Free Motion to Compel - District Court of California - California

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1 SARA M. PELOQUIN

California State Bar No.254945
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, California 92101-5008

Telephone: (619) 234-8467
4 [email protected] 5 Attorneys for Mr. Samaniego-Canto 6 7 8 9 10 11 12 13 14 15 16 17 18 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE ROGER T. BENITEZ) ) ) Plaintiff, ) ) v. ) ) MARIO SAMANIEGO-CANTO, ) ) Defendant. ) ______________________________________ ) I. STATEMENT OF FACTS The following statement of facts is based on materials received from the government. UNITED STATES OF AMERICA, CASE NO.08CR0800-BEN DATE: May 19, 2008 TIME: 2:00 p.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MR. SAMANIEGO-CANTO'S MOTIONS

20 Mr. Samaniego-Canto does not accept this statement of facts as his own, and reserves the right to take a 21 contrary position at motion hearings and trial. The facts alleged in these motions are subject to amplification 22 and/or modification at the time these motions are heard. 23

Mr. Samaniego-Canto was arrested on January 5, 2008. The probable cause statement accompanying

24 the January 7, 2008 complaint alleges that Border Patrol Agent Worley encountered Mr. Samaniego-Canto 25 approximately three and a half miles east of the San Ysidro Port of Entry and three hundred yards north of 26 the international boundary line. It is further alleged that Mr. Samaniego-Canto admitted that he was an alien 27 with no permission to enter the United States. Records checks allegedly revealed that Mr. Samaniego-Canto 28 was a deported alien. On March 19, 2008, the January 2007 Grand Jury returned a one count indictment

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1 charging Mr. Samaniego-Canto with attempted entry after deportation a violation of 18 U.S.C. §1326 (a) and 2 (b). 3 4 5 6

These motions follow. II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Samaniego-Canto moves for the production of the following discovery. This request is not

7 limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in 8 the custody, control, care, or knowledge of any "closely related investigative [or other] agencies." See 9 United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 10

(1)

Mr. Samaniego-Canto's Statements. The government must disclose to Mr. Samaniego-Canto

11 all copies of any written or recorded statements made by him; the substance of any statements made by 12 Mr. Samaniego-Canto which the government intends to offer in evidence at trial -- either in its case-in-chief 13 or in rebuttal; see Id., any response by him to interrogation; the substance of any oral statements which the 14 government intends to introduce at trial and any written summaries of Mr. Samaniego-Canto's oral statements 15 contained in the handwritten notes of the government agent; any response to any Miranda warnings which may 16 have been given to him; as well as any other statements by Mr. Samaniego-Canto.

Fed. R. Crim.

17 P. 16(a)(1)(A)1. Mr. Samaniego-Canto specifically requests production of a copy of the taped proceedings 18 and any and all documents memorializing the deportation proceedings allegedly held and any other 19 proceedings that the government intends to rely upon at trial. The Advisory Committee Notes and the 1991 20 Amendments to Rule 16 make clear that the Government must reveal all the accused's statements, whether 21 oral or written, regardless of whether the government intends to make any use of those statements. Federal 22 Rule of Criminal Procedure 16 is designed "to protect the defendant's rights to a fair trial." United States v. 23 Rodriguez, 799 F.2d 649 (11th Cir. 1986); see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) 24 (reversing conviction for failure to provide statements offered in rebuttal -- government's failure to disclose 25 statements made by the defendant is a serious detriment to preparing trial and defending against criminal 26 charges). 27 28

Of course, any of Mr. Samaniego-Canto's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 2 08CR0800-BEN

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1

(2)

Arrest Reports and Notes. Mr. Samaniego-Canto also specifically requests that the

2 government turn over all arrest reports, notes and TECS records not already produced that relate to the 3 circumstances surrounding his arrest or any questioning. This request includes, but is not limited to, any 4 rough notes, records, reports, transcripts, referral slips, or other documents in which statements of 5 Mr. Samaniego-Canto or any other discoverable material is contained. Such material is discoverable under 6 Fed. R. Crim. P. 16(a)(1)(A) and Brady v. Maryland.

The government must produce arrest reports,

7 investigators' notes, memos from arresting officers, sworn statements, and prosecution reports pertaining to 8 the defendant. See Fed. R. Crim. P. 16(a)(1)(B) and (C), 26.2 and 12(I); United States v. Harris, 543 F.2d 9 1247, 1253 (9th Cir. 1976) (original notes with suspect or witness must be preserved); see also United States 10 v. Anderson, 813 F.2d 1450, 1458 (9th Cir. 1987) (reaffirming Harris' holding). 11

(3)

Brady Material. Mr. Samaniego-Canto requests all documents, statements, agents' reports,

12 and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of 13 the government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny, 14 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the accused. 15 See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This 16 includes information obtained from other investigations which exculpates Mr. Samaniego-Canto. 17

(4)

Any Information That May Result in a Lower Sentence Under The Guidelines. The

18 government must also produce this information under Brady v. Maryland. This request includes any 19 cooperation or attempted cooperation by Mr. Samaniego-Canto, as well as any information, including that 20 obtained from other investigations or debriefings, that could affect any base offense level or specific offense 21 characteristic under Chapter Two of the Guidelines. Mr. Samaniego-Canto also requests any information 22 relevant to a Chapter Three adjustment, a determination of his criminal history, and information relevant to 23 any other application of the Guidelines. 24

(5)

Mr. Samaniego-Canto's Prior Record. Mr. Samaniego-Canto requests disclosure of his prior

25 record. Fed. R. Crim. P. 16(a)(1)(D). 26

(6)

Any Proposed 404(b) Evidence. The government must produce evidence of prior similar acts

27 under Fed. R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 28 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of

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1 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 2 which introduction is sought. This applies not only to evidence which the government may seek to introduce 3 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. 4 Vega, 188 F.3d 1150 (9th Cir. 1999). Mr. Samaniego-Canto is entitled to "reasonable notice" so as to "reduce 5 surprise," preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez6 Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Samaniego-Canto requests such reasonable notice at least 7 two weeks before trial so as to adequately investigate and prepare for trial. 8

(7)

Evidence Seized. Mr. Samaniego-Canto requests production of evidence seized as a result

9 of any search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(E). 10

(8)

Request for Preservation of Evidence. Mr. Samaniego-Canto specifically requests the

