UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4901
HAN ZHANG, a/k/a Hang Li,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-99-358)
Submitted: May 31, 2000
Decided: July 11, 2000
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Declan C. Leonard, MARTIN, ARIF, PETROVICH & WALSH,
Springfield, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Charles S. Greene, III, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Han Zhang appeals from his conviction for using a counterfeited
and altered passport in violation of 18 U.S.C.A.§ 1543 (West Supp.
2000). On appeal, he challenges the district court's denial of his
motion to suppress his statements or dismiss the indictment based on
(1) the failure of the officials to inform him of his rights under 18
U.S.C. § 3501 (1994), or Miranda,* (2) the delay by the officials in
informing the Chinese Embassy of his arrest or informing him of his
rights under the Vienna Convention on Consular Relations, and (3)
the district court's decision to allow, during the suppression hearing,
the testimony from Inspector Liao in violation of the rule on wit-
nesses. We affirm.
Zhang arrived at the Washington Dulles International Airport as a
passenger on a Korean Airways flight. He presented himself for pri-
mary inspection as a lawful permanent resident. After reviewing the
documents presented by Zhang and having suspicions, the immigra-
tion inspector performed a computer check on Zhang's passport and
referred him to the secondary inspection area.
Zhang was not advised that he could remain silent, nor was he
informed that any statement made could be used against him. He also
was not informed that he could request the assistance of an attorney.
After repeated questioning, Zhang informed the officials of his name
and date of birth.
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*Miranda v. Arizona, 384 U.S. 436 (1966). While this appeal was
pending, the Supreme Court ruled that Miranda , rather than § 3501, sets
forth the proper standard for determining whether a confession by a per-
son in custody is voluntary. See Dickerson v. United States, ___ U.S.
___, 2000 WL 807223 (U.S. June 26, 2000) (No. 99-5525).
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We find that under the circumstances of this border inspection,
Zhang's referral to secondary inspection for further questioning did
not amount to custody such that his statements made without the ben-
efit of a recitation of his rights should have been suppressed. See
United States v. Moya, 74 F.3d 1117, 1119-20 (11th Cir. 1996) (rec-
ognizing strong governmental interest in patrolling national borders
and finding "events which might be enough often to signal `custody'
away from the border will not be enough to establish`custody' in the
context of entry into the country."); United States v. Silva, 715 F.2d
43, 47 (2d Cir. 1983) ("[A]lthough there was a detention of appellant
with attendant questioning by immigration and customs officials, the
circumstances surrounding the inquiry (namely, a border detention)
and the routine questions asked of Silva did not require the giving of
Miranda warnings.").
Moreover, the questioning of Zhang did not amount to"interroga-
tion." Routine questions attendant to legitimate police procedures do
not require Miranda warnings. See Pennsylvania v. Muniz, 496 U.S.
582, 601 (1990); United States v. Morrow, 731 F.2d 233, 237 (4th
Cir. 1984) (holding that Miranda warning not required for taking of
basic biographical information such as name, age, etc.); Silva, 715
F.2d at 47 (stating that routine custom detentions and interrogations
by customs agents have been held to not require Miranda warnings).
Eliciting routine information, such as that elicited from Zhang during
the secondary inspection is generally not interrogation under
Miranda, even if the information turns out to be incriminating. See
United States v. McLaughlin, 777 F.2d 388, 391-92 (8th Cir. 1985).
Accordingly, we find that Zhang's detention at the border and the
routine questions asked of him did not amount to custodial interroga-
tion to the extent as would require Miranda warnings. Therefore, the
district court properly denied Zhang's motion to suppress Zhang's
admissions as to his name and date of birth made while being ques-
tioned in the secondary inspection area.
Zhang also contends that the district court erred in denying his
motion to dismiss for the government's failure to timely inform him
of his rights or to notify the Chinese Embassy of his arrest as required
by the Vienna Convention on Consular Relations. The Vienna Con-
vention on Consular Relations requires that a foreign national who
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has been arrested, imprisoned, or taken into custody be notified by the
arresting government of his right to contact his local embassy. Zhang,
a citizen of China, was arrested on September 11, 1999. The Embassy
of China was not notified of his arrest until November 9, 1999. The
district court found that there was an insufficient showing of prejudice
to warrant dismissal.
Rights created by international treaties do not create rights equiva-
lent to constitutional rights. See Murphy v. Netherland, 116 F.3d 97,
100 (4th Cir. 1997) (habeas corpus proceeding). Zhang therefore must
establish prejudice to prevail. See United States v. Lombera-
Camorlinga, 170 F.3d 1241, 1244 (9th Cir. 1999) ("[T]he defendant
in a criminal proceeding has the initial burden of producing evidence
showing prejudice from the violation of the Convention."); cf. Breard
v. Greene, 523 U.S. 371, 377 (1998) (habeas corpus proceeding
where Court examined whether violation had an effect on the trial);
United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.) (direct criminal
appeal in which court noted that defendant did not indicate how con-
sul could have assisted in his defense or that any rights were infringed
by failure to notify the consul), cert. denied , 120 S. Ct. 206 (1999);
Waldron v. INS, 17 F.3d 511, 518-19 (2d Cir. 1993) (deportation pro-
ceeding in which court noted that defendant did not claim or demon-
strate prejudice from INS's failure to inform of privilege to
communicate with the consul).
Zhang does not dispute that the Chinese Embassy was notified of
his arrest and that Chinese officials had taken no action to contact him
or otherwise aid him. Zhang has not demonstrated how assistance
from the Chinese Consulate would have affected the outcome of his
trial. We reject Zhang's contention that prejudice should be presumed
from a violation of the treaty, see Lombera-Camorlinga, 170 F.3d at
1244 n.3, and affirm the district court's denial of Zhang's motion to
dismiss on this claim.
Zhang's final claim is that the district court erred in admitting, dur-
ing the suppression hearing, the testimony of Inspector Liao in viola-
tion of the rule on witnesses pursuant to Fed. R. Evid. 615. Based on
an agreement between counsel, Inspector Liao was not going to tes-
tify, so he remained in the courtroom. During the hearing it was dis-
covered that there was a misunderstanding between counsel, and it
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became necessary for Liao to testify. Liao testified as to the state-
ments that Zhang sought to suppress.
The court stated that Liao's presence in the courtroom in violation
of the rule on witnesses would be considered in determining the
weight to be afforded Liao's testimony. See United States v. Walker,
613 F.2d 1349, 1355 n.11 (5th Cir. 1980) (holding that witness' viola-
tion of rule may affect weight of testimony). Liao's presence in the
courtroom in violation of the rule was not intentional; it was due to
the belief that he would not be called to testify. See United States v.
Cropp, 127 F.3d 354, 363 (4th Cir. 1997) (upholding exclusion for
wilful violation of rule). Also, the testimony was presented during a
suppression hearing, rather than during a trial before a jury. See
United States v. Raddatz, 447 U.S. 667, 679 (1980) (acknowledging
relaxed evidentiary rules during suppression hearing); United States
v. Matlock, 415 U.S. 164, 172-74 (1974) (same). In light of these
facts, we find no abuse of discretion in the district court's decision to
allow Liao's testimony at the suppression hearing. See United States
v. Marson, 408 F.2d 644, 650 (4th Cir. 1968) (providing standard).
Accordingly, we affirm Zhang's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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