FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50309
Plaintiff-Appellee, D.C. No.
v. 3:06-cr-00281-
ELIDE T. CARUTO, WQH-1
Defendant-Appellant.
ORDER
AMENDING
OPINION AND
DENYING
REHEARING AND
AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
May 4, 2010—Pasadena, California
Filed December 8, 2010
Amended October 31, 2011
Before: Richard R. Clifton and Jay S. Bybee, Circuit Judges,
and Edward R. Korman,* District Judge.
Opinion by Judge Clifton
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
19721
UNITED STATES v. CARUTO 19723
COUNSEL
Timothy A. Scott, San Diego, California, for defendant-
appellant Elide Caruto
George D. Hardy, Assistant United States Attorney, San
Diego, California, for plaintiff-appellee United States of
America.
19724 UNITED STATES v. CARUTO
ORDER
The opinion filed on December 8, 2010, is amended as fol-
lows:
At pages 19620-21 of the slip opinion (627 F.3d 759, 768),
the three paragraphs under the heading “III. Request for
Grand Jury Voir Dire Materials” are replaced with the follow-
ing two paragraphs:
In addition to her main arguments about the con-
stitutionality of the grand jury’s instructions, Caruto
included two paragraphs in her motion to dismiss the
indictment seeking disclosure of the grand jury voir
dire transcripts and an instructional video that the
grand jury watched before it was charged. Conclud-
ing that “the disclosure of voir dire would invade the
secrecy of the grand jury proceedings” and that Car-
uto had “not made [a] sufficient showing [of] the
need for disclosure,” the district court denied the
request. Caruto challenges that decision.
We do not need to decide whether the district
court abused its discretion in declining the request,
however. There is nothing in the refusal to disclose
the grand jury voir dire transcripts or instructional
video that would justify overturning Caruto’s con-
viction by a petit jury. Any error on this score was
harmless.
With the opinion as amended, the panel has voted to deny
the petition for rehearing. Judge Clifton and Judge Bybee
voted to deny the petition for rehearing en banc and Judge
Korman has so recommended.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
UNITED STATES v. CARUTO 19725
The petition for rehearing and rehearing en banc, filed Jan-
uary 27, 2011, is DENIED. No further petition for rehearing
and/or petition for rehearing en banc may be filed.
OPINION
CLIFTON, Circuit Judge:
Elide Caruto was convicted of importation of cocaine and
of possession of cocaine with intent to distribute. She appeals
from the district court’s denial of her motion to dismiss the
indictment against her. She principally challenges four
instructions given to the grand jury, claiming that each vio-
lated the Grand Jury Clause of the Fifth Amendment. We
affirm.
I. Background
Caruto was charged by the government and indicted by a
grand jury for importation of, and possession with intent to
distribute, 34.5 kilograms of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 952, and 960. A jury convicted Caruto
after a trial, but we reversed her conviction on grounds unre-
lated to this appeal and remanded for a new trial. See United
States v. Caruto, 532 F.3d 822 (9th Cir. 2008) (reversing
because the prosecutor’s emphasis on omissions in Caruto’s
post-arrest statement violated due process).
On remand before Judge Hayes, Caruto moved to dismiss
the indictment. She argued that instructions given by District
Judge Larry A. Burns to the grand jury that handed up Caru-
to’s indictment violated the Fifth Amendment. We describe
the challenged instructions in detail below. The district court
denied Caruto’s motion. She was again convicted by another
jury, and she timely filed this appeal.
19726 UNITED STATES v. CARUTO
II. Constitutionality of the Grand Jury Instructions
We review de novo the district court’s denial of Caruto’s
motion to dismiss the indictment. United States v. Haynes,
216 F.3d 789, 796 (9th Cir. 2000).
“Federal courts draw their power to dismiss indictments
from two sources”: the Constitution, and the courts’ inherent
supervisory powers. United States v. Isgro, 974 F.2d 1091,
1094 (9th Cir. 1992). Caruto raises only claims of constitu-
tional error, so we limit our consideration to whether the
instructions her grand jury received met the requirements of
the Grand Jury Clause of the Fifth Amendment.