11 preservation of any and all physical evidence that may be destroyed, lost, or otherwise put out of the 12 possession, custody, or care of the government and which relates to the arrest or the events leading to the 13 arrest in this case. This request includes, but is not limited to, the results of any fingerprint analysis, 14 Mr. Samaniego-Canto's personal effects, and any evidence seized from Mr. Samaniego-Canto or any third 15 party in relation to this case. 16

In addition, Mr. Samaniego-Canto requests that the Assistant United States Attorney assigned to

17 this case oversee a review of all personnel files of each agent involved in the present case for impeachment 18 material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. 19 Lacy, 896 F.Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation to inquire of his 20 agents in order to ascertain whether or not evidence relevant to veracity or other impeachment exists. 21

(9)

Tangible Objects. Mr. Samaniego-Canto requests the opportunity to inspect and copy, as well

22 as test, if necessary, all other documents and tangible objects, including photographs, books, papers, 23 documents, fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or 24 intended for use in the government's case-in-chief or were obtained from or belong to Mr. Samaniego-Canto. 25 Fed. R. Crim. P. 16(a)(1)(E). Specifically, to the extent they were not already produced, Mr. Samaniego26 Canto requests copies of all photographs in the government's possession, including, but not limited to, 27 photographs of himself and any other photos taken in connection with this case. 28

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(10) Expert Witnesses. Mr. Samaniego-Canto requests the name, qualifications, and a written

2 summary of the testimony of any person that the government intends to call as an expert witness during its 3 case in chief. Fed. R. Crim. P. 16(a)(1)(G). The defense requests that notice of expert testimony be provided 4 at a minimum of two weeks prior to trial so that the defense can properly prepare to address and respond to 5 this testimony, including obtaining its own expert and/or investigating the opinions and credentials of the 6 government's expert. The defense also requests a hearing in advance of trial to determine the admissibility 7 of qualifications of any expert. See Kumho v. Carmichael Tire Co. 119 S. Ct. 1167, 1176 (1999) (trial judge 8 is "gatekeeper" and must determine reliability and relevancy of expert testimony and such determinations may 9 require "special briefing or other proceedings . . .."). 10

(11) Evidence of Bias or Motive to Lie. Mr. Samaniego-Canto requests any evidence that any

11 prospective government witness is biased or prejudiced against the defendant, or has a motive to falsify or 12 distort his or her testimony. 13

(12) Impeachment Evidence. Mr. Samaniego-Canto requests any evidence that any prospective

14 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 15 witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. 16 Maryland. 17

(13) Evidence of Criminal Investigation of Any Government Witness. Mr. Samaniego-Canto

18 requests any evidence that any prospective witness is under investigation by federal, state or local authorities 19 for any criminal conduct. 20

(14) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The

21 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 22 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 23 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 24 alcoholic. 25

(15) Jencks Act Material. Mr. Samaniego-Canto requests production in advance of trial of all

26 material, including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 27 3500; Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at Mr. Samaniego28 Canto's request to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute

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1 an accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under 2 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. 3 Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that, where an agent goes over interview notes with subject, 4 interview notes are subject to Jencks Act). 5

(16) Giglio Information.

Pursuant to Giglio v. United States, 405 U.S. 150 (1972),

6 Mr. Samaniego-Canto requests all statements and/or promises, express or implied, made to any government 7 witnesses, in exchange for their testimony in this case, and all other information which could arguably be used 8 for the impeachment of any government witnesses. 9

(17) Agreements Between the Government and Witnesses. In this case, Mr. Samaniego-Canto

10 requests identification of any cooperating witnesses who have committed crimes, but were not charged, so 11 that they may testify for the government in this case. Mr. Samaniego-Canto also requests discovery regarding 12 any express or implicit promise; understanding; offer of immunity; past, present, or future compensation; or 13 any other kind of agreement or understanding, including any implicit understanding relating to criminal or 14 civil income tax, forfeiture or fine liability between any prospective government witness and the government 15 (federal, state and/or local). This request also includes any discussion with a potential witness about, or 16 advice concerning, any contemplated prosecution, or any possible plea bargain, even if no bargain was made, 17 or the advice not followed. 18

Pursuant to United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999), the defense requests

19 all statements made, either personally or through counsel, at any time, which relate to the witnesses' 20 statements regarding this case, any promises -- implied or express -- regarding punishment/prosecution or 21 detention of these witnesses, any agreement sought, bargained for or requested, on the part of the witness at 22 any time. 23

(18) Informants and Cooperating Witnesses. Mr. Samaniego-Canto requests disclosure of the

24 names and addresses of all informants or cooperating witnesses used, or to be used, in this case, and in 25 particular, disclosure of any informant who was a percipient witness in this case or otherwise participated in 26 the crime charged against Mr. Samaniego-Canto. The government must disclose the informant's identity and 27 location, as well as the existence of any other percipient witness unknown or unknowable to the defense. 28

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1 Roviaro v. United States, 353 U.S. 53, 61-62 (1957). The government must disclose any information derived 2 from informants which exculpates or tends to exculpate Mr. Samaniego-Canto. 3

(19) Bias by Informants or Cooperating Witnesses. Mr. Samaniego-Canto requests disclosure of

4 any information indicating bias on the part of any informant or cooperating witness. Giglio v. United States. 5 Such information would include what, if any, inducements, favors, payments or threats were made to the 6 witness to secure cooperation with the authorities. 7

(20) Inspection and Copying of A-File. Mr. Samaniego-Canto requests that this Court order the

8 government to make all A-Files relevant to Mr. Samaniego-Canto available for inspection and copying. To 9 date defense counsel has not received any A-File documents. Mr. Perez-Ramos requests a full copy of his 10 A-file and any other immigration files linked to his immigration history. Mr. Samaniego-Canto specifically 11 requests the documents memorializing the alleged deportation proceedings and any other proceedings that the 12 government intends to rely upon at trial. 13

Mr. Samaniego-Canto additionally requests that the Court order the government to allow him the

14 opportunity to review his A-file in its entirety. First, the A-file contains documentation concerning his alleged 15 deportation. Mr. Samaniego-Canto must be afforded the opportunity to challenge the validity of the 16 indictment. Mr. Samaniego-Canto may do this by challenging the lawfulness of the alleged deportation. The 17 documents in the A-file are essential to a potential challenge to the indictment and the lawfulness of the 18 deportation. 19

Second, the government will likely try to show at trial that a government officer searched the A-file

20 and did not find an application by Mr. Samaniego-Canto for permission to enter the United States. 21 Mr. Samaniego-Canto anticipates that the government will attempt to admit a "Certificate of Non-Existence 22 of Record" against him, arguing that if Mr. Samaniego-Canto had ever applied for permission to enter the 23 United States, such an application would be found in the A-file and because such an application is not in the 24 A-file, Mr. Samaniego-Canto must not have applied for permission to enter the United States. 25

Although the certificate might be admissible, the question of the thoroughness of the search

26 conducted by the government of the A-file is, and should be, open to cross-examination. United States v. 27 Sager, 227 F.3d 1138, 1145 (2000) (error not to allow jury to "grade the investigation."). Mr. Samaniego28 Canto should be able to review his A-file in order to see whether any application for lawful admission exists.

