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U.S. v. ALVARADO-TORRES

United States District Court, Southern District of California


April 19, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARIA ALVARADO-TORRES, DEFENDANT.

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

I. Overview.

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.

II. Background.*fn1

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 with agents.

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 advise 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.

III. Discussion.

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 have access to them . . .;

    (b) if he so requests, the competent
  authorities of the receiving State shall,
  without delay, inform the consular post
  of the sending State if, within its consular
  district, a national of that State is
  arrested. . . . The said authorities shall
  inform the person concerned without delay
  of his rights under this sub-paragraph;

    (c) consular officers shall have the
  right to visit a national of the sending
  State who is in prison, custody or detention,
  to converse and correspond with
  him and to arrange for his legal representation. . . .

Convention, art. 36. Thus, Article 36 "requires an arresting government to notify a foreign national who has been arrested . . . of his right to contact his consul." Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996).*fn4 The Ninth Circuit has recently determined that Article 36 creates individual rights which an aggrieved foreign national has standing to enforce. See U.S. v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999). Thus, should the United States fail to inform a foreign national of his rights under Article 36, that national has standing to enforce those rights in federal court.*fn5 See id. Moreover, in so holding, the Ninth Circuit suggested that an arrested national could properly enforce these rights by moving, pretrial, to suppress statements made to his arresting officers on the grounds that he was not first advised of his right to contact the consul for assistance. See id. at 1242 (noting that "[b]y raising his claim, in a pretrial suppression motion, the appellant exercised his rights under the Convention in conformity with our laws").

In so holding, however, the court did not find failure to inform a national of his Article 36 rights to be tantamount to fatal error, requiring that his statements be automatically suppressed.*fn6 Rather, to be entitled to any sort of relief, the court emphasized that the national must first show that agents' failure to inform him of his right to contact the consul caused him prejudice. In articulating such a rule, the court stated:

Upon a showing that the Vienna Convention was violated by a failure to inform the alien of his right to contact his consulate, the defendant in a criminal proceeding has the initial burden of producing evidence showing prejudice from the violation of the Convention, If the defendant meets that burden, it is up to the government to rebut the showing of prejudice. Id.

Thus, in the present case, the agents' failure to inform Defendant of her right to contact the consul does not automatically require that her statements be suppressed. Rather, as explained, Defendant must demonstrate that she has suffered some kind of cognizable prejudice.

  B. Agents' Failure to Inform Defendant of Her Right to Contact
     the Consul Did Not Prejudice Her.

In considering what exactly constitutes "prejudice," the Court looks to the Ninth Circuit's decision in United States v. Villa-Fabela for guidance. 882 F.2d 434, 440 (9th Cir. 1989), overruled on other grounds by United States v. Proa-Tovar, 975 F.2d 592, 594-95 (9th Cir. 1992) (en banc). In Villa-Fabela, a foreign national challenged his conviction for illegal reentry after deportation, arguing that the Immigration and Naturalization Service failed to inform him of his right to contact the consulate for assistance during his prior deportation hearing. In articulating the degree of prejudice the alien needed to show, the Ninth Circuit stated: "To establish prejudice, the defendant must produce evidence that 1) he did not know of his right; 2) he would have availed himself of the right had he known of it; and 3) there was a likelihood that the contact [with the consul] would have resulted in assistance to him. . . ." Id. (internal quotation marks and citation omitted).

Applying these factors to the present case, the Court concludes that Defendant has failed to demonstrate prejudice from the agents' failure to advise her of her right to contact the consul.

  1. Defendant was fully informed of her Miranda rights, which
     she waived.

While agents may not have informed Defendant of her rights under the Vienna Convention, they did inform Defendant of her Miranda rights, which she subsequently waived. Therefore, the consular official's advisal of virtually the same rights — the right to remain silent and the right to contact an attorney — would have been cumulative.*fn7 Cf. Faulder v. Johnson, 81 F.3d at 520 (Canadian government's failure to obtain case-related information for an arrested foreign national, as required by the Convention, did not require reversal since the information was the same as that which defense counsel could have obtained). Moreover, the fact that Defendant invoked her right to remain silent once she suspected that she was making incriminating statements strongly suggests that she fully understood the scope of those Miranda rights. Thus, because agents informed Defendant of her Miranda rights, which she fully understood, Defendant cannot establish prejudice on the grounds that the consul did not readvise her of virtually the same rights.*fn8

Moreover, the Ninth Circuit has instructed that a defendant cannot establish prejudice from an officer's failure to notify another if the defendant understood, and voluntarily waived, his Miranda rights. In Harris v. Wright, 93 F.3d 581, 586 (9th Cir. 1996), the defendant sought to suppress statements made to officers after he had been arrested, arguing that the officers had intentionally failed to notify his parents of his arrest. The court, however, rejected defendant's argument that this failure to notify violated due process, noting that "an interrogation can have no effect on a person's liberty without his consent." Id. Thus, because the defendant voluntarily waived his Miranda rights and chose to speak with officers, the court refused to suppress his statements because of the failure to notify his parents of his arrest.

