UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11300
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO JIMENEZ-NAVA,
Defendant-Appellant,
Appeal from the United States District Court for the
Northern District of Texas
February 26, 2001
Before JOLLY, JONES, and SMITH, Circuit Judges
EDITH H. JONES, Circuit Judge:
Alejandro Jimenez-Nava (“Jimenez-Nava”) appeals from his
conviction for possession of counterfeit immigration-related
documents in violation of 18 U.S.C. § 1546(a). He entered a
conditional plea of guilty, reserving the right to appeal the
district court’s denial of his pretrial motion to suppress. He now
argues that the Vienna Convention on Consular relations (“Vienna
Convention”), April 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No.
6820, bestows on foreign nationals individual rights, that his
rights were violated, and that exclusion of his incriminating
statements to immigration agents is the appropriate remedy. We
disagree and affirm his conviction.
I. BACKGROUND1
On March 7, 1999, Immigration and Naturalization Service
(“INS”) agents, suspecting that Jimenez-Nava was involved in making
fraudulent immigration documents, went to his apartment and
introduced themselves. After one agent asked Jimenez-Nava, in
Spanish, about his immigration status, Jimenez-Nava admitted that
he was an illegal alien from Mexico. The agent ascertained that
Jimenez-Nava had no immigration documents, placed him under arrest
and read him his Miranda rights in Spanish. Jimenez-Nava did not
invoke Miranda rights and consented to a search of his apartment.
During the search, Jimenez-Nava was given his Miranda
warnings a second time and advised that he could tell the agents to
stop at any time. Jimenez-Nava allegedly told the agents that he
would show them where the fraudulent documents were made. At the
end of the search, Jimenez-Nava signed a consent-to-search form and
was transported to INS to be processed. Jimenez-Nava later stated
at the suppression hearing that he had not wanted to sign this
form.
At INS, Jimenez-Nava was processed by a different agent
who spent twenty to twenty-five minutes with him. Jimenez-Nava was
1
This recitation of facts derives from the suppression hearing.
-2-
given a standard INS notice of rights form written in Spanish that
advised him of his right to legal representation and right to
communicate with a consular officer of his country. Jimenez-Nava’s
initials appear on this notice of rights, next to a box that he
checked, admitting that he was in the United States illegally and
that he waived his right to a hearing before a judge. His
signature also appears on a standard INS processing form.
Subsequently, one of the agents who arrested Jimenez-Nava
returned to the INS and asked Jimenez-Nava to take him to a
document lab. Jimenez-Nava showed them to an apartment and orally
agreed to a search of it. Jimenez-Nava now denies that he gave
consent.
After this search, the agents returned with Jimenez-Nava
to the INS office, continued to question him, and once again gave
him his Miranda rights. An agent then wrote Jimenez-Nava’s
statement: he was from Hidalgo, Mexico and admitted he was not a
United States citizen; he discussed how he entered this country and
his plans to work for a man named Miguel Hernandez by selling false
immigration and social security cards. At some point, Jimenez-Nava
refused to answer further questions and ended the interview.
Jimenez-Nava testified at the suppression hearing that he
was shown the form informing him that he could speak to a consular
officer after he was asked questions about Hernandez and the
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selling of fraudulent documents. During cross-examination,
Jimenez-Nava testified that after each of three Miranda warnings,
he declined to request a lawyer. He admitted that he knew, from
the form, that he could have access to a Mexican consular official,
but he did not want one. However, he also testified that he did
not know the function of consular officers and that he did not want
to speak to the consular officer because the agents were treating
him like an immigrant and he was not concerned about being
deported. He stated that he would have wanted to contact a
consular official had he known that he had a right to speak to one
about the document fraud investigation.
The suppression hearing was convened because, after his
indictment, Jimenez-Nava contended that he was prejudiced by a
violation of his treaty rights under the Vienna Convention. He
requested suppression of his statements to the INS agents and the
evidence taken from the search at the second apartment. The
district court denied relief, ruling both that the treaty does not
require suppression and that Jimenez-Nava consented to the
apartment search. Jimenez-Nava entered a conditional guilty plea.
He was sentenced to a twenty-four month term of imprisonment and
three years’ supervised release. Jimenez-Nava has timely appealed
the court’s application of the Vienna Convention.
-4-
II. DISCUSSION
This court reviews a district court’s interpretation of
a treaty de novo. Kreimerman v. Casa Veerkamp, 22 F.3d 634, 639
(5th Cir. 1994).
