> Nos. 98-50347, 98-50305
>
> IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
>
> UNITED STATES OF AMERICA, Plaintiff-Appellee
>
> v\.

JOSE LOMBERA-CAMORLINGA and JOSE OROPEZA-FLORES, Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA

> GOVERNMENT\'S SUPPLEMENTAL EN BANC BRIEF
>
> GREGORY A. VEGA\
> United States Attorney Southern District of California
>
> DAVID P. CURNOW\
> Assistant United States Attorney Southern District of California
>
> DAVID S. KRIS\
> Attorney\
> Department of Justice\
> P.O. Box 899,\
> Ben Franklin Station\
> Washington, D.C, 20044-0899
>
> \(202\) 514-9111

+------------------------------------------------------+---+---+---+---------+
| Constitutional Provisions:                           |   |   |   | *Page*  |
+------------------------------------------------------+---+---+---+---------+
| > *U.S. Const. Art. VI, cl. 2 . . . . . . . . . . .* | > | > | > | *. 10,  |
|                                                      |   |   |   | 12*     |
|                                                      | * | * | * |         |
|                                                      | . | . | . |         |
|                                                      | * | * | * |         |
+------------------------------------------------------+---+---+---+---------+
| Cases:                                               |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *Argentine Republic v. Amerada Hess Shipping       |   |   |   |         |
| > Corp.,*                                            |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *488 U.S. 428 (1989) . . . . . . . . . . . .*      | > | * | * | *. . .  |
|                                                      |   | . | . | 13*     |
|                                                      | * | * | * |         |
|                                                      | . |   |   |         |
|                                                      | * |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *Asakura v. City of Seattle,*                      |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *265 U.S. 332 (1924) . . . . . . . . . . . .*      | > | * | * | *15     |
|                                                      |   | . | . | -16,21* |
|                                                      | * | * | * |         |
|                                                      | . |   |   |         |
|                                                      | * |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *Bacardi Corp v. Domenech,*                        |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *311 U.S. 150 (1940) . . . . . . . . . . . .*      | > | * | * | *. .    |
|                                                      |   | . | . | 16,21*  |
|                                                      | * | * | * |         |
|                                                      | . |   |   |         |
|                                                      | * |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *Breard v. Greene,*                                |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *118 S. Ct. 1352 (1998) . . . . . . . . . .*       | > | * | * | *. . .  |
|                                                      |   | . | . | 29*     |
|                                                      | * | * | * |         |
|                                                      | . |   |   |         |
|                                                      | * |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *California v. Minjares,*                          |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *443 U.S. 916 (1979) . . . . . . . . . . . .*      | > | * | * | *. . .  |
|                                                      |   | . | . | 31*     |
|                                                      | * | * | * |         |
|                                                      | . |   |   |         |
|                                                      | * |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *Canadian Transport Co. v. United States,*         |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *663 F.2d 1081 (D.C. Cir. 1980) . . . . . .*       | > | * | * | *. . .  |
|                                                      |   | . | . | 15*     |
|                                                      | * | * | * |         |
|                                                      | . |   |   |         |
|                                                      | * |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *Charlton v. Kelly,*                               |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *229 U.S. 447 (1913) . . . . . . . . . . . .*      | * | * | * | *. . .  |
|                                                      | . | . | . | 12*     |
|                                                      | * | * | * |         |
+------------------------------------------------------+---+---+---+---------+
| > *Clark v. Allen,*                                  |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *331 U.S. 503 (1947) . . . . . . , ; , , , ,*      | * | > | > | *. .    |
|                                                      | , |   |   | 16,21*  |
|                                                      | * | * | * |         |
|                                                      |   | . | . |         |
|                                                      |   | * | * |         |
+------------------------------------------------------+---+---+---+---------+
| > *County of Riverside v. McLaughlin,*               |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *500 U.S. 44 (1991) . . . . . . . . . . . .*       | * | > | > | *. . .  |
|                                                      | . |   |   | 34*     |
|                                                      | * | * | * |         |
|                                                      |   | . | . |         |
|                                                      |   | * | * |         |
+------------------------------------------------------+---+---+---+---------+
| > *Drefus v. Von Finck,*                             |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *534 F.2d 24 (2d Cir.),*                           |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *cert. denied, 429 U.S. 835 (1976)*                |   |   |   | *12*    |
+------------------------------------------------------+---+---+---+---------+
| > *DuPree v. United States,*                         |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *559* F.2d 1151 (9\`\" Cir. 1977) . . . . . . .    | . | > | > | . . .   |
|                                                      |   |   |   | *6,7*   |
|                                                      |   | . | . |         |
+------------------------------------------------------+---+---+---+---------+
| > *Edye v. Robertson,*                               |   |   |   |         |
+------------------------------------------------------+---+---+---+---------+
| > *112 U.S. 580 (1884) . . . . . . . . . . . .*      | > | > | > | *12,    |
|                                                      |   |   |   | 14, 15* |
|                                                      | * | * | * |         |
|                                                      | . | . | . |         |
|                                                      | * | * | * |         |
+------------------------------------------------------+---+---+---+---------+

+-----------------------------------------------------+---+---+---+---+---+---+-----+
| Cases, cont\'d                                      |   |   |   |   |   |   | P   |
|                                                     |   |   |   |   |   |   | age |
| > *Factor v. Laubenheimer*,                         |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 290 U.S. 276 (1933) . . . . . . . . . . .         | > | > | > | > | > | > | . . |
|                                                     |   |   |   |   |   |   | 6   |
|                                                     | . | . | . | . | . | . |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Goldstar v. United States,*                      |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 967 F.2d 965 (4th Cir. 1992),                     |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > cert. denied, 506 U.S. 955 (1992) . . . .         | > | > | > | > | > | > | 12  |
|                                                     |   |   |   |   |   |   | -13 |
|                                                     | . | . | . | . | . | . |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *INS v. Aguirre-Aguirre,*                         |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 119\'S. Ct. 1439 (1999) . . . . . . . . .         | > | > | > | > | > | . | . . |
|                                                     |   |   |   |   |   |   | 9   |
|                                                     | . | . | . | . | . |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Illinois v. Perkins,*                            |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 496 U.S. 292 (1990) . . . . . . . . . . .         | > | . | > | > | > | . | .   |
|                                                     |   |   |   |   |   |   | 36  |
|                                                     | . |   | . | . | . |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Islamic Republic of Iran v. Boeing Co.,*         |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 771 F.2d 1279 (9\"Cir. 1985),                     |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > cert. dismissed, 479 U.S. 957 (1986) . .          | > | . | . | > | . | . | .   |
|                                                     |   |   |   |   |   |   | 17  |
|                                                     | . |   |   | . |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Kolovrat v. Oregon,*                             |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 366 U.S. 187 (1961) . . . . . . . . . . .         | > | . | > | . | . | . | . . |
|                                                     |   |   |   |   |   |   | 6   |
|                                                     | . |   | . |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Mallory v. United States,*                       |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 354 U.S. 449 (1957) . . . . . . . . . . .         | > | . | > | . | . | . | .   |
|                                                     |   |   |   |   |   |   | 34  |
|                                                     | . |   | . |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Mannington Mills, Inc. v. Congoleum              |   |   |   |   |   |   |     |
| > Corporation,*                                     |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 595 F.2d 1287 (3d Cir. 1979) . . . . . .          | > | . | . | . | . | . | .   |
|                                                     |   |   |   |   |   |   | 13  |
|                                                     | . |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Marbury v. Madison,*                             |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 5 U.S. (1 Cranch.) 137 (1803) . . . . . .         | . | . | . | . | . | . | .   |
|                                                     |   |   |   |   |   |   | 17  |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Michigan v. Mosley,*                             |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 423 U.S. 96 (1975) . . . . . . . . . . .          | . | . | . | . | . | . | .   |
|                                                     |   |   |   |   |   |   | 36  |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > Miranda v. Arizona,                               |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 384 U.S. 436 (1966) . . . . . . . . . . .         | . | . | . | . | . | . | 35  |
|                                                     |   |   |   |   |   |   | -36 |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *Murphy v. Netherland,*                           |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 116 F.3d 97 (4t\'\' Cir.) ,                       |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > cert. denied, 521 U.S. 1144 (1997) . . .          | . | . | . | . | . | . | .   |
|                                                     |   |   |   |   |   |   | 29  |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > *People of Saipan v. U.S. Dep\'t of Interior,*    |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 502 F.2d 90 (9th Cir. 1974),                      |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > cert. denied, 420 U.S. 1003 (1975) . . .          | . | > | > | > | > | > | 16  |
|                                                     |   |   |   |   |   |   | -17 |
|                                                     |   | . | . | . | . | . |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| *Sumitomo Shoji America, Inc. v. Avagliano,*        |   |   |   |   |   |   |     |
+-----------------------------------------------------+---+---+---+---+---+---+-----+
| > 457 U.S. 176 (1982)                               |   |   |   |   |   |   | . 6 |
+-----------------------------------------------------+---+---+---+---+---+---+-----+

