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U.S. v. CARRILLO

October 14, 1999

UNITED STATES OF AMERICA,
v.
ANSELMO CARRILLO, FRANCISCO SOTO, LUIS MARTIN CASAS, CLAYTON M. KENDALL, JR., AND FRANCISCO PEREZ.



The opinion of the court was delivered by: Norgle, District Judge.

OPINION and ORDER

Defendants Anselmo Carrillo, Francisco Soto, and Luis Martin Casas (where appropriate, "Defendants") move to dismiss the Government's indictment charging them with various drug-related offenses on the grounds that government agents violated Article 36 of the Vienna Convention on Consular Relations and the Bilateral Consular Convention between the United States and Mexico. Alternatively, Defendants move to suppress certain statements and evidence that were elicited as a result of these treaty violations. For the following reasons, the court denies Defendants' motion.

I. BACKGROUND*fn1

In late summer or early fall 1998, an individual cooperating with the Drug Enforcement Agency ("DEA") provided information that a red Mercury automobile had a trap compartment in it; such trap compartments are commonly used by drug traffickers to transport narcotics.

On January 27, 1999, DEA agents tracked the red Mercury to a driveway at a single family residence on Belmont Place in Addison, Illinois ("the Belmont address"). While the Belmont address was under surveillance, a red Toyota pick-up truck with three Hispanic males pulled into the driveway. One of the individuals got into the red Mercury and drove away, with the red Toyota following.

The two cars then traveled to another residence located on Clarendon Street in Addison ("the Clarendon address"). The red Mercury was driven into a garage alongside a white Ford. For the next two hours, the garage door remained closed as agents heard people talking inside.

Eventually, the agents observed Defendants Francisco Soto and Luis Casas leave the garage and enter the red Toyota. Soto drove away with Casas as his passenger. Agents were unable to maintain surveillance of the red Toyota, allegedly because Soto drove in a manner so as to lose anyone intending to follow him. Defendant Anselmo Carrillo then drove the red Mercury out of the garage. Agents were unable to maintain surveillance of the red Mercury as well, losing sight of it in the vicinity of Lake Street in Addison.

Approximately 20 minutes later, agents saw the red Toyota leaving the parking lot of a cinema on Lake Street. Defendants Carrillo, Soto, and Casas were all in the red Toyota. Parked in the cinema parking lot was the red Mercury.

After the red Toyota drove around for about 10 minutes, apparently in an attempt to lose anyone following, it returned to the cinema parking lot. At that point, agents stopped the red Toyota and placed Carrillo, Soto, and Casas under arrest. On Carrillo's person was a set of keys for the red Mercury and a garage door opener for the Clarendon address.

Carrillo signed a waiver of rights and consent to search the red Mercury. When agents searched the car, they discovered a hydraulically-operated trap compartment behind the rear seat. Inside the trap compartment were 48 one kilogram bricks of cocaine wrapped in clear plastic.

On January 27, 1999, DEA agent Michael Nowacoski signed a criminal complaint against Carrillo, Casas, Soto, Kendall Jr., and Kendall III. The charge was knowingly and intentionally possessing with intent to distribute 48 kilograms of cocaine in violation of 21 U.S.C. § 841 (a)(1). On February 24, 1999, the Government filed a four-count indictment against Carrillo, Soto, Casas, Kendall Jr., and another individual, Francisco Perez. Count I charged Perez, Carrillo, Soto, and Casas with conspiring to distribute cocaine (see 21 U.S.C. § 841 (a)(1), 846); Count II charged Perez, Carillo, Soto, and Casas with knowingly and intentionally possessing with intent to distribute 48 kilograms of cocaine (see § 846(a)(1)); Count III charged Kendall Jr. with knowingly and intentionally possessing with intent to distribute 48 kilograms of cocaine (see § 846(a)(1)); and Count IV charged Perez with possession of a firearm by a felon (see 18 U.S.C. § 922 (g)(1)).

Carrillo, Soto, and Casas now move to dismiss the charges against them or suppress certain evidence on the grounds that the arresting agents violated their rights under Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention"), Apr. 24, 1963, 21 U.S.T. 77, and the Bilateral Consular Convention between the United States and Mexico ("Mexican Bilateral Convention"), Aug. 12, 1942, U.S. — Mex., art. IV, sec. 3, 57 Stat. 800, 809. Defendants argue that because they are aliens to the United States and citizens of Mexico, they had a right under these treaties to communicate with representatives of the Mexican Consulate in Chicago upon their arrests and subsequent custodial interrogation. Defendants concede that they never expressly requested to speak with consular representatives, but contend that their requests were implicit because they told agents that they were Mexican nationals and that they were uncomfortable speaking English. Moreover, Defendants contend that because they were denied consultation with Mexican officials, they were isolated, faced intensive interrogation, and made incriminating statements. In particular, Defendants assert that Soto was led to believe that he had to consent to the search of the red Mercury. Based on these alleged treaty violations, Defendants seek dismissal of the indictment or suppression of certain evidence, a la the exclusionary rule and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In response, the Government does not dispute that its agents did not advise Defendants about any potential rights they might have had pursuant to any international treaty; nor does the Government dispute that the agents failed to notify the Mexican consulate about Defendants' arrests. The Government, however, argues that Defendants do not have standing to enforce the Vienna Convention because "international treaties are contracts between nations" and because the preamble to the Vienna Convention expressly states that it "is not to benefit individuals." (Resp. at 6, 7) (citing United States v. Mitchell, 957 F.2d 465, 470-71 (7th Cir. 1992) and quoting Preamble to Vienna Convention, 21 U.S.T. 77, 79). Alternatively, the Government argues that Defendants "fail[] to demonstrate that any alleged failure to advise them of consular rights prejudiced them." (Resp. at 8.) And, assuming Defendants suffered prejudice, the Government maintains that dismissal of the charges or suppression of evidence is not the appropriate remedy. (Resp. at 10-12.) Finally, the Government argues that the Mexican Bilateral Convention affords Defendants no relief because it does not require consular notification upon detention of a Mexican national. (Resp. at 12-13.)

Though Defendants do not separately address the two treaties at issue, the court turns first to their assertion of ...


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