The Vienna Convention is a 79-article, multilateral
treaty negotiated in 1963 and ratified by the United States in
1969. See United States v. Lombera-Camorlinga, 206 F.3d 882, 884
(9th Cir. 2000). Mexico is a signatory nation. The treaty governs
“the establishment of consular relations, [and] defin[es] a
consulate’s functions in a receiving nation.” United States v.
Alvarado-Torres, 45 F. Supp.2d 986, 988 (S.D. Cal. 1999). Jimenez-
Nava asserts that Article 36 of the treaty bestows a private,
judicially-enforceable right on foreign nationals to consult with
consular officials. He argues that because this right was
violated, his post-arrest statements and tangible evidence should
have been suppressed. These are issues of first impression for
this circuit. See Flores v. Johnson, 210 F.3d 456, (5th Cir.
2000).2
2
In Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996), this court stated
that the treaty requires an arresting government to notify a foreign national of
his right to contact his consul. However, this court found the violation of the
Convention to be harmless error, not meriting reversal. This court later stated
in Flores that “[w]e do not read our opinion in Faulder as recognizing a personal
right under the Convention. Rather, the panel dispatched the claim with its
conclusion that any violation was harmless. Any negative implication inherent
in rejecting the claim as harmless lacks sufficient force to support a contention
that the panel held that the Convention created rights enforceable by
individuals.” Flores, 210 F.3d at 457. This court likewise did not reach the
merits of this question in Flores because the defendant’s assertion was at best
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A. Whether The Vienna Convention Confers An Enforceable
Individual Right
Ratified treaties become the law of the land on an equal
footing with federal statutes. U.S. Const. art. VI, cl. 2. They
are to be construed initially according to their terms. United
States v. Alvarez-Machain, 504 U.S. 665, 663, 112 S.Ct. 2188, 2193
(1992). Treaty construction is a particularly sensitive business
because international agreements should be consistently interpreted
among the signatories. “Treaties are contracts between or among
independent nations.” United States v. Zabaneh, 837 F.2d 1249,
1261 (5th Cir. 1988). As such, they do not generally create rights
that are enforceable in the courts. United States v. Li, 206 F.3d
56, 60 (1st Cir. 2000); see also Goldstar v. United States, 967
F.2d 965, 968 (4th Cir. 1992) (“International treaties are not
presumed to create rights that are privately enforceable”); Matta-
Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990) (“It is
well established that individuals have no standing to challenge
violations of international treaties in the absence of a protest by
the sovereigns involved.”).3
Teague-barred. Id.
3
“[E]ven where a treaty provides certain benefits for nationals of a
particular state -- such as fishing rights - it is traditionally held that any
rights arising out of such provisions are, under international law, those of the
state and . . . individual rights are only derivative through the states.”
United States v. Gengler, 510 F.2d 62, 66 (2d Cir. 1974). See also United States
v. Rosenthal, 793 F.2d 1214, 1232 (11th Cir. 1986) (finding no merit in the
defendants’ argument that the actions of the United States violated its
extradition treaty with Colombia because “[u]nder international law it is the
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For enforcement of its provisions, a treaty depends “on
the interest and honor of the governments which are parties to it.”
Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247 , 254 (1884).
“[I]nfraction becomes the subject of international negotiations and
reclamations.” Id. (“It is obvious that with all this the
judicial courts have nothing to do and can give no redress.”). See
also United States v. Williams, 617 F.2d 1063, 1090 (5th Cir.
1980)(“[R]ights under international common law must belong to
sovereign nations, not to individuals, just as treaty rights are
the rights of the sovereign.”).
Against the backdrop of these general principles, the
Vienna Convention appears to be a standard treaty whose purpose is
to facilitate consular activity in receiving states. The Preamble
states:
Believing that an international convention on consular
relations, privileges and immunities would also
contribute to the development of friendly relations among
nations, irrespective of their differing constitutional
and social systems, [and] Realizing that the purpose of
such privileges and immunities is not to benefit
individuals but to ensure the efficient performance of
functions by consular posts on behalf of their respective
States . . . (emphasis added).
This language would appear to preclude any possibility that
individuals may benefit from it when they travel abroad, even,
contracting foreign government that has the right to complain about a
violation”).
