FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50309

Plaintiff-Appellee, D.C. No.

v.  3:06-cr-00281-

WQH-1 ELIDE T. CARUTO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

May 4, 2010—Pasadena, California

Filed December 8, 2010

Before: Richard R. Clifton and Jay S. Bybee, Circuit Judges,

and Edward R. Korman,* District Judge.

Opinion by Judge Clifton

*The Honorable Edward R. Korman, Senior United States District

Judge for the Eastern District of New York, sitting by designation. 

19607
COUNSEL

Timothy A. Scott, San Diego, California, for defendantappellant Elide Caruto

UNITED STATES v. CARUTO 19609
George D. Hardy, Assistant United States Attorney, San

Diego, California, for plaintiff-appellee United States of

America.

OPINION

CLIFTON, Circuit Judge:

Elide Caruto was convicted of importation of cocaine and

of possession of cocaine with intent to distribute. She appeals

from the district court’s denial of her motion to dismiss the

indictment against her. She principally challenges four

instructions given to the grand jury, claiming that each violated the Grand Jury Clause of the Fifth Amendment. We

affirm.

I. Background

Caruto was charged by the government and indicted by a

grand jury for importation of, and possession with intent to

distribute, 34.5 kilograms of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 952, and 960. A jury convicted Caruto

after a trial, but we reversed her conviction on grounds unrelated to this appeal and remanded for a new trial. See United

States v. Caruto, 532 F.3d 822 (9th Cir. 2008) (reversing

because the prosecutor’s emphasis on omissions in Caruto’s

post-arrest statement violated due process).

On remand before Judge Hayes, Caruto moved to dismiss

the indictment. She argued that instructions given by District

Judge Larry A. Burns to the grand jury that handed up Caruto’s indictment violated the Fifth Amendment. We describe

the challenged instructions in detail below. The district court

denied Caruto’s motion. She was again convicted by another

jury, and she timely filed this appeal.

19610 UNITED STATES v. CARUTO
II. Constitutionality of the Grand Jury Instructions

We review de novo the district court’s denial of Caruto’s

motion to dismiss the indictment. United States v. Haynes,

216 F.3d 789, 796 (9th Cir. 2000).

“Federal courts draw their power to dismiss indictments

from two sources”: the Constitution, and the courts’ inherent

supervisory powers. United States v. Isgro, 974 F.2d 1091,

1094 (9th Cir. 1992). Caruto raises only claims of constitutional error, so we limit our consideration to whether the

instructions her grand jury received met the requirements of

the Grand Jury Clause of the Fifth Amendment.

[1] “The text of the Fifth Amendment simply provides for

the right to indictment by a grand jury and does not explain

how the grand jury is to fulfill this constitutional role.”

1

United States v. Navarro-Vargas, 408 F.3d 1184, 1188 (9th

Cir. 2005) (en banc). Such details were either assumed by the

framers of the Bill of Rights or left to Congress, the Executive, and the Judiciary to flesh out. Id. Our inquiry into what

the Constitution mandates is guided by the history of the

grand jury in the Anglo-American tradition and by its structural role in our constitutional scheme. Id. at 1186; see generally id. at 1190-1202.

[2] “ ‘Historically, [the grand jury] has been regarded as a

primary security to the innocent against hasty, malicious and

oppressive persecution; it serves the invaluable function in

our society of standing between the accuser and the accused,

. . . to determine whether a charge is founded upon reason or

was dictated by an intimidating power or by malice and per1The Fifth Amendment provides that “[n]o person shall be held to

answer for a capital, or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of War or public

danger.” U.S. Const. amend. V. 

UNITED STATES v. CARUTO 19611
sonal ill will.’ ” United States v. Marcucci, 299 F.3d 1156,

1161 (9th Cir. 2002) (quoting Wood v. Georgia, 370 U.S. 375,

390 (1962)). 

[3] The grand jury’s ability to fulfill its historical role

effectively flows in part from its unusual position in the Constitution’s structure. “The grand jury belongs to no branch of

government, but is a ‘constitutional fixture in its own right.’ ”

Navarro-Vargas, 408 F.3d at 1199 (quoting United States v.

Williams, 504 U.S. 36, 47 (1992)). The Fifth Amendment

“presupposes an investigative body acting independently of

either prosecuting attorney or judge.” United States v. Dionisio, 410 U.S. 1, 16 (1973) (internal quotation marks omitted).

The Fifth Amendment may be violated if the independence of

the grand jury in performing its historical function is substantially infringed. See Bank of Nova Scotia v. United States, 487

U.S. 250, 255-57 (1988); Navarro-Vargas, 408 F.3d at 1204,

1205 & 1206-07 (holding constitutional grand jury instructions that did not infringe upon functions “integral to the role

of the grand jury” and did not “violate the grand jury’s independence”); Marcucci, 299 F.3d at 1163-64 (holding constitutional instructions “consistent with the historical function of

the grand jury” that “informed the grand jurors that they were

not merely an arm of the government, but rather an independent body”). 

