United States District Court, Central District of Illinois, Springfield Division
March 5, 1999
UNITED STATES OF AMERICA, PLAINTIFF,
JUAN CHAPARRO-ALCANTARA, AND JAIME ROMERO-BAUTISTA, DEFENDANTS.
The opinion of the court was delivered by: Scott, District Judge.
This cause is before the Court on Defendants' Joint Motion to
Juan Chaparro-Alcantara and Jaime Romero-Bautista are Mexican
citizens who have been granted lawful permanent resident status
in the United States. They have been indicted for transporting
illegal aliens on October 21, 1998, in violation of 8 U.S.C. § 1324
Law enforcement agents arrested Chaparro-Alcantara and
Romero-Bautista on October 21, 1998, in South Jacksonville, Illinois,
after discovering that the Defendants were driving a van filled
with 13 Mexican nationals that were illegally in the United
States. After their arrest, Chaparro-Alcantara and Romero-Bautista
were transported to the Springfield, Illinois office of
the United States Immigration and Naturalization Service
("I.N.S."). In Springfield, I.N.S. Agent Tom Merchant advised
each Defendant in Spanish, his native language, of his Miranda
rights. However, neither Agent Merchant nor the I.N.S. notified
the Defendants of their right to contact Mexican consular
officials during their detention. Subsequently, the Defendants
made some inculpatory statements which they now seek to suppress.
Chaparro-Alcantara and Romero-Bautista argue that the Court
their statements because the Government failed to notify them of
their right to speak with the Mexican Consulate, a right that is
provided under Article 36 of the Vienna Convention on Consular
Relations, April 24, 1963, Art. 36, 21 U.S.T. 77 ("Vienna
Convention"). Relevant text of Article 36 is as follows:
1. With a view to facilitating the exercise of consular functions
relating to nationals of the sending State:
(a) consular officers shall be free to communicate with the
nationals of the sending State and to have access to them.
Nationals of the sending State shall have the same freedom with
respect to communication with and access to consular officers
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 right under this subparagraph;
(c) consular officials 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
Vienna Convention, Art. 36, 21 U.S.T. at 100-101. (emphasis
The Government makes two arguments in opposition to the
suppression motion: first, Chaparro-Alcantara and Romero-Bautista
lack "standing" to seek redress from a violation of the Vienna
Convention because the Article does not create private
enforceable rights. Second, even if they did have standing,
Chaparro-Alcantara and Romero-Bautista failed to show prejudice
from the I.N.S.'s failure to advise them of their treaty rights.
For the reasons stated infra, the Court denies the Defendants'
motion to suppress.
A. Standing Issue
The parties dispute whether Article 36 of the Vienna Convention
creates a private right that is enforceable through the
exclusionary rule. The Government argues that the Vienna
Convention only creates rights enforceable by the "State," and
hence, Chaparro-Alcantara and Romero-Bautista lack standing. See
e.g., Edye v. Robertson, 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed.
798 (1884); Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57
L.Ed. 1274 (1913). However, it acknowledges that a private action
can arise under a treaty when the treaty expressly or by
implication provides for a private right of action. See Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442, 109
S.Ct. 683, 102 L.Ed.2d 818 (1989); Columbia Marine Services, Inc.
