United States v. Jose Lombera-Camorlinga

BRIGHT, Judge, dissenting: Circuit America, UNITED STATES case, the Plaintiffs recovered In this Plaintiff-Appellee, Included 12.5 million dollars.

verdict of testimony damage calculation Degnan, expert, Stephen Plaintiffs’ LOMBERA-CAMORLINGA, Jose owed the Plaintiffs calculated who Defendant-Appellant. million dol- approximately 11.4 BanRural objection, the trial court admit- lars. Over No. 98-50347. jury could use this evidence

ted Appeals, Court of damages. the Plaintiffs’ measuring Ninth Circuit. claim, It is now known that BanRural’s Argued and Submitted En Banc trial, after not six months does calculated 16, 1999. Dec. view, my million exceed 5.5 dollars. a bank debt such as prove one does Filed March an testi- by having expert witness this one amount of the loan. to the estimated fy as testify should either as to

A bank’s debtor pro- of the bank’s demand or

the amount from the bank of the

duce evidence the debt. Neither was done

amount of

here. admitted improperly

The trial court testimony establishing inflated

expert produced windfall for the

bank debt Expert testimony damages.

Plaintiffs’ underlying

based on incorrect facts should City See United States be excluded. Cir.1997);

Miami Co., Bradley Armstrong Rubber see (5th Cir.1997). 168, 177 trial grant

I would Defendant new would, by unless the damages Plaintiffs

remittitur, reducing an award accept damages by dol-

jury award 2.5 million

lars. Coleman,

Benjamin L. Assistant Federal Defender, California, Public Diego, San the defendant-appellant. Kris,

David S. United States Depart- Justice, D.C., ment of Washington, plaintiff-appellee. Aceves,

William J. California Western Law, California, School Diego, San the amicus. HUG,

Before: Judge, Chief BROWNING, SCHROEDER, BOOCHEVER, KOZINSKI, O’SCANNLAIN, KLEINFELD, THOMAS, MeKEOWN, WARDLAW, and FLETCHER, W. Judges. Circuit Opinion by SCHROEDER; Judge BOOCHEVER; Dissent by Judge Dissent by Judge THOMAS.

SCHROEDER, Judge: Circuit Article 36 of the Vienna Convention on Relations, Consular April 77, provides U.S.T. that law enforcement officials na “shall inform” arrested tionals of their to notification of their panel A consulates. this court held that Article 36 creates an individual is enforceable the courts of the United States. United States v. Lombera-Camor linga, 170 F.3d Cir. 1999) (withdrawn). Reversing ruling court, panel district further held post-arrest that a defendant’s statements being made before advised of this subsequent in a pros inadmissible criminal ecution, provided the defendant can show prejudice from the lack of notification. Id. at 1243-44. accept

We voted en banc review the case the suppres- to consider whether sion of evidence an appropriate is for violation of the Vienna Convention. not, We now hold that for there active, majority A nonre- operation of the 1242-44. language or nothing in the judges of this court voted to rehear eused suggest treaty provision banc review was the case en banc. Our en create intended argu oral quality the excellent pf aided to those an- similar protections appellee of both the ment behalf nounced appellant. later in years Miranda Court three Arizona, U.S. 79-article, is a The Vienna Convention (1966). In reaching deci- the treaty to which both Unit- multilateral to the State sion, weight some give It signatories. and ed States Mexico interpretation treaty, of the Department’s negotiated in 1963 and the ratified originally submitted in set forth in a letter 1969, thereby becoming United litigation current- conjunction with similar supreme of the See the law land. Circuit, Const, in the First ly pending VI, a provisions art. cl. 2. Its cover Li, 97-2034, et al. Fook Nos. States Nai require consular in- number of issues treaty the cre- do not decide whether We notification, including the or tervention judicially rights individual that are ates national, necessity of foreign of a the death ways. in other enforceable guardian a a appointing a or trustee for minor, foreign the national who is a dispute. not in facts are underlying The airplane of a or the wreck of foreign crash a citizen of Lombera-Camorlinga, Jose boat, the arrest detention foreign a and or Calexico, Mexico, at the was arrested Cali- officer. Article deals with of a consular entry kilograms when 39.3 of port fornia a must a what member state do when Be- marijuana were found his vehicle. foreign provides, national It is arrested. Lombera-Camorlinga, of- questioning fore part: in relevant him of his Miranda rights ficers advised facilitating to the 1. With view exer- any him rights inform under but did not relating na- cise of consular functions to they nor did con- the Vienna sending tionals State: post. consular tact the Mexican Lombera- subsequently made self-in- Camorlinga (b) if so the

