The opinion of the court was delivered by: Rhoades, District Judge.
AMENDED ORDER DENYING MOTIONS TO SUPPRESS STATEMENTS AND DISMISS
INDICTMENT FOR VIOLATIONS OF THE VIENNA CONVENTION
This matter is before the Court on Defendant's motions (1) to
suppress her statements and (2) to dismiss the indictment,
because she was not informed of her rights under the Vienna
Convention on Consular Relations. For the reasons explained in
this order, the motions are DENIED.
On October 24, 1998, Maria Alvarado Torres ("Defendant") drove
a 1980 Dodge Diplomat from Mexico to the Calexico Port of Entry.
At primary inspection, a narcotic detector dog alerted agents to
Defendant's car. Defendant was referred to secondary inspection.
At secondary inspection, Defendant gave a negative customs
declaration to Customs Inspector Alfred Garcia. In his initial
inspection of the vehicle, Inspector Garcia noticed packages in
the dashboard and rear quarter panels. Further inspection of the
vehicle revealed 130.3 pounds of a green, leafy substance which
field-tested positive for marijuana.
Agents thereafter placed Defendant under arrest and informed
her, in Spanish, of her Miranda rights. She agreed to waive those
rights and speak with the agents. At no time, however, did agents
ask Defendant whether she wished for them to notify the Mexican
Consulate of her arrest. Thereafter, upon being questioned,
Defendant proceeded to make some incriminating and inconsistent
statements. When confronted with those inconsistencies, Defendant
invoked her right to an attorney and the questioning ceased. On
November 18, 1998, a federal grand jury returned a two count
indictment against Defendant, charging her with one count of
importing marijuana in violation of 21 U.S.C. § 952 and 960, and
one count of possession with intent to distribute in violation of
21 U.S.C. § 841(a)(1).
On December 28, 1998, Defendant filed a motion to suppress her
post-arrest statements, contending that her interrogation was
involuntary and that it violated her rights under Miranda. After
holding a hearing, the Court denied the motion on February 22,
1999, finding that Defendant voluntarily made the statements and
that she had knowingly waived her Miranda rights before speaking
Defendant has since filed an additional motion to suppress, as
well as a motion to dismiss the indictment, contending that the
interrogation violated her rights under the Vienna Convention on
Consular Relations ("Vienna Convention" or "Convention"). To
support these motions, Defendant has filed an affidavit alleging
that had agents advised her of her right to contact the Mexican
Consul, she would have availed herself of that right. (See
Alvarado-Torres Decl. ¶ 3.) Furthermore, she alleges that had
the consular officials advised her not to answer questions, that
she would have indeed invoked her right to remain silent and
would not have answered the agents' questions. (See id. ¶ 4.)
To further support her motions, Defendant has submitted a
declaration from the Consul General of the Mexican Consulate in
San Diego, executed on April 30, 1998, in which he alleges that
when such defendants contact his office, consulate officials
them to remain silent. (See Herrera-Lasso Decl. ¶ 7).*fn2
Defendant has also submitted a similar declaration by the Consul
of the Mexican Consulate in Calexico, California, in which the
Consul specifically states that had Defendant contacted her
office, a consulate representative would have assisted her at
once and "instructed her not to submit to interrogation." (See
Torregrosa Decl. ¶ 6.)
In her motions, Defendant thus argues that her right to be
informed of her right to contact the consul is analogous to her
Miranda right to be informed of her right to contact an attorney.
Therefore, Defendant argues that just as a violation of Miranda
requires the Court to suppress her statements, so too does a
violation of the Vienna Convention. Similarly, Defendant argues
that these errors require dismissal of the indictment.
A. Article 36 of the Vienna Convention.
The United Nations adopted the Vienna Convention in April 1963,
and the United States later ratified the Convention in 1969.*fn3
See Vienna Convention on Consular Relations, April 24, 1963, 21
U.S.T. 77, T.I.A.S. No. 6820 (hereinafter Convention). In
adopting such an agreement, the Convention's ratifiers recognized
that "an international convention on consular relations,
privileges and immunities would . . . contribute to the
development of friendly relations among nations, irrespective of
their differing constitutional and social systems." Id., pmbl.
Thus, with this goal in mind, the Convention provides rules
governing the establishment of consular relations, defining a
consulate's functions in a receiving nation. Id., arts. 2-5.
In the present case, the Court's inquiry concerns Article 36 of
the Convention. That particular article provides:
1. With a view to facilitating the exercise
of consular functions relating to nationals
of the sending State:
(a) consular officers shall be free to
communicate with nationals of the sending
State and to ...