v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988).*fn1 Thus, the
issue becomes whether the Vienna Convention explicitly or
implicitly created private enforceable rights. Unfortunately, the
Seventh Circuit has not addressed this issue, and the issue
remains very "murky." See United States v. Esparza-Ponce,
7 F. Supp.2d 1084, 1095 (S.D.Cal. 1998).
To support its position that Article 36 does not create private
enforceable rights, the Government cites to the preamble to the
Vienna Convention. The preamble states that the "purpose of the
[consular] 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." 21 U.S.T. at 79. However, the Court notes
that the actual text of Article 36, which is more persuasive as
to the parties' intent, suggests that persons have individual
notification "rights" under the sub-paragraph. Moreover, many
courts, including the United States Supreme Court, and at least
one commentator, have suggested that an individual does have a
"right" under the treaty that grants the party "standing" to seek
redress. E.g., Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352,
1355, 140 L.Ed.2d 529 (1998) (per curiam) (stating that the
Convention "arguably confers on an individual the right to
consular assistance following arrest"); Villafuerte v. Stewart,
142 F.3d 1124 (9th Cir. 1998) (entertaining a claim of a
violation of the Convention without discussing the standing
issue); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996)
(same); United States v. Salas, No. 98-4374, 1998 WL 911731, at
* 3 (4th Cir. Dec. 31, 1998) (same); Breard v. Netherland,
949 F. Supp. 1255, 1263 (E.D.Va. 1996) (same), aff'd, 134 F.3d 615 (4th
Cir. 1998); Esparza-Ponce, 7 F. Supp.2d at 1096 (same); Mami v.
Van Zandt, No. 89-CIV-0554 (TPG), 1989 WL 52308, at *1 (S.D.N.Y.
May 9, 1989) (same); see also Mark J. Kadish, Article 36 of the
Vienna Convention on Consular Relations: Search for the Right to
Consul, 18 MICH.J. INT'L L. 565, 589-603 (1997) (arguing that the
Convention confers enforceable individual rights); But see
Republic of Paraguay v. Allen, 949 F. Supp. 1269, 1274 (E.D.Va.
1996) (suggesting that the Convention does not confer private
enforceable rights), aff'd, 134 F.3d 622 (4th Cir. 1998). In
light of the language in Article 36 and the above cited
authority, the Court finds that Chaparro-Alcantara and
Romero-Bautista have an individual right to consular notification
under Article 36 which in turn grants them standing to object to a
violation of that provision.
In this case, it is undisputed that the I.N.S. violated the
Vienna Convention by failing to advise Chaparro-Alcantara and
Romero-Bautista of their right to speak with the Mexican consul.
Thus, the issues become whether the exclusionary rule is a remedy
that is available to redress a violation of Article 36, and
whether Chaparro-Alcantara and Romero-Bautista met the
evidentiary threshold to invoke the exclusionary rule.
B. Appropriate Remedy for an Article 36 Violation
It is well established that the exclusionary rule is applied
generally to deter the police from violating a person's
constitutional rights. See, e.g., Elkins v. United States,
364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("[the
exclusionary rule's] purpose is to deter — to compel
respect for constitutional guaranty in the only effectively
available way — by removing the incentive to disregard
it"); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
(1961). In addition, unless a statute expressly provides
otherwise, the exclusionary rule is generally not available as a
remedy for a violation of the statute. Thus, in order for
Chaparro-Alcantara and Romero-Bautista to invoke the exclusionary
rule in this case, the Vienna Convention must explicitly provide
for that remedy, or the violation of the treaty must rise to a
level of a constitutional violation.
It is clear that Article 36 does not create a "fundamental"
right, such as the Sixth Amendment right to counsel, or the Fifth
Amendment right against self-incrimination which originates from
concepts of due process. See Waldron v. I.N.S., 17 F.3d 511, 518
(2d Cir. 1993) ("[a]lthough compliance with our treaty
obligations clearly is required, we decline to equate such a
provision with fundamental rights . . ."); Esparza-Ponce, 7 F.
Supp.2d at 1097 (refusing to equate a violation of Article 36 to
a Miranda violation). Thus, the suppression remedy must be
available, if at all, from the Vienna Convention itself. The
Court, however, finds nothing in the Vienna Convention that
provides for the
exclusionary rule as a remedy for violation of its provisions.