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perhaps, if they are among the consular corps. Moreover, only one
article out of 79 in the Treaty even arguably protects individual
non-consular officials. Article 36, titled “Communication and
Contact With Nationals of Receiving State,” provides:
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;
(c) consular officers shall have the right to visit a
national of the sending State who is in prison, custody
or detention, to converse and correspond with him and to
arrange for his legal representation. They shall also
have the right to visit any national of the sending State
who is in prison, custody or detention in their district
in pursuance of a judgment. Nevertheless, consular
officers shall refrain from taking an action on behalf of
a national who is in prison, custody or detention if he
expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article
shall be exercised in conformity with the laws and
regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations must
enable full effect to be given to the purposes for which
the rights accorded under this Article are intended.
-8-
Principally because of the references to “rights” in
Article 36, the circuit courts have so far declined to decide
whether the Vienna Convention intended to enact individually
enforceable rights of consultation.4 The Supreme Court, in dicta,
has also held the question open. Breard v. Greene, 523 U.S. 371,
376, 118 S.Ct. 1352, 1355 (1998).
A strong argument has been made that such diffidence is
unnecessary and that the Vienna Convention is not ambiguous as to
whether it creates private rights. In Li, Judges Selya and Boudin
stated:
Nothing in [the] text explicitly provides for judicial
enforcement of . . . consular access provisions at the
behest of private litigants. Of course, there are
references in the treaties to a ‘right’ of access, but
these references are easily explainable. The contract
States are granting each other rights, and telling future
detainees that they have a ‘right’ to communicate with
their consul is a means of implementing the treaty
obligations as between States. Any other way of phrasing
the promise as to what will be said to detainees would be
artificial and awkward.
Li, 206 F.3d at 60, 66. (Selya, J. & Boudin, J., concurring). In
any event, as these judges pointed out, even if the treaty is
ambiguous, the presumption against implying private rights comes
4
See United States v. Page, 2000 WL 1682523, *3 (6th Cir. 2000);
United States v. Chanthadara, 2000 WL 1637516 (10th Cir. 2000); United States v.
Chaparro-Alcantara, 2000 WL 1182450, *4 (7th Cir. 2000); United States v.
Cordoba-Mosquera, 212 F.3d 1194 (11th Cir. 2000); United States v. Li, 206 F.3d
56 (1st Cir. 2000)(en banc); United States v. Lombera-Camorlinga, 206 F.3d 882,
885 (9th Cir. 2000)(en banc); United States v. Cordoba-Mosquera, 202 F.3d 1194
(11th Cir. 2000).
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into play. Finally, as both the majority and concurring judges in
Li recognized, the U.S. State Department has consistently taken the
position that the Vienna Convention does not establish rights of
individuals, but only state-to-state rights and obligations. The
State Department’s view of treaty interpretation is entitled to
substantial deference. Li, 206 F.3d 63-66.
Jimenez-Nava’s arguments in support of individually
enforceable rights ultimately emphasize the treaty’s ambiguity.
First, by dwelling on the plain language concerning “rights” in
Article 36, Jimenez-Nava must discount the equally plain language
in the Preamble that the treaty’s purpose “is not to benefit
individuals”. Appellant would confine the limitation to consular
officials, but that interpretive route hardly assists him, since
consular officials are the specific beneficiaries of many of the
treaty provisions.5 If the treaty cannot benefit them by creating
individually enforceable rights, how can it intend to confer
enforceable rights on all foreign nationals detained in the
receiving state?
5
See e.g. Vienna Convention, Art. 27 (providing for the protection of
the consular premises and archives in exceptional circumstances); Art. 34
(ensuring freedom of movement and travel to all members of consular post); Art.
35 (protecting freedom of communication for the consular post); Art. 41
(providing personal inviolability of consular officers); Art. 43 (providing
immunity from jurisdiction for consular officers or employees with certain
exceptions); Art. 44(detailing under what conditions consular post members either
should or alternatively, may refuse to, give evidence in the course of judicial
or administrative proceedings).
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Second, while acknowledging the general rule against
implication of personal rights in treaties, Jimenez-Nava notes
that, like any agreement, treaties may explicitly confer individual
rights.6 He cites as an example Supreme Court’s construction of an
extradition treaty in United States v. Rauscher, 119 U.S. 407, 7
S.Ct. 234 (1886). That case is inapposite, however, for an
explicit purpose of the treaty in Rauscher was to govern “the
giving up of criminals, fugitives from justice in certain cases”.