The citizens called to serve on a grand jury are given

instructions by the district court regarding their role and function. Mindful of the grand jury’s historical role and the constitutional guarantee of independence in fulfilling it, we turn to

Caruto’s objections to the specific instructions the district

court gave to the grand jury that indicted her.

A. Consideration of Punishment

[4] Caruto first challenges an instruction to ignore potential punishment in deciding whether to indict. Her argument

here is necessarily a narrow one, because we have already

19612 UNITED STATES v. CARUTO
rejected a constitutional challenge to a similar instruction. In

United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006),

we held that there was no constitutional error in a model

charge reading: “Furthermore, when deciding whether or not

to indict, you should not be concerned about punishment in

the event of conviction; judges alone determine punishment.”

Id. at 1040-41. In its instructions to the grand jury that

indicted Caruto, the district court delivered the permissible

instruction verbatim, then elaborated on its theme, saying:

Furthermore, when deciding whether or not to

indict, you should not be concerned about punishment in the event of conviction. Judges alone determine punishment. If you think about it for a

minute[,] because your function is a preliminary one

anyway, it would presuppose guilt for you to be

thinking about punishment. A person is still entitled

to a trial, and the outcome of that trial is far from

certain up until all the evidence has been presented

and the trial jury begins to deliberate. So punishment

should not concern you in the performance of your

duties whatsoever.

Caruto contends that the judge’s off-script addition to the

model charge—in particular, the instruction that “punishment

should not concern you in the performance of your duties

whatsoever” (emphasis added)—rendered it unconstitutional.

She argues that the added emphasis of “whatsoever” eliminated the “limited room . . . for a grand jury to consider punishment” that she maintains saved the instruction in CortezRivera from unconstitutionality. Cortez-Rivera, 454 F.3d at

1041 (internal quotation marks omitted).

[5] Caruto misapprehends the basis for our decision in

Cortez-Rivera. In that case we deemed “[t]he distinction

between ‘should’ and ‘shall’ . . . dispositive.” Id. at 1041. We

concluded, following Marcucci and Navarro-Vargas, “that

the instruction did not invade upon the grand jury’s constituUNITED STATES v. CARUTO 19613
tional role because the instruction used the term ‘should,’

making the instruction permissive rather than mandatory.” Id.

at 1040-41. It was this permissiveness, not the degree of

emphasis in the remainder of the instruction, that “le[ft] room

—albeit limited room—for a grand jury to consider punishment” and thus preserved the grand jury’s historical prerogative. Id. at 1041 (internal quotation marks omitted). The

addition of “whatsoever” to an already emphatic model

instruction did not effectively change its character from permissive to mandatory. Because that is the distinction that matters under our precedent, we must reject Caruto’s attempt to

distinguish this instruction from the one that we previously

upheld.

[6] Any error here was harmless, in any event. We recently

observed that the Supreme Court, in Bank of Nova Scotia v.

United States, 487 U.S. 250 (1988), “adopted the standard . . .

that for errors brought to the district court’s attention ‘prior to

the conclusion of the trial,’ dismissal of the indictment ‘is

appropriate only if it is established that the violation 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.’ ” United States v.

Navarro, 608 F.3d 529, 539 (9th Cir. 2010). Nothing in this

case supports the proposition that the grand jury would have

refused to indict Caruto, who imported 34.5 kilograms of

cocaine into the United States with the intent to distribute it,

even if it had known that she was facing a ten-year sentence.

Drug smugglers and dealers are not sympathetic figures. No

facts about Caruto or her crime have been identified to us that

might have generated sympathy in her particular case sufficient to fend off indictment. Facts that might prompt sympathy in a particular case are not likely to be known by the

grand jury anyway, because defense counsel does not have a

right to make a presentation to the grand jury, and the prosecutor is not obligated to present exculpatory evidence. United

States v. Williams, 504 U.S. 36 (1992). Caruto has given no

reason for us to have any serious concern, let alone to have

19614 UNITED STATES v. CARUTO
grave doubt, that the grand jury would not have indicted her

had the district court’s instruction not departed from the

model charge. Any error here was harmless.

B. The Wisdom of the Criminal Laws

Caruto next contends, along similar lines, that the district

court’s elaboration regarding the “wisdom of the criminal

laws” went so far beyond a permissible model instruction as

to render the charge here unconstitutional. The model instruction, which we held constitutional in Navarro-Vargas, states:

“You cannot judge the wisdom of the criminal laws enacted

by Congress, that is, whether or not there should or should not

be a federal law designating certain activity as criminal. That

is to be determined by Congress and not by you.” NavarroVargas, 408 F.3d at 1202. The district judge recited the model

instruction almost word-for-word, then supplemented it with

additional commentary, saying:

As grand jury, you are not to judge the wisdom of

the criminal laws enacted by Congress. 