<table style="width:100%;">
<colgroup>
<col style="width: 67%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 3%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 10%" />
</colgroup>
<tbody>
<tr class="odd">
<td>Cases, cont'd d</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td>Page</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>Tel-Oren v. Libyan Arab Republic,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>726 F.2d 774 (D.C. Cir. 1984),</p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>cert. denied, 470 U.S. 1003 (1985)</p>
</blockquote></td>
<td></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>. . <em>13</em></td>
</tr>
<tr class="odd">
<td><blockquote>
<p><em>United States v. Alvarez-Machain,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>504 U.S. 655 (1992) . . . . . . .</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td></td>
<td></td>
<td>17-18, 19</td>
</tr>
<tr class="odd">
<td><blockquote>
<p><em>United States v. Ani,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>138 F.3d 390 (9<sup>t</sup>h Cir. 1988) . .</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>. . . 29</td>
</tr>
<tr class="odd">
<td><blockquote>
<p><em>United States v. Caceres,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>440 U.S. 741 (1979) . . . . . . .</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>. . . 29</td>
</tr>
<tr class="odd">
<td><blockquote>
<p><em>United States v. Hensel,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>699 F.2d 18 (1<sup>s</sup>t Cir.),</p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>cert. denied, 461 U.S. 958 (1983)</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>. . . 14</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>United States v. Lombera-Camorlinga,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>170 F.3d 1241 (9<sup>t</sup>h Cir. 1999) . .</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>. 1,18,38</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>United States v. Mann,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>829 F.2d 849 (9th Cir. 1987) . .</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>. . . 16</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>United States v. Rauscher,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>119 U.S. 407 (1886) . . . . . . .</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>1-7,18,19</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>United States v. Saccoccia,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>58 F.3d 754 (1" Cir. 1995),</p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>cert. denied, 517 U.S. 1105 (1996)</p>
</blockquote></td>
<td></td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>. . . 19</td>
</tr>
<tr class="odd">
<td><blockquote>
<p><em>United States v. Smith,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>No. 98-10297, 1999 WL 1024054</p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>(9t' Cir. Nov. 12, 1999) . . . .</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>. . 29-30</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>United States v. Stuart,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>489 U.S. 353 (1989) . . . . . . .</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>.</td>
<td>. . . . 6</td>
</tr>
<tr class="even">
<td><blockquote>
<p><em>United States v. Thompson,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td><blockquote>
<p>936 F.2d 1249 (11" Cir. 1991),</p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>cert. denied, 502 U.S. 1075 (1992)</p>
</blockquote></td>
<td></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>. . . 29</td>
</tr>
<tr class="odd">
<td><blockquote>
<p>United <em>States v. Wilson,</em></p>
</blockquote></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td><blockquote>
<p>838 F.2d 1081 (9th Cir. 1988) . .</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>.</td>
<td>.</td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td><blockquote>
<p>.</p>
</blockquote></td>
<td>. . . 34</td>
</tr>
</tbody>
</table>

+-----------------------------------------------------------+----------+
| > Statutes, Rules and Regulations:                        | Paae     |
+-----------------------------------------------------------+----------+
| > 18 U.S.C. 201 . . . . . . . . . . . . . . . . . . . .   | . . . 30 |
+-----------------------------------------------------------+----------+
| > 18 U.S.C. 2518 . . . . . . . . . . . . . . . . . . . .  | . . . 29 |
+-----------------------------------------------------------+----------+
| > 18 U.S.C. 3144 . . . . . . . . . . . . . . . . . . . .  | . . . .  |
|                                                           | 6        |
+-----------------------------------------------------------+----------+
| > 18 U.S.C. 3501 . . . . . . . . . . . . . . . . . . . .  | . . . 34 |
+-----------------------------------------------------------+----------+
| > [**Error! Bookmark not                                  | . . . 27 |
| > defined.**](http://Fed.R.App.P.28/) . . . . . . . . . . |          |
| > . . . . . . . .                                         |          |
+-----------------------------------------------------------+----------+
| > [**Error! Bookmark not                                  | 31, 33,  |
| > defined.**](http://Fed.R.App.P.28/). . . . . . . . . .  | 34       |
| > . . . . . . . .                                         |          |
+-----------------------------------------------------------+----------+
| > 8 C.F.R. § 236.1 . . . . . . . . . . . . . . . . . . .  | . . . 33 |
+-----------------------------------------------------------+----------+
| > Treaties:                                               |          |
+-----------------------------------------------------------+----------+
| > General Inter-American Convention for Trade Mark and    |          |
+-----------------------------------------------------------+----------+
| > Commercial Protection, Feb. 20, 1929,                   |          |
+-----------------------------------------------------------+----------+
| > 46 Stat. 2907 . . . . . . . . . . . . . . . . . .       | . .      |
|                                                           | 16,20    |
+-----------------------------------------------------------+----------+
| > Geneva Convention on the High Seas,                     |          |
+-----------------------------------------------------------+----------+
| > Apr. 29, 1958, 13 U.S.T. 2312 . . . . . . . . . .       | . .      |
|                                                           | 13,21    |
+-----------------------------------------------------------+----------+
| Single Convention on Narcotic Drugs, Mar. 30, 1961,       |          |
+-----------------------------------------------------------+----------+
| > 18 U.S.T. 1407 . . . . . . . . . . . . . . . . . .      | . . . 17 |
+-----------------------------------------------------------+----------+
| > Vienna Convention on Consular Relations,                |          |
+-----------------------------------------------------------+----------+
| > Apr. 24, 1963, 21 U.S.T. 77 . . . . . . . . . . .       | . passim |
+-----------------------------------------------------------+----------+
| > Consular Convention, Sept. 17, 1980, U.S.-China,        |          |
+-----------------------------------------------------------+----------+
| > 33 U.S.T. 2973 . . . . . . . . . . . . . . . . . .      | . . . 33 |
+-----------------------------------------------------------+----------+
| > Consular Convention, July 7, 1972, U.S.-Hungary,        |          |
+-----------------------------------------------------------+----------+
| > 24 U.S.T. 1141 . . . . . . . . . . . . . . . . . .      | . .      |
|                                                           | 32-33    |
+-----------------------------------------------------------+----------+
| > Consular Convention, Aug. 12, 1942, U.S.-Mexico,        |          |
+-----------------------------------------------------------+----------+
| > 57 Stat. 800 . . . . . . . . . . . . . . . . . . .      | . . . .  |
|                                                           | 7        |
+-----------------------------------------------------------+----------+
| > Consular Convention, May 31, 1972, U.S.-Poland,         |          |
+-----------------------------------------------------------+----------+
| > 24 U.S.T. 1231 . . . . . . . . . . . . . . . . . .      | . . . 33 |
+-----------------------------------------------------------+----------+
| > Consular Convention, June 1, 1964, U.S.-U.S.S.R.,       |          |
+-----------------------------------------------------------+----------+
| > 19 U.S.T. 5018 . . . . . . . . . . . . . . . . . .      | . . . 33 |
+-----------------------------------------------------------+----------+
| > Convention on Commerce and Navigation, July 3, 1815,    |          |
+-----------------------------------------------------------+----------+
| > U.S.-Great Britain, 8 Stat. 228 . . . . . \... . .      | . .      |
|                                                           | 14,21    |
+-----------------------------------------------------------+----------+

