UNITED STATES of America, Plaintiff-Appellee, v. Jose LOMBERA-CAMORLINGA, Defendant-Appellant, 206 F.3d 882

Opinion by Judge SCHROEDER; Dissent by Judge BOOCHEVER; Dissent by Judge THOMAS. SCHROEDER, Circuit Judge:

Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, provides that law enforcement officials “shall inform” arrested foreign nationals of their right to notification of their consulates. A panel of this court held that

Article 36 creates an individual right that is enforceable in the courts of the United States. United States v. Lombera-Camorlinga, 170 F.3d 1241, 1242-43 (9th Cir.1999) (withdrawn). Reversing the ruling of the district court, the panel further held that a defendant’s post-arrest statements made before being advised of this right are inadmissible in a subsequent criminal prosecution, provided the defendant can show prejudice from the lack of notification. Id. at 1243-44.

We voted to accept en banc review of the case to consider whether the suppression of evidence is an appropriate remedy for violation of the Vienna Convention. We now hold that it is not, for there is nothing in the language or operation of the treaty provision to suggest

Article 36 was intended to create an exclusionary rule with protections similar to those announced by the United States Supreme Court three years later in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In reaching this decision, we give some weight to the State Department’s

interpretation of the treaty, set forth in a letter originally submitted in conjunction with similar litigation currently pending in the First Circuit, United States v. Nai Fook Li, Nos. 97-2034, et al. We do not decide whether the treaty creates individual rights that are judicially enforceable in other ways. The underlying facts are not in dispute. Jose Lombera-Camorlinga, a citizen of Mexico, was arrested at the Calexico, California port of entry when 39.3 kilograms of marijuana were found in his vehicle.

Before questioning Lombera-Camorlinga, officers advised him of his Miranda rights but did not inform him of any rights under the Vienna Convention, nor did they contact the Mexican consular post. Lombera-Camorlinga subsequently made self-incriminating statements. After his indictment on charges of importation of marijuana and possession of marijuana with intent to distribute, Lombera-Camorlinga moved for suppression of his post-arrest statements on the ground that they were obtained in violation of

Article 36 of the Vienna Convention. The district court denied the motion, and Lombera-Camorlinga entered a conditional guilty plea and appealed his subsequent conviction. On appeal, a panel of this court held that the district court erred in denying the motion to suppress without first making a determination of prejudice. Lombera-Camorlinga, 170 F.3d at 1244. In so doing, the panel held that (1) the Vienna Convention creates judicially enforceable individual rights, and (2) suppression may serve as a remedy for the violation of these rights if the foreign national can demonstrate prejudice. Id. at 1242-44.

A majority of the active, nonre-eused judges of this court voted to rehear the case en banc. Our en banc review was aided by the excellent quality pf oral argument on behalf of both the appellee and appellant. The Vienna Convention is a 79-article, multilateral treaty to which both the United States and Mexico are signatories. It was negotiated in 1963 and ratified by the United States in 1969, thereby becoming the supreme law of the land. See U.S. Const, art. VI, cl. 2.

Its provisions cover a number of issues that require consular intervention or notification, including the death of a foreign national, the necessity of appointing a guardian or a trustee for a foreign national who is also a minor, the crash of a foreign airplane or the wreck of a foreign boat, and the arrest or detention of a consular officer.

Article 36 deals with what a member state must do when a foreign national is arrested. It provides, in relevant part: 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. The panel held that in addition to creating obligations between nations,

Article 36 creates individual rights enforceable in the courts of the United States. The panel looked primarily to the plain language of the provision, which states that the foreign national is to be informed of “his rights” under that section. Also lending some support to this view is the fact that the contact with the foreign consulate is required only if the foreign national requests it. Domestic law enforcement authorities thus have no obligation to the foreign consulate unless the foreign national himself triggers one. This implies that the provision exists for the protection of the foreign national.

The Supreme Court has treated the issue of whether the provision creates any judicially enforceable rights as an open question, stating in Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1998), that the Vienna Convention “arguably” creates individual rights. Our own court has on at least two occasions, in a different but related context, recognized a judicially enforceable right to request consular notification in deportation proceedings. See United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir.1980); United States v. Calderon-Medina, 591 F.2d 529 (9th Cir.1979).

In those cases, however, the Department of Justice had embodied the Vienna Convention provisions in a corresponding INS regulation, 8 C.F.R. § 242.2(e), and we relied on that regulation in reaching our decisions. See Rangel-Gonzales, 617 F.2d at 530; Calderon-Medina, 591 F.2d at 531. We had no occasion to hold that the violation of the treaty alone was sufficient to permit a foreign national to overturn a deportation. On a general level, the Supreme Court has recognized that treaties can in some circumstances create individually enforceable rights. See United States v.