Id. At 410, 7 S.Ct. at 236. Unlike the Vienna Convention, the
purpose and provisions of the extradition treaty related directly
to the individual right asserted. Id. at 410, 7 S.Ct. at 236.7
Rauscher demonstrates at most the necessity for careful
interpretation of each treaty.8
6
In the Head Money Cases, the Court stated that treaties may contain
provisions which confer certain rights, but it implied that these are limited to
matters concerning “municipal law” that “are capable of enforcement as between
private parties in the courts of the country.” Head Money, 112 U.S. at 598, 5
S.Ct. at 254. “An illustration of this character is found in treaties, which
regulate the mutual rights of citizens and subjects of the contracting nations
in regard to rights of property by descent or inheritance, when the individuals
concerned are aliens.” Id.
7
The Supreme Court later distinguished Rauscher on additional grounds,
pointing both to Rauscher’s reliance on the federal statutes and that the Court
implied a term in the treaty “because of the practice of nations with regard to
extradition treaties.” United States v. Alvarez-Machain, 504 U.S. 655, 660, 667,
112 S.Ct. 2188, 2191, 2198 (1992). Neither of these factors is present in the
instant case.
8
Based upon this language and purpose, the Court has easily rejected
a claim that two treaties providing that a nation “shall indemnify” or shall
compensate private parties for certain damage inflicted on the high seas thereby
created private rights of action cognizable in United States courts. Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442, 109 S.Ct. 683, 692
(1989). The Court described these treaties as setting forth “only” substantive
rules of conduct, not private rights of action. Id.
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In his final thrust, Jimenez-Nava points out that the
State Department’s manual on the treatment of foreign nationals
advises arresting officers to inform detainees of their right to
consular communication pursuant to the treaty. U.S. Dept. Of
State, Foreign Affairs Manual § 411 (1994). Further, a “Memorandum
of Understanding on Consular Protection of Mexican and United
States Nationals” was entered into between this country and Mexico
to adopt procedures and views concerning communication between
consuls and foreign nationals. Memorandum of Understanding, May 7,
1996, Dept. of State File No. P96 0065-0984/0987. Such documents
do no more than express this country’s laudable determination to
abide by the treaty. But the implementation of the treaty by the
Federal government is wholly different from the implication that it
may be enforced in court by individual detainees.
The sum of Jimenez-Nava’s arguments fails to lead to an
ineluctable conclusion that Article 36 creates judicially
enforceable rights of consultation between a detained foreign
national and his consular office. Thus, the presumption against
such rights ought to be conclusive. If this conclusion suffers
from any defect, however, it is beyond dispute -- among the federal
circuit courts -- that analogizing the proffered right to consult
with Miranda rights is utterly unfounded.
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B. The Exclusionary Rule Is Not An Appropriate Remedy
Jimenez-Nava argues that his right of consular
communication and notification is a “fundamental right,” analogous
to the Fifth and Sixth Amendment, which merits protection through
use of the exclusionary rule. He contends that the terms of the
Vienna Convention require courts to elect a remedy to “enable full
effect to be given to the purposes for which the rights accorded
under [Article 36] are intended.” Vienna Convention, Art. 36(2).
“Full effect,” he argues, requires exclusion in criminal
prosecutions of statements given without appropriate information
about consultation rights.
All of our sister circuits have held that suppression of
evidence is not a remedy for an Article 36 violation. See e.g.
United States v. Lawal, 2000 WL 1647914 (7th Cir. 2000); Cordoba-
Mosquera, 212 F.3d at 1195-96; Lombera-Camorlinga, 206 F.3d at 886;
Li, 206 F.3d at 60; and cases cited at n.4 supra. “The
exclusionary rule was ‘not fashioned to vindicate a broad, general
right to be free of agency action not ‘authorized’ by law, but
rather to protect specific, constitutionally protected rights.’”
United States v. Page, 2000 WL 1682523, *3 (6th Cir. 2000). We
agree that “there is no indication that the drafters of the Vienna
Convention had these ‘uniquely American rights in mind, especially
given the fact that even the United States Supreme Court did not
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require Fifth and Sixth Amendment post-arrest warnings until it
decided Miranda in 1966, three years after the treaty was drafted.”
