.
The prosecutor went on to argue that Navarro may have felt
threatened, and had testified that he thought he would be
killed on the drive from Mexicali to Tijuana, but “[n]obody
said, cross [the border with] these drugs or we’ll kill you.”
After a few hours of deliberations, the jury sent a note to
the judge, “does the jury need to determine that the defendant
has proved all three items or can duress be proved if the jury
12
Ninth Circuit Crim. Jury Instr. 6.6 (2003).
8624 UNITED STATES v. NAVARRO
finds the defense has proved items two and three only?” After
consulting with counsel, the court sent the jury a response
stating that all three had to be proved by a preponderance of
evidence. A half hour later, the jury rendered a guilty verdict.
[1] Navarro argues that a threat does not need to be explicit
and verbal and may be implied. In this he is correct. A threat,
for purposes of duress, may be express or implied, so long as
it is an immediate threat as distinguished from generalized fear.13
There is no support for the proposition that a threat must con-
sist of express words. Nor would the proposition make any
sense or be consistent with the interpretation of threats in
other contexts. A robber who points a gun at the victim and
says “give me your money” makes an immediate threat of
death by so doing, whether he adds the words “or I’ll kill
you” or not.14 Likewise someone may intimidate a witness by
13
See, e.g., United States v. Cotto, 347 F.3d 441, 446-47 (2d Cir. 2003)
(“We hold that the coercion occasioned by a defendant’s generalized fear
of a third party, based solely on knowledge of that third party’s violent
conduct toward others rather than on any explicit or implicit threat, is
insufficient to constitute the unusual or exceptional circumstances war-
ranting a departure under § 5K2.12 [for duress not amounting to a com-
plete defense].”); United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002)
(“The Guideline [U.S.S.G. § 5K2.12], we think, encompasses both explicit
and implicit threats of harm.”); cf. United States v. Lopez-Garcia, 316
F.3d 967, 973 (9th Cir. 2003) (discussing § 5K2.12 duress guideline and
affirming the rejection of it in that case, not because the threat was
implied, but because the defendant’s actions were not reasonable); United
States v. Homick, 964 F.2d 899, 905-06 (9th Cir. 1992) (rejecting a bat-
tered woman syndrome defense, “a species of the defense of duress,”
because “[t]here was nothing implicitly or explicitly threatening about
either conversation”).
14
See United States v. Figueroa, 105 F.3d 874, 879 (3d Cir. 1997)
(“When a robber announces, by word or by action, that he possesses a gun,
he also is communicating to the reasonable victim his intention to use that
weapon.”); United States v. France, 57 F.3d 865, 867 (9th Cir. 1995)
(holding that handing a bank teller a note reading, “Give me all the 100s
and 50s in your drawer. I have dynamite.” was an express threat of death);
United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983) (“We
believe that the threats implicit in Hopkins’ written and verbal demands
for money provided sufficient evidence of intimidation to support the
jury’s verdict [for bank robbery].”).
UNITED STATES v. NAVARRO 8625
glaring at him, drawing his hand across his throat, and making
a motion with his fingers of shooting him, without saying a
word.15 Statutes criminalizing threats commonly say “express
or implied,”16 doubtless because criminalizing only express
and not implied threats would turn trials about threats into tri-
als about grammar, without usefully addressing the social evil
of criminal threats. Where the law just says “express,” we
nevertheless have read implied threats into it; under the for-
mer guidelines enhancement for “express” threats of death
during a robbery,17 we treated “Give me the money. I have
15
United States v. Balzano, 916 F.2d 1273, 1279, 1291 (7th Cir. 1990);
see also United States v. Loudon, 385 F.3d 795, 798-99 (2d Cir. 2004).