What that means is you are not to determine

whether or not there should or should not be a federal law designating certain activity as criminal. That

is to be determined by Congress and not by you. Are

you helpless in this regard? No. You can go to the

ballot box at the time of election, and if you disagree

with the law, you can vote to change it or vote out

of office those who support the law that you disagree

with. 

But in this branch of government, the judicial

branch of government, we apply the laws as the

other branches give them to us. We don’t pass on the

wisdom of those laws whether we agree with them

or not. 

UNITED STATES v. CARUTO 19615
I can tell you as a United States District Judge, I

frequently have to pass judgment on laws that were

I a member of Congress, I would have voted the

other way on some of the things, but my function is

circumscribed here by that responsibility. So you

must follow the law as it is given you by the U.S.

Attorney, given from the code books enacted by

Congress.

Caruto maintains that two of the court’s additions rendered

this instruction unconstitutional: (1) the suggestion that jurors

could “go to the ballot box at the time of election, and if you

disagree with the law, you can vote to change it or vote out

of office those who support the law that you disagree with”;

and (2) the court’s comparison of the grand jury’s role to that

of members of the judiciary, who are obligated to “apply the

laws as the other branches give them to us.”

[7] On the first point, Caruto argues that the court’s voting

advice improperly limited the grand jury’s power by implying

that jurors could only oppose laws they disagreed with by voting against them. This implication, Caruto claims, disparaged

the grand jury’s power to refuse to indict for any reason. This

argument fails because the court’s additional language did not

say that voting was jurors’ exclusive recourse or alter the

basic message conveyed by the instruction we approved in

Navarro-Vargas. 

[8] Caruto’s second point is premised on the theory that

the court informed the grand jurors that they were part of the

judicial branch, denying them the independence that flows

from operating, as the Constitution contemplates, outside of

any branch of the government. We disagree with Caruto’s

understanding of what the court said. In context, it is clear

that the court did not assign the grand jury to the judicial

branch or any other branch of government. The judge merely

drew an analogy between his own duty, as a member of the

judiciary, to apply Congress’s laws and the grand jury’s duty,

19616 UNITED STATES v. CARUTO
under the concededly constitutional model instruction, not to

question “whether or not there should or should not be a federal law designating certain activity as criminal.”

[9] Neither of the challenged elaborations distinguished the

“wisdom of the laws” instruction given in this case, in any

constitutionally significant sense, from the model instruction

we previously approved. The motion to dismiss the indictment on this ground was properly denied.

C. Probable Cause and the Role of Magistrate Judges

Caruto next contends that an instruction about the role of

magistrate judges in making probable cause determinations

unconstitutionally intruded on the grand jury’s independence.

Caruto argues that the court’s explanation of how and when

magistrate judges might be involved in cases the grand jury

would hear implied that grand jurors could simply defer to a

magistrate judge’s probable cause finding instead of assessing

probable cause independently. The court said:

The cases that you will hear will come from [sic]

you in various ways. Frequently, suspects are

arrested during or shortly after the commission of a

crime and taken before a magistrate judge, who then

holds a preliminary hearing to determine whether

there is probable cause to believe the person has

committed a crime.

If the magistrate judge finds such probable cause,

the accused [sic] will direct that the accused be held

for the action of the grand jury so that you can consider whether there should be an indictment.

Now, in most circumstances you don’t make the

probable cause determination before the magistrate

judge does. In most circumstances the U.S. Attorney

will present a case to the grand jury before the magUNITED STATES v. CARUTO 19617
istrate judge is ever called upon to make a preliminary determination of probable cause.

Under our rules, the person is entitled to a preliminary hearing within 10 days of being arrested. And

frequently, they will agree to some postponement of

that preliminary hearing so that they can read the

reports that are generated in connection with the

investigation of the case.

During that period of 10 days or postponed period

that may be longer, that the U.S. Attorney inevitably

will present the case for your judgment. It is infrequent that the magistrate judge would make a probable cause determination. That is primarily your

function.

[10] It seems apparent that, as sometimes happens in

extemporaneous comments, the district judge’s speech strayed

from what he actually intended. It is not entirely clear what

a listener would understand from this statement, but we conclude that it would not be what Caruto contends. Her argument depends, at best, on a weak inference she draws from

the judge’s words. The court did not explicitly connect a magistrate judge’s probable cause determination—regardless of

when it might occur—to the task of the grand jury, nor suggest that the grand jury’s determination was in any way constrained by what a magistrate judge might find. 