criminating requests, competent statements. he au- shall, receiving thorities State charges on of im After indictment his delay, post inform the without consular marijuana possession and portation of if, the sending State within its consu- distribute, marijuana with intent Lomb district, lar a national that State is moved for era-Camorlinga suppression prison arrested or committed to ground on statements the post-arrest his custody trial or is detained pending were obtained violation of Any other manner. communication the The Article 36 of Vienna Convention. post by addressed the consular motion, district court denied arrested, person prison, custody Lombera-Camorlinga entered a condition detention shall also be forwarded appealed subsequent al guilty plea and delay. authorities without said said The appeal, panel conviction. of this On the person authorities shall inform con- district court court held that the erred delay rights without of his under cerned denying suppress the motion sub-paragraph. prejudice. making first determination panel Lombera-Camorlinga, at 1244. The held in addition creat- (1) nations, panel ing obligations In held that between Article 36 doing, so judicially rights in the Convention creates en creates individual enforceable (2) rights, The sup panel forceable individual courts of United States. plain language to the pression may primarily serve looked foreign foreign provision, if the na which states that violation of these rights” informed of “his prejudice. can demonstrate Id. at national is tional lending that section. Also some crime. id. view support to this is the fact that reasoning Court’s in Rauscher relied foreign contact with the consulate is re- specific provisions of the particular requests quired only foreign if the national extradition invoked aas defense. it. law Domestic enforcement authorities See id. at 7 S.Ct. 234. Alvarez- obligation have no foreign thus Machain the Court considered the extradi- foreign sulate unless the national himself tion treaty between the United States and provi- one. This triggers implies Mexico, which orderly establishes an pro- protection sion exists transferring cess for individuals one from national. country prosecu- criminal Court has treated the is tion. The Court held that because the sue the provision any of whether creates treaty failed to expressly prohibit U.S. law judicially open enforceable rights an circumventing enforcement from pro- Greene, question, Breard v. stating and abducting cess Mexican citizens in or- U.S. S.Ct. der to to force them trial in stand the (1998), that the Vienna Con such conduct could not “arguably” vention creates individual jurisdiction. serve as defense to rights. Our own court has at two least 664-70, U.S. at 112 S.Ct. 2188. Whether occasions, in a different but con related treaty or not provide violations can the text, recognized judicially enforceable basis for particular claims or defenses thus request to consular notification in appears depend upon to particular the deportation proceedings. See United treaty and claim involved. States v. Rangel-Gonzales, F.2d 529 (9th Cir.1980); government argues United States Calderon- strenuously that Cir.1979). Medina, (9th 591 F.2d 529 In Article judicially 36 creates no enforceable cases, however, Department those kind, the rights individual our calling Justice had embodied the Conven to attention the Vienna Convention’s provisions tion a corresponding INS preamble which language, states that the 242.2(e), regulation, 8 C.F.R. and we “purpose privileges im- [consular] regulation relied on in reaching that our munities is not to benefit individuals but Rangel-Gonzales, decisions. See performance ensure the efficient of func- 530; Calderon-Medina, at at 531. tions by posts....” Appellant consular We no had occasion to hold that viola the rejoins that Galderon-Medina we de- treaty tion the alone was sufficient to argument, clined to endorse the same permit a foreign national overturn a pointing “protection out that the of some deportation. corollary interests of aliens as class is a efficiency.” to consular 591 F.2d at n. level, On a general 6. The not preamble particu- is therefore Court has can recognized that treaties larly helpful analysis. to our individually some circumstances create en rights. forceable See United v. Al States We need decide whether to

varez-Machain, 655, 659-60, U.S. government’s argument accept S.Ct. 119 L.Ed.2d individually no 36 creates enforce leading example is United States v. able rights, agree however. We with the Rauscher, government’s position alternative that as (1886), holding through L.Ed. 425 suming that some remedies are provisions treaty, of an extradition the re available for the of Article quirement violation specialty-permitting prosecu only prosecution tion exclusion in a criminal of evi the crime- on which extradi post-arrest tion was based-could as a dence the result serve defense to obtained as an attempted prosecution interrogation among another is not them. Judge Thomas’s dissent discuss- should drafted. the statements arguing- that exclusionary history of urge longer us to make appellants es suppressed, confession, the trea- assumption involuntary an but