Alvarez-Machain, 504 U.S. 655, 659-60, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). The leading example is United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), holding that through the provisions of an extradition treaty, the requirement of specialty-permitting prosecution only for the crime- on which extradition was based-could serve as a defense to an attempted prosecution for another crime. See id. at 420, 7 S.Ct. 234. The Court’s reasoning in Rauscher relied on the specific provisions of the particular extradition treaty invoked as a defense. See id. at 418-19, 7 S.Ct. 234.

In Alvarez-Machain the Court considered the extradition treaty between the United States and Mexico, which establishes an orderly process for transferring individuals from one country to the other for criminal prosecution. The Court held that because the treaty failed to expressly prohibit U.S. law enforcement from circumventing this process and abducting Mexican citizens in order to force them to stand trial in the United States, such conduct could not serve as a defense to jurisdiction. 504 U.S. at 664-70, 112 S.Ct. 2188.

Whether or not treaty violations can provide the basis for particular claims or defenses thus appears to depend upon the particular treaty and claim involved. The government argues strenuously that

Article 36 creates no judicially enforceable individual rights of any kind, calling our attention to the Vienna Convention’s

preamble language, which states that the “purpose of [consular] privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts....” Appellant rejoins that in Galderon-Medina we declined to endorse the same argument, pointing out that the “protection of some interests of aliens as a class is a corollary to consular efficiency.” 591 F.2d at 531 n. 6. The

preamble is therefore not particularly helpful to our analysis. We need not decide whether to accept the government’s argument that

Article 36 creates no individually enforceable rights, however. We agree with the government’s alternative position that assuming that some judicial remedies are available for the violation of

Article 36, the exclusion in a criminal prosecution of evidence obtained as the result of post-arrest interrogation is not among them. In arguing- that the statements should be suppressed, appellants urge us to make the unwarranted assumption that the treaty was intended to serve the same purposes as Miranda in enforcing the rights to counsel and against self-incrimination in the post-arrest context. 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. See Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602. Furthermore, while the rights to counsel and against self-incrimination are secured under the Fifth and Sixth Amendments to our own Constitution and are essential to our criminal justice system, they are by no means universally recognized or enforced.

See Miranda, 384 U.S. at 442-43, 86 S.Ct. 1602 (stating that the Fifth Amendment’s right against self-incrimination “had its origin in a protest against the inquisitorial ... methods of interrogating accused persons, which have long obtained in the continental system”) (quoting Brown v. Walker, 161 U.S. 591, 596-97, 16 S.Ct. 644, 40 L.Ed. 819 (1896)). See also Gordon Van Kessel, European Perspectives on the Accused as a Source of Testimonial Evidence, 100 W. Va.

L.Rev. 799, 810 (1998) (explaining that even today European countries typically afford no right to counsel during police questioning); Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L.Rev. 1201, 1251-54 (1998) (reporting the recent development of a right to silenee in other countries but noting that the right generally remains less expansive than the Fifth Amendment right in the United States).

There is no reason to think 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 require Fifth and Sixth Amendment post-arrest warnings until it decided Miranda in 1966, three years after the treaty was drafted. Judge Thomas’s dissent discusses the longer history of the exclusionary rule for an involuntary confession, but that is not the issue we must decide.

Although appellant contends that the exclusionary rule is the usual and, in this instance, only effective way to enforce the treaty’s requirement, this and other circuits have held in recent years that an exclusionary rule is typically available only for constitutional violations, not for statutory or treaty violations. See United States v. Smith, 196 F.3d 1034, 1040 (9th Cir.1999) (“The use of the exclusionary rule is an exceptional remedy typically reserved for violations of constitutional rights.”). See also United States v.

Hensel, 699 F.2d 18, 29 (1st Cir.1983) (rejecting suppression as a remedy for a treaty violation because 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 certain specific, constitutionally protected rights of individuals.”); United States v. Ware, 161 F.3d 414, 424 (6th Cir.1998) (holding a statutory violation insufficient to justify imposition of the exclusionary rule, absent an underlying constitutional violation or right); United States v. Mason, 52 F.3d 1286, 1289 n. 5 (4th Cir.1995) (same); United States v.

Thompson, 936 F.2d 1249, 1251 (11th Cir.1991) (holding a statutory violation insufficient to justify imposition of the exclusionary rule, absent an underlying constitutional violation or right or evidence that Congress intended exclusion as a remedy); United States v. Benevento, 836 F.2d 60, 69 (2d Cir.1987) (same); United States v. Kington, 801 F.2d 733, 737 (5th Cir.1986) (same). We do not limit the exclusionary rule to use as a remedy for constitutional violations alone.