16
See, e.g., 18 U.S.C. § 891(7) (“An extortionate means is any means
which involves the use, or an express or implicit threat of use, of violence
or other criminal means to cause harm to the person, reputation, or prop-
erty of any person.”); Alaska Stat. § 11.41.470(8) (defining “without con-
sent” for sexual offenses as including coercion through express or implied
threats); Ariz. Rev. Stat. § 13-2301(A)(6) (defining “extortionate means”
to include “an express or implicit threat”); Cal. Penal Code § 136.1(c)(1)
(defining intimidation of witnesses to include “an express or implied threat
of force or violence” against the witness); Haw. Rev. Stat. § 707-700
(defining “compulsion” to include “a threat, express or implied”); Mont.
Code Ann. § 13-35-226(1) (“It is unlawful for any employer, in paying
employees the salary or wages due them, to include with their pay the
name of any candidate or any political mottoes, devices, or arguments
containing threats or promises, express or implied, calculated or intended
to influence the political opinions or actions of the employees.”); Or. Rev.
Stat. § 163.305(2) (defining “forcible compulsion” for sexual offenses as
including coercion through express or implied threats); Wash. Rev. Code
§ 9A.44.010(6) (defining “forcible compulsion” for sexual offenses as
including coercion through express or implied threats).
17
U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F) (guideline for
robbery). Prior to 1997, § 2B3.1(b)(2)(F) read “if an express threat of
death was made, increase by 2 levels.” The November 1997 amendment
changed “an express threat” to “a threat.” The current application notes to
§ 2B3.1 makes clear that “a threat of death” includes implied threats:
“A threat of death,” as used in subsection (b)(2)(F), may be in the
form of an oral or written statement, act, gesture, or combination
thereof. Accordingly, the defendant does not have to state
expressly his intent to kill the victim in order for the enhance-
8626 UNITED STATES v. NAVARRO
dynamite” as “express,” even though the statement lacks any
express threat to do anything with the dynamite.18 When the
shoe is on the other foot, and the defendant rather than the
government claims that a threat was made, a threat may like-
wise be express or implied, by words or otherwise. Absence
of clear and express words or gestures may be evidence that
there was no threat, and in some circumstances (“if he does
not pick me up on time to get to the movie I’ll kill him”)
express words of threat may not really be threats. Express
words of threat are neither a sine qua non of threats nor con-
clusive proof of threats.
[2] It is not clear, though, that the prosecutor told the jury
that the threat had to be express and not merely implied. This
distinguishes Segna, the case on which Navarro relies. The
prosecutor’s words “they have to say, do this or we will kill
you” could be taken in isolation to mean that the threat has to
be in express words. But the words were not in isolation, they
were in a context. The context suggests that the prosecutor
was addressing the requirements of immediacy and threat as
distinguished from fear, rather than the explicitness of the
threat.
Part of the context was that Navarro had not been killed as
ment to apply. For example, an oral or written demand using
words such as “Give me the money or I will kill you”, “Give me
the money or I will pull the pin on the grenade I have in my
pocket”, “Give me the money or I will shoot you”, “Give me
your money or else (where the defendant draws his hand across
his throat in a slashing motion)”, or “Give me the money or you
are dead” would constitute a threat of death. The court should
consider that the intent of this provision is to provide an
increased offense level for cases in which the offender(s)
engaged in conduct that would instill in a reasonable person, who
is a victim of the offense, a fear of death.
U.S.S.G. § 2B3.1 cmt. n.6.
18
France, 57 F.3d at 867.
UNITED STATES v. NAVARRO 8627
he feared, not on the after-midnight drive from Mexicali to
Tijuana, not when he failed to deliver the valuable heroin
inventory, not in custody. The prosecutor argued to the jury
that the threat had to be real and immediate, not merely the
generalized fear and threatening circumstances that exist for
any informant. The prosecutor made his remarks as part of an
argument that there was no genuine, immediate threat, as
demonstrated by Navarro’s safe arrival at his home in Tijuana
after his feared drive from Mexicali. Navarro believed he
would be killed during the drive from Mexicali to Tijuana, but
he was not. That left Navarro with no immediate threat, just
fear from being both a conspirator and a “snitch.”