the unwarranted rule for pur- same intended serve the ty was we must decide. is not issue enforcing rights poses as Miranda Although contends that appellant against to counsel and self-incrimination and, in exclusionary rule is the usual Yet, treaty context. post-arrest instance, only way enforce effective consular notifi- required does not link the requirement, this and treaty’s commencement of any way cation in years held in recent circuits have treaty, police interrogation. Nor does only typically rule available exclusionary does, law enforcement require as Miranda violations, not for statu constitutional interrogation once the to cease officials See United tory violations. Miranda, right. arrestee invokes Smith, Fur- S.Ct. 1602. Cir.1999) (“The use thermore, counsel while typically re exceptional remedy is an un- secured against self-incrimination of constitutional served for violations Fifth and Amendments der the Sixth States v. Hen rights.”). See also United essential to our Constitution and are own Cir.1983) (1st 18, sel, (reject 699 F.2d 29 by no justice system, our criminal treaty suppression remedy as a a universally recognized or enforced. means rule Miranda, exclusionary 86 S.Ct. violation because See 384 U.S. broad, a (stating 1602 that the Fifth Amendment’s “was fashioned to vindicate “had or- action right against general right agency self-incrimination its to be free of law, igin protest against inquisitorial pro in a but rather to not ‘authorized’ per- ... accused interrogating specific, constitutionally pro methods of tect certain sons, individuals.”); in the con- long which have obtained rights tected United (6th system”) (quoting Ware, 414, tinental v. Walk- Brown v. F.3d 424 States 161 er, 591, 596-97, 644, Cir.1998) 16 40 161 U.S. S.Ct. in (holding statutory violation (1896)). L.Ed. 819 Van Gordon imposition of the exclu justify sufficient to Kessel, on the Ac- European Perspectives rule, sionary underlying an consti absent Evi- cused as a Testimonial Source right); tutional violation or United States (1998) dence, 799, 100 810 (4th W. Va. L.Rev. 1286, Mason, v. 52 F.3d 1289 n. 5 (explaining today European Cir.1995) even (same); Thomp v. United States no typically right Cir.1991) countries afford coun- (11th son, 1249, 936 1251 F.2d police Diane during questioning); sel Ma- (holding statutory insufficient violation Amann, Whipsaw Ways: rie A Cuts Both rule, justify exclusionary imposition Privilege Against viola underlying Self-Incrimination absent an constitutional Context, in 45 an International UCLA Congress or right tion evidence (1998) 1201, (reporting L.Rev. remedy); as a United intended exclusion in recent to silenee development of (2d Benevento, 60, States v. 836 F.2d 69 noting but countries Cir.1987) (same); King United States v. than generally expansive remains less Cir.1986) (5th ton, 733, Fifth Amendment the United (same). States). think the There is no reason to limit We do not of the Vienna Convention had drafters remedy as a for constitutional mind, use uniquely these American Supreme alone. The Court violations especially given the fact that even the ago some indicated that exclusion Supreme did not re- time United States Court remedy may available for violations quire ary post- Fifth and Sixth Amendment provisions law other than Consti warnings until it decided Miranda arrest Blue, 1966, treaty v. 384 U.S. years after the tution. States three United 1416, 255, 1244, 251, Department S.Ct. 16 L.Ed.2d 510 the State now spo has occasionally ken, permit has expressed opinion Our court has remedy ted excluded as suppression inappropriate evidence is an remedy. involving statutory Latibenheimer, certain violations. cases In Factor v. 290 U.S. Doe, F.3d See United v. (1933), S.Ct. L.Ed. 315 (9th Cir.1999) (violation of the Juve Supreme resolving Court stated Delinquency notification parental nile Act’s interpretation, doubts about “the construc Poyck, provision); United States Van of a department tion treaty political (9th Cir.1996) (violation F.3d government, while not conclusive 5); Neg States v. Fed.R.Crim.P. upon it, upon courts called to construe rete-Gonzales, of weight.” nevertheless Id. at Cir.1992) (violation 41); of Fed.R.Crim.P. Airlines, Al S.Ct. See also El Israel Soto-Soto, Tseng, Ltd. Tsui Yuan 525 U.S. (9th Cir.1979) (violation U.S.C. 168, 662, 671, 482). None these cases shed much (1999) (“Respect ordinarily due the rea light using on the propriety of exclusion sonable views the Executive Branch violations, however, and the concerning the of an meaning international which we infrequency with have allowed an treaty.”); Oregon, Kolovrat v. exclusionary remedy for a non-constitu (1961) 6 L.Ed.2d 218 claim appellant’s tional harm belies (“While interpret courts treaties them exclusion normal or is the default rule selves, meaning them given such circumstances. departments government particularly charged negotiation with their and en Lacking any guidance from direct given great forcement is weight.”). It is court regarding Court give weight true that courts tend to less to exclusionary remedy of an appropriateness adopted an executive branch position for a Vienna violation here, litigation, the course of as is case by analogy us to look to appellant asks than to an Calderon-Medina, interpretation diplo made Rangel-Gonzales and matic with relations other countries. See regulation requir concerned an INS which (Third) Foreign Restatement Relations during depor consular notification reporters’ 2. that note Given process. Although regulation tation Vienna Convention is silent-and therefore compliance was to promulgated ensure ambiguous, not sup at best-on whether or Convention, Rangel-Gon- with the Vienna remedy, pression appropriate is an howev and not con zales Calderon-Medina did er, it Department’s opinion the State that treaty directly. sider the cases held The is not deserves at least some deference. prejudice alien can who show stem ming from the failure follow its INS’s to Equally Depart- important, State regulation requiring own notification can position well-supported. ment’s reentry later prosecuted illegal be it Department State indicates that has his- legally because the defendant was never torically enforced the Vienna Convention deported under first place. U.S. law the itself, reports investigating of violations 530; at Rangel-Gonzales, apologizing foreign governments and Calderon-Medina, 591 F.2d at Ran with working and domestic law enforce- gel-Gonzales and are Calderon-Medina prevent ment future violations when only tangentially therefore relevant necessary. judicial The addition of a en- question of whether a violation possi- contains the forcement mechanism can be remedied exclusion of evidence respective bility conflict between the prosecution. a criminal judicial powers of the executive and Moreover, panel provided While the with branches. fact issue, authority” willing in fact Department “scant on this 170 F.3d at State to and being before told law enforcement made them directly with does work affirm consular notification. We therefore this instance detracts compliance ensure judgment of the district court justification for traditional from the ground it to exclude properly only avail- refused exclusionary that it is rule: Lombera-Camorlinga’s statements. We police controlling miscon- method of able Evans, a violation of Article do not decide whether Arizona duct. See redressable more common 131 L.Ed.2d 34 (1995) (“The judicial damages equi- such as as remedies operates table relief. remedy designed to judicially created violations ... against future safeguard AFFIRMED. general deterrent effect. through the rule's device, BOOCHEVER, Judge, with the rule’s Circuit remedial As Judges has restricted to those JAMES R. whom BROWNING application objectives join, dissenting: where its remedial and THOMAS instances served.”) (cita- efficaciously thought most majority opinion purports avoid omitted). tions deciding Article 36 of the Vienna whether individually creates enforce- out Convention Department points The State “[A]s- able to consular notification. signatories no to the Vienna suming that some remedies are permitted suppression have Convention 36,” circumstances, of Article available for the violation similar and that two Australia) Majority majority nev- specifically Opinion (Italy have re- decision, only leaves current form R ertheless jected In the Australian it. (1981) Department’s the State Abbrederis, 109, the enforcement 36 A.L.R. court re- practice “investigating self-described today that the as we do concluded ports apologizing of violations and for- Article 36 neither protections Convention’s eign governments, working with do- police interrogation pre- nor seek target prevent enforcement to further preserve the mestic law self-incrimination vent necessary.” Majority when opinion violations to counsel. The stated: equivalent to Opinion at 887. This is se- giving weight fullest to the pre- “Even toothless, 36,1 by a claw- curing enforcement in Art do not see how can scriptions actuahy who any way less Mon. Defendants contended affect prejudiced by the failure to be noti- carrying investigation by out of the an rights may of suffer adopt fied their Article interrogation.” By refusing to rule, punishments and other imprisonment promote thus harmo- subjected which would not have been interpretation in the of an international ny (Third) rights had their been observed. Such an of agreement. See Restatement (“Treaties interpretation treaty hardly the con- Foreign cmt. of Relations d process principles to the lay by down enforced forms due embod- rules be ied the United States Constitution. We through their internal or parties courts interpret treaty. not so agencies should be con- should administrative uniformity strued so as achieve result majority The reasons that some other despite legal differences between national recognize do not or countries enforce systems.”). rights against counsel and self-incrimi- nation in the same manner as does our