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1 Moreover, Mr. Samaniego-Canto should also be able to verify whether other documents that would ordinarily 2 be in the A-file are "non-existent," or otherwise missing from his A-file. Mr. Samaniego-Canto may assert 3 a defense that his application for lawful entry was lost or otherwise misplaced by the government. He must 4 be allowed the opportunity to review his A-file and the manner in which it is being maintained by the 5 government in order to present this defense. 6

Finally, the A-File may contain Brady material. Mr. Samaniego-Canto requests all documents,

7 statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt and/or which 8 affects the credibility of the government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles 9 and their progeny, impeachment, as well as exculpatory evidence, falls within the definition of evidence 10 favorable to the accused. See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 11 U.S. 97 (1976).

This includes information obtained from other investigations which exculpates

12 Mr. Samaniego-Canto. 13

Brady material also includes and information that may lead to a lower sentence under the guidelines.

14 The A-File is likely to contain documents from alleged prior conviction that could affect any base offense 15 level or specific offense characteristic under Chapter Two of the Guidelines. Mr. Samaniego-Canto also 16 requests any information relevant to a Chapter Three adjustment, a determination of his criminal history, and 17 information relevant to any other application of the Guidelines. 18

The A-File is likely to contain information regarding prior similar acts. The government must

19 produce evidence of prior similar acts under Fed. R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. 20 In addition, "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of 21 trial . . . of the general nature" of any evidence the government proposes to introduce under Fed. R. Evid. 22 404(b) at trial and the purpose for which introduction is sought. This applies not only to evidence which the 23 government may seek to introduce in its case-in-chief, but also to evidence which the government may use 24 as rebuttal. See United States v. Vega, 188 F.3d 1150 (9th Cir. 1999). Mr. Samaniego-Canto is entitled to 25 "reasonable notice" so as to "reduce surprise," preclude "trial by ambush" and prevent the "possibility of 26 prejudice." Id.; United States v. Perez-Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Samaniego-Canto 27 requests such reasonable notice at least two weeks before trial so as to adequately investigate and prepare for 28 trial.

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(21)

Residual Request. Mr. Samaniego-Canto intends, by this discovery motion, to invoke his

2 rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the 3 Constitution and laws of the United States. Mr. Samaniego-Canto requests that the government provide his 4 attorney with the above-requested material sufficiently in advance of trial to avoid unnecessary delay prior to 5 cross-examination. 6 7 8 9 10 11

III. THE INDICTMENT SHOULD BE DISMISSED BECAUSE JUDGE BURNS'S INSTRUCTIONS AS A WHOLE PROVIDED TO THE JANUARY 2007 GRAND JURY RUN AFOUL OF BOTH NAVARRO-VARGAS AND WILLIAMS AND VIOLATE THE FIFTH AMENDMENT BY DEPRIVING MR. SAMANIEGO-CANTO OF THE TRADITIONAL FUNCTIONING OF THE GRAND JURY A. Introduction.

The indictment in the instant case was returned by the January 2007 grand jury. See CR at 6.2 That

12 grand jury was instructed by Judge Burns on January 11, 2007. See Reporter's Partial Transcript of the 13 Proceedings, dated January 11, 2007, a copy of which is attached hereto as Exhibit A. Judge Burns's 14 instructions to the impaneled grand jury deviate from the instructions at issue in the major Ninth Circuit cases 15 challenging a form grand jury instruction previously given in this district in several ways.3 These instructions 16 compounded Judge Burns's erroneous instructions and comments to prospective grand jurors during voir dire 17 of the grand jury panel, which immediately preceded the instructions at Ex. A. See Reporter's Transcript of 18 Proceedings, dated January 11, 2007, a copy of which is attached hereto as Exhibit B.4 19 20 21 22 23 24 25 26 27 28
2 1

1. Judge Burns Instructed Grand Jurors That Their Singular Duty Is to Determine Whether or Not Probable Cause Exists and That They Have No Right to Decline to Indict When the Probable Cause Standard Is Satisfied.

"CR" refers to the Clerk's Record in Case Number 07CR2364-LAB.

See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (NavarroVargas II); United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004)(Navarro-Vargas I); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam). The transcript of the voir dire indicates that grand jurors were shown a video presentation on the role of the grand jury. Mr. Arredondo-Ortiz requests that the video presentation be produced. See United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973) ("[t]he proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not."). 9 08CR0800-BEN
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After repeatedly emphasizing to the grand jurors that probable cause determination was their sole

2 responsibility, see Ex. A at 3, 3-4, 5,5 Judge Burns instructed the grand jurors that they were forbidden "from 3 judg[ing] the wisdom of the criminal laws enacted by Congress; that is, whether or not there should be a 4 federal law or should not be a federal law designating certain activity [as] criminal is not up to you." See id. 5 at 8. The instructions go beyond that, however, and tell the grand jurors that, should "you disagree with that 6 judgment made by Congress, then your option is not to say `well, I'm going to vote against indicting even 7 though I think that the evidence is sufficient' or `I'm going to vote in favor of even though the evidence may 8 be insufficient.'" See id. at 8-9. Thus, the instruction flatly bars the grand jury from declining to indict 9 because the grand jurors disagree with a proposed prosecution. 10

Immediately before limiting the grand jurors' powers in the way just described, Judge Burns referred

11 to an instance in the grand juror selection process in which it excused three potential jurors. See id. at 8. 12 13 14 15

I've gone over this with a couple of people. You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you. Id. That "principle" was Judge Burns's discussion of the grand jurors' inability to give effect to their

16 disagreement with Congress. See id. at 8-9. Thus, the Court not only instructed the grand jurors on its view 17 of their discretion; it enforced that view on pain of being excused from service as a grand juror. 18

Examination of the recently disclosed voir dire transcript, which contains additional instructions and

19 commentary in the form of the give and take between Judge Burns and various prospective grand jurors, 20 reveals how Judge Burns's emphasis of the singular duty is to determine whether or not probable cause exists 21 and his statement that grand jurors they cannot judge the wisdom of the criminal laws enacted by Congress 22 merely compounded an erroneous series of instructions already given to the grand jury venire. In one of his 23 earliest substantive remarks, Judge Burns makes clear that the grand jury's sole function is probable cause 24 determination. 25 26 27 28
5 4

[T]he grand jury is determining really two factors: "do we have a reasonable belief that a crime was committed? And second, do we have a reasonable belief that the person that they propose that we indict committed the crime?"