Similarly, in the present case, Defendant cannot establish prejudice from the agents' failure to inform the consul of her arrest. As stated, agents fully informed Defendant of her Miranda rights, which she voluntarily waived. Thus, because she was fully informed of her rights, she cannot establish prejudice from the agents' failure to contact the Mexican Consulate on her behalf.

  2. The Convention did not require agents to delay their
     interrogation before notifying the consulate.

In claiming prejudice, Defendant does not merely allege that she was not informed of her Miranda rights; rather, Defendant contends that she was prejudiced because the Mexican Consulate did not assist her in deciding whether she should exercise those rights. However, Defendant cannot claim prejudice because of the Mexican Consulate's failure to assist her.

First, the Convention does not confer upon foreign nationals the right to speak with a consular representative before agents begin interrogation. Rather, the Convention merely states that agents must notify a national "without delay" of his right to contact the consul. Convention, art. 36. Interpreting this time restriction, the State Department instructs that "without delay" means that "notification should occur as soon as reasonably possible under the circumstances." See U.S. Department of State, Consular Notification and Access, at 20.*fn9 Thus, the State Department indicates that officials comply with this requirement by notifying a foreign national of his right to contact the consul before he is booked for detention. See id.

Furthermore, even if the foreign national requests to contact the consul after being arrested, the Convention does not require that officers delay their interrogation until they have done so. Again, the State Department indicates that officers must contact the consul "as soon as reasonably possible under the circumstances," indicating that officers would comply with, the Convention by contacting the consulate within 24 hours, or even as late as 72 hours, of the foreign national's request. See id. Furthermore, the State Department notes that the Convention does not require that the consul be notified outside of its regular working hours. See id. Thus, nothing in the Convention requires officers to delay an interrogation even if a foreign national requests that officers notify the consul of his arrest.*fn10

In the present case, agents placed Defendant in custody on a Saturday evening after arresting her on drug-smuggling charges, and at that time, the Mexican Consulate was closed for the weekend. (See Gomez Decl. ¶ 2.)*fn11 Thus, even had Defendant requested that the agents contact the consul after being arrested, the agents would have fully complied with the Convention by continuing with their interrogation and contacting the consul the following Monday. Thus, Defendant cannot establish that she was prejudiced by the agents' failure to inform her of her right to contact the consul.

  3. Even had the agents delayed their interrogation until a
     consular representative arrived, that representative
     could not have rendered legal advice.

As stated, although she knowingly waived her Miranda rights after being informed of them, Defendant contends that she was prejudiced because the Mexican Consulate did not assist her in determining whether she should exercise those rights.*fn12 However, even assuming that a consular representative had appeared to assist Defendant, that representative could not have given Defendant any legal assistance. As stated, Article 36 gives consular officials the right to have access to a detained national and "arrange for his legal representation." Convention, art. 36(1)(c) (emphasis added). Thus, by its express terms, the Convention does not authorize consular officials to render any kind of legal assistance. The State Department makes this point even more clear in its booklet, answering "frequently asked questions" regarding the Convention:

  Q. How is a consular officer different
  from legal "counsel?"

  A. The term "consul" should not be
  confused with "counsel," which means an
  attorney-at-law authorized to provide legal
  counsel and advice.

Consular Notification and Access, at 17. In another portion of its guidelines, the State Department further emphasizes this distinction, stating that under the Convention "consular officers may not act as attorneys for their nationals." Id. at 15. Thus, because the Convention bars consular representatives from rendering any kind of legal assistance, Defendant cannot claim prejudice on the grounds that the Mexican Consulate did not assist her in determining whether to waive her Miranda rights.

Even assuming that a consular representative had attempted to render legal advice, such actions would clearly violate the terms of the Convention. Article 36 expressly states that a consular representative must exercise his rights under the Convention "in conformity with the. laws and regulations of the receiving State." Convention, art. 36(2). While the term "receiving State" clearly refers to the United States, the Court notes that in California, like all other states in the Union, a person must be licensed to practice law. See Cal.Bus. & Prof. Code §§ 6060 et seq. (West 1990). Furthermore, as the State Department's guidelines confirm, "[c]onsular officers are not entitled to practice law in the United States." Consular Notification and Access, at 22. Thus, because consular representatives are not licensed to practice law in California, their rendering legal assistance would violate California state law, as well as the Convention.

Of course, Defendant will likely claim prejudice by the fact that a consular representative could have assisted her in obtaining counsel, and that that person could have advised her "to remain silent. However, as stated previously, the Convention does not require agents to delay their interrogation until the consulate has been notified and has sent a representative to render assistance. Following this reasoning, the Convention cannot possibly require that agents delay their interrogation until: (1) they contact the consul; (2) the consulate representative arrives; (3) the consulate representative recommends and contacts an attorney; and (4) that recommended attorney arrives to render assistance.