[3] The judge immediately reminded the jury that all the
lawyers were doing was providing argument, and that her
instructions would control. In the circumstances, this sufficed
to cure any mistaken inference the jury might draw from the
prosecutor’s argument. The instructions did not require an
express verbal threat (which would have been error), just an
immediate one. Though the jury note focused on the first ele-
ment, it is reasonable to infer from the evidence and argu-
ments that its concern was not about whether the threat had
to be verbal and express, but rather that it had to be a threat
and not just a fear. The law on the duress defense is that “fear
alone is not sufficient.”19 The prosecutor was correct in argu-
ing that fear without an immediate threat could not satisfy the
first element of the duress defense.
[4] In Segna, it was “highly probable that the prosecutor’s
[misleading] argument materially affected the verdict and
thereby seriously prejudiced Segna.”20 That is not the case
here. “The element of immediacy requires that there be some
evidence that the threat of injury was present, immediate, or
impending. A veiled threat of future unspecified harm will not
19
United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984).
20
See Segna, 555 F.2d at 232.
8628 UNITED STATES v. NAVARRO
satisfy this requirement.”21 “[T]he trial judge has broad discre-
tion in controlling closing argument,” and “improprieties in
counsel’s arguments to the jury do not constitute reversible
error unless they are so gross as probably to prejudice the
defendant, and the prejudice has not been neutralized by the
trial judge.”22 Here, the prosecutor’s argument emphasized the
need for the threat to be immediate, rather than a generalized
threat to harm any “snitch.” Furthermore, any error the prose-
cutor may have made in defining duress was neutralized by
the judge’s immediate reminder that the court’s instructions
controlled. Thus the argument did not prejudice Navarro.
B. Grand jury charge.
A different district judge, who charged the grand jury, told
the jurors that the prosecutor was duty-bound to present exon-
erating evidence:
If you think that there’s evidence out there that
might cause you to say “well, I don’t think probable
cause exists,” then it’s incumbent upon you to hear
that evidence as well. As I told you, in most
instances, the U.S. Attorneys are duty-bound to pres-
ent evidence that cuts against what they may be ask-
ing you to do if they’re aware of that evidence.
He added a general encomium to the integrity of federal pros-
ecutors:
If past experience is any indication of what to expect
in the future, then you can expect that the U.S. Attor-
neys that will appear in front of you will be candid,
21
United States v. Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984)
(internal quotation marks and brackets omitted).
22
United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984) (internal
editorial marks and quotation marks omitted).
UNITED STATES v. NAVARRO 8629
they’ll be honest, that they’ll act in good faith in all
matters presented to you.
Navarro contends that in combination, this charge amounted
to structural error, entitling him to dismissal of the resulting
indictment.
Grand juries operate secretly. All the judge does, unless a
motion comes to him, is swear in and charge the grand jury
before it begins its work, and days, weeks, or months later,
receive the indictments it hands down.23 A district judge does
not preside in or even enter the grand jury room.24 The only
contact the grand jurors have with the court is the charge the
judge gives before they begin,25 and the use of a room in the
courthouse. Most federal judges read or paraphrase a scripted
charge from the Benchbook for Federal District Judges pub-
lished by the Federal Judicial Center, or the Judicial Confer-
ence of the United States. These used to differ (the Bench
Book omitted the encomium to federal prosecutors’ integrity)26
but now they are the same and include that encomium.27 The
model charge does not state that prosecutors are duty bound
to present exonerating evidence.28
[5] Taken by itself, the language instructing the grand jury
23
Fed. R. Crim. P. 6.
24
United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. R. Crim.
P. 6(d).
25
United States v. Williams, 504 U.S. 36, 47 (1992) (“Judges’ direct
involvement in the functioning of the grand jury has generally been con-
fined to the constitutive one of calling the grand jurors together and
administering their oaths of office.”).
26
Federal Judicial Center, Benchbook for U.S. District Court Judges
§ 7.04 (4th ed. 2000); see also United States v. Navarro-Vargas, 408 F.3d
1184, 1197 n.18 (9th Cir. 2005) (en banc).