See also id. at 20 ("You're all about probable cause."). 10 08CR0800-BEN

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If the answer is "yes" to both of those, then the case should move forward. If the answer to either of the questions is "no," then the grand jury should not hesitate and not indict. See Ex. B at 8. In this passage, Judge Burns twice uses the term "should" in a context makes clear

4 that the term is employed to convey instruction: "should" cannot reasonably be read to mean optional when 5 it addresses the obligation not to indict when the grand jury has no "reasonable belief that a crime was 6 committed" or if it has no "reasonable belief that the person that they propose that we indict committed the 7 crime." 8

Equally revealing is Judge Burns's interactions with two potential grand jurors who indicated that,

9 in some unknown set of circumstances, they might decline to indict even where there was probable cause. 10 Because of the redactions of the grand jurors' names, Mr. Arredondo-Ortiz will refer to them by occupation. 11 One is a retired clinical social worker (hereinafter CSW), and the other is a real estate agent (hereinafter REA). 12 The CSW indicated a view that no drugs should be considered illegal and that some drug prosecutions were 13 not an effective use of resources. See id. at 16. The CSW was also troubled by certain unspecified 14 immigration cases. See id. 15

Judge Burns made no effort to determine what sorts of drug and immigration cases troubled the

16 CSW. He never inquired as to whether the CSW was at all troubled by the sorts of cases actually filed in this 17 district, such as drug smuggling cases and cases involving reentry after deportation and alien smuggling. 18 Rather, Judge Burns provided instructions suggesting that, in any event, any scruples CSW may have 19 possessed were simply not capable of expression in the context of grand jury service. 20 21 22 23 24 25

Now, the question is can you fairly evaluate [drug cases and immigration cases]? Just as the defendant is ultimately entitled to a fair trial and the person that's accused is entitled to a fair appraisal of the evidence of the case that's in front of you, so, too, is the United States entitled to a fair judgment. If there's probable cause, then the case should go forward. I wouldn't want you to say, "well, yeah, there's probable cause, but I still don't like what our government is doing. I disagree with these laws, so I'm not going to vote for it to go forward." If that is your frame of mind, the probably you shouldn't serve. Only you can tell me that. See id. at 16-17 (emphasis added). Thus, without any sort of context whatsoever, Judge Burns let

26 the grand juror know that it would not want him or her to decline to indict in an individual case where the 27 grand juror "[didn't] like what our government is doing," see id. at 17, but in which there was probable cause. 28 See id. Such a case "should go forward." See id. Given that blanket proscription on grand juror discretion,

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1 made manifest by Judge Burns's use of the pronoun "I", the CSW indicated that it "would be difficult to 2 support a charge even if [the CSW] thought the evidence warranted it." See id. Again, Judge Burns's question 3 provided no context; it inquired regarding "a case," a term presumably just as applicable to possession of a 4 small amount of medical marijuana as kilogram quantities of methamphetamine for distribution. Any grand 5 juror listening to this exchange could only conclude that there was no case in which Judge Burns would permit 6 them to vote "no bill" in the face of a showing probable cause. 7

Just in case there may have been a grand juror that did not understand his or her inability to exercise

8 anything like prosecutorial discretion, Judge Burns drove the point home in his exchange with REA. REA 9 first advised Judge Burns of a concern regarding the "disparity between state and federal law" regarding 10 "medical marijuana." See id. at 24. Judge Burns first sought to address REA's concerns about medical 11 marijuana by stating that grand jurors, like trial jurors, are simply forbidden from taking penalty considerations 12 into account. 13 14 15 16

Well, those things -- the consequences of your determination shouldn't concern you in the sense that penalties or punishment, things like that -- we tell trial jurors, of course, that they cannot consider the punishment or the consequence that Congress has set for these things. We'd ask you to also abide by that. We want you to make a business-like decision of whether there was a probable cause. . . . Id. at 24-25. Having stated that REA was to "abide" by the instruction given to trial jurors, Judge

17 Burns went on to suggest that REA recuse him or herself from medical marijuana cases. See id. at 25. 18

In response to further questioning, REA disclosed REA's belief "that drugs should be legal." See id.

19 That disclosure prompted Judge Burns to begin a discussion that ultimately led to an instruction that a grand 20 juror is obligated to vote to indict if there is probable cause. 21 22 23 24 25 26 27 28

I can tell you sometimes I don't agree with some of the legal decisions that are indicated that I have to make. But my alternative is to vote for someone different, vote for someone that supports the policies I support and get the law changed. It's not for me to say, "well, I don't like it. So I'm not going to follow it here." You'd have a similar obligation as a grand juror even though you might have to grit your teeth on some cases. Philosophically, if you were a member of congress, you'd vote against, for example, criminalizing marijuana. I don't know if that's it, but you'd vote against criminalizing some drugs. That's not what your prerogative is here. You're prerogative instead is to act like a judge and say, "all right. This is what I've to deal with objectively. Does it seem to me that a crime was committed? Yes. Does it seem to me that this person's involved? It does." And then your 12 08CR0800-BEN

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1 2 3

obligation, if you find those to be true, would be to vote in favor of the case going forward. Id. at 26-27 (emphasis added). Thus, the grand juror's duty is to conduct a simple two part test,

4 which, if both questions are answered in the affirmative, lead to an "obligation" to indict. 5

Having set forth the duty to indict, and being advised that REA was "uncomfortable" with that

6 paradigm, Judge Burns then set about to ensure that there was no chance of a deviation from the obligation 7 to indict in every case in which there was probable cause. 8 9 10 11 12

The Court: Do you think you'd be inclined to let people go in drug cases even though you were convinced there was probable cause they committed a drug offense? REA: It would depend on the case. The Court: Is there a chance that you would do that? REA: Yes. The Court: I appreciate your answers. I'll excuse you at this time. Id. at 27. Two aspects of this exchange are crucial. First, REA plainly does not intend to act solely

13 on his political belief in decriminalization -- whether he or she would indict "depend[s] on the case," see id., 14 as it should. Because REA's vote "depend[s] on the case," see id., it is necessarily true that REA would vote 15 to indict in some (perhaps many or even nearly all) cases in which there was probable cause. Again, Judge 16 Burns made no effort to explore REA's views; it did not ascertain what sorts of cases would prompt REA to 17 hesitate. The message is clear: it does not matter what type of case might prompt REA's reluctance to indict 18 because, once the two part test is satisfied, the "obligation" is "to vote in favor of the case going forward."6 19 See id. at 27. That is why even the "chance," see id., that a grand juror might not vote to indict was too great 20 a risk to run. 21 22 23 24 25 26 27 28

2.