Parties that have sought relief through the Vienna Convention
in other proceedings were required to show actual prejudice in
order to be entitled to that relief. See, e.g., Breard v. Greene,
523 U.S. 371, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1998)
(requiring a showing of actual prejudice for a habeas
proceeding); Waldron, 17 F.3d at 518-19 (requiring a showing of
prejudice to set aside a deportation order); Salas, 1998 WL
911731 at, *3 (requiring a showing of prejudice for a motion to
suppress); Esparza-Ponce, 7 F. Supp.2d at 1097 (same). Similarly,
the Court holds that in order for Chaparro-Alcantara and Romero-Bautista
to invoke the exclusionary rule in this case, they must
show that the denial of their consular notification rights
resulted in actual prejudice to their case.
C. Showing of Prejudice
In order to establish prejudice, Chaparro-Alcantara and
Romero-Bautista filed the Affidavit of Fernando Gonzalez, Consul of
Mexico who is assigned to St. Louis, Missouri. Consulate Gonzalez
stated that if Chaparro-Alcantara and Romero-Bautista had
contacted him while in the custody of the I.N.S., he would have
advised them that they did not have to provide any information to
the I.N.S. and that they could refuse to answer any questions.
See Gonzalez Affidavit ¶ 4-5. He also stated that he would
tell Chaparro-Alcantara and Romero-Bautista that any statements
they made could be used against them, and assist them in
obtaining competent legal representation. See id. at ¶ 4-5.
Chaparro-Alcantara and Romero-Bautista also filed affidavits
stating that had they been advised of their right to speak with
their Consulate they would have done so, and they would have
followed his advice and would not have answered any questions.
See Chaparro-Alcantara Affidavit ¶ 4; Romero-Bautista
Affidavit ¶ 7-8.
As noted before, the Defendants were given Miranda warnings
before they were questioned by the I.N.S. agent. Consulate
Gonzalez would have advised Chaparro-Alcantara and Romero-Bautista
similarly, if not identically, to what Miranda requires.
Thus, in order for Chaparro-Alcantara and Romero-Bautista to
establish prejudice, they must show that had they been advised of
their right to speak with the Consulate, they would have stopped
answering questions and would not have waived their Fifth
Amendment rights until they spoke to their Consulate.
In this case, although Chaparro-Alcantara and Romero-Bautista
asserted that they would have exercised their right to speak with
their Consulate and would have exercised their Fifth Amendment
rights after speaking with their Consulate, they failed to show
that they would not have waived their Fifth Amendment rights
before speaking with the Consulate. Nothing in the Vienna
Convention or the case law requires law enforcement officials to
cease all interrogation until they speak to their consular
official. Thus, the I.N.S. agents could have acquired Defendants'
waiver of Fifth Amendment rights even after notifying
Chaparro-Alcantara and Romero-Bautista of their right to speak to
the Mexican Consulate. It is impossible to know at what point in
time Chaparro-Alcantara and Romero-Bautista would have succeeded in
actually speaking to the Mexican Consulate, even if the I.N.S
agents had given Chaparro-Alcantara and Romero-Bautista immediate
notice of their right to speak with the Consulate and had
forwarded their request to speak with him without delay.
In other words, Chaparro-Alcantara and Romero-Bautista failed
to establish that they would have stopped talking to the I.N.S.
immediately after being advised that they had a right to speak to
the Mexican Consulate. Thus, based on the record in front of the
Court, it is too speculative to conclude that Chaparro-Alcantara
and Romero-Bautista were prejudiced by the Government's failure
to advise them of their consular notification
rights. Accordingly, the Court declines to exclude the
Therefore, Defendants' Joint Motion to Suppress (d/e 54) is
DENIED. All parties have represented to the Court that the
Defendants cannot be tried together due to a Bruton problem.
(Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968)). Consequently, by agreement of the parties, the Court
severs the Defendants' cases for trial. Due to the Government's
election to try Defendant Chaparro-Alcantara first, the Court
finds that the ends of justice served by postponing trial
outweigh the best interest of Defendant Romero-Bautista and the
public in having a speedy trial. 18 U.S.C. § 3161 (h)(8)(A).
Defendant Romero-Bautista's final pretrial date is reset to March
19, 1999, at 11:00 a.m., and the trial date is moved to April 6,
1999, at 9:00 a.m.