Page, 2000 WL 1682523, at 3 (citing Lombera-Camorlinga, 206 F.3d at
886); see also Erik G. Luna & Douglas J. Sylvester, Beyond Breard,
17 Berkeley J. Int’l L. 147, 179 (1999) (“It would take an enormous
leap in logic, therefore, to argue that the signatories to the
Vienna Convention intended for violations to be cured by the
exclusion of evidence or the dismissal of charges.”). Absent an
express provision in the treaty, the exclusionary rule is an
inappropriate sanction. Page, 2000 WL 1682523 at *3; see also
Chaparro-Alcantara, 2000 WL 1182450 at *4 (“Upon examination of the
text . . . it is clear that nothing in the text of the Vienna
Convention indicates that a remedy of suppression is appropriate
for violations of Article 36.”).
Were this court to hold that the text of the treaty
creates an individual right and then impose a remedy equal to that
imposed when defendants are not given their Miranda warnings -- the
remedy of suppression -- we would be ignoring the directive of
Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326 (2000).
The Supreme Court there stated that “Miranda and its progeny in
this Court govern the admissibility of statements made during
custodial interrogation in both state and federal courts.” 530
U.S. at _____, 120 S.Ct. at 2329-30 (emphasis added). And the
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Court added that “‘[c]ases in which a defendant can make a
colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities
adhered to the dictates of Miranda are rare.’” Id. at 2338 (quoting
Berkermer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 (1984)).
Neither of these criteria is met in the instant case. First,
“[a]pplication of the exclusionary rule is only appropriate when
the Constitution or a statute requires it.” U.S. v. Chaparro-
Alcantara, 226 F.3d at 620. The Vienna Convention, which has the
force of a statute, contains no such requirement. Moreover, where
Miranda warnings have been given, three times no less, we will not
create a rule that increases the risk that a guilty defendant, who
is aware of his rights under the U.S. Constitution and as
articulated by the Supreme Court, go free.
Jimenez-Nava argues that suppressing his statements
constitutes the only effective method of enforcing the treaty.
Article 36 does not articulate a specific remedy. The treaty
states that the rights of consultation “shall be exercised in
conformity with the laws and regulations of the receiving State,
subject to the proviso, however, that the said laws and regulations
must enable full effect to be given to the purposes for which the
rights accorded under this Article are intended.” Vienna
Convention, Art. 36(2). The treaty leaves implementation to the
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discretion of each signatory state so long as its “purposes” to
ensure free communication and access are given full effect. “Yet,
the treaty does not link the required consular notification in any
way to the commencement of police interrogation. Nor does the
treaty, as Miranda does, require law enforcement officials to cease
interrogation once the arrestee invokes his right.” Lombera-
Camorlinga, 206 F.3d at 886. Suppressing evidence in a criminal
trial does not further the treaty’s purposes.9
Finally, most countries do not have a suppression remedy.
See Luna, 17 Berkeley J. Int’l L. at 177 (“Legal rules suppressing
relevant, probative evidence from criminal trials are far and few
between outside of the United States. Continental legal systems
are generally silent as to the admissibility of evidence obtained
by improper legal techniques.”). No other signatories to the
Vienna Convention have suppressed statements under similar
circumstances and two have rejected this remedy. See Lombera-
Camorlinga, 206 F.3d at 888. If suppression becomes the remedy in
the United States, the treaty would have an inconsistent meaning
among the signatory nations. Thus, refusing to resort to the
9
The State Department also asserts that suppression is an
inappropriate remedy. See Lombera-Camorlinga, 206 F.3d at 886 (“The State
Department indicates that it has historically enforced the Vienna Convention
itself, investigating reports of violations and apologizing to foreign
governments and working with domestic law enforcement to prevent future
violations when necessary.”).
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exclusionary rule promotes “harmony in the interpretation of an
international agreement.”10
IV. CONCLUSION
For the foregoing reasons,11 the district court did not
err by denying Jimenez-Nava’s motion to suppress.
AFFIRMED.
10
Lombera-Camorlinga, 206 F.3d at 888 (citing Restatement (Third) of
Foreign Relations § 325 cmt. d (“Treaties that lay down rules to be enforced by
the parties through their internal courts or administrative agencies should be
construed so as to achieve uniformity of result despite differences between
national legal systems.”)); see also Chaparro-Alcantara, 2000 WL 1182450 at *4
(“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.”)(citing Restatement (Third) of
Foreign Relations Law § 325 cmt. d (1987)).
11
This analysis renders it unnecessary to construe the “without delay”
provision of the Article 36.
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United States v. Jimenez-Nava
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-02-26
Citations: 243 F.3d 192
Copy CitationsCombined Opinion