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-

IEG-1 FRANCISCO NAVARRO,

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
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. Attorney; 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 occasional 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 information 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.

8618 UNITED STATES v. NAVARRO
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 instructions 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 Mexicali 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 xrayed 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 Enforcement 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 number, 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. 

UNITED STATES v. NAVARRO 8619
with intent to distribute.2

 At trial he testified that he had acted

under duress. He claimed that the criminal organization suspected 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 minimum considering his previous drug conviction.4

On appeal, Navarro argues that: (1) the district court inadequately 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 reasonable 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). 

3He 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). 

8620 UNITED STATES v. NAVARRO
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 objection, 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 reasonable opportunity to escape the threatened harm when he

arrived at the border station.

Generally, a district court’s decision to overrule an objection 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 reversal, even though the judge correctly instructed the jury on burden 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. 

7United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984); cf. Herring v. New York, 422 U.S. 853, 862 (1975) (dicta). 

8United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008). 

9

555 F.2d 226 (9th Cir. 1977). 

10Id. at 230-32. 

UNITED STATES v. NAVARRO 8621
The district court instructed the jury that to establish a

defense of duress, the defendant must prove by a preponderance 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 heroin.

The defendant must prove duress by a preponderance of the evidence. A preponderance of the evidence means that you must be persuaded that the

things the defendant seeks to prove are more probably 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 carried 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

11See United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir.

2008). 

8622 UNITED STATES v. NAVARRO
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 confidential 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 instructions 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

12Ninth Circuit Crim. Jury Instr. 6.6 (2003). 

UNITED STATES v. NAVARRO 8623
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 consist 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

13See, 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 warranting a departure under § 5K2.12 [for duress not amounting to a complete 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 battered woman syndrome defense, “a species of the defense of duress,”

because “[t]here was nothing implicitly or explicitly threatening about

either conversation”). 

14See 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].”). 

8624 UNITED STATES v. NAVARRO
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 trials 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 former guidelines enhancement for “express” threats of death

during a robbery,17 we treated “Give me the money. I have

15United 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). 

16See, 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 property of any person.”); Alaska Stat. § 11.41.470(8) (defining “without consent” 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). 

17U.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 enhanceUNITED STATES v. NAVARRO 8625
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 likewise 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 conclusive 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. 

18France, 57 F.3d at 867. 

8626 UNITED STATES v. NAVARRO
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 element, it is reasonable to infer from the evidence and arguments 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 arguing 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

19United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984). 

20See Segna, 555 F.2d at 232. 

UNITED STATES v. NAVARRO 8627
satisfy this requirement.”

21 “[T]he trial judge has broad discretion 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 prosecutor 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 exonerating 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 present evidence that cuts against what they may be asking you to do if they’re aware of that evidence. 

He added a general encomium to the integrity of federal prosecutors: 

If past experience is any indication of what to expect

in the future, then you can expect that the U.S. Attorneys that will appear in front of you will be candid,

21United States v. Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984)

(internal quotation marks and brackets omitted). 

22United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984) (internal

editorial marks and quotation marks omitted). 

8628 UNITED STATES v. NAVARRO
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 published by the Federal Judicial Center, or the Judicial Conference 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

23Fed. R. Crim. P. 6. 

24United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. R. Crim.

P. 6(d). 

25United States v. Williams, 504 U.S. 36, 47 (1992) (“Judges’ direct

involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and

administering their oaths of office.”). 

26Federal 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). 

27See Federal Judicial Center, Benchbook for U.S. District Court Judges

§ 7.04, at 222 n.1 (5th ed. 2007). 

28See generally id. § 7.04. 

UNITED STATES v. NAVARRO 8629
that federal prosecutors are, based on “past experience,” candid, 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 Constitution.”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 integrity. 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 indictment.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. 

30Id. at 1207. 

31504 U.S. 36, 52-53 (1992); United States v. Haynes, 216 F.3d 789,

798 (9th Cir. 2000) (following Williams). 

32Haynes, 216 F.3d at 798. 

8630 UNITED STATES v. NAVARRO
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 “substantial 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 language 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 obligated 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 constitutes structural error requiring dismissal of the indictment, so

that we must reverse. We do not agree. Federal Rule of Criminal Procedure 52(a) provides that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must

UNITED STATES v. NAVARRO 8631
be disregarded.”

33 This rule applies to errors in grand jury proceedings.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 substantial rights had been affected.35 That the grand jury is a

constitutionally required part of the structure of federal criminal 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 proceedings. 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 mentions complete denial of counsel, biased trial judge, racial discrimination in selection of grand jury, denial of self

representation at trial, denial of public trial, defective reasonable doubt instruction), all harmless errors including constitutional 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

33Fed. R. Crim. P. 52(a). 

34Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55 (1988);

United States v. Mechanik, 475 U.S. 66, 71-72 (1986). 

35See United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). 

36527 U.S. 1 (1999). 

37Id. at 8 (listing cases). 

38475 U.S. at 71-72. 

8632 UNITED STATES v. NAVARRO
present in the grand jury room, harmless.39 The ratio decidendi 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 discrimination 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 substantially 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 Federal Rule of Criminal Procedure 52(a),”

48 because it requires

39Id. at 67. 

40Id. at 70. 

41474 U.S. 254 (1986). 

42Mechanik, 475 U.S. at 70 n.1 

43812 F.2d 548 (9th Cir. 1987). 

44489 U.S. 794 (1989). 

45487 U.S. 250. 

46Bank of Nova Scotia, 487 U.S. at 256. 

47Id. (internal quotation marks omitted) (citing Mechanik, 475 U.S. at

78 (O’Connor, J., concurring in the judgment)). 

48Id. at 254. 

UNITED STATES v. NAVARRO 8633
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 Department and bar discipline as remedies, not dismissal of the indictment.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. Spillone,

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 conviction, the Mechanik standard applies,” and a guilty verdict renders error in the presentation to the grand jury harmless

49329 U.S. 187 (1946). 

50487 U.S. at 263. 

51879 F.2d 514, 520-21, 523-25 (9th Cir. 1989). 

52999 F.2d 397 (9th Cir. 1993). 

8634 UNITED STATES v. NAVARRO
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 Circuits, 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 conviction.

[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 harmless by the verdict. Accordingly, the district judge’s error in

53Id. at 399. 

5418 F.3d 814, 817-18 (9th Cir. 1994). 

55United States v. Jennings, 991 F.2d 725, 728-29 (11th Cir. 1993). 

56United States v. Reyes-Echevarria, 345 F.3d 1, 5 (1st Cir. 2003). 

57United States v. Vincent, 416 F.3d 593, 601 (7th Cir. 2005). 

58United States v. Wiseman, 172 F.3d 1196, 1205-06 (10th Cir. 1999).

UNITED STATES v. NAVARRO 8635
instructing the grand jury that the government was dutybound to present exculpatory evidence was harmless. Had the

motion to dismiss been granted, the Bank of Nova Scotia standard 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.

8636 UNITED STATES v. NAVARRO