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U.S. v. ALVARADO-TORRES

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 ...

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