The Supreme Court some time ago indicated that an exclusionary remedy may be available for violations of provisions of law other than the Constitution. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966). Our court has occasionally permitted evidence to be excluded as a remedy in cases involving certain statutory violations. See United States v. Doe, 170 F.3d 1162, 1168 (9th Cir.1999) (violation of the Juvenile Delinquency Act’s parental notification provision); United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir.1996) (violation of Fed.R.Crim.P. 5); United States v.

Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992) (violation of Fed.R.Crim.P. 41); United States v. Soto-Soto, 598 F.2d 545, 550 (9th Cir.1979) (violation of 19 U.S.C. § 482). None of these cases shed much light on the propriety of using exclusion to remedy treaty violations, however, and the infrequency with which we have allowed an exclusionary remedy for a non-constitutional harm belies appellant’s claim that exclusion is the normal or default rule in such circumstances.

Lacking any direct guidance from the Supreme Court or this court regarding the appropriateness of an exclusionary remedy for a violation of the Vienna Convention, appellant asks us to look by analogy to Rangel-Gonzales and Calderon-Medina, which concerned an INS regulation requiring consular notification during the deportation process. Although the regulation was promulgated to ensure compliance with the Vienna Convention, Rangel-Gon-zales and Calderon-Medina did not consider the treaty directly.

The cases held that an alien who can show prejudice stemming from the INS’s failure to follow its own regulation requiring notification cannot later be prosecuted for illegal reentry because the defendant was never legally deported under U.S. law in the first place. See Rangel-Gonzales, 617 F.2d at 530; Calderon-Medina, 591 F.2d at 530. Rangel-Gonzales and Calderon-Medina are therefore only tangentially relevant to the question of whether a violation of a treaty can be remedied by exclusion of evidence in a criminal prosecution.

While the panel was provided with “scant authority” on this issue, 170 F.3d at 1244, the State Department has now spoken, and has expressed its opinion that suppression is an inappropriate remedy. In Factor v. Latibenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933), the Supreme Court stated that in resolving doubts about

interpretation, “the construction of a treaty by the political department of the government, while not conclusive upon courts called upon to construe it, is nevertheless of weight.” Id. at 295, 54 S.Ct. 191. See also El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S.Ct. 662, 671, 142 L.Ed.2d 576 (1999) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.”); Kolovrat v.

Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) (“While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”). It is true that courts tend to give less weight to an executive branch position adopted in the course of litigation, as is the case here, than to an

interpretation made in diplomatic relations with other countries. See Restatement (Third) of Foreign Relations § 326 reporters’ note 2. Given that the Vienna Convention is silent-and therefore ambiguous, at best-on whether or not suppression is an appropriate remedy, however, the State Department’s opinion that it is not deserves at least some deference. Equally important, the State Department’s position is well-supported.

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. The addition of a judicial enforcement mechanism contains the possibility for conflict between the respective powers of the executive and judicial branches.

Moreover, the fact that the State Department is willing to and in fact does work directly with law enforcement to ensure compliance detracts in this instance from the traditional justification for the exclusionary rule: that it is the only available method of controlling police misconduct. See Arizona v. Evans, 514 U.S. 1, 10-11, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (“The exclusionary rule operates as a judicially created remedy designed to safeguard against future violations ... through the rule's general deterrent effect.

As with any remedial device, the rule’s application has been restricted to those instances where its remedial objectives are thought most efficaciously served.”) (citations omitted). The State Department also points out that no other signatories to the Vienna Convention have permitted suppression under similar circumstances, and that two (Italy and Australia) have specifically rejected it. In the Australian decision, R v. Abbrederis, (1981) 36 A.L.R. 109, the court concluded as we do today that the Vienna Convention’s

Article 36 protections neither target police interrogation nor seek to prevent self-incrimination or preserve the right to counsel. The opinion stated: “Even giving the fullest weight to the prescriptions in Art 36,1 do not see how it can be contended that they in any way affect the carrying out of an investigation by interrogation.” By refusing to adopt an exclusionary rule, we thus promote harmony in the

interpretation of an international agreement. See 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.”). CONCLUSION The language of the Vienna Convention and its operation over the last 30 years support the government’s position that a foreign national’s post-arrest statements should not be excluded solely because he made them before being told of his right to consular notification.

We therefore affirm the judgment of the district court on the ground that it properly refused to exclude Lombera-Camorlinga’s statements. We do not decide whether a violation of

Article 36 may be redressable by more common judicial remedies such as damages or equitable relief. AFFIRMED.