CONCLUSION irrelevant, country. treaty This as the is specify an exclusive means for language The Vienna Convention does not Article years enforcing provisions its over the last 30 operation signatory more than government’s position that a That two of the support foreign that the Vienna post-arrest national’s statements countries concluded solely protections he Article 36 “nei- should not be excluded because Convention’s 36(l)(b) target police interrogation ther nor seek to of the Vienna Conven- preserve or tion prevent provides: self-incrimination on Consular Relations counsel,” Majority Opinion requests, [I]f he so the competent au- hardly treaty provisions dictates how the shall, receiving thorities State should enforced in the States. be delay, without post inform consular foreign A national arrested and prosecuted if, sending State within consu- the United States entitled district, lar a national of that State is protections of our and the Constitution arrested or prison committed to or to procedures justice system. of our criminal custody pending trial detained A national foreign whose to counsel Any other manner. communication or against self-incrimination is violated in by addressed the consular post country is entitled to suppression arrested, person in prison, custody even if evidence such violation has no shall by detention also be forwarded country. another said authorities without delay. said authorities shall person inform I agree majority’s conclusion n cerned delay rights his foreign post “a national’s arrest state- this sub-paragraph. solely ments should not excluded be- Relations, Vienna Convention on Consular being cause he made them before told of April (emphasis U.S.T. Majori- to consular notification.” added). added). a treaty As made under the au- ty Opinion (emphasis at 888 Un- thority of the United violation, the Vienna like a Miranda a violation of supreme Convention is the law of the land. require Article 36 does not automatically Const, VI, art. cl. 2. suppression. But the foreign when nation- al preju- can show that he or she has been undisputed It is the customs offi- diced the failure to advise him or her of cers who took Lombera-Camorlinga’s right, prejudice such a should rec- did not statements inform him of the according protections tified accord- rights established Article 36. There- ed our Constitution. District courts fore, the customs officers violated the Vi- perfectly capable making the factual enna Convention. determination a foreign whether national While purposes one of Article 36 See, prejudiced. e.g., United States v. is to “facilitate] the exercise consular Miranda, F.Supp.2d relating functions to nationals of the send (D.Minn.1999); United States v. Alvarado- ing State,” Convention, 36(1), Art. (S.D.Cal. Torres, F.Supp.2d nationals are more than incidental benefi 1999); Tapia-Mendoza, United States v. 36(l)(b). ciaries of Article lan (D.Utah 1999); F.Supp.2d clearly guage itself states that the United States v. Chaparro-Alcantara, 37 36(l)(b) in sub-paragraph enumerated be 1122, (C.D.Ill.1999) (all F.Supp.2d long foreign to the national: “The said making factual finding defendants did the person authorities shall inform con prejudice establish from failure to in delay rights cerned without of his consul). form them of to contact Convention, sub-paragraph.” this Art. added). 36(l)(b) I agree Judge Pregerson’s