## Treaties, cont\'d Page

Treaty of Friendship, Commerce and Consular Rights,

Dec. 8, 1923, U.S.-Germany, 44 Stat. 2132 . . . . . . . 16

Treaty of Friendship, Commerce and Navigation,

Feb. 21, 1911, U.S.-Japan, 37 Stat. 1504 . . . . . . . . 15

Decisions of Foreign Courts:

> *Re Yater,*

77 I.L.R. 541 (Italy, Court of Cassation 1973) . . . . . 27

*R v. Abbrederis,*

#  36 Australia Law Reports 109 (CCA NSW 1981) . . . . . 27

Domestic and International Legislative Materials:

> S. Exec. Doc. No. E, 91\'t Cong., 1\'t Sess. (1969) . . 23,24,25,37
>
> S. Exec. Rep. No. 91-9, 91\' Cong., 1\'^=^ Sess. (1969) . . . . 25,26

U.N. GAOR, 16th Sess., Supp. No. 9,

U.N. Doc. A/4843 (1961) . . . . . . . . . . . . . . . 22-23

U.N. Conference on Consular Relations: Official Records 3

Doc. A/Conf.25/6, U.N. Sales No. 63.X.2 . . . . . . . 24,32

Other Materials:

*Restatement (Third) of the Foreign Relations Law*

*of the United States* (1987) .. . . .5, 8, 9, 10, 12, 28

INTRODUCTION

Article 36(1)(b) of the Vienna Convention on Consular Relations requires
law enforcement officers, upon request, to \"inform the consular post\"
of a foreign country if \"a national of that (foreign country) is
arrested,\" and to deliver messages from the foreign national to his
consulate \"without delay.\" It also requires officers to \"inform the
\[foreign national\] without delay of his rights under this
sub-paragraph.\" The panel in these cases held that the reference to
\"his rights\" establishes individual rights that \"belong to the
foreign national.\" It went on to hold that \"these rights must be
enforced by the courts of the United States at the behest of the
individual,\" and that the remedy for a prejudicial violation of
consular rights is suppression of evidence. *United States v.
Lombera-Camorlinga, 170* F.3d 1241, 1242-44 (1999).

There are three questions presented on rehearing en banc of the panel\'s
decisions. First, does the Vienna Convention create individual rights?
Second, if it does, can a criminal defendant vindicate those rights
through a motion to suppress? And finally, if suppression is available,
are the defendants here entitled to relief? This brief addresses those
questions in that order. We argue that the Convention does not create
individual rights. If the Court concludes that the Convention does
create rights, however, we submit that there is no suppression remedy
for a violation of those rights. Finally, even if there is a suppression
remedy, these defendants cannot invoke the remedy because they confessed
before any consular notification violation occurred.

> **ARGUMENT**

**I. THE VIENNA CONVENTION DOES NOT ESTABLISH INDIVIDUAL RIGHTS**

This Court should hold that the Vienna Convention does not establish
individual rights for two reasons. First, the State Department, which
negotiated the Convention and administers it on a daily basis, has
officially taken the position that it does not create individual rights.
Under settled law, the Executive Branch\'s interpretation of an
international agreement is entitled to deference from the judiciary, and
deference is especially warranted here given the nature of the treaty
and the State Department\'s consistent assertion of its views at home
and abroad. This Court should defer to the State Department in part to
ensure that the United States speaks with one voice in the conduct of
foreign relations.

Second, the State Department\'s interpretation of the Convention is
plainly correct. International agreements are made between sovereign
nations, and they accordingly establish the rights of nations rather
than of individuals. Although a treaty can establish individual rights,
it generally does so only when it concerns relations between
individuals, rather than between an individual and a government, and
only where the language of the treaty is unmistakable. The Vienna
Convention does not concern relations between individuals, and its
language is-at best-equivocal. Accordingly, it cannot be read to create
individual rights that are judicially enforceable in domestic courts.

> A. [This Court Should Defer to The State Department\'s Position That
> The Vienna Convention Does Not Establish Individual
> Rights]{.underline}.
>
> 1\. [The State Department's Position.]{.underline}

The official position of the Department of State is that the Vienna
Convention does not create individual rights that are enforceable in
criminal cases. The addendum to this brief

contains a letter from David R. Andrews, the Legal Adviser for the
Department of State, to James K. Robinson, the Assistant Attorney
General for the Criminal Division of the Department of Justice,
concerning a case now pending en banc in the First Circuit, United
States v. Nai Fook Li et al., Nos. 97-2034 et al. (to be argued December
7, 1999) \[hereinafter Letter\]. The letter was written at the request
of the Department of Justice in response to the First Circuit\'s order
of August 6, 1999, a copy of which was attached to the government\'s
motion for supplemental briefing in the present case. The letter states
that \"a failure of consular notification is a state-to-state treaty
violation that does not, as such, give rise to a right to an individual
remedy requiring the reversal of all or part of a criminal proceeding.\"
Letter 2.

> The State Department maintains that the Vienna Convention and the
> several bilateral consular conventions to which the United States is a
> party \"establish state-to-state rights and obligations,\" and \"are
> not treaties establishing rights of

individuals.\" Letter A-3. In particular, the State Department

explains, the \"incidental reference to individual rights in

Article 36 of the VCCR \* \* \* is not intended to imply the

existence of a judicially enforceable individual right.\" *ID*. at

A-4. The letter provides the reasons for the State Department\'s

interpretation of Article 36 *(ibid.) :*

> Looking at the text of the VCCR, its negotiating history, and the
> practice of states under the VCCR (i.e., looking at the accepted tools
> of treaty interpretation), we see no intent to change the criminal
> justice processes of the member states, much less to create individual
> rights that would require the suppression of evidence (a remedy that
> is not common to criminal justice systems outside the United States).

