*1 matters Surveys of facilities are facility. § record, 42 U.S.C. 1395i- see public
of (2000), facility’s checking
3(g)(5)(A) dili- history important is an due
regulatory Further, operator a new task.
gence agreement provider for a new apply
free to it would not facility, in which case
for the owner’s CMPs. See prior liable for the
Vernon, at 696. authority has the
Because HCFA Beam, concurred and Judge, Circuit Deerbrook, there has impose CMPs on opinion. filed statutory or constitutional viola been opinion affirm the tion. We therefore dismissing Deerbrook’s
the district court
complaint. ARNOLD,
MORRIS SHEPPARD Judge, dissents. America,
UNITED STATES
Appellee, SANTOS, Appellant.
Fausto Morales
No. 00-1615. Appeals,
United States Court
Eighth Circuit. Oct. 2000.
Submitted: Dec. 2000.
Filed:
Joseph Margulies, argued, Minneapolis, MN, Appellant. for Paulóse, argued, Rachel K. Minneapolis, (James Lackner, brief), MN E. for the Appellee. WOLLMAN, LAY, Judge,
Before Chief BEAM, Judges. WOLLMAN, Judge. Chief Santos, Fausto Morales a na- Mexican tional, thirty-three sentenced to prison years months in of super- and two by jury vised release after his conviction a on five stemming produc- counts from his tion and sale of false identification docu- § ments violation of 18 U.S.C. 1028.1 appeals He both his conviction and his sentence.
I.
15, 1999,
April
Santos was arrested on
police
when
executed a search
for
warrant
Minnesota,
apartment
in Minneapolis,
where Santos and another man
ac-
were
tively
engaged
production
the
aof vari-
ety
documents,
of false identification
in-
licenses,
certificates,
cluding drivers’
birth
cards,
security
social
and 1-551 resident
Along
alien cards.
with false documents in
varying
completion,
states of
the apart-
ment held a panoply
equipment
of.
production
materials used
the
of identi-
fication
Particularly
documents.
notewor-
thy were an operating typewriter contain-
ing
freshly
a
security
minted false social
card,
ledgers
detailed
recording document
transactions,
sale
security
false social
person,
card recovered from Santos’s
number
business cards bearing only
number,
Santos’s
pager
name and
four
completed
bearing
false 1-551 cards
San-
fingerprints.
tos’s inked
Magnuson,
1. The Honorable Paul A.
Chief
District of Minnesota.
Judge, United Slates District Court for the
rights in
was read his Miranda
U.N.T.S. 261. That the terms of
Santos
the trea-
police
ty
offi-
were
Spanish by Spanish-speaking
four-day
violated
notifica-
making
false identifi-
tion
is not in dispute;
cer and confessed
issue
cards,
essentially
a statement he
before us is whether the
cation
admission over
not,
repeated
morning.
objection
He was
pre-notification
next
Santos’s
of his
*3
however,
right
informed of his
as a Mexi- confessions invalidates his conviction.2
have the Mexican consulate
can national to
Courts have been unable to reach a con
to the Vienna Convention
pursuant
notified
sensus,
decision,
and often even a
on the
19, 1999,
April
on
Relations until
Consular
issues of whether Article 36 creates an
time,
days
four
after his arrest. At that
individually
right
enforceable
to consular
he declined consular notification.
notification, compare
v.
United States
pre-
The district court denied Santos’s
Lombera-Camorlinga,
882,
206 F.3d
883
suppress
trial
to
his confession as
motion
(9th Cir.2000) (en banc) (noting recognition
in
of the
having been obtained
violation
individually
right
of an
enforceable
created
jury,
Before the
San-
Vienna Convention.
36)
by Article
and United States v. Bris
argued
tos
that he was a victim of circum-
coe,
738,
(D.Vi.1999)
F.Supp.2d
69
746-47
happened
apart-
stances who
to be in an
(holding that Article 36 creates an individ
illegal
taking place
where
acts were
ment
ually
right)
enforceable
with United States
participating
but who
not
in them.
Li,
(1st Cir.2000)
56,
v.
F.3d
206
62-65
grant
court declined to
a sen-
district
(holding that individual defendants are not
responsi-
tence reduction for
entitled to
raise violations Article 36 as
bility.
a
to criminal prosecution),
defense
whether
a
prejudice
defendant must show
to vindi
II.
exist,
cate that
if it does
see United
Article 36 of the Vienna
on
Convention
States v.
212
Cordoba-Mosquera,
F.3d
requires
Consular Relations
authorities to
(11th Cir.2000)
curiam)
1194,
(per
1196
foreign
inform detained or arrested
nation-
(holding
remedy
for an
exists
Article 36
they may
als that
have their consulates
showing
absent a
of prejudice);
violation
notified of their status.
884,
Pagan,
United
v.