In sum, Defendant has not demonstrated that she was prejudiced by the agents' failure to inform her of her right to contact the consul. Rather, in attempting to satisfy her burden, Defendant has relied upon a chain of faulty and insupportable premises. As stated, agents adequately informed Defendant of her Miranda rights, which she waived. Moreover, even assuming that the Miranda advisal was not sufficient to convey her rights, the Convention did not require agents to delay their questioning until a representative from the consulate arrived. Furthermore, even assuming that the Convention did require the agents to delay their interrogation, a consular representative could not have rendered any legal assistance to Defendant. Thus, Defendant has not demonstrated that the agents' failure to inform her of her Article 36 rights caused her any prejudice.

  C. Suppression of Defendant's Statements is not the Appropriate
     Remedy.

Even assuming that Defendant were able to establish prejudice, this Court does not believe that suppression of her
statements would be the appropriate remedy. Courts have long recognized that the exclusionary rule was created to redress violations of an individual's Constitutional rights — specifically, those rights guaranteed by the Fourth, Fifth, and Sixth Amendments. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (Sixth Amendment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (Fourth Amendment); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897) (Fifth Amendment). Furthermore, an officer's violation of a statute generally does not require suppression, unless the statute expressly provides for such a remedy. See United States v. Chaparro-Alcantara, 37 F. Supp.2d 1122 (C.D.Ill. 1999).

In the present case, the Vienna Convention does not create any fundamental, Constitutional rights. See Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.) (emphasizing that while the Convention might create individual rights, "it certainly does not create constitutional rights") (emphasis in original), cert. denied, 521 U.S. 1144, 118 S.Ct. 26, 138 L.Ed.2d 1050 (1997); Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993) (finding that the right to communicate with consular officials, enumerated in the Convention, did not create any fundamental Constitutional right); United States v. Esparza-Ponce, 7 F. Supp.2d 1084, 1097 (S.D.Cal. 1998) (holding that a violation of the Convention does not rise to the level of a Miranda violation). As a result, if the remedy of suppression is to be available, the Convention must expressly provide for that remedy. After reviewing its Articles, however, this Court finds nothing in the Convention's text that suggests that the Court should apply the exclusionary rule to remedy a violation. See also Chaparro-Alcantara, 37 F. Supp.2d 1122, 1124.

Furthermore, policy considerations also militate against applying the exclusionary rule as a remedy. As the Supreme Court has recognized, "the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence." Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (citations omitted). Given this fact, such a drastic remedy should only be employed to protect fundamental Constitutional values. As another court aptly noted in refusing to suppress statements for Vienna Convention violations:

    The exclusionary rule is designed to
  protect core constitutional values; it
  should only be employed when those
  values are implicated. A convention or
  treaty signed by the United States does
  not alter or add to our Constitution.
  Such international agreements are important
  and are entitled to enforcement,
  as written, but they are not the bedrock
  and foundation of our essential liberties
  and accordingly should not be cloaked
  with the "nontextual and unprecedented
  remedy" that protects those liberties.

United States v. $69,530.00 in U.S. Currency, 22 F. Supp.2d 593, 595 (W.D.Tex. 1998) (footnote omitted). This Court agrees and further emphasizes that it is unaware of any court that has suppressed statements for violations of the Convention. Thus, because the Convention does not implicate fundamental Constitutional rights, nor does it expressly provide for the remedy of suppression, this Court holds that suppression is not an appropriate remedy for its violation.*fn13

D. Dismissal of the Indictment is not an Appropriate Remedy.

In addition to seeking to suppress her statements, Defendant alternatively moves to dismiss the indictment. In proffering such an argument, Defendant relies upon two prior decisions of the Ninth Circuit — United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979), and United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980) — in which the Ninth Circuit stated that a foreign national could seek to dismiss an indictment for illegal reentry if he could establish prejudice from not being advised of his right to contact his consul at the prior deportation hearing.

In light of this precedent, the Court denies Defendant's motion to dismiss the indictment. First, as discussed previously, Defendant has failed to establish prejudice from the agents' failure to inform her of her right to contact the consul. Second, the Ninth Circuit decisions upon which Defendant relies are inapposite to the present case. In those prior Ninth Circuit decisions, the defendants were charged with illegal reentry, a crime which requires that there be a valid, prior deportation. See 8 U.S.C. § 1326. Thus, by claiming prejudice from agents' failure to inform them of their right to contact the consul for assistance, defendants could establish that there was not a valid, prior deportation and effectively nullify a required element of the offense.

In the present case, however, Defendant is charged — not with illegal reentry — but with importation of marijuana and possession with intent to distribute. Unlike a charge of illegal reentry, agents' failure to advise Defendant of her right to contact the consul cannot possibly "nullify" an element of the crimes charged. Furthermore, outside of the context of illegal reentry, this Court is not aware of any decision in which the Ninth Circuit has suggested that dismissal of the indictment would provide an appropriate remedy for a violation of the Vienna Convention. Accordingly, the Court denies Defendant's motion.

IV. Conclusion.

For the reasons stated, the Court DENIES Defendant's motions to suppress and to dismiss the indictment for violations of the Vienna Convention.

IT IS SO ORDERED:


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