The Instructions Posit a Non-Existent Prosecutorial Duty to Offer Exculpatory Evidence.

This point is underscored by Judge Burns's explanation to the Grand Jury that a magistrate judge will have determined the existence of probable cause "in most circumstances" before it has been presented with any evidence. See Ex. A at 6. This instruction created an imprimatur of finding probable cause in each case because had a magistrate judge not so found, the case likely would not have been presented to the Grand Jury for indictment at all. The Grand Jury was informed that it merely was redundant to the magistrate court "in most circumstances." See id. This instruction made the grand jury more inclined to indict irrespective of the evidence presented. 13 08CR0800-BEN

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1

In addition to his instructions on the authority to choose not to indict, Judge Burns also assured the

2 grand jurors that prosecutors would present to them evidence that tended to undercut probable cause. See Ex. 3 A at 20.7 4 5 6 7 8 9

Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. 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 present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Id. (emphasis added). The antecedent to this instruction is also found in the voir dire. After advising the grand jurors that

10 "the presentation of evidence to the grand jury is necessarily one-sided," see Ex. B at 14, Judge Burns 11 gratuitously added that "[his] experience is that the prosecutors don't play hide-the-ball. If there's something 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

These instructions were provided in the midst of several comments that praised the United States attorney's office and prosecutors in general. Judge Burns advised the grand jurors that they "can expect that the U.S. Attorneys that will appear in from of [them] will be candid, they'll be honest, and . . . they'll act in good faith in all matters presented to you." See Ex. A at 27. The instructions delivered during voir dire go even further. In addressing a prospective grand juror who revealed "a strong bias for the U.S. Attorney, whatever cases they might bring," see Ex. B at 38, Judge Burns affirmatively endorsed the prospective juror's view of the U.S. Attorney's office, even while purporting to discourage it: "frankly, I agree with the things you are saying. They make sense to me." See id. at 43. See also id. at 40 ("You were saying that you give a presumption of good faith to the U.S. Attorney and assume, quite logically, that they're not about the business of trying to indict innocent people or people that they believe to be innocent or the evidence doesn't substantiate the charges against."). Judge Burns's discussion of his once having been a prosecutor before the Grand Jury compounded the error inherent in his praising of the government attorneys. See Ex. A at 9-10. Judge Burns's instructions implied that as a prior prosecutor and current "jury liaison judge," see id. at 8, Judge Burns would not allow the government attorneys to act inappropriately or to present cases for indictment where no probable cause existed. In addition, while Judge Burns instructed the Grand Jury that it had the power to question witnesses, Judge Burns's instructions also told the Grand Jury that it should "be deferential to the U.S. Attorney if there is an instance where the U.S. Attorney thinks a question ought not to be asked." See Ex. A at 12. As the dissent in Navarro-Vargas pointed out, "the grand jury's independence is diluted by [such an] instruction, which encourages deference to prosecutors." Navarro-Vargas, 408 F.3d at 1215. The judge's admonition that his statement was only "advice," see Ex A at 12, does not cure the error as courts regularly presume grand jurors follow instructions provided to them by the court. See id. at 1202, n.23 ("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."). 14 08CR0800-BEN

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1 adverse or that cuts against the charge, you'll be informed of that. They have a duty to do that." See id. Thus, 2 Judge Burns unequivocally advised the grand jurors that the government would present any evidence that was 3 "adverse" or "that cuts against the charge." See id. 4 5 6

B.

Navarro-Vargas Establishes Limits on the Ability of Judges to Constrain the Powers of the Grand Jury, Which Judge Burns Far Exceeded in His Instructions as a Whole During Impanelment. The Ninth Circuit has, over vigorous dissents, rejected challenges to various instructions

7 given to grand jurors in the Southern District of California. See Navarro-Vargas II, 408 F.3d 1184. While 8 the Ninth Circuit has thus far (narrowly) rejected such challenges, it has, in the course of adopting a highly 9 formalistic approach8 to the problems posed by the instructions, endorsed many of the substantive arguments 10 raised by the defendants in those cases. The district court's instructions cannot be reconciled with the role of 11 the grand jury as set forth in Navarro-Vargas II. Taken together, the voir dire of and instructions given to the 12 January 2007 Grand Jury, go far beyond those at issue in Navarro-Vargas, taking a giant leap in the direction 13 of a bureaucratic, deferential grand jury, focused solely upon probable cause determinations and utterly unable 14 to exercise any quasi-prosecutorial discretion. That is not the institution the Framers envisioned. See United 15 States v. Williams, 504 U.S. 36, 49 (1992). 16

For instance, with respect to the grand jury's relationship with the prosecution, the Navarro-Vargas

17 II majority acknowledges that the two institutions perform similar functions: "'the public prosecutor, in 18 deciding whether a particular prosecution shall be instituted or followed up, performs much the same function 19 as a grand jury.'" Navarro-Vargas II, 408 F.3d at 1200 (quoting Butz v. Economou, 438 U.S. 478, 510 20 (1978)). Accord United States v. Navarro-Vargas, 367 F.3d 896, 900 (9th Cir. 2004) (Navarro-Vargas 21 I)(Kozinski, J., dissenting) (The grand jury's discretion in this regard "is most accurately described as 22 prosecutorial." ). See also Navarro-Vargas II, 408 F.3d at 1213 (Hawkins, J., dissenting). It recognizes that 23 the prosecutor is not obligated to proceed on any indictment or presentment returned by a grand jury, id., but 24 also that "the grand jury has no obligation to prepare a presentment or to return an indictment drafted by the 25 prosecutor." Id. See Niki Kuckes, The Democratic Prosecutor: Explaining the Constitutional Function of 26 27 28

See Navarro-Vargas II, 408 F.3d at 1210-11 (Hawkins, J., dissenting) (criticizing the majority because "[t]he 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."). 15 08CR0800-BEN

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1 the Federal Grand Jury, 94 Geo. L.J. 1265, 1302 (2006) (the grand jury's discretion not to indict was 2 "`arguably . . . the most important attribute of grand jury review from the perspective of those who insisted 3 that a grand jury clause be included in the Bill of Rights'") (quoting Wayne LaFave et al., Criminal Procedure 4 § 15.2(g) (2d ed. 1999)). 5

Indeed, the Navarro-Vargas II majority agrees that the grand jury possesses all the attributes set forth

6 in Vasquez v. Hillery, 474 U.S. 254 (1986). See id.