[1] “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.”1
United States v. Navarro-Vargas, 408 F.3d 1184, 1188 (9th
Cir. 2005) (en banc). Such details were either assumed by the
framers of the Bill of Rights or left to Congress, the Execu-
tive, and the Judiciary to flesh out. Id. Our inquiry into what
the Constitution mandates is guided by the history of the
grand jury in the Anglo-American tradition and by its struc-
tural role in our constitutional scheme. Id. at 1186; see gener-
ally id. at 1190-1202.
[2] “ ‘Historically, [the grand jury] has been regarded as a
primary security to the innocent against hasty, malicious and
oppressive persecution; it serves the invaluable function in
our society of standing between the accuser and the accused,
. . . to determine whether a charge is founded upon reason or
was dictated by an intimidating power or by malice and per-
1
The Fifth Amendment provides 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.
UNITED STATES v. CARUTO 19727
sonal ill will.’ ” United States v. Marcucci, 299 F.3d 1156,
1161 (9th Cir. 2002) (quoting Wood v. Georgia, 370 U.S. 375,
390 (1962)).
[3] The grand jury’s ability to fulfill its historical role
effectively flows in part from its unusual position in the Con-
stitution’s structure. “The grand jury belongs to no branch of
government, but is a ‘constitutional fixture in its own right.’ ”
Navarro-Vargas, 408 F.3d at 1199 (quoting United States v.
Williams, 504 U.S. 36, 47 (1992)). The Fifth Amendment
“presupposes an investigative body acting independently of
either prosecuting attorney or judge.” United States v. Dioni-
sio, 410 U.S. 1, 16 (1973) (internal quotation marks omitted).
The Fifth Amendment may be violated if the independence of
the grand jury in performing its historical function is substan-
tially infringed. See Bank of Nova Scotia v. United States, 487
U.S. 250, 255-57 (1988); Navarro-Vargas, 408 F.3d at 1204,
1205 & 1206-07 (holding constitutional grand jury instruc-
tions that did not infringe upon functions “integral to the role
of the grand jury” and did not “violate the grand jury’s inde-
pendence”); Marcucci, 299 F.3d at 1163-64 (holding constitu-
tional instructions “consistent with the historical function of
the grand jury” that “informed the grand jurors that they were
not merely an arm of the government, but rather an indepen-
dent body”).
The citizens called to serve on a grand jury are given
instructions by the district court regarding their role and func-
tion. Mindful of the grand jury’s historical role and the consti-
tutional guarantee of independence in fulfilling it, we turn to
Caruto’s objections to the specific instructions the district
court gave to the grand jury that indicted her.
A. Consideration of Punishment
[4] Caruto first challenges an instruction to ignore poten-
tial punishment in deciding whether to indict. Her argument
here is necessarily a narrow one, because we have already
19728 UNITED STATES v. CARUTO
rejected a constitutional challenge to a similar instruction. In
United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006),
we held that there was no constitutional error in a model
charge reading: “Furthermore, when deciding whether or not
to indict, you should not be concerned about punishment in
the event of conviction; judges alone determine punishment.”
Id. at 1040-41. In its instructions to the grand jury that
indicted Caruto, the district court delivered the permissible
instruction verbatim, then elaborated on its theme, saying:
Furthermore, when deciding whether or not to
indict, you should not be concerned about punish-
ment in the event of conviction. Judges alone deter-
mine punishment. If you think about it for a
minute[,] because your function is a preliminary one
anyway, it would presuppose guilt for you to be
thinking about punishment. A person is still entitled
to a trial, and the outcome of that trial is far from
certain up until all the evidence has been presented
and the trial jury begins to deliberate. So punishment
should not concern you in the performance of your
duties whatsoever.
Caruto contends that the judge’s off-script addition to the
model charge—in particular, the instruction that “punishment
should not concern you in the performance of your duties
whatsoever” (emphasis added)—rendered it unconstitutional.