The State Department relied on the following factors to reach its

conclusion *(ibid.)*

> • The VCCR does not specify remedies for failures of consular
> notification.
>
> • It does not specify the form or manner of consular notification and
> does not specify a time in which notification must occur, other than
> to say that it must occur \"without delay.\"
>
> • It in no way addresses the timing of notification in relation to a
> country\'s criminal justice processes (e.g., nothing in the VCCR
> requires that it be given before a statement is taken).
>
> • Nor does it require a consular officer to respond to notification,
> or to respond in any particular time period, or to offer any
> particular service.

As the State Department explains, \"\[t\]hese acts are inconsistent with
the notion that an arresting state would have to suspend its criminal
justice processes while consular notification occurred.\" *Ibid*.

In keeping with the State Department\'s interpretation of the Vienna
Convention, no country in the world affords a judicial remedy for
consular violations in criminal cases. The State Department reports that
it is \"unaware of any country party to any consular convention with the
United States that remedies failures of notification through the
criminal justice process.\" Letter A-1. Instead, the remedies for
failures of consular notification are - and always have been -
diplomatic or political. See *id*. at A-3. Thus, where violations occur,
whether here or abroad, the receiving State will typically \"investigate
the alleged violation and, if it is confirmed,\" will \"apologize for it
and undertake to prevent future recurrences**.\"** *Ibid.* Diplomatic
resolution of consular violations is the practice that \"has been
followed for decades.\" Ibid. As the State Department explains, \"it is
common for rights and obligations to exist under international law
without any mechanism for individual enforcement, depending instead upon
diplomacy and the exertion of political pressure.\" *Ibid.*

2\. [The State Department\'s Views are Entitled to
Deference]{.underline}. Although courts have the authority to interpret
an international agreement for purposes of applying it within the United
States**,** they \"give great weight to an interpretation made by the
Executive Branch.\" *Restatement (Third) of the Foreign Relations Law of
the United States* § 326(2), at 202 (1987). The

Supreme Court has confirmed that principle on several occasions *See
Factor v.* *Laubenheimer,* 290 U.S. 276, 295 (1933); *Kolovrat v.*
*Oregon*, 366 U.S. 187, 194-195 (1961); *Sumitomo Shoji America*, *Inc.
v. Avagliano,* 457 U.S. 176, 184 (1982); *United States v. Stuart*, 489
U.S. 353, 369 (1989). In *Kolovrat,* for example, the Court interpreted
a treaty between the United States and Serbia which protected the
property rights of \"\`citizens of the United States in Serbia and
Serbian subjects in the United States.\"\' 366 U.S. at 192 (quoting the
treaty). Despite the treaty\'s reference to Serbian subjects \"in\" the
United States, the Court held that it applied to Serbians residing
\"out\" of the United States (i.e., in Serbia), relying on the State
Department\'s views and the principle that \"the meaning given \[to
treaties\] by the departments of government particularly charged with
their negotiation and enforcement is given great weight.\" *Id.* at 194.

This Court has applied that principle in construing the Vienna
Convention. In *DuPree v. United* *States,* 559 F.2d 1151 (9t^h^ Cir.
1977), the consul of Mexico moved to intervene in a lawsuit brought by
Mexican nationals who were being detained as material witnesses pursuant
to 18 U.S.C. 3144. The consul relied on language in the Vienna
Convention and the Mexican Consular Convention permitting consular
officers \"to \`assist\' their nationals in proceedings before the
authorities of the receiving state.\" 559 F.2d at 1154. This Court
rejected the consul\'s

claim based on \"a memorandum prepared by the Department of Justice
after consultation with the Department of State.\" Id. a: 1153, 1154.
The Court observed that it was ^\"^informed by the Department of Justice
in its memorandum \* \* \* that to construe \`assist\' (as the Mexican
consul proposed\] would expand (the treaties\] in a manner never
contemplated by the Contracting States.\" *Id*. at 1154-1155. The Court
explained its reliance on the memorandum: \"of course, in the
interpretation of treaties and conventions, the opinions of the
Executive Branch are entitled to much weight.\" *Id*. at 1155.^1^

Deference is especially warranted in this case for two additional
reasons. First, the Vienna Convention regulates a core Executive Branch
function: Consular relations and diplomacy. As the State Department
explains in its letter, \"the interpretation of consular conventions
requires more than the usual deference to the Executive Branch\'s
interpretation\" because \"\[o\]ur consular conventions \* \* \*
establish the fundamental public international law framework in which
the Department conducts consular and diplomatic relations on behalf of
the United States.\" Letter A-7. Consular notification and access \"are
part of the day-to-day work of the Department of State and

^1^Defendants in this case have never relied on or invoked the United
States\' Consular Convention with Mexico. See Consular Convention, Aug.
12, 1942, U.S.-Mexico, 57 Stat. 800, 125 U.N.T.S. 301, 1943 WL 7878.

its nearly 1000 consular officers assigned overseas.\" *Ibid.* The
Vienna Convention therefore directly implicates this country\'s ability
to manage its foreign affairs.

Deference is also particularly appropriate because the State Department
has previously advanced its interpretation of the Vienna Convention in
international fora. As the State Department explains in its letter in
the *Li* case, its position is based on \"three prior official
statements of the Department on behalf of the United States\" in the
International Court of Justice (ICJ) and the Inter-American Court of
Human Rights. Letter 2.^2^ It has in the past advised prisoners that
failures of consular notification are not relevant to their convictions.
*Id*. at A-1. And the State Department \"expects to speak to these
issues again in a submission to be filed with the ICJ in March, 2000.\"
*Ibid.*

Regardless of this Court\'s interpretation of the Vienna Convention as a
matter of domestic law, the Executive Branch retains the sole authority
to interpret the Convention in our foreign relations. See Restatement §
326(1), at 202. Where, as here, the Executive\'s interpretation of a
treaty has been

^2^The Inter-American case, commonly referred to as OC-16, has resulted
in a decision. Although the decision was rendered in Spanish, it is our
understanding that the court concluded that the Vienna Convention
creates individual rights. An English decision may be forthcoming from
the court. As the State Department explains in its letter, the
Inter-American court\'s opinion is not binding on the United States
because the United States is not party to the treaty that established
the court. See Letter A-2 n.3, A-10.

\"previously made in diplomatic negotiation with other countries,\" the
courts are ever. \"more likely to defer\" to that interpretation on the
\"ground that the United States should speak with one voice.\"
*Restatement* § 326, comment 2, at 203. Even if interpretation of the
Vienna Convention as part of domestic law

is not a political question in the constitutional sense, see id. comment
3, at 204, it is at least a politically sensitive

question with significant implications for the conduct of foreign
relations. See Letter A-1. Because the \"judiciary is not well
positioned to shoulder primary responsibility for assessing the
likelihood and importance of such diplomatic repercussions,\" the
Supreme Court has stated that \"judicial deference to the

Executive Branch is especially appropriate.\" *INS v. Aguirre-Aguirre,*
119 S. Ct. 1439, 1445 (1999) (referring to immigration law). This Court
should not interpret the Vienna Convention in a way that undercuts the
State Department\'s ability to conduct international diplomacy.