The grand jury thus determines not only whether probable 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, 8 a capital offense or a non-capital offense -- all on the basis of the same facts. And, significantly, the grand jury may refuse to return an indictment even "'where a conviction can be obtained.'"
7 9 10

Id. (quoting Vasquez, 474 U.S. at 263). The Supreme Court has itself reaffirmed Vasquez's

11 description of the grand jury's attributes in Campbell v. Louisiana, 523 U.S. 392 (1998), noting that the grand 12 jury "controls not only the initial decision to indict, but also significant questions such as how many counts 13 to charge and whether to charge a greater or lesser offense, including the important decision whether to charge 14 a capital crime." Id. at 399 (citing Vasquez, 474 U.S. at 263). Judge Hawkins notes that the Navarro-Vargas 15 II majority accepts the major premise of Vasquez: "the majority agrees that a grand jury has the power to 16 refuse to indict someone even when the prosecutor has established probable cause that this individual has 17 committed a crime." See id. at 1214 (Hawkins, J. dissenting). Accord Navarro-Vargas I, 367 F.3d at 899 18 (Kozinski, J., dissenting); United States v. Marcucci, 299 F.3d 1156, 1166-73 (9th Cir. 2002) (per curiam) 19 (Hawkins, J., dissenting). In short, the grand jurors' prerogative not to indict enjoys strong support in the 20 Ninth Circuit. But not in Judge Burns's instructions. 21 22 23

C.

Judge Burns's Instructions Forbid the Exercise of Grand Jury Discretion Established in Both Vasquez and Navarro-Vargas II.

The Navarro-Vargas II majority found that the instruction in that case "leave[s] room for the grand

24 jury to dismiss even if it finds probable cause," 408 F.3d at 1205, adopting the analysis in its previous decision 25 in Marcucci. Marcucci reasoned that the instructions do not mandate that grand jurors indict upon every 26 finding of probable cause because the term "should" may mean "what is probable or expected." 299 F.3d at 27 1164 (citation omitted). That reading of the term "should" makes no sense in context, as Judge Hawkins ably 28 pointed out. See Navarro-Vargas II, 408 F.3d at 1210-11 (Hawkins, J., dissenting) ("The instruction's use of

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1 the word `should' is most likely to be understood as imposing an inflexible `duty or obligation' on grand 2 jurors, and thus to circumscribe the grand jury's constitutional independence."). See also id. ("The `word' 3 should is used to express a duty [or] obligation.") (quoting The Oxford American Diction and Language Guide 4 1579 (1999) (brackets in original)). 5

The debate about what the word "should" means is irrelevant here; the instructions here make no

6 such fine distinction. The grand jury instructions make it painfully clear that grand jurors simply may not 7 choose not to indict in the event of what appears to them to be an unfair application of the law: should "you 8 disagree with that judgment made by Congress, then your option is not to say `well, I'm going to vote against 9 indicting even though I think that the evidence is sufficient'...." See Ex. A at 8-9. Thus, the instruction flatly 10 bars the grand jury from declining to indict because they disagree with a proposed prosecution. No grand juror 11 would read this language as instructing, or even allowing, him or her to assess "the need to indict." Vasquez, 12 474 U.S. at 264. 13

While Judge Burns used the word "should" instead of "shall" during voir dire with respect to whether

14 an indictment was required if probable cause existed, see Ex. B at 4, 8, in context, it is clear that Judge Burns 15 could only mean "should" in the obligatory sense. For example, when addressing a prospective juror, Judge 16 Burns not only told the jurors that they "should" indict if there is probable cause, it told them that if there is 17 not probable cause, "then the grand jury should hesitate and not indict." See id. at 8. At least in context, it 18 would strain credulity to suggest that Judge Burns was using "should" for the purpose of "leaving room for 19 the grand jury to [indict] even if it finds [no] probable cause." See Navarro-Vargas, 408 F.3d at 1205. Clearly 20 Judge Burns was not. 21

The full passage cited above effectively eliminates any possibility that Judge Burns intended the

22 Navarro-Vargas spin on the word "should." 23 24 25 26 27

[T]he grand jury is determining really two factors: "do we have a reasonable belief that a crime was committed? And second, do we have a reasonable belief that the person that they propose that we indict committed the crime?" If the answer is "yes" to both of those, then the case should move forward. If the answer to either of the questions is "no," then the grand jury should not hesitate and not indict. See Ex. B at 8. Of the two sentences containing the word "should," the latter of the two essentially

28 states that if there is no probable cause, you should not indict. Judge Burns could not possibly have intended

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1 to "leav[e] room for the grand jury to [indict] even if it finds [no] probable cause." See Navarro-Vargas, 408 2 F.3d at 1205 (citing Marcucci, 299 F.3d at 1159). That would contravene the grand jury's historic role of 3 protecting the innocent. See, e.g., United States v. Calandra, 414 U.S. 338, 343 (1974) (The grand jury's 4 "responsibilities continue to include both the determination whether there is probable cause and the protection 5 of citizens against unfounded criminal prosecutions.") (citation omitted). 6

By the same token, if Judge Burns said that "the case should move forward" if there is probable cause,

7 but intended to "leav[e] room for the grand jury to dismiss even if it finds probable cause," see Navarro8 Vargas, 408 F.3d at 1205 (citing Marcucci, 299 F.3d at 1159), then Judge Burns would have to have intended 9 two different meanings of the word "should" in the space of two consecutive sentences. That could not have 10 been his intent. But even if it were, no grand jury could ever have had that understanding.9 Jurors are not 11 presumed to be capable of sorting through internally contradictory instructions. See generally United States 12 v. Lewis, 67 F.3d 225, 234 (9th Cir. 1995) ("where two instructions conflict, a reviewing court cannot presume 13 that the jury followed the correct one") (citation, internal quotations and brackets omitted). 14