Because with (emphasis It strains the (now opinion withdrawn), English interpret in this case I language rights” “his repeat significant portions of reasoning its in this to refer to the context Consulate’s here. rights. See United States v. Lombera-Ca held in We United States v. Ran (9th 1241, (9th morlinga, 529, 170 F.3d 1242 Cir. 617 gel-Gonzales, F.2d 532 Cir. 1999) (withdrawn).1 1980), the “[t]he established dissent, Although adopted por- reading quotation I have substantial direct is not verbatim, opinion tions of that for ease in further indicated. regulations full treaty laws and must enable case said in this

regulation for given purposes effect personal one.” this Arti- rights which the accorded under Moreover, provision language 36(2). Convention, Art. cle are intended.” mandatory and rather but precatory, is not v. Cardoza-Fonse INS unequivocal. See importance of the Vienna Despite 421, 1207, ca, 441, 480 U.S. Convention, supreme its status as the (1987) mandatory (contrasting L.Ed.2d 434 land, officials law of the law enforcement un “precatory” provisions obligations and rights overlook the Article continue to Relating United Nations Protocol der the 36(l)(b) nationals establishes Refugees). Accordingly, to the Status of “arrested, custody in prison, who are rights un foreign nationals individual 36(l)(b). By Art. detention.” 36(l)(b) Conven Article der at failing complain of these violations tion. trial, however, most individual defendants that, where long recognized has It un- rights to exercise [their] have “failed individual treaty provisions establish conformity der the Vienna Convention rights must be enforced rights, these of the United with the laws States.” States the courts of Greene, 371, 375-76, v. 523 U.S. Breard See United behest the individual. 1352, 1355, 140 S.Ct. Rauscher, 407, 418-19, 7 v. 119 U.S. result, As violations of Con (1886) (citing Head 30 L.Ed. 425 S.Ct. judicially gone vention have often unre- Cases, Money S.Ct. See, id.; e.g., dressed. Stew Villafuerte (1884)); see also United States L.Ed. 798 (9th Cir.1998); art, 655, 659-60, ez-Machain, 504 U.S. v. Alvar Stewart, 133 F.3d LaGrand (1992) 119 L.Ed.2d S.Ct. (9th Cir.), denied, 971, 119 cert. continuing authority of (recognizing (1998) (all 422, 142 L.Ed.2d 343 hold S.Ct. Rauscher). 36(l)(b) Because Article es proce that the Convention claim was rights, rights these tablishes individual defaulted). durally by our courts. must be enforced sup- his By raising pretrial claim a determining appropriate remedy In motion, pression appellant exercised violation, should for an Article 36 look under the Convention in con- language of Article. See first to the formity with our laws. Breard v. Alvarez-Machain, 504 U.S. at (4th Cir.1998) Pruett, (“In construing ... we (“The (Butzner, J., concurring) provisions look to terms determine its first implemented of the Convention should be majority goes beyond meaning.”). can appropriate- before trial when rely heavily on a treaty language letter addressed.”) ly Department filed from State in the junction litigation First Circuit. with authority There is scant reme however, majority acknowledges, As the dy involving criminal cases violation deference, little entitled to that letter is We have Convention. litigation. prepared the course of issue, however, addressed eases post-hoc less We should defer even involving illegal entry fol prosecution agency charged of an rationalization lowing deportation. treaty provision when its enforcement of Calderon-Medina, notably has been so lax. enforcement Cir.1979), alien had not an been advised 36(2) in right to consult consular officials rights re- his provides: Article “The underlying deportation paragraph to in of this article ferred 242.2(e) (1978), required which conformity shall be with the C.F.R. exercised State, his receiving INS to inform the alien of regulations laws and of the however, with consular authorities. We subject proviso, to the to consult burden, up prosecu government the alien’s later to the concluded to rebut deportation for illegal entry following tion showing prejudice. precluded prej

would be if “the violation majority dismisses Calderon-Medi of the udiced interests alien which were Rangel-Gonzales na and because in those protected by regulation.” Id. As we an regulation cases implemented INS Arti Calderon-Medina, § explained was requirement cle 36’s of consular notifica compliance with Arti intended ensure (an tion. But the fact that the agency INS cle 36 of the Vienna Convention and to likely obligation most to have the initial alien, protect some interests rather notification) adopted regulation consular a than of the Id. at 531 6. consulate. n. Therefore, clearly regards which we remanded for the district 36 as confer court to consider whether these interests ring right argues for, individual not had prejudiced. against, a conclusion that Article 36 estab Further, lishes an individual right. Rangel-Gonzales, In at cases, those two in which the defendants applied the standards laid down Calder- prejudice, showed court dismissed the on-Medina. We held that because the them, against indictments according defendant carried his burden to show some thus regulation likelihood that had the same a them even more drastic than the his “been followed defense and the conduct suppression of evidence. hearing materially would have been case, Lombera-Camorlinga filed affected,” illegal entry indictment motion suppress post-arrest a his state-