B. [The Vienna Convention Do Not Create Individual]{.underline}

[Rights]{.underline}

The Vienna Convention\'s reference to \"his rights\" when discussing the
arrest of a foreign national does not establish individual rights in the
foreign national. Indeed, the Convention expressly provides that it was
not created to protect individuals, and it presents none of the
international legal hallmarks of a judicially enforceable individual
right. The

negotiations that led to adoption of the Vienna Convention, and the
legislative history of its ratification by the U.S. Senate, make clear
that the reference to \"his rights\" in the Convention reflects concern
for a foreign national\'s privacy interests - a right to
[avoid]{.underline} consular notification in certain cases - and was not
intended to create a right enforceable in domestic courts.

In reviewing the Vienna Convention, it is important at the outset to
distinguish between whether a treaty is \"self-executing\" and whether
it creates individual rights. As the *Restatement* explains, a treaty is
self-executing if it does not require implementing legislation to take
effect in domestic courts (although even a non self-executing treaty may
preempt contrary state laws under Article VI of the Constitution). The
Vienna Convention is clearly self-executing in that sense. The question
of [whether]{.underline} a treaty takes effect domestically, however, is
distinct from the question of [what]{.underline} effect it has, and in
particular from the question of whether it creates individual rights.
See *Restatement* § 111, comments g-h, at 46-47. The Vienna *Convention*
is a self-executing international agreement that does not create
individual rights.

> 1\. [The Text of the Vienna Convention]{.underline}.

The Vienna Convention expressly provides that the \"purpose of
\[consular\] privileges and immunities is [not to benefit
individuals]{.underline} but to ensure the performance of functions by

consular posts on behalf of their respective States.\" Preamble 6
(emphasis added). That language makes clear not only that consular
officers are protected solely in their official capacities, but also
that individual criminal defendants are not the intended beneficiaries
of the Convention\'s rules. That purpose is confirmed by other language
in the Preamble explaining that the Convention concerns \"the sovereign
equality of States, the maintenance of international peace and security,
and the promotion of friendly relations among nations.\" Id. 1 3. The
Vienna Convention is not an international Bill of Rights, but a protocol
for conducting foreign relations between its contracting parties.

To be sure, a party to the Convention (referred to as the \"sending
State\") has a right to assist its nationals when they are arrested in a
foreign country (referred to as the \"receiving State\"). Thus, where
the sending State desires, its consular officers may assist an arrested
national in a variety of ways, as detailed in Article 5 of the
Convention. But the rights established by Article 5 belong to the
sending State, not to the individual: Nothing in the Convention
[requires]{.underline} consular officers to furnish any assistance or
gives the foreign rational a right to any form of assistance from his
consulate. On the contrary, consular officers may actively work
[against]{.underline} the interests of their arrested nationals,
assisting the receiving State in a

prosecution if that is their preference. See Letter A-4. The

Convention grants diplomatic rights to the sending State, but not

to its nationals, because it was adopted for the benefit of

States rather than individuals.

> The fact that the Convention was designed solely to protect

the rights of governments is in keeping with the traditions of

international law. Unlike domestic statutes, which are often

enacted to establish individual rights, \"\[i\]nternational

agreements, even those directly benefitting private persons,

generally do not create private rights or provide for a private

cause of action in domestic courts.\" *Restatement § 907*, comment

a, at 395. As the Supreme Court explained in *Edye v. Robertson*,

112 U.S. 580, 598 (1884) (*The Head Money Cases*), although an

international agreement can create individual rights, it is

\"primarily a compact between independent nations.\" See *Charlton*

*v. Kelly*, 229 U.S. 447, 474 (1913) (same).

> Thus, as one court of appeals has explained:
>
> A United States treaty is a contract with another nation which under
> art. VI, cl. 2 of the Constitution becomes a law of the United States.
> It may also contain provisions which confer rights upon the citizens
> of one of the contracting parties which are capable of enforcement as
> are any other private rights under the law. In general, however, this
> is not so.

*Drefus v. Von Finck,* 534 F.2d 24, 29 (2d Cir.) (citations omitted),
cert. denied, 429 U.S. 835 (1976). Other courts of appeals have reached
similar conclusions. See *Goldstar v. United*

*States*, 967 F.2d 9E5, 968 (4^th^ Cir. (1992) (\"\[i\]nternational
treaties are not presumed to create rights that are privately
enforceable\"), cert. denied, 506 U.S. 9 5 (1992*); Tel-Oren v. Libyan
Arab Republic*, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J.,
concurring) (\"Treaties of the United States, though the law of the
land, do not generally create rights that are privately enforceable in
courts\"), cert. denied, 470 U.S. 1003 (1985); *Mannington Mills, Inc.
v. Congoleum Corporation*, 595 F.2d 1287, 1298-1299 (3d Cir. 1979) (\"a
treaty may confer rights capable of enforcement \* \* \* but this is not
the general rule\").

A treaty typically does not create private rights unless it (1) concerns
relations solely between. private parties, rather than between a private
party and a government; and (2) contains unmistakable language
establishing a right of access to domestic courts. For example, although
it provides that an illegally boarded merchant ship \"shall be
compensated for any loss or damage that may have been sustained\" in
certain circumstances, the Supreme Court has recognized that Article 22
of the Geneva Convention on the High Seas (Apr. 29, 1958, 13 U.S.T.
2312) does not establish individual rights. *Argentine Republic v.
Amerada Hess Shipping Corp*., 488 U.S. 428, 442 ;1989). Similarly, the
First Circuit has held that a criminal defendant was not entitled to
suppression of evidence seized from his Honduran-flag fishing vessel in
violation of the Geneva Convention. In an opinion by

then-Judge Breyer, the court explained that \"any violation of
international law invaded not \[the defendant\'s\] rights but rather

the rights of Honduras\" because the Convention was \"designed to secure
peace among nations, not to protect the privacy of individuals.\"
*United States v. Hensel, 699* F.2d 18, *30 (*1^st^

Cir.), cert. denied, *461 U.S. 958 (1983).*

The same rule applies even where a treaty directly benefits private
parties. For example, Article 1 of the 1815 Convention

on Commerce and Navigation between the United States and Great Britain
provides:

The inhabitants of the two countries, respectively, shall have liberty
freely and securely to come with their ships and cargoes to all such
places, ports, and rivers, in the territories aforesaid, to which other
foreigners are permitted to come, to enter into the same, and to remain
and reside in any parts of the said territories, respectively; also to
hire and occupy houses and warehouses for the purposes of their
commerce; and, generally, the merchants and traders of each nation,
respectively, shall enjoy the most complete protection and security for
their commerce, but subject always to the laws and statutes of the two
countries, respectively.

July 3, 1815, 8 Stat. *228,* T.S. No. 110. Although the treaty refers
specifically to individual \"inhabitants\" and their\
\"liberty,\" and although it is clearly designed to afford freedom\
of action to individuals, the D.C. Circuit has held that it does\
not create a private right of action against the United States, relying
on *The Head Money Cases* and the principle that \"\[i\]n the absence of
specific language \* \* \* the treaty must be interpreted

in accord with the rule that treaty violations are normally to be
redressed outside the courtroom.\" *Canadian Transport Co. v. United
States, 663* F.2d 1081 (D.C. Cir. 1980).

The presumption against the creation of individual rights gives way only
when two conditions are met. First, treaties may establish rights where
they \"are capable of enforcement as

between private parties in the courts of the country.\" *The Head Money
Cases, 112* U.S. at 598. Thus, \"treaties\[\] which regulate \* \* \*
rights of property by descent or inheritance\" provide paradigm examples
of international compacts that may confer rights on private persons.
*Ibid.* The reason is that such treaties are essentially designed for
the direct benefit of private parties in their international
transactions.

