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


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).
 


Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.

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