Lest there be any room for ambiguity, on no less than four occasions, Judge Burns made it explicitly

15 clear to the grand jurors that "should" was not merely suggestive, but obligatory: 16

(1)

The first occasion occurred in the following exchange when Judge Burns conducted voir dire

17 and excused a potential juror (CSW): 18 19 20 21 22 23 24

The Court: . . . If there's probable cause, then the case should go forward. I wouldn't want you to say, "Well, yeah, there's probable cause. But I still don't like what the government is doing. I disagree with these laws, so I'm not going to vote for it to go forward." If that's your frame of mind, then probably you shouldn't serve. Only you can tell me that. Prospective Juror: Well, I think I may fall in that category. The Court: In the latter category? Prospective Juror: Yes. The Court: Where it would be difficult for you to support a charge even if you thought the evidence warranted it? Prospective Juror: Yes. The Court: I'm going to excuse you then. See Ex. B at 17. There was nothing ambiguous about the word "should" in this exchange with a

25 prospective juror. Even if the prospective juror did not like what the government was doing in a particular 26 27 28

This argument does not turn on Mr. Samaniego-Canto's view that the NavarroVargas/Marcucci reading of the word "should" in the model instructions is wildly implausible. Rather, it turns on the context in which the word is employed by Judge Burns in his unique instructions, context which eliminates the Navarro-Vargas/Marcucci reading as a possibility. 18 08CR0800-BEN

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1 case, that case "should go forward" and Judge Burns expressly disapproved of any vote that might prevent 2 that. See id. ("I wouldn't want you [to vote against such a case]"). The sanction for the possibility of 3 independent judgment was dismissal, a result that provided full deterrence of that juror's discretion and 4 secondary deterrence as to the exercise of discretion by any other prospective grand juror. 5

(2)

In an even more explicit example of what "should" meant, Judge Burns makes clear that it

6 there is an unbending obligation to indict if there is probable cause. Grand jurors have no other prerogative. 7 8 9 10 11 12 13 14

Court

. . . It's not for me to say, "Well, I don't like it. So I'm not going to follow it here."

You'd have a similar obligation as a grand juror even though you might have to grit your teeth on some cases. Philosophically, if you were a member of Congress, you'd vote against, for example, criminalizing marijuana. I don't know if that's it, but you'd vote against criminalizing some drugs. That's not what your prerogative is here. Your prerogative instead is act like a judge and to say, "All right. This is what I've got to deal with objectively. Does it seem to me that a crime was committed? Yes. Does it seem to me that this person's involved? It does." And then your obligation, if you find those things to be true, would be to vote in favor of the case going forward. Id. at 26-27 (emphasis added). After telling this potential juror (REA) what his obligations and

15 prerogatives were, the Court inquired as to whether "you'd be inclined to let people go on drug cases even 16 though you were convinced there was probable cause they committed a drug offense?" Id. at 27. The potential 17 juror responded: "It would depend on the case." Id. Nevertheless, that juror was excused. Id. at 28. Again, 18 in this context, and contrary to the situation in Navarro-Vargas, "should" means "shall"; it is obligatory, and 19 the juror has no prerogative to do anything other than indict if there is probable cause. 20

Moreover, as this example demonstrates, the issue is not limited to whether the grand jury believes

21 a particular law to be "unwise." This juror said that any decision to indict would not depend on the law, but 22 rather it would "depend on the case." Thus, it is clear that Judge Burns's point was that if a juror could not 23 indict on probable cause for every case, then that juror was not fit for service. It is equally clear that the 24 prospective juror did not dispute the "wisdom of the law;" he was prepared to indict under some factual 25 scenarios, perhaps many. But Judge Burns did not pursue the question of what factual scenarios troubled the 26 prospective jurors, because his message is that there is no discretion not to indict. 27

(3)

As if the preceding examples were not enough, Judge Burns continued to pound the point

28 home that "should" meant "shall" when it told another grand juror during voir dire: "[W]hat I have to insist

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1 on is that you follow the law that's given to us by the United States Congress. We enforce the federal laws 2 here." See id. at 61. 3

(4)

And then again, after swearing in all the grand jurors who had already agreed to indict in

4 every case where there was probable cause, Judge Burns reiterated that "should" means "shall" when it 5 reminded them that "your option is not to say `well, I'm going to vote against indicting even though I think 6 that the evidence is sufficient . . . . Instead your obligation is . . . not to bring your personal definition of what 7 the law ought to be and try to impose that through applying it in a grand jury setting." See Ex. A at 9. 8

Moreover, Judge Burns advised the grand jurors that the were forbidden from considering the

9 penalties to which indicted persons may be subject. 10 11 12 13 14 15

Prospective Juror (REA): ... And as far as being fair, it kind of depends on what the case is about because there is a disparity between state and federal law. The Court: In what regard? Prospective Juror: Specifically, medical marijuana. The Court: Well, those things -- the consequences of your determination shouldn't concern you in the sense that penalties or punishment, things like that -- we tell trial jurors, of course, that they cannot consider the punishment or the consequence that Congress has set for these things. We'd ask you to also abide by that. We want you to make a businesslike decision of whether there was a probable cause. ... See Ex. B at 24-25 (emphasis added). A "business-like decision of whether there was a probable

16 cause" would obviously leave no role for the consideration of penalty information. 17

The Ninth Circuit previously rejected a claim based upon the proscription against consideration of

18 penalty information based upon the same unlikely reading of the word "should" employed in Marcucci. See 19 United States v. Cortez-Rivera, 454 F.3d 1038, 1040-41 (9th Cir. 2006). Cortez-Rivera is inapposite for two 20 reasons. First, Judge Burns did not use the term "should" in the passage quoted above. Second, that context, 21 as well as his consistent use of a mandatory meaning in employing the term, eliminate the ambiguity (if there 22 ever was any) relied upon by Cortez-Rivera. The instructions again violate Vasquez, which plainly authorized 23 consideration of penalty information. See 474 U.S. at 263. 24

Noting can mask the undeniable fact that Judge Burns explicitly instructed the jurors time and time

25 again that they had a duty, an obligation, and a singular prerogative to indict each and every case where there 26 was probable cause. These instructions go far beyond the holding of Navarro-Vargas and stand in direct 27 contradiction of the Supreme Court's decision in Vasquez. Indeed, it defies credulity to suggest that a grand 28

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1 juror hearing these instructions, and that voir dire, could possibly believe what the Supreme Court held in 2 Vasquez: 3 4 5 6 7 8