Second, apart from their subject matter, treaties establishing
individual rights typically use unmistakable\
language providing for enforcement of such rights in domestic courts.
Thus, for example, the Supreme Court has found a private right of action
in a friendship, commerce, and navigation (FCN) treaty between the
United States and Japan that expressly authorized companies in the
parties\' territories \"to exercise their rights and appear in the
courts either as plaintiffs or defendants***,*** subject to the laws of
such other Party.\" Treaty of Commerce and Navigation, Feb. 21, 1911,
U.S.^-^Japan, 37 Stat. 1504, 1506, T.S. No. 558. See *Asakura v. City of
Seattle,* 265

U.S. 332, 341 (1924) (quoting related language from the treaty).
Similarly the treaty in *Bacardi Corp v.* *Domenech, 311 U.S.* 150,
159-161 (1940), expressly provided that \"\[t\]he Contracting States
bind themselves to grant to the nationals of the other Contracting
States \* \* \* the same rights and remedies which their laws extend to
their own nationals \* \* \* with respect to trade marks, trade names,
and the repression of unfair competition.\" Id. at 160 n.9 (citing
General Inter-American Convention for Trade Mark and Commercial
Protection, Feb. 20, 1929, 46 Stat. 2907, 2912, T.S. No. 833). And in
*Clark v.* *Allen,* 331 U.S. 503, 507-508 (1947), the treaty
establishing rights to inherit property expressly provided that
\"\[t\]he nationals of each High Contracting Party shall enjoy freedom
of access to the courts of justice of the other on conforming to the
local laws, as well for the prosecution as for the defense of their
rights.\" Treaty of Friendship, Commerce and Consular Rights, Dec. 8,
1923, U.S.- Germany, 44 Stat. 2132, 2133, T.S. No. 725.

This Court has recognized these principles. In *United States v. Mann,*
829 F.2d 849 (9th Cir. 1987), the Court stated that \"\[a\] treaty may
create standing \[in individuals\] if it indicates the intention to
\`establish direct, affirmative, and judicially enforceable rights.\"\'
*Id*. at 852 (quoting *People of Saipan v. United States Dep\'t of
Interior,* 502 F.2d 90, 97 (9^th\
^Cir. 1974), cert. denied, 420 U.S. 1003 (1975)). Applying that

test, the Court in *Mann* held that a defendant was not entitled to
suppression of evidence based on an asserted violation of the Single
Convention on Narcotic Drugs, Mar. 30, 1961, 18 U.S.T. 1407, 520
U.N.T.S. 204, as amended, Feb. 21, 1971, 26 U.S.T. 1439, 976 U.N.T.S. 3.
See also *Islamic Republic of Iran v.\
Boeing* Co., 771 F.2d 1279 (9t\^ Cir. 1985), cert. dismissed, 479 U.S.
957 (1986).^3^

In holding that the *Vienna* Convention creates individual rights, the
panel did not discuss any of the foregoing cases or principles. Instead,
it relied on the Supreme Court\'s decisions in *United States v.
Rauscher,* 119 U.S. 407 (1886), and *United*

^3^ In the *Saipan* case, this Court held that the Trusteeship Agreement
for the Pacific Islands (Micronesia) afforded Islanders a private right
to challenge a decision of the High Commissioner

of the local government. The Court considered \"many contextual
factors\" in reaching that decision, including \"the purposes of the
treaty and the objectives of its creators.\" 502 F.2d at 97. The Court
also relied heavily on the fact that \"the Trusteeship Agreement
constitutes the plaintiffs\' basic constitutional document,\" holding by
analogy to *Marbury v. Madison, 5 U.S. (1* Cranch.) 137 (1803), that
\"the judicial branch of the Trust Territory government has the
authority to determine whether or not the action of its chief executive
complies with a provision in its own constitutional document.\" 502 F.2d
at 97. As both the majority and concurring opinions noted, the U.S.
Department of the Interior, which created the Trust Territory
government, forbade any local action inconsistent with the Trusteeship
Agreement, and did not endorse the High Commissioner\'s
[action](http://action.Id.at/) 99 (majority *opinion),* 103 (Trask, J.,
concurring). Thus, *Saipan* is distinguishable from the present case
because (1) it concerned a unique form of international agreement; (2)
the agreement was expressly incorporated into federal law that served as
the Constitution of the Islands; and (3) the Executive Branch\
agency that negotiated the treaty did not oppose the creation of private
rights.

*States v. Alvarez-Machain, 504 U.S. 655* (1992). See
*Lombera­Camorlinga, 170 F.3d* at *1243.* In *Rauscher,* the Supreme
Court barred a criminal prosecution based on a defect in the\
defendant\'s extradition (a violation of the doctrine of\
specialty). The treaty in *Rauscher* explicitly limited the jurisdiction
of domestic courts, *119* U.S. at *410-411,* and two federal statutes
expressly implemented the treaty, *id.* at *423-\
424.* The Court in *Rauscher* recognized that the question of individual
rights depended on \"the true construction of the\
treaty\" *id.* at *419,* and it concluded that the treaty, bolstered\
by the two federal statutes, did afford an individual right, *id*.\
at *422-424, 430.*

In *Alvarez-Machain,* the Court indicated that both the presence of
explicit treaty language and the application of domestic statutes were
important to the outcome in *Rauscher. 504* U.S. at *659-660* & n.5,
662-663. The Court in *Alvarez-Machain* held that the United States\'
extradition treaty with Mexico did not prohibit kidnaping, and that a
kidnaped Mexican national therefore could be prosecuted in this country
without violating the treaty. The Court\'s statement that the treaty,
if\
applicable, \"would appear\" to be enforceable in a criminal prosecution
was therefore dicta. *Id.* at 667. As the courts of appeals have
recognized in the wake of *Alvarez-Machain,* it remains an open question
whether extradition treaties may be

invoked by individual criminal defendants in the absence of clear
language or a domestic statute conferring rights. See *United States v.
Saccoccia*, 58 F.3d 754, 767 n.6 (1^st^ Cir. 1995), cert. denied, 517
U.S. 1105 (1996). Thus, neither *Rauscher* nor\
*Alvarez-Machain* alter the basic principles discussed above - that a
treaty generally does not establish individual rights unless it concerns
relations between individuals and contains unmistakable language.

Considered in light of these principles, the Vienna Convention cannot be
read to establish individual rights. First, the Convention regulates
relationships between sovereign States, and to the extent it discusses
individuals it concerns their relations with States, not with other
individuals. The Vienna Convention is not a treaty concerning property
rights, or commerce, or navigation, but an agreement to facilitate the
conduct of diplomatic relations. Second, and more importantly, it lacks
altogether any of the express and unmistakable language required to
establish individual rights. The only language on which defendants rely
is contained in Article 36, which provides in pertinent part (emphasis
added):

> 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 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 rights under this
sub-paragraph.]{.underline}

The reference to \"his rights\" in sub-paragraph 1(b) will not bear the
weight that defendants place upon it. First, the Convention contains
express disclaimers of any intent to create individual rights. As noted
above, the Convention\'s preamble provides that it is designed \"rot to
benefit individuals but to ensure the efficient performance of functions
by consular posts on behalf of their respective States.\" Article 36
itself begins with the observation that it was written \"\[w\]ith a view
to facilitating the exercise of consular functions.\" And the
Convention\'s Optional Protocol, to which the United States is a party,
announces an intent to refer \"any dispute arising out of the
interpretation or application of the Convention to the compulsory
jurisdiction of the international Court of Justice\" - an intent that
cannot be squared with defendants\' claim that the Convention creates
rights justiciable in American domestic courts.

