206 F.3d 882 (9th Cir. 2000), 98-50347, United States v. Camorlinga

Docket Nº:98-50347
Citation:206 F.3d 882
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE LOMBERA-CAMORLINGA, Defendant-Appellant.
Case Date:March 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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206 F.3d 882 (9th Cir. 2000)




No. 98-50347

United States Court of Appeals, Ninth Circuit

March 6, 2000

Argued and Submitted En Banc December 16, 1999

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COUNSEL: Benjamin L. Coleman, Assistant Federal Public Defender, San Diego, California, for the defendant-appellant.

David S. Kris, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

William J. Aceves, California Western School of Law, San Diego, California, for the amicus.

Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, District Judge, Presiding. D.C. No.CR-97-03423-RMB.

Before: Procter Hug, Jr., Chief Judge, James R. Browning, Mary M. Schroeder, Robert Boochever, Alex Kozinski, Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.

Opinion by Judge Schroeder; Dissent by Judge Boochever; Dissent by Judge Thomas


SCHROEDER, Circuit Judge:

Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, provides that law enforcement officials "shall inform" arrested foreign nationals of their right to notification of their consulates. A panel of this court held that Article 36 creates an individual right that is enforceable in the courts of the United States. United States v. Lombera-Camorlinga, 170 F.3d 1241, 1242-43 (9th Cir. 1999) (withdrawn). Reversing the ruling of the district court, the panel further held that a defendant's post-arrest statements made before being advised of this right are inadmissible in a subsequent criminal prosecution, provided the defendant can show prejudice from the lack of notification. Id. at 1243-44.

We voted to accept en banc review of the case to consider whether the suppression of evidence is an appropriate remedy for violation of the Vienna Convention. We now hold that it is not, for there is

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nothing in the language or operation of the treaty provision to suggest Article 36 was intended to create an exclusionary rule with protections similar to those announced by the United States Supreme Court three years later in Miranda v. Arizona, 384 U.S. 436 (1966). In reaching this decision, we give some weight to the State Department's interpretation of the treaty, set forth in a letter originally submitted in conjunction with similar litigation currently pending in the First Circuit, United States v. Nai Fook Li, Nos. 972034, et al. We do not decide whether the treaty creates individual rights that are judicially enforceable in other ways.

The underlying facts are not in dispute. Jose Lombera Camorlinga, a citizen of Mexico, was arrested at the Calexico, California port of entry when 39.3 kilograms of marijuana were found in his vehicle. Before questioning Lombera Camorlinga, officers advised him of his Miranda rights but did not inform him of any rights under the Vienna Convention, nor did they contact the Mexican consular post. Lombera-Camorlinga subsequently made self-incriminating statements.

After his indictment on charges of importation of marijuana and possession of marijuana with intent to distribute, Lombera-Camorlinga moved for suppression of his post-arrest statements on the ground that they were obtained in violation of Article 36 of the Vienna Convention. The district court denied the motion, and Lombera-Camorlinga entered a conditional guilty plea and appealed his subsequent conviction. On appeal, a panel of this court held that the district court erred in denying the motion to suppress without first making a determination of prejudice. Lombera-Camorlinga , 170 F.3d at 1244. In so doing, the panel held that (1) the Vienna Convention creates judicially enforceable individual rights, and (2) suppression may serve as a remedy for the violation of these rights if the foreign national can demonstrate prejudice. Id. at 1242-44. A majority of the active, nonrecused judges of this court voted to rehear the case en banc. Our en banc review was aided by the excellent quality of oral argument on behalf of both the appellee and appellant.

The Vienna Convention is a 79-article, multilateral treaty to which both the United States and Mexico are signatories. It was negotiated in 1963 and ratified by the United States in 1969, thereby becoming the supreme law of the land. See U.S. Const. art. VI, cl. 2. Its provisions cover a number of issues that require consular intervention or notification, including the death of a foreign national, the necessity of appointing a guardian or a trustee for a foreign national who is also a minor, the crash of a foreign airplane or the wreck of a foreign boat, and the arrest or detention of a consular officer. Article 36 deals with what a member state must do when aforeign national is arrested. It provides, in relevant part:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

. . .

(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 or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

The panel held that in addition to creating obligations between nations, Article 36 creates individual rights enforceable in the courts of the United States. The panel looked primarily to the plain language of the provision, which states that the foreign national is to be informed of "his rights"

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under that section. Also lending some support to this view is the fact that the contact with the foreign consulate is required only if the foreign national requests it. Domestic law enforcement authorities thus have no obligation to the foreign consulate unless the foreign national himself triggers one. This implies that the provision exists for the protection of the foreign national.

The Supreme Court has treated the issue of whether the provision creates any judicially enforceable rights as an open question, stating in Breard v. Greene, 118 S.Ct. 1352, 1355 (1998), that the Vienna Convention "arguably" creates individual rights. Our own court has on at least two occasions, in a different but related context, recognized a judicially enforceable right to request consular notification in deportation proceedings. See United States v. Rangel-Gonzalez, 617 F.2d 529 (9th Cir. 1980); United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979). In those cases, however, the Department of Justice had embodied the Vienna Convention provisions in a corresponding INS regulation, 8 C.F.R. S 242.2(e), and we relied on that regulation in reaching our decisions. See Rangel-Gonzalez, 617 F.2d at 530; CalderonMedina, 591 F.2d at 531. We had no occasion to hold that the violation of the treaty alone was sufficient to permit a foreign national to overturn a deportation.

On a general level, the Supreme Court has recognized that treaties can in some circumstances create individually enforceable rights. See United States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1992). The leading example is UnitedStates v. Rauscher, 119 U.S. 407 (1886), holding that through the provisions of an extradition treaty, the requirement of specialty--permitting prosecution only for the crime on which extradition was based--could serve as a defense to an attempted prosecution for another crime. See id. at 420. The Court's reasoning in Rauscher relied on the specific provisions of the particular extradition treaty invoked as a defense. See id. at 418-19. Alvarez-Machain the Court considered the extradition treaty between the United States and Mexico, which establishes an orderly process for transferring individuals from one country to the other for criminal prosecution. The Court held that because the treaty failed to expressly prohibit U.S. law enforcement from circumventing this process and abducting Mexican citizens in order to force them to stand trial in the United States, such conduct could not serve as a defense to jurisdiction. 504 U.S. at 664-70. Whether or not treaty violations can provide the basis for particular claims or defenses thus appears to depend upon the particular treaty and claim involved.

The government argues strenuously that Article 36 creates no judicially enforceable individual rights of any kind, calling our attention to the Vienna Convention's preamble language, which states that the "purpose of [consular ] privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts . . . ." Appellant rejoins that in Calderon-Medina we declined to endorse the same argument, pointing out that the "protection of some interests of aliens as a class is a corollary to consular efficiency." 591 F.2d at 531 n.6. The preamble is therefore not particularly helpful to our analysis.

We need not decide whether to accept the government's argument that Article 36 creates no individually enforceable rights, however. We agree with the government's alternative position that assuming that some judicial remedies are available for the violation of Article 36, the exclusion in a criminal prosecution of evidence obtained as the result of post-arrest interrogation is not among them.

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In arguing that the statements...

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