It is evident that this passage was primarily intended to

explain the typical timeline of a criminal case, and where the

grand jury’s work usually fits into the process. The court

explained that cases “[f]requently” go before a magistrate

judge first, because defendants are “entitled to a preliminary

hearing within 10 days of being arrested.” However, “[i]n

most circumstances,” cases are presented to a grand jury “before the magistrate judge is ever called upon to make a pre19618 UNITED STATES v. CARUTO
liminary determination of probable cause,” sometimes due to

postponement of the preliminary hearing. 

[11] This digression may not have been very helpful to the

grand jurors, but we do not believe that it had a negative

impact. The court cured any confusion its explanation might

have caused about whether a magistrate judge or grand jury

typically acts first with its final admonition that making a

probable cause determination was “primarily [the grand

jury’s] function.” A separate instruction also emphasized that

determining probable cause was a duty that the grand jury

should not abdicate. The court said: “As members of the

grand jury, you, in a very real sense, stand between the Government and the person accused of a crime. It is your duty to

see to it that indictments are returned only against those

whom you find probable cause to believe are guilty and to see

to it that the innocent are not compelled to go to trial.” In light

of this explicit direction that evaluating probable cause was

the grand jury’s duty, the discussion of magistrate judges did

not undermine the grand jury’s independent judgment.

Moreover, even if the grand jury might have been misled,

that error would not justify reversal of Caruto’s conviction

now. At this point, the existence of probable cause is not in

doubt, because Caruto was subsequently found guilty by the

petit jury based on proof beyond a reasonable doubt. The

alleged error was not structural error and was rendered harmless by Caruto’s subsequent conviction. See United States v.

Mechanik, 475 U.S. 66, 70 (1986); Navarro, 608 F.3d at 538.

D. The Grand Jury’s Relation to the U.S. Attorney

Caruto’s final objection arises out of another instruction

that she claims limited the grand jury’s constitutionally guaranteed independence. In the course of explaining the very

concept of grand jury independence, the court told jurors: “It

is extremely important for you to realize that under our Constitution, the grand jury is an independent arm of the United

UNITED STATES v. CARUTO 19619
States Attorney. It’s not part of the U.S. Attorney’s Office nor

an agent of the federal law enforcement agency.” Caruto

argues that calling the grand jury “an independent arm of the

United States Attorney” unconstitutionally associated it with

the prosecution.

[12] Context reveals that the phrase Caruto singles out was

simply an inadvertent misstatement, which the court immediately corrected. The very next sentence told jurors that they

were “not part of the U.S. Attorney’s Office.” The court eliminated any confusion that might have arisen with an unequivocal clarification that told grand jurors to

always bear in mind that ultimately you have to

depend on your own independent judgment. Never

become an arm of the United States Attorney’s

Office. It is fine for you to form relationship[s] with

the prosecutors that you’ll see on a regular basis. But

keep in mind that you must be independent of them.

You don’t defer to them in exercising your judgment

as a grand jury. You rather exercise that judgment

independently. The government lawyers are prosecutors, and you are not. You are independent judges of

the facts. If the facts suggest to you that you should

not indict, then you should not do so, even in the

face of opposition or statements by the U.S. Attorney. It is up to you, ultimately, to make that decision.

Far from limiting the grand jury’s independence, the entirety

of the court’s instruction emphatically underscored the grand

jury’s independent role. It did not violate the Fifth Amendment.

III. Request for Grand Jury Voir Dire Materials

In addition to her main arguments about the constitutionality of the grand jury’s instructions, Caruto included two paragraphs in her motion to dismiss the indictment seeking

19620 UNITED STATES v. CARUTO
disclosure of the grand jury voir dire transcripts and an

instructional video that the grand jury watched before it was

charged. Concluding that “the disclosure of voir dire would

invade the secrecy of the grand jury proceedings” and that

Caruto had “not made [a] sufficient showing [of] the need for

disclosure,” the district court denied the request. Caruto challenges that decision.

We review the decision not to release grand jury transcripts

for abuse of discretion. United States v. Plummer, 941 F.2d

799, 806 (9th Cir. 1991); see also Douglas Oil Co. v. Petro

Stops Northwest, 441 U.S. 211, 223 (1979) (“[A] court called

upon to determine whether grand jury transcripts should be

released necessarily is infused with substantial discretion.”).

[13] “Parties seeking grand jury transcripts under Rule 6(e)

must show that the material they seek is needed to avoid a

possible injustice in another judicial proceeding, that the need

for disclosure is greater than the need for continued secrecy,

and that their request is structured to cover only material so

needed.” Douglas Oil, 411 U.S. at 222. In her two-paragraph

argument in support of her request before the district court,

Caruto made none of these three required showings, nor does

she make them in her briefs on appeal. The district court did

not abuse its “substantial” discretion in denying Caruto’s

request.

AFFIRMED.

UNITED STATES v. CARUTO 19621