The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
Defendant moves to dismiss the indictment or remand for re-arraignment on three different grounds. Doc #13. For the reasons that follow, the motion is DENIED.
I. As the pending motion is directed entirely to the indictment, it is helpful to rescribe the indictment in full:
On or about June 15, 2001, the defendant JORGE TAPIA-PAZ an alien, was arrested and deported from the United States to Mexico, and thereafter, having voluntarily returned or remained in the United States subsequent to June 15, 2001, the defendant was found in the Northern District of California on or about May 26, 2004, the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a reapplication by the defendant for admission into the United States, in violation of Title 8, United States Code, Section 1326.
Indictment (Doc #7). This indictment was returned by a grand jury that had been charged that it "cannot judge the wisdom of the criminal laws that have been enacted by Congress; that is, whether or not there should have been a federal law designating certain activity as criminal." Charging Tr (Doc #13 Ex C) at 4:8-11. The grand jury was further told that it could "expect candor, honesty and good faith in matters presented by the government lawyers." Id at 12:7-8.
At arraignment, defendant was informed not only of this charge of unauthorized re-entry after deportation, but also that he would be subject to a twenty-year statutory maximum term of imprisonment due to his alleged prior commission of an aggravated felony.
II. Defendant advances three arguments to dismiss the indictment or remand for re-arraignment. First, he contends that the grand jury charge violated the Fifth Amendment because the instructions "impermissibly limited the ability of the grand jury to consider the wisdom of the laws presented to them" and "the instructions improperly -- and unilaterally -- endorsed the credibility of the prosecutors present[ing] the evidence before the grand jury." Def Mot (Doc #13) at 3:27-4:2. Second, defendant maintains that "[b]ecause the government has not alleged the enhancement fact of a prior aggravated felony in the indictment, the statutory maximum sentence for the offense of illegal re-entry -- instead of the twenty years represented by the government and stated [at arraignment]." Id at 10:2-5. Third, defendant argues that the indictment is flawed because "the enhancement fact of a prior deportation was not adjudicated before a jury." Id at 7:8-9. The court takes these arguments in turn.
The first of defendant's arguments based on the grand jury charge -- that the charge "impermissibly limited the ability of the grand jury to consider the wisdom of the laws presented to them" -- is squarely foreclosed by the Ninth Circuit's en banc decision in United States v Navarro-Vargas, --- F3d ----, 2005 WL 1206632 (9th Cir 2005) (en banc). Defendant acknowledges this. See Def Reply (Doc #16) at 5. Accordingly the court rejects this argument.
Defendant's second argument based on the grand jury charge -- that the court improperly biased the grand jurors by telling them they could "expect candor, honesty, and good faith in matters presented by the government lawyers," Charging Tr (Doc #13 Ex C) at 12:7-8 -- is unaffected by Navarro-Vargas. But defendant takes this phrase out of context. A larger excerpt of the charge reveals this language:
If past experience is any indication of what to expect in the future, then you can expect candor, honesty and good faith in matters presented by the government lawyers; however, ultimately, you must decide of your own independent judgment, never becoming an arm of the United States Attorney. The government lawyers are prosecutors. You are not prosecutors. If the facts suggest that you should not indict, you should not do so, even in the face of opposition by the United States Attorney or one of his assistants.
Charging Tr (Doc #13 Ex C) at 12:6-14. The context makes clear that the phrase defendant singles out is calculated to put newly empaneled grand jurors at ease, while the overall message is an exhortation to the grand jury to exercise its independent judgment without regard for the prosecutor's authority or urging. Accordingly, the court rejects ...