should have been dismissed. Id. We con- ments because he was not first advised prejudiced cluded the violation his under the Vienna Convention. by interests of the defendant protected The district court denied the motion to and, association, regulation by the INS suppress making a determination As Judge Vienna Convention. Schroeder of prejudice. We therefore should reverse wrote: and remand to the district court for The appellant showed he did not know in making post- determination whether his his right to contact the consular offi- cials, statements, Lombera-Camorlinga that he would have so he arrest done had known, and that prejudiced by such consultation the violation of the Vi- merely appointment well have led not Convention. enna counsel, but community also to assis- tance in creating a more favorable rec- THOMAS, Judge, Circuit with whom to present immigration ord to the judge Judges JAMES R. BROWNING and the question deportation. full, join with BOOCHEVER whom government Id. The no produced evidence joins respect WARD Judge LAW with to rebut showing. See id. II, dissenting: Section why I see no reason same standard respectfully majori- I dissent from the apply Upon should not this case. ty’s conclusion showing Vienna Convention was appropriate method which violated a failure inform the alien private to consular notification consulate, his contact the de- should be enforced in the United States.1 proceeding fendant in a criminal has the respectfully disagree major- I of producing initial burden show- evidence ity’s holding paid that deference should be ing prejudice from the violation of the If agency’s litigating position. Convention. the defendant meets that to an majority 1. The not reach issue of remedies does sion afforded private right similarly whether enforcement exists Treaty. analysis is This confined. Rather, treaty. under the it limits its discus- 892 in Unit The rule continued

I Warickshall See, e.g., Ziang ed common law. Re- The Vienna Convention Consular States, 1, 266 U.S. Wan v. United Sung (“Vienna “Treaty”) or Convention” lations 1, (1924); 131 45 69 L.Ed. S.Ct. law enforce- the United States requires Oklahoma, Territory v. F. 169 Harrold of to inform arrested officers ment 47, Cir.1909); 54 Bram v. United to their re- of their nationals 542, States, 532, 183, 42 168 18 U.S. S.Ct. notified of the arrest. spective consulates (1897); Territory Hopt 568 v. L.Ed. on Consular Rela- Convention See Vienna 574, Utah, 585, 202, 28 S.Ct. U.S. tions, 36(1), 21 77. It fur- U.S.T. Article Indeed, the doctrine L.Ed. that this be exercised requires ther that, 1813, it by so was ingrained was laws of the arrest- in accordance with the prison argument “[i]f observed 36(2). id., The country. confess, to aby er has been once induced that, assumption with the majority begins threat, prac or promise it is common States, exclusionary rule in the United reject subsequent to a confession of tice only for is available constitution- generally same, v. or like facts.” United States Therefore, majority al violations. (C.C.D.C. 409, Charles, F. Cas. cludes, exclusionary rule cannot be 1813). enforcing considered the normal method suggestion that the rule ex- The first such as private procedural rights, those cluding improperly obtained confessions treaty. by created be an additional basis came had constitutional proceeds faulty syllogism The from Bram, 168 U.S. at 18 S.Ct. 183. exclusionary premise. applied rule as However, it was not until Brown v. Missis- American, uniquely to confessions is not 278, 285-87, sippi, U.S. 56 S.Ct. it our given was birth nor Constitution. (1936), fully 80 L.Ed. Court Rather, English it from originated com- primary embraced the Constitution as its law, formally King mon enunciated excluding improperly basis for obtained (K.B. Warickshall, Rep. Eng. short, application confessions. 1783): has exclusionary rule confessions firmly jurispru- established in American voluntary free is

A confession de- beginning Republic, dence from the credit, serving highest it because long before Constitutional dimension strongest from presumed is flow explored by the courts. guilt, and therefore it is admit- sense proof of the crime to which it Thus, confessions, ted respect refers; forced from the but confession exclusionary cannot brush off the rule as flattery byor hope, violations; mind confined to constitutional in- fear, deed, comes in so questionable torture history our it. entire belies shape it to be when considered as majority acknowledges refer- of guilt, encing the evidence that no credit some of numerous occasions the n it; ought given applied and therefore has been rejected. context,2 statutory but discounts in- those that; matter, 301, 313-14, general It is clear as a S.Ct. (1958) Supreme (upholding suppression Court has limited the use of the exclusionary rule constitutional violations. evidence obtained violation of 18 U.S.C. Blue, federal See United States U.S. “knock and announce” States, (1966) statute); Mallory (noting 16 L.Ed.2d 510 "in a Court number areas L.Ed.2d (1957) recognized developed exclusionary (stating suppression has of statements gained of Fed.R.Crim.P. 5 rules where evidence has been in vio- obtained in violation arraign proper if lation of the accused’s Con- would failure "without stitution, statutes, delay” opportunity unnecessary provided federal "an federal rules confession”). procedure."); the extraction of a Nor see also Miller v. United