27
See Federal Judicial Center, Benchbook for U.S. District Court Judges
§ 7.04, at 222 n.1 (5th ed. 2007).
28
See generally id. § 7.04.
8630 UNITED STATES v. NAVARRO
that federal prosecutors are, based on “past experience,” can-
did, honest, and acting with integrity in the grand jury room,
is substantially similar to an instruction we upheld against
constitutional challenge in United States v. Navarro-Vargas.29
While perhaps troubling because of its apparent endorsement
of one side in our adversary system, we are bound by
Navarro-Vargas to the proposition that “although this passage
may include unnecessary language, it does not violate the Con-
stitution.”30
[6] The language telling the grand jurors that prosecutors
must present exculpatory evidence, though, is flat wrong. And
the error is magnified by the encomium to prosecutorial integ-
rity. The judge told the grand jury that “U.S. Attorneys are
duty-bound to present evidence that cuts against what they
may be asking you to do if they are aware of that evidence.”
That is not the law. The Supreme Court held in United States
v. Williams that a prosecutor does not have a duty to present
exculpatory evidence to a grand jury when seeking an indict-
ment.31 We have held that “prosecutors have no obligation to
disclose ‘substantial exculpatory evidence’ to a grand jury.”32
The exculpatory evidence Navarro says should have been
presented if the prosecutor had had such a duty was not his
duress defense, but his public authority defense. Navarro’s
theory is that mens rea was absent because he imported the
heroin at the request of a government enforcement officer
with the reasonable belief that he was acting as an authorized
agent to assist in law enforcement. The prosecutor conceded
not having presented any exculpatory evidence to the grand
jury, Navarro moved to dismiss the indictment because of the
erroneous instruction about duty to present this exculpatory
29
408 F.3d at 1206-07.
30
Id. at 1207.
31
504 U.S. 36, 52-53 (1992); United States v. Haynes, 216 F.3d 789,
798 (9th Cir. 2000) (following Williams).
32
Haynes, 216 F.3d at 798.
UNITED STATES v. NAVARRO 8631
evidence, and the district court denied the motion to dismiss.
At trial, the judge instructed the petit jury on the public
authority defense. The jury rejected the defense, convicting
Navarro.
[7] The government argues that the instruction was correct,
because (1) the United States Attorney’s Manual establishes
an internal policy of the Justice Department that prosecutors
ought to disclose to the grand jury “substantial evidence that
directly negates the guilt” of the prospective defendant if the
prosecutor is “personally aware” of it, and (2) the district
judge knew this and knew a prosecutor could be disciplined
if he did not present such evidence, because of his previous
work in the United States Attorney’s office. We reject this
argument. A grand jury should not be told that the law
requires that the prosecutor present exculpatory evidence,
since it does not. Justice Department policy may change and
is not the law. The policy requiring presentation of “substan-
tial evidence that directly negates the guilt” if the prosecutor
is “personally aware” of it, is narrower than the judge’s
description of the prosecutor being “duty-bound to present
evidence that cuts against” guilt. The judge’s misstatement of
the law is especially troubling when combined with the lan-
guage that the grand jury can count on the candor, honesty,
and good faith of the prosecutors who will appear before
them. That gave the grand jurors double assurance that they
would hear about any exculpatory evidence. Instructing the
grand jury that the United States Attorney’s office was obli-
gated to present exculpatory evidence if aware of it amounted
to an abuse of discretion, since it was incorrect as a matter of
law.