She argues that the added emphasis of “whatsoever” elimi-
nated the “limited room . . . for a grand jury to consider pun-
ishment” that she maintains saved the instruction in Cortez-
Rivera from unconstitutionality. Cortez-Rivera, 454 F.3d at
1041 (internal quotation marks omitted).
[5] Caruto misapprehends the basis for our decision in
Cortez-Rivera. In that case we deemed “[t]he distinction
between ‘should’ and ‘shall’ . . . dispositive.” Id. at 1041. We
concluded, following Marcucci and Navarro-Vargas, “that
the instruction did not invade upon the grand jury’s constitu-
UNITED STATES v. CARUTO 19729
tional role because the instruction used the term ‘should,’
making the instruction permissive rather than mandatory.” Id.
at 1040-41. It was this permissiveness, not the degree of
emphasis in the remainder of the instruction, that “le[ft] room
—albeit limited room—for a grand jury to consider punish-
ment” and thus preserved the grand jury’s historical preroga-
tive. Id. at 1041 (internal quotation marks omitted). The
addition of “whatsoever” to an already emphatic model
instruction did not effectively change its character from per-
missive to mandatory. Because that is the distinction that mat-
ters under our precedent, we must reject Caruto’s attempt to
distinguish this instruction from the one that we previously
upheld.
[6] Any error here was harmless, in any event. We recently
observed that the Supreme Court, in Bank of Nova Scotia v.
United States, 487 U.S. 250 (1988), “adopted the standard . . .
that for errors brought to the district court’s attention ‘prior to
the conclusion of the trial,’ 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.’ ” United States v.
Navarro, 608 F.3d 529, 539 (9th Cir. 2010). Nothing in this
case supports the proposition that the grand jury would have
refused to indict Caruto, who imported 34.5 kilograms of
cocaine into the United States with the intent to distribute it,
even if it had known that she was facing a ten-year sentence.
Drug smugglers and dealers are not sympathetic figures. No
facts about Caruto or her crime have been identified to us that
might have generated sympathy in her particular case suffi-
cient to fend off indictment. Facts that might prompt sympa-
thy in a particular case are not likely to be known by the
grand jury anyway, because defense counsel does not have a
right to make a presentation to the grand jury, and the prose-
cutor is not obligated to present exculpatory evidence. United
States v. Williams, 504 U.S. 36 (1992). Caruto has given no
reason for us to have any serious concern, let alone to have
19730 UNITED STATES v. CARUTO
grave doubt, that the grand jury would not have indicted her
had the district court’s instruction not departed from the
model charge. Any error here was harmless.
B. The Wisdom of the Criminal Laws
Caruto next contends, along similar lines, that the district
court’s elaboration regarding the “wisdom of the criminal
laws” went so far beyond a permissible model instruction as
to render the charge here unconstitutional. The model instruc-
tion, which we held constitutional in Navarro-Vargas, states:
“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.” Navarro-
Vargas, 408 F.3d at 1202. The district judge recited the model
instruction almost word-for-word, then supplemented it with
additional commentary, saying:
As grand jury, you are not to judge the wisdom of
the criminal laws enacted by Congress.
What that means is you are not to determine
whether or not there should or should not be a fed-
eral law designating certain activity as criminal. That
is to be determined by Congress and not by you. Are
you helpless in this regard? No. You can go to the
ballot box at the time of election, and if you disagree
with the law, you can vote to change it or vote out
of office those who support the law that you disagree
with.
But in this branch of government, the judicial
branch of government, we apply the laws as the
other branches give them to us. We don’t pass on the
wisdom of those laws whether we agree with them
or not.
UNITED STATES v. CARUTO 19731
I can tell you as a United States District Judge, I
frequently have to pass judgment on laws that were
I a member of Congress, I would have voted the
other way on some of the things, but my function is
circumscribed here by that responsibility. So you
must follow the law as it is given you by the U.S.
Attorney, given from the code books enacted by
Congress.