893 with no dis trial farrago, import any stances as or is detained in other manner.” exclusionary 36(1). cerning whether is Vienna It fur- judicial remedy provides our nation’s usual for vio ther that said “[t]he authorities procedural rights. may lations That shall person inform the concerned without contexts; delay well be true other for exam of his rights under sub-para- ple, graph.” the exclusion of evidence obtained Id. All parties, including the distinctly States, illegal from an search agree arises United that language See, from Fourth e.g., requires Amendment. United States law enforcement States, 383, Weeks v. United 232 U.S. 34 officials inform an arrested na- 341, (1914). However, 58 L.Ed. 652 tional of the to have his or her na- it is applied not true as to the exclusion of tional consul informed arrest. The improperly obtained confessions. Supremacy treaties, Clause makes such as bar, the one at supreme “the Law The question appro- then is whether it is Land,” binding Judges “the in every priate apply exclusionary rule to Const., VI, 2; State.”3 U.S. Art. cl. see confessions obtained in violation of Vi- also Chapman v. Houston Rights Welfare enna construing treaty, Convention. Org., 600, 613, 1905, 441 U.S. 99 S.Ct. we look its plain words. United (1979) (“[A]ll L.Ed.2d 508 rights, federal Alvarez-Machain, 655, States v. treaty, statute, whether created by by or 663, 2188, 112 S.Ct. 119 L.Ed.2d 441 by regulation, are ‘secured’ by Su- (1992). The if Treaty provides pris- Clause.”). premacy requests, oner competent “so authori- shall, ties of receiving State How is the to consular notification delay, post inform the consular to be Treaty exercised? The is not silent if, sending provides State within its consular dis- on this: it the right “shall trict, a national of that State is arrested or be in conformity exercised with the laws prison to custody pending regulations committed or and of the receiving State.”4 See, Gantt, e.g., only we. United States v. available effective deterrent such dis- 987, (9th 1999) regard.”); Doe, (holding F.3d Cir. United States v. F.2d cf. 776, (9th Cir.1988) (d) (holding technical violations of re- Fed.R.Crim.P. re required versal of conviction quire if alien suppression defen- if there was a "deliberate prejudiced government’s dant was failure disregard of the rule” or "if the defendant parents to contact his and Mexican Consulate Doe, prejudiced”); United States v. required as Delinquency Federal Juvenile (9th 1999) F.3d ("Although Cir. Act); Gatto, United States v. 763 F.2d § 5033 violation the Federal [of Juvenile De (9th Cir.1985) (suggesting supervi- violation, linquency process due Act] is not a sory power to exclude be evidence could exer- may independent sup serve as an basis "any cised where there is a violation Doe, pression.”) (citing United States v. statute, provision, specific stitutional federal (9th 1998) (en banc)), Cir. order, discovery any recognized denied, - U.S. -, cert. 120 S.Ct. right”). (1999); L.M.K., (9th Cir.1998), 149 F.3d as Supremacy 3. The Clause reads in full: "This Cir.1999) amended, (s 166 F.3d 1051 tati Constitution, and the Laws of the United ng § that violation of 5033 of Juve Federal States which shall be made in Pursuance may, Delinquency upon showing nile Act thereof; made, all Treaties or which shall prejudice, justify limited such remedies made, Authority under the of the United suppression, though statutory even violation States, Land; supreme Law shall - denied, deny process), does not due cert. Judges every and the State bound shall be -, 145 L.Ed.2d 89 any thereby, Thing the Constitution (1999); Poyck, United States v. Van Contrary Laws of State to the notwith- (9th Cir.1996) (noting that incrimi Const., VI, standing.” U.S. Art. cl. 2. nating statements obtained in violation of 5(a) 3501(c) Thus, Fed.R.Crim.P. U.S.C. fact that rule is discretion); be excluded the court’s Treaty not referenced in the is of no moment. Soto-Soto, contemplates Treaty expressly (9th Cir.1979) ("Statutory disregard law was enforcement be left laws of mechanism arresting ed. Exclusion the evidence seized is the nation. 36(2). 63 87 318 U.S. S.Ct. Under (1943).5 law, McNabb-Mallory law, L.Ed. 819 The and Constitutional our common here its theoretical not rule is relevant because confessions are obtained improperly upon are similar to those underpinnings ob- evidence. Confessions into admitted rests, a similar which Article 36 that of informing the defendant tained without duty dispatch imposed by act with the attorney are inadmissible. right to an his Arizona, purpose safeguarding for the of Treaty v. 384 U.S. See Miranda (1966). rights.6 Al- L.Ed.2d 694 S.Ct. signifi- majority places great the though Thus, right when such as the fact de- the that Miranda was cance on delay consulate have a notified without Treaty, the ratification of the cided after violated, long have have been our courts inter- concerns about custodial

Miranda’s the the reme- applied not appear without counsel did rogation dy proce- of law. The choice our Supreme Court had epiphany: as an we protections required dural before denial counsel a factor long considered es- admitting confessions as evidence were whether, totality determining under the tablished to ensure that confessions were circumstances, a was of the confession voluntary employing and obtained without York, Spano v. voluntary. New improper spe- means. Voluntariness 315, 323, 1202, 3 79 S.Ct. L.Ed.2d U.S. cial concern in case of detained for- Carolina, (1959); v. Harris South eigners, who speak English neither 68, 70-71, 69 338 U.S. S.Ct. legal proceedings.7 nor understand The (1949); Ohio, Haley L.Ed. requirement that panel’s the defendant 596, 600, 92 L.Ed. U.S. S.Ct. with prejudice show is also consistent our York, (1948); v. New 324 U.S. Malinski totality law rule common that of the 401, 405-06, 65 S.Ct. 89 L.Ed. circumstances be considered determin- (1945). voluntary.8' whether a was confession long law part