[8] Since the charge was erroneous, we must decide what
to do about it. Navarro urges that an erroneous charge consti-
tutes structural error requiring dismissal of the indictment, so
that we must reverse. We do not agree. Federal Rule of Crimi-
nal Procedure 52(a) provides that “[a]ny error, defect, irregu-
larity, or variance that does not affect substantial rights must
8632 UNITED STATES v. NAVARRO
be disregarded.”33 This rule applies to errors in grand jury pro-
ceedings.34
If the error were structural, it would not matter that the
error was harmless, and we would reverse denial of the
motion to dismiss without regard to whether Navarro’s sub-
stantial rights had been affected.35 That the grand jury is a
constitutionally required part of the structure of federal crimi-
nal justice does not bear on whether the error is “structural,”
since “structural error” is a term of art for error requiring
reversal regardless of whether it is prejudicial or harmless, not
for error in some way affecting the structure of criminal pro-
ceedings. Navarro cites no case holding that an error in the
grand jury charge is structural. Neder v. United States36 holds
that except for a “very limited class of cases” (the Court men-
tions complete denial of counsel, biased trial judge, racial dis-
crimination in selection of grand jury, denial of self
representation at trial, denial of public trial, defective reason-
able doubt instruction), all harmless errors including constitu-
tional errors must be disregarded on appeal.37
[9] We have not addressed the question of remedies for
erroneous grand jury charges. In Navarro-Vargas, we held
that the grand jury charge was not erroneous, so we had no
occasion to decide what we would do if it had been.
The Supreme Court has addressed the effect of error in
grand jury proceedings. United States v. Mechanik38 holds that
a guilty verdict by a petit jury renders violation of Federal
Rule of Criminal Procedure 6(d), which provides who may be
33
Fed. R. Crim. P. 52(a).
34
Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55 (1988);
United States v. Mechanik, 475 U.S. 66, 71-72 (1986).
35
See United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).
36
527 U.S. 1 (1999).
37
Id. at 8 (listing cases).
38
475 U.S. at 71-72.
UNITED STATES v. NAVARRO 8633
present in the grand jury room, harmless.39 The ratio deci-
dendi is that “[t]he Rule protects against the danger that a
defendant will be required to defend against a charge for
which there is no probable cause to believe him guilty.” The
petit jury’s verdict establishes that probable cause existed.40
Though Mechanik makes an exception for racial discrimina-
tion in the composition of the grand jury requiring dismissal
of the indictment based on Vasquez v. Hillery,41 the reasons
for the exception “have little force outside the context of
racial discrimination in the composition of the grand jury.”42
After Mechanik came down we held in United States v.
Benjamin43 that district court denials of motions to dismiss for
such errors were appealable under the collateral order doctrine
because appeal would be futile after a verdict, but the Court
overruled Benjamin in Midland Asphalt Corp. v. United States.44
Bank of Nova Scotia v. United States45 adopted the standard
urged in Justice O’Connor’s concurrence in Mechanik, that
for errors brought to the district court’s attention “prior to the
conclusion of the trial,”46 dismissal of the indictment “is
appropriate only if it is established that the violation substan-
tially influenced the grand jury’s decision to indict or if there
is grave doubt that the decision to indict was free from the
substantial influence of such violations.”47 This standard does
not “circumvent the harmless-error inquiry prescribed by Fed-
eral Rule of Criminal Procedure 52(a),”48 because it requires
39
Id. at 67.
40
Id. at 70.
41
474 U.S. 254 (1986).
42
Mechanik, 475 U.S. at 70 n.1
43
812 F.2d 548 (9th Cir. 1987).
44
489 U.S. 794 (1989).
45
487 U.S. 250.
46
Bank of Nova Scotia, 487 U.S. at 256.
47
Id. (internal quotation marks omitted) (citing Mechanik, 475 U.S. at
78 (O’Connor, J., concurring in the judgment)).
48
Id. at 254.
8634 UNITED STATES v. NAVARRO
the defendant to suffer prejudice. Bank of Nova Scotia
requires that harmless grand jury error be disregarded but
refines the definition of “harmless.” The Court distinguished
Vasquez, racial discrimination in selection of grand jurors,
and Ballard v. United States,49 exclusion of women from the
grand jury, but goes no farther in carving out structural error.