196 F.3d
States
890
requests,
[I]f [the detainee] so
the com-
(7th Cir.1999) (upholding denial of mistrial
petent
receiving
authorities of the
State
based on Article 36 violation where the
shall,
delay,
without
inform the consular defendant did not show how notice of Arti
if,
post
sending
of the
State
within its
rights
cle 36
would have influenced evi
district,
a national of that State
Johnson,
jury);
dence
Faulder v.
put
81
prison
is arrested or committed to
or to
(5th Cir.1996)
515,
F.3d
520
Arti
(holding
custody
in
pending trial or
detained
cle 36 violations did not merit reversal
any
Any
other manner.
communication
attorney
where the defendant’s
had access
by
addressed
consular post
to the
to all information available to his consu
arrested,
person
in prison, custody or
late),
what,
any, remedy may
if
by
detention shall also be forwarded
violation,
available for such a
see Breard v.
delay.
said authorities without
The said Greene,
378-79,
523
at
118
1352
U.S.
S.Ct.
person
authorities shall inform the
con-
curiam)
that, in
(per
(suggesting
the ab
rights
cerned without
of his
under
trial,
showing
sence of
effect on the
sub-paragraph
this
...
violation of the
will not
Vienna Convention
Relations,
judgment);
Vienna
a final
overturning
Convention
Consular
warrant
36(b),
24, 1963,
77,
536,
April
Page,
Art.
21 U.S.T.
596 United States v.
232 F.3d
540
that,
376,
1352,
(1998)
ap
2. We note
because this is a direct
118 S.Ct.
We that noting Santos is decision, doubt. Applying we have materially in position different from a that, although held a confession is a partic who is not defendant informed of re ularly potent piece against of evidence quirement of consular notification until af defendant, may its erroneous introduction trial. v. Ademaj, ter United States 170 still be harmless where the other evidence Cf. (1st Cir.1999). 58, F.3d 66-67 re Santos against him it weighty was so assured days ceived notification four after his ar beyond jury a reasonable doubt that the tried, and five rest months before he was would have returned a conviction even ab adequate him giving time to seek consular sent the confession. United States v. contact in in plea negotiations, his his de (8th Cir.1994) Jones, (im 275, 16 F.3d 279 preparation, during fense the trial it proper admission defendant’s confession self. He declined consular notification. harmless where other evidence included Therefore, argument four-day his that the evidence”); ‘smoking gun’ “virtual see also analogous was a “structural defect” Robinson, 320, United States v. 20 F.3d counsel, e.g., to a denial of Gideon (8th Cir.1994). 323 335, Wainwright, 792, v. 372 U.S. 83 S.Ct. in government this case did not (1963), 9 inapposite. L.Ed.2d 799 Even gun- limit itself to a smoking introduced —it if the Vienna Convention an creates en arsenal, an entire by as witnessed the ar- participation forceable to consular in ray of evidence described above. Santos trial, his five months was than more coherent, explanation offered no credible it, enough time for Santos to exercise Accordingly, for this evidence. we are fairly his own to do failure so cannot any convinced that error in admitting the charged government’s to the four-day de beyond statements was harmless a reason- lay. doubt, able and we affirm the conviction. Thus, the issue before us is whether the pre-notification admission of two Santos’s III. requires confessions reversal of his convic- case, purposes tion. For Santos also contends that he was of this we assume deciding without that Santos had an indi- entitled to a reduction his sentence for vidually responsibility. enforceable right under Article 36 “Whether a accepted to be informed of his responsibility defendant has is a upon notification that question depends largely attached arrest factual which
H09 sentencing credibility assessments Yell, 581, v. PARTNERSHIP,
court.” United States V S LIMITED an Cir.1994). (8th The determination of 583 LIMITED PART ARKANSAS only if it NERSHIP, the district court will be reversed Appellant, clearly to be is so erroneous as without v. Ervasti, 201 foundation. United States DEPARTMENT OF AND HOUSING (8th Cir.2000). 1029, F.3d Santos DEVELOPMENT; URBAN United argues government to its put that he America, Appellees. States only trial proof at to vindicate his Article No. 99-3692. Not rights. did Santos contest the guilt challenge fact of his evidence at Appeals, United States Court of however, trial, apparently he contra- made Eighth Circuit. dictory concerning his respon- statements Nov. Submitted: 2000. sibility both before and after his conviction and continued to insist that his involve- Filed: Dec. 2000. ment the document falsification scheme principally attributable to unidenti- Wayne. fiable man named In these cir-
cumstances, it was not clear error for the grant court him
district to refuse to responsibility reduction. judgment of the district court is
affirmed.
BEAM, Judge, concurring. join opinion
I the court’s without reser- I
vation. write to note that if it had necessary
been for the to court decide
issue, I adopted reasoning would have
of those courts that have found that there individually enforceable under
Article 36 to be informed of a ar- upon notification attaches
rest in a manner similar to the warning.
receive Miranda