It has also our majority quite properly not does exclusionary rule applies that the opine as what remedies are available in violation of a defen- fessions obtained right enforcement of consular notifi- brought However, promptly dant’s before if peeks cation. one behind Mallory curtain, officer. See United not alternatives are attrac- tive, 77 S.Ct. nor are consistent with the (1957); fact, In Treaty. only options readily McNabb United Angel noteworthy Paraguay 5. that It is also the McNabb-Mal Breard. contended that lory constitutionally rule was not based: language difficulty Breard had and his the-Supreme founded on Court's McNabb was misunderstanding confession “was based on supervisory authority its "exercise of over justice system” of the United States and that justice administration criminal the feder complied if its had courts," U.S. at and al duty of consular the "result notification Mallory rules, procedural based on violations of was would have been different.” In the Case Con- see U.S. at 1356. cerning Application the Vienna Conven- (Paraguay tion on Consular Relations v. Unit- issue, publication Depart- 6. its States), 7) (April (Request ed 1998 I.C.J. requirement ment of State that the states Measures, Indication of Provisional Record). Verbatim foreign the detained national be informed "facilitate[s] to contact his consulate protect government's ability "they including ensuring nationals" receive majority reports 8.The that the confession in speedy However, trial with fair benefit counsel.” voluntary. this case was that con- State, Department of Consular "totality clusion was not based on a Notification Access analysis circumstances” that included the ab- part sence of consular notification as Indeed, Paraguay's the essence examination. against the States in the Interna- claim regarding tional Court of the case of Justice actions, damage apparent private II acknowledgment Treaty creat- I respectfully must part company remedy at private right ed a from the majority in its holding Treaty provide all. express- does not to an agency’s litigating must defer posi- Rather, ly private damage actions. tion. The Supreme rejected Court has Treaty provide plain words See, such e.g., deference. Bowen v. exercised,” notification “shall be Georgetown Hosp., Univ. notify compensat- to should be failure (1988). 109 S.Ct. 102 L.Ed.2d 493 Thus, ed. the Treaty would not seem to See, Invs., So we. e.g., have Resource Inc. actions, private damage it contemplate v. Army Corps Eng’rs, U.S. of judicial policy would be sound to (9th Cir.1998). 1162, 1165 There is a jure legal theory expose a that would indi- basis sound for this rule. As the liability for vidual officers to breaches explained, Court has “Congress has dele- international treaties. decision on to gated the administrative official and not whether attach liability to individual appellate the responsibility counsel such left Congress. violations should be elaborating enforcing statutory com- right That the to consular notification mands.” Investment Co. v. Institute right a be a also is Camp, U.S. 91 S.Ct. Treaty’s with the inconsistent command (1971). agen- L.Ed.2d Administrative conformity “be right exercised statutes, cy governing constructions of with the laws and ar- regulations” performed case a treaty, this outside the resting proce- state. Our law criminal adversary system properly worthy are merely dure a aspirational; is not when However, deference. agency positions de- procedural right established, has been it is to a veloped response lawsuit are not of Thus, enforced. alternative readings they the same character: specifically might what enforcement mechanism exist to help tailored obtain a favorable outcome sense, simply under our laws do not make pending controversy in which the textually either or in the context howof agency is Although involved. we must procedural our criminal laws are adminis- certainly persuasive consider the force of tered. agency’s just it argument, is that. The administration, As a matter arguments advanced in liti- agency far better any question to resolve gation ought to or fall on their own rise about the voluntariness of confession be weight. trial, fore rather than ques confront the Deference in case is especially inap- tion for first time at the of a behest propriate given agen- because it foreign government on the eve of an exe cy’s litigation position separate in entirely See, Greene, e.g., cution. Breard litigation circuit. another The reason- 371, 118 1352, 1355, 140 L.Ed.2d Department proved State has (1998); Stewart, Villafuerte persuasive; we not adopt special need (9th Cir.1998); LaGrand deferring rule assertions as matter its Stewart, Cir.), I respectfully suggest of law. that we denied, cert. creating err in such gravely a rule. L.Ed.2d reasons, For if a these I conclude that III private right consular notification exists Vienna the exclu- A nation’s of law commitment the rule sionary is the appropriate willingness subject method is measured enforcing government in the United its own to it. States when a can requires defendant demonstrate actual Convention the United law prejudice the treaty from violation. enforcement to inform arrested officers of their nationals consulates notified respective

their that this requires It further

arrest. with the laws of in accordance

be exercised country. obligations These arresting judiciary: conjured by the

were not President and rati- negotiated

were Each by the States Senate.

fied of State notifies law

year, Department obligations their officials of

enforcement Treaty.

under the cautious not to

Although we must be foreign policy into the Unit-

intrude treaty calls for enforcement

ed From the with our laws. accordance justice criminal system, of our

inception to admit evidence have refused law. obtained violation of As

fessions McNabb, Frankfurter

Justice observed largely has history liberty

“[t]he history procedural observance of

protections.” 318 Thus, exclusionary rule is

608. enforcing specific

proper means of these obligations when the defendant has prejudice.

shown actual Our commitment requires law us to afford proce- our

detained nationals usual remedies, just we expect foreign

dural

governments our respect

citizens when travel abroad. America,

UNITED STATES

Plaintiff-Appellee, ROSS, Defendant-

Deborah Jean

Appellant.

No. 98-50071. Appeals,

United States Court

Ninth Circuit. March

Argued Submitted 2000.

Filed March

Case Details

Case Name: United States v. Jose Lombera-Camorlinga

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 6, 2000

Citation: 206 F.3d 882

Docket Number: 98-50347

Court Abbreviation: 9th Cir.