Even the extensive prosecutorial misconduct in Bank of Nova
Scotia justified only contempt and referral for Justice Depart-
ment and bar discipline as remedies, not dismissal of the indict-
ment.50
It is clear, under these decisions, that if a motion to dismiss
is made before the verdict, the district judge should apply the
Bank of Nova Scotia standard, and if the district court grants
a motion to dismiss the indictment, the court of appeals
should examine the order under that standard. But these two
decisions arguably left undecided the remedy where, as here,
the error is brought to the district court’s attention before the
verdict, but the court did not rule on the motion to dismiss
until after the jury returned a verdict, or where appeal was
taken after such a motion had been denied and a guilty verdict
and judgment was entered. We held in United States v. Spil-
lone,51 where the petit jury’s guilty verdict arguably rendered
any error harmless, that we review the denial of the motion to
dismiss de novo, and avoided choosing between the Mechanik
and Bank of Nova Scotia standards because the appellant lost
under both standards.
Subsequently, in People of the Territory of Guam v. Muna,52
we held that “[o]n appellate review of the case after convic-
tion, the Mechanik standard applies,” and a guilty verdict ren-
ders error in the presentation to the grand jury harmless
49
329 U.S. 187 (1946).
50
487 U.S. at 263.
51
879 F.2d 514, 520-21, 523-25 (9th Cir. 1989).
52
999 F.2d 397 (9th Cir. 1993).
UNITED STATES v. NAVARRO 8635
beyond a reasonable doubt.53 Under Muna, the district judge’s
erroneous charge to the grand jury is therefore harmless. The
petit jury never heard the erroneous instruction and could not
have been affected by it. The petit jury’s conviction of
Navarro beyond a reasonable doubt and rejection of his
defenses establishes that there was probable cause to charge
him, so he could not have been prejudiced. It did not matter
that the prosecutor did not present Navarro’s public authority
defense to the grand jury, because he had none. He had not
told his handlers about the heroin smuggling and they had not
told him to do it. United States v. Lennick54 appears to apply
both the Mechanik and Bank of Nova Scotia standards, but
found the error harmless under either standard, so it was not
necessary to choose between them.
The Eleventh Circuit likewise avoided deciding whether to
apply Mechanik or Bank of Nova Scotia, where the error was
harmless under both.55 The First,56 Seventh,57 and Tenth58 Cir-
cuits, however, have held consistently with our decision in
Muna that a petit jury’s verdict of guilty beyond a reasonable
doubt establishes a fortiori that there was probable cause to
charge, so grand jury error is rendered harmless by convic-
tion.
[10] Our review is controlled by Muna. Even if error in the
grand jury proceedings (other than the structural errors
denoted in Vasquez and Ballard) was brought to the attention
of the district court prior to trial, where the motion was denied
and a guilty verdict was returned, the error is rendered harm-
less by the verdict. Accordingly, the district judge’s error in
53
Id. at 399.
54
18 F.3d 814, 817-18 (9th Cir. 1994).
55
United States v. Jennings, 991 F.2d 725, 728-29 (11th Cir. 1993).
56
United States v. Reyes-Echevarria, 345 F.3d 1, 5 (1st Cir. 2003).
57
United States v. Vincent, 416 F.3d 593, 601 (7th Cir. 2005).
58
United States v. Wiseman, 172 F.3d 1196, 1205-06 (10th Cir. 1999).
8636 UNITED STATES v. NAVARRO
instructing the grand jury that the government was duty-
bound to present exculpatory evidence was harmless. Had the
motion to dismiss been granted, the Bank of Nova Scotia stan-
dard would control review, but since it was denied and the
defendant was convicted beyond a reasonable doubt,
Mechanik controls and the conviction establishes that the
error was harmless. It does not matter whether the Bank of
Nova Scotia “grave doubt” standard would have been met. In
Bank of Nova Scotia, although a verdict of guilty had been
rendered, the judgment on that verdict had been vacated on
appeal, and on remand, the indictment had been dismissed
before trial. The Bank of Nova Scotia “grave doubt” standard
applies to dismissal before the verdict. The Mechanik-Muna
rule applies after verdict and judgment.
AFFIRMED.