Caruto maintains that two of the court’s additions rendered
this instruction unconstitutional: (1) the suggestion that jurors
could “go to the ballot box at the time of election, and if you
disagree with the law, you can vote to change it or vote out
of office those who support the law that you disagree with”;
and (2) the court’s comparison of the grand jury’s role to that
of members of the judiciary, who are obligated to “apply the
laws as the other branches give them to us.”
[7] On the first point, Caruto argues that the court’s voting
advice improperly limited the grand jury’s power by implying
that jurors could only oppose laws they disagreed with by vot-
ing against them. This implication, Caruto claims, disparaged
the grand jury’s power to refuse to indict for any reason. This
argument fails because the court’s additional language did not
say that voting was jurors’ exclusive recourse or alter the
basic message conveyed by the instruction we approved in
Navarro-Vargas.
[8] Caruto’s second point is premised on the theory that
the court informed the grand jurors that they were part of the
judicial branch, denying them the independence that flows
from operating, as the Constitution contemplates, outside of
any branch of the government. We disagree with Caruto’s
understanding of what the court said. In context, it is clear
that the court did not assign the grand jury to the judicial
branch or any other branch of government. The judge merely
drew an analogy between his own duty, as a member of the
judiciary, to apply Congress’s laws and the grand jury’s duty,
19732 UNITED STATES v. CARUTO
under the concededly constitutional model instruction, not to
question “whether or not there should or should not be a fed-
eral law designating certain activity as criminal.”
[9] Neither of the challenged elaborations distinguished the
“wisdom of the laws” instruction given in this case, in any
constitutionally significant sense, from the model instruction
we previously approved. The motion to dismiss the indict-
ment on this ground was properly denied.
C. Probable Cause and the Role of Magistrate Judges
Caruto next contends that an instruction about the role of
magistrate judges in making probable cause determinations
unconstitutionally intruded on the grand jury’s independence.
Caruto argues that the court’s explanation of how and when
magistrate judges might be involved in cases the grand jury
would hear implied that grand jurors could simply defer to a
magistrate judge’s probable cause finding instead of assessing
probable cause independently. The court said:
The cases that you will hear will come from [sic]
you in various ways. Frequently, suspects are
arrested during or shortly after the commission of a
crime and taken before a magistrate judge, who then
holds a preliminary hearing to determine whether
there is probable cause to believe the person has
committed a crime.
If the magistrate judge finds such probable cause,
the accused [sic] will direct that the accused be held
for the action of the grand jury so that you can con-
sider whether there should be an indictment.
Now, in most circumstances you don’t make the
probable cause determination before the magistrate
judge does. In most circumstances the U.S. Attorney
will present a case to the grand jury before the mag-
UNITED STATES v. CARUTO 19733
istrate judge is ever called upon to make a prelimi-
nary determination of probable cause.
Under our rules, the person is entitled to a prelimi-
nary hearing within 10 days of being arrested. And
frequently, they will agree to some postponement of
that preliminary hearing so that they can read the
reports that are generated in connection with the
investigation of the case.
During that period of 10 days or postponed period
that may be longer, that the U.S. Attorney inevitably
will present the case for your judgment. It is infre-
quent that the magistrate judge would make a proba-
ble cause determination. That is primarily your
function.
[10] It seems apparent that, as sometimes happens in
extemporaneous comments, the district judge’s speech strayed
from what he actually intended. It is not entirely clear what
a listener would understand from this statement, but we con-
clude that it would not be what Caruto contends. Her argu-
ment depends, at best, on a weak inference she draws from
the judge’s words. The court did not explicitly connect a mag-
istrate judge’s probable cause determination—regardless of
when it might occur—to the task of the grand jury, nor sug-
gest that the grand jury’s determination was in any way con-
strained by what a magistrate judge might find.
It is evident that this passage was primarily intended to
explain the typical timeline of a criminal case, and where the
grand jury’s work usually fits into the process. The court
explained that cases “[f]requently” go before a magistrate
judge first, because defendants are “entitled to a preliminary
hearing within 10 days of being arrested.” However, “[i]n
most circumstances,” cases are presented to a grand jury “be-
fore the magistrate judge is ever called upon to make a pre-
19734 UNITED STATES v. CARUTO
liminary determination of probable cause,” sometimes due to
postponement of the preliminary hearing.