The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies 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. Moreover, "[t]he grand jury is not bound to indict in every case where a conviction can be obtained." 474 U.S. at 263 (quoting United States v. Ciambrone, 601 F.2d 616, 629 (2nd Cir. 1979) (Friendly,

9 J., dissenting)); accord Campbell v. Louisiana, 523 U.S. 392, 399 (1998) (The grand jury "controls not only 10 the initial decision to indict, but also significant decisions such as how many counts to charge and whether 11 to charge a greater or lesser offense, including the important decision whether to charge a capital crime."). 12 Nor would the January 2007 grand jury ever believe that it was empowered to assess the "the need to indict." 13 See id. at 264. Judge Burns's grand jury is not Vasquez's grand jury. The instructions therefore represent 14 structural constitutional error "that interferes with the grand jury's independence and the integrity of the grand 15 jury proceeding." See United States v. Isgro, 974 F.2d 1091, 1094 (9th Cir. 1992). The indictment must 16 therefore be dismissed. Id. 17

The Navarro-Vargas II majority's faith in the structure of the grand jury is not a cure for the The Navarro-Vargas II majority attributes "[t]he grand jury's discretion -- its

18 instructions excesses.

19 independence -- [to] the absolute secrecy of its deliberations and vote and the unreviewability of its decisions." 20 408 F.3d at 1200. As a result, the majority discounts the effect that a judge's instructions may have on a grand 21 jury because "it is the structure of the grand jury process and its function that make it independent." Id. at 22 1202 (emphases in the original). 23

Judge Hawkins sharply criticized this approach. The majority, he explains, "believes that the

24 `structure' and `function' of the grand jury -- particularly the secrecy of the proceedings and unreviewability 25 of many of its decisions -- sufficiently protects that power." See id. at 1214 (Hawkins, J., dissenting). The 26 flaw in the majority's analysis is that "[i]nstructing a grand jury that it lacks power to do anything beyond 27 making a probable cause determination ... unconstitutionally undermines the very structural protections that 28 the majority believes save[] the instruction." Id. After all, it is an "'almost invariable assumption of the law

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1 that jurors follow their instructions.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200, 206 (1987)). If that 2 "invariable assumption" were to hold true, then the grand jurors could not possibly fulfill the role described 3 in Vasquez. Indeed, "there is something supremely cynical about saying that it is fine to give jurors erroneous 4 instructions because nothing will happen if they disobey them." Id. 5

In setting forth Judge Hawkins' views, Mr. Arredondo-Ortiz understands that Judge Burns may not

6 adopt them solely because the reasoning that supports them is so much more persuasive than the majority's 7 sophistry. Rather, he sets them forth to urge the Court not to extend what is already untenable reasoning. 8

Here, again, the question is not an obscure interpretation of the word "should", especially in light of

9 the instructions and commentary by Judge Burns during voir dire discussed above - unaccounted for by the 10 Court in Navarro-Vargas II because they had not yet been disclosed to the defense, but an absolute ban on the 11 right to refuse to indict that directly conflicts with the recognition of that right in Vasquez, Campbell, and both 12 Navarro-Vargas II opinions. Navarro-Vargas II is distinguishable on that basis, but not only that. 13

Judge Burns did not limit itself to denying the grand jurors the power that Vasquez plainly states they

14 enjoy. He also excused prospective grand jurors who might have exercised that Fifth Amendment prerogative, 15 excusing "three [jurors] in this case, because they could not adhere to [that] principle...." See Ex. A at 8; Ex. 16 B at 17, 28. The structure of the grand jury and the secrecy of its deliberations cannot embolden grand jurors 17 who are no longer there, likely because they expressed their willingness to act as the conscience of the 18 community. See Navarro-Vargas II, 408 F.3d at 1210-11 (Hawkins, J., dissenting) (a grand jury exercising 19 its powers under Vasquez "serves ... to protect the accused from the other branches of government by acting 20 as the `conscience of the community.'") (quoting Gaither v. United States, 413 F.2d 1061, 1066 & n.6 (D.C. 21 Cir. 1969)). The federal courts possess only "very limited" power "to fashion, on their own initiative, rules 22 of grand jury procedure," United States v. Williams, 504 U.S. 36, 50 (1992), and, here, Judge Burns has both 23 fashioned his own rules and enforced them. 24 25 26

D.

The Instructions Conflict with Williams' Holding That There Is No Duty to Present Exculpatory Evidence to the Grand Jury.

In Williams, the defendant, although conceding that it was not required by the Fifth Amendment,

27 argued that the federal courts should exercise their supervisory power to order prosecutors to disclose 28 exculpatory evidence to grand jurors, or, perhaps, to find such disclosure required by Fifth Amendment

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1 common law. See 504 U.S. at 45, 51. Williams held that "as a general matter at least, no such `supervisory' 2 judicial authority exists." See id. at 47. Indeed, although the supervisory power may provide the authority 3 "to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts 4 to a violation of one of those `few, clear rules which were carefully drafted and approved by Judge Burns and 5 by Congress to ensure the integrity of the grand jury's functions,'" id. at 46 (citation omitted), it does not serve 6 as "a means of prescribing such standards of prosecutorial conduct in the first instance." Id. at 47 (emphasis 7 added). The federal courts possess only "very limited" power "to fashion, on their own initiative, rules of 8 grand jury procedure." Id. at 50. As a consequence, Williams rejected the defendant's claim, both as an 9 exercise of supervisory power and as Fifth Amendment common law. See id. at 51-55. 10

Despite the holding in Williams, the instructions here assure the grand jurors that prosecutors would

11 present to them evidence that tended to undercut probable cause. See Ex. A at 20. 12 13 14 15 16

Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you 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 present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Id. (emphasis added). Moreover, the district court later returned to the notion of the prosecutors and

17 their duties, advising the grand jurors that they "can expect that the U.S. Attorneys that will appear in from 18 of [them] will be candid, they'll be honest, and ... they'll act in good faith in all matters presented to you." 19 See id. at 27. The Ninth Circuit has already concluded it is likely this final comment is "unnecessary." See 20 Navarro-Vargas, 408 F.3d at 1207. 21

This particular instruction has a devastating effect on the grand jury's protective powers, particularly

22 if it is not true. It begins by emphasizing the message that Navarro-Vargas II somehow concluded was not 23 conveyed by the previous instruction: "You're all about probable cause." See Ex. A at 20. Thus,