At least as significant as the presence of disclaiming language in the
Convention, however, is the absence of any express language creating
individual rights. The Convention does not explicitly create rights; it
does not require a criminal investigation or proceeding to stop while
rights are honored; it does not refer to vindication of rights in a
domestic court; and it does not specify a remedy for the violation of
any such rights. Although it uses mandatory language - \"shall inform\"
and \"shall notify\" - the Geneva Convention on the High Seas uses
similar language - \"shall compensate\" - and does not create individual
rights. Although the Vienna Convention refers to **\"**his rights,\" the
1815 FCN treaty with Great Britain refers to the \"liberty\" of
individuals and guarantees that they \"shall enjoy the most complete
protection and security for their commerce,\" but does not create any
individual rights.

The Vienna Convention pales in comparison to treaties that have been
found to create individual rights. Unlike the FCN treaty in *Asakura*,
it does not expressly authorize foreign nationals \"to exercise their
rights and appear in the courts either as plaintiffs or defendants.\"
Unlike the trademark treaty in [Bacardi]{.underline}, nothing in the
Vienna Convention grants foreign nationals \"the same rights and
remedies which \[each State\'s domestic\] \'laws extend to\' th^e^ir own
nationals.\" And unlike the property treaty in [Clark]{.underline} v.
[Allen,]{.underline} the Vienna Convention does not

afford \"\[t\]he nationals of each High Contracting Party \* \* \*
freedom of access to the courts of justice of the other \* \* \* for the
prosecution as for the defense of their rights.\" Measured against these
examples, the incidental reference to \"his rights\" in Article 36 of
the Vienna Convention is plainly insufficient. Especially in a treaty
that regulates governmental functions, there is simply not an adequate
textual basis for inferring such a result.

> 2\. [The Negotiating History of the Vienna Convention]{.underline}.

Although the reference in Article 36 to \"his rights\" is not sufficient
to establish an individual right, the question remains why the reference
appears at all. The legislative history provides an answer to that
question. The \"rights\" language in Article 36 is the result of a
drafting compromise between the sending State\'s right to assist its
nationals and the individual national\'s privacy interests where he does
not want his consulate informed of an arrest.

The initial formal draft of Article 36, prepared in 1961, required the
receiving State to notify the sending State of an arrest in all cases.
It therefore did not require any advice to

be given to the foreign national, although it did provide, as the final
version of the Convention now provides in nearly identical language,
that \"\[a\]ny communications addressed to the consulate by the
\[foreign national\] \* \* \* shall also be forwarded \* \* \* without
undue delay.\" U.N. GAOR, 16\`\" Sess., Supp. No. 9, at 24,

U.N. Doc. A/4843 (1961). The commentary to the 1961 draft made clear
that it \"define\[d\] the rights granted to consular officials\"; it did
not refer to the rights of an individual. *Ibid.* Correspondingly,
unlike the final version of the *Vienna* Convention, the preamble to the
1961 draft had no need for the clause explaining \"that the purpose of
such privileges and immunities is not to benefit individuals.\" See
*id.* at 4-5.

Several nations (including the United States) opposed the mandatory
notification term of Article 36 on the ground that mandatory
notification in all cases could impose an obligation beyond the capacity
of many receiving States to fulfill, and on the ground that mandatory
notification might conflict with the wishes of foreign nationals who
would not want their consulate informed of an arrest for fear of
embarrassment or political retaliation. See S. Exec. Doc. No. E, 91st
Cong., 1st Sess. 59 (1969) (Message from the President of the United
States Transmitting the Vienna Convention on Consular Relations)
\[hereinafter Presidential Message\]. Initially, mandatory notification
remained in the Convention because some nations felt it necessary. See
*id*. at 59-60. That led to the rejection of Article 36 in its entirety.
*Id*. at 60.

In the closing days of the international negotiations, however, a
compromise was adopted. Rather than requiring mandatory notification,
the compromise required notification only

at the request of the arrested person. Limiting notification in that
fashion, however, raised concerns about situations in which the arrested
person would be unaware that his government maintained a consulate in
the receiving State. Accordingly, the compromise contained a second
component, requiring the foreign national to be advised of his \"right\"
to communicate with the consulate. Thus, between the two extremes of
mandatory and optional consular notification, the final version of the
Vienna Convention adopted what might be referred to as informed optional
notification. See Presidential Message at 60; U.N. Conference on
Consular Relations: Official Records 3, Doc. A/Conf.25/6, U.N. Sales No.
63.X.2, at 83-84 (1963) \[hereinafter Official Records\].

That compromise between mandatory and optional notification is the main
(but not exclusive) source of the scattered references to \"rights\" in
the record of the international negotiations, and indeed in the
Presidential Message transmitting the Convention to the Senate. See,
e.g., Presidential Message 60; Official Records at 83-84, 331-332. The
\"right\" in question, therefore, primarily concerns a right to
[prevent]{.underline} consular notification, and the compromise reflects
a balancing of the rights of the sending State, the individual\'s
privacy interests, and the burden of mandatory notification. The
negotiating history of the Convention provides an explanation for the
reference to a foreign national\'s \"rights\" that does not yieldthe
clear statement that is necessary before an international agreement will
be. read to establish individual rights.

3.  [Ratification of the Convention By the U.S. Senate]{.underline}.

The basis on which the Senate gave advice and consent to Vienna
Convention also undercuts any argument that violations the notification
requirements provide a right in a criminal prosecution. In transmitting
the Vienna Convention to the

Senate, President Nixon explained that it was \"an important
contribution to friendly relations between States,\" and did not focus
on protection of individuals. Presidential Message at III (internal
quotation marks omitted). During hearings before the Committee on
Foreign Relations, the State Department\'s Deputy Legal Adviser for
Administration described the Vienna Convention as "represent\[ing\] in
large part a codification of existing international law." S. Exec. Rep.
No. 91-9, 91st Cong., 1st Sess. 19 (1969) \[hereinafter Senate Report\].
He stated that \"\[i\]f problems should arise regarding the
interpretation or application of the convention, such problems would
probably be resolved through diplomatic channels\" or in the ICJ.
*Ibid*. When asked about the Convention\'s effect on federal legislation
and state laws, he explained that it would \"not have the effect of
overcoming Federal or State laws beyond the scope long authorized in
existing consular conventions.\" *Id*. at 18. That is the understanding
from the Executive Branch on which the Senate ratified the treaty.