[11] This digression may not have been very helpful to the
grand jurors, but we do not believe that it had a negative
impact. The court cured any confusion its explanation might
have caused about whether a magistrate judge or grand jury
typically acts first with its final admonition that making a
probable cause determination was “primarily [the grand
jury’s] function.” A separate instruction also emphasized that
determining probable cause was a duty that the grand jury
should not abdicate. The court said: “As members of the
grand jury, you, in a very real sense, stand between the Gov-
ernment and the person accused of a crime. It is your duty to
see to it that indictments are returned only against those
whom you find probable cause to believe are guilty and to see
to it that the innocent are not compelled to go to trial.” In light
of this explicit direction that evaluating probable cause was
the grand jury’s duty, the discussion of magistrate judges did
not undermine the grand jury’s independent judgment.
Moreover, even if the grand jury might have been misled,
that error would not justify reversal of Caruto’s conviction
now. At this point, the existence of probable cause is not in
doubt, because Caruto was subsequently found guilty by the
petit jury based on proof beyond a reasonable doubt. The
alleged error was not structural error and was rendered harm-
less by Caruto’s subsequent conviction. See United States v.
Mechanik, 475 U.S. 66, 70 (1986); Navarro, 608 F.3d at 538.
D. The Grand Jury’s Relation to the U.S. Attorney
Caruto’s final objection arises out of another instruction
that she claims limited the grand jury’s constitutionally guar-
anteed independence. In the course of explaining the very
concept of grand jury independence, the court told jurors: “It
is extremely important for you to realize that under our Con-
stitution, the grand jury is an independent arm of the United
UNITED STATES v. CARUTO 19735
States Attorney. It’s not part of the U.S. Attorney’s Office nor
an agent of the federal law enforcement agency.” Caruto
argues that calling the grand jury “an independent arm of the
United States Attorney” unconstitutionally associated it with
the prosecution.
[12] Context reveals that the phrase Caruto singles out was
simply an inadvertent misstatement, which the court immedi-
ately corrected. The very next sentence told jurors that they
were “not part of the U.S. Attorney’s Office.” The court elim-
inated any confusion that might have arisen with an unequivo-
cal clarification that told grand jurors to
always bear in mind that ultimately you have to
depend on your own independent judgment. Never
become an arm of the United States Attorney’s
Office. It is fine for you to form relationship[s] with
the prosecutors that you’ll see on a regular basis. But
keep in mind that you must be independent of them.
You don’t defer to them in exercising your judgment
as a grand jury. You rather exercise that judgment
independently. The government lawyers are prosecu-
tors, and you are not. You are independent judges of
the facts. If the facts suggest to you that you should
not indict, then you should not do so, even in the
face of opposition or statements by the U.S. Attor-
ney. It is up to you, ultimately, to make that decision.
Far from limiting the grand jury’s independence, the entirety
of the court’s instruction emphatically underscored the grand
jury’s independent role. It did not violate the Fifth Amend-
ment.
III. Request for Grand Jury Voir Dire Materials
In addition to her main arguments about the constitutional-
ity of the grand jury’s instructions, Caruto included two para-
graphs in her motion to dismiss the indictment seeking
19736 UNITED STATES v. CARUTO
disclosure of the grand jury voir dire transcripts and an
instructional video that the grand jury watched before it was
charged. Concluding that “the disclosure of voir dire would
invade the secrecy of the grand jury proceedings” and that
Caruto had “not made [a] sufficient showing [of] the need for
disclosure,” the district court denied the request. Caruto chal-
lenges that decision.
We do not need to decide whether the district court abused
its discretion in declining the request, however. There is noth-
ing in the refusal to disclose the grand jury voir dire tran-
scripts or instructional video that would justify overturning
Caruto’s conviction by a petit jury. Any error on this score
was harmless.
AFFIRMED.