In case where two Mexican nationals were
transporting illegal aliens, Seventh Circuit assumes (without deciding) that
Article 36 of Vienna Consular Convention grants individual rights but
nevertheless declines to keep out inculpatory statements made where authorities
violated Vienna Convention
October
21, 1998, was a bad day for the alien smuggling operation of Juan
Chaparro-Alcantara and Jaime Romero-Bautista. First, their van broke down in
South Jacksonville, Illinois. When the police came, they found out that the 13
passengers were undocumented Mexicans. Finally, the police arrested the two men
for transporting these aliens.
Both
defendants are Mexican nationals permanently residing in the U.S. An officer
informed them of their Miranda rights, but failed to mention their rights under
the Vienna Convention to contact the Mexican consulate [Vienna Convention on
Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S.
261] The two then made inculpatory statements.
Article
36(1)(b) of the Consular Convention provides in part that: “The said
[arresting] authorities shall inform the person concerned without delay of his
[consular notification] rights under this sub-paragraph.”
When
defense counsel got wind of the Immigration and Naturalization Service’s (INS)
plan to deport the passengers, he objected, claiming that some of the
passengers had made statements that contradicted the Government’s version of
the facts. A district court granted a motion to keep the passengers in the U.S.
for a time, but eventually released them for deportation.
The
defendants then moved to suppress their inculpatory statements because U.S.
authorities had not informed them of their Article 36 rights to notify their
consular officials. They also challenged the deportation of the passengers who
may have been material witnesses. From their convictions, defendants appealed
but the U.S. Court of Appeals for the Seventh Circuit affirms.
As
a general rule, international agreements and agreements between the U. S. and
other sovereign nations do not create judicially enforceable individual rights
within the U. S. The courts have acknowledged certain exceptions to that rule,
and have conceded that Article 36 of the Consular Convention “arguably confers
on an individual the right to consular assistance following arrest” (see Breard
v. Greene, 523 U.S. 371, 376 (1998) (per curiam)).
Like
the Ninth Circuit in Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (see
2000 International Law Update 63), the Court does not squarely decide this
issue. In this case, the Court deems it enough to assume that the Convention
does create such an individual right and directly to confront whether an
exclusionary rule would be an appropriate sanction for a violation of that
right.
In
the Court’s view, there is no exclusionary rule generally applicable to
evidence obtained in violation of international law. The precedents sometimes
develop an exclusionary rule to enforce a Constitutional right [e.g., against
unreasonable searches and seizures] or where a statute itself requires
exclusion.
Nothing
in the Consular Convention requires the suppression of incriminating statements
made after the police fail to carry out Article 36. Nor does it appear that the
drafters of the Convention considered a suppression remedy. The Court therefore
concludes that:
“We
cannot attach the judicially created remedy of suppression to the Vienna
Convention without some explicit support from the treaty itself. Only the
legislature can require that the exclusionary rule be applied to protect a
statutory or treaty-based right.”
“In
concluding that suppression is not an available remedy under Article 36 of the
Vienna Convention, we note our agreement with our colleagues in the Ninth ...
and the Eleventh Circuit ... We also note that to impose judicially such a
drastic remedy, not imposed by any other signatory to this convention, would
promote disharmony in the interpretation of an international agreement. ...
Although we hold that the exclusionary rule is not appropriate for a violation
of Article 36, we emphasize that compliance with Article 36 is an important
responsibility.” [Slip op. 13-14]
The
Court also spurns defendants’ argument that the Government had improperly
deported material witnesses. “The responsibility of the Executive Branch
faithfully to execute the immigration policy adopted by Congress justifies the
prompt deportation of illegal-alien witnesses upon the Executive’s good-faith
determination that they possess no evidence favorable to the defendant in a criminal
prosecution. The mere fact that the Government deports such witnesses is not
sufficient to establish a violation of the Compulsory Process Clause of the
Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation
of these provisions requires some showing that the evidence lost would be both
material and favorable to the defense.” [Slip op. 20-21]
In
this case, defense counsel had interviewed almost all of the potential
witnesses. Moreover, the INS had returned the passengers to Mexico only after
the district court had specifically found them not to be material witnesses.
Citation: U.S. v. Chaparro-Alcantara, No. 99-2721 & 99-2874
(7th Cir. August 21, 2000).
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