Similarly, in recommending ratification, the Committee on Foreign
Relations observed that the Convention "clarifies and codifies" many
provisions of existing bilateral treaties and customary international
law. Senate Report at 1. Indeed, the Committee noted that "\[t\]he
general functional approach of the Convention is pointed up by the
following preambular statement: '\* \* \* the purpose of such privileges
and immunities is not to benefit individuals but to ensure the efficient
performance of functions by consular posts on behalf of their respective
State.'" *Id*. at 2 (asterisks in original). In recommending
ratification, the Committee relied in part on its assessment that
"\[t\]he Convention does not change or affect present U.S. laws or
practice." *Ibid.*

Consistent with that understanding, the Department of State's Legal
Adviser wrote to the nation's governors in April 1970 stating that
"\[w\]e do not believe that the Vienna Convention will require
significant departures from existing practice within the several states
of the United States." Letter A-9 (quoting 1970 letter). As the
Department of State recently observed, that representation would not
have been made "if the Department of State had contemplated that the
\[Vienna Convention\] might require that failures of consular
notification be remedied in the criminal process through prejudice
hearings, and possible the suppression of evidence or the undoing of
other aspects of the criminal process." *Ibid.*

> 4\. [Decisions of Domestic Courts in Foreign Countries]{.underline}

The Departments of Justice and State are not alone in their
interpretation of the Vienna Convention. As explained in its letter, the
Department of State has undertaken a survey of how other *nations*
respond to failures of consular notification in their domestic criminal
courts. Letter A-8. It found no country that \"provides remedies for
violations of consular notification through its domestic criminal
justice system.\" Ibid. When the State Department made this point in the
ICJ, its assertions were **\"**unrebutted\" by the opposing parties,
including \"those governments that have supported the creation of such
remedies by the courts of the United States.\" *Ibid*. Courts in two
countries, Italy and Australia, have specifically rejected claims for a
remedy resulting from failures of consular notification in criminal
cases. Letter A-8 (discussing Re *Yater,* 77 I.L.R. 541 (Italy, Court of
Cassation 1973), and R v. *Abbrederis, 36* Australia Law Reports 109
(CCA NSW 1981).^4^

The universal practice of all of the parties to the Vienna Convention is
powerful evidence of its proper interpretation. It compels a
corresponding interpretation in this case because \"(t\]reaties that lay
down rules to be enforced by the parties through their internal courts
\* \* \* should be construed so as to achieve uniformity of result
despite differences between national legal systems.\" *Restatement* §
325, comment d, at 197.

**II. THE VIENNA CONVENTION DOES NOT ESTABLISH CRIMINAL REMEDIES**

If this Court concludes that the Vienna Convention creates individual
rights, then it must also resolve a question of remedies. In our view,
even if the Vienna Convention creates rights, there is no after-the-fact
remedy for the violation of those rights in a criminal prosecution.
Instead, the only remedy

would be prospective, in the form of a court order directing the foreign
national\'s custodian to fulfill its obligations under the Convention.
See Letter A-6. As the State Department explains

*(ibid.),* there will be no need for a prospective remedy with

respect to the notification provisions, because a litigant demanding to
be notified will already be aware of his rights. It is conceivable,
however, that an arrested foreign national could file a lawsuit
demanding greater access to his consulate To the

extent that the Vienna Convention creates individual rights, they would
be remediable only in that form, and not as an independent claim for
relief in a criminal case.

Our response to the defendants\' petition for rehearing en banc, filed
in this Court on July 16, 1999, explains in detail why suppression of
evidence is not available as a remedy for violations of the Convention.
Even if the Vienna Convention establishes individual rights, it does not
establish [constitutional]{.underline} rights. See, e.g., 9reard v.
Greene, 118 S. Ct. 1352, 1355 (1998) ; *Murphy v. Netherland*, 116 F.3d
97, 100 (4\`\" Cir.), cert. denied, 521 U.S. 1144 (1997). It therefore
*cannot* support suppression of evidence because, in the absence of an
explicit statutory provision authorizing suppression, e.g., 18 U.S.C.
2518(10)(a), that remedy is available only for constitutional
violations. See, e.g., *United States v. Ani*, 138 F.3d 390, 39-2 (9\"\'
Cir. 1988) (refusing to suppress evidence for non-constitutional
violation of federal statute and regulation governing customs searches);
*United States v. Thompson*, 936 F.2d 1249, 1249-1250 (11th Cir. 1991)
(same for non-constitutional violation of federal pen register statute,
18 U.S.C. 3121), cert. denied, 502 U.S. 1075 (1992); cf. *United States
v. Caceres***,** 440 U.S. 741 (1979) (same for non-constitutional
violation of internal agency regulation governing searches).

There is no need to repeat those arguments in this supplemental brief.
We note, however, that this Court recently reaffirmed the rule that
suppression is available only for constitutional violations. In *United
States v. Smith*, No. 98-

10297, 1999 WL 1024054 (9th Cir. Nov. 12, 1999), the defendant was
convicted on various fraud and tax offenses based in part on the
testimony of an accomplice who cooperated with the *government* in
exchange for leniency. *Id.* at \*1. On appeal, the defendant claimed,
inter alia, that the government\'s use of the accomplice\'s testimony
violated 18 U.S.C. 201(c)(2), the statute making it a crime to bribe a
witness. *Id.* at \*4. This Court rejected that claim, finding no
violation of Section 201 (c)(2), and no remedy even if there had been a
violation. The Court explained: \"\[E\]ven if \[defendant\] were
correct, he offers no basis for transforming 18 U.S.C. § 201 (c)(2) into
an exclusionary rule. The use of the exclusionary rule is an exceptional
remedy typically reserved for violations of constitutional rights.\"
*Id*. at \*6.

The same analysis applies here: Even if defendants are correct that the
Vienna Convention creates individual rights, they offer no basis for
transforming it into an exclusionary rule. There can be no serious
contention that the Vienna Convention itself requires suppression of
evidence. It says nothing whatsoever about remedies, and it would be
intolerably farfetched to suggest that a suppression remedy applies as a
matter of international law. As the State Department observes, Letter
A-4, suppression of evidence is \"nor common to criminal justice systems
outside the United States.\" Indeed, that is a

considerable understatement. See *California v. Minjares*, 443 U.S. 916
(1979) (Rehnquist, J., dissenting from denial of stay) (\"I do not claim
to be an expert in comparative law, but I feel morally certain that the
United States is the only nation in the world in which the most
relevant, most competent evidence as to the guilt or innocence of the
accused is mechanically excluded because of the manner in which it may
have been obtained\").

In sum, even if the Vienna Convention establishes individual rights,
there is no remedy for a violation of those rights in a criminal case. A
foreign detainee might be entitled to obtain a court order requiring his
custodians to obey the Convention - as they are required to do under the
Supremacy Clause - but there is no basis in the Convention or in
American law for affording him a remedy to prevent or undo his criminal
conviction.

III\. CONSULAR NOTIFICATION AND ADVICE IS TIMELY IF RENDERED AT THE
DEFENDANT\'S INITIAL JUDICIAL APPEARANCE

The final issue before the Court concerns a matter of timing. If the
Vienna Convention creates individual rights, and if a violation of those
rights can justify suppression of

evidence, the question remains whether suppression is warranted in these
cases. The answer to that question turns on an interpretation of the
Convention\'s requirement that advice and notification occur \"without
delay.\" In our view, advice and notification are timely when made at
the defendant\'s initial appearance under Fed. R. Crim. P. 5. That
approach is in keeping

with the text and legislative history of the Convention, with the
function of consular notification, and with the practical aspects of
implementing the Vienna Convention.

Article 36(1)(b) provides that \"\[a\]ny communication addressed to the
consular post by the person arrested \* \* • shall also be forwarded by
the said authorities [without delay]{.underline},\" and it requires the
authorities to \"inform the person concerned [without delay]{.underline}
of his rights under this sub-paragraph\" (emphasis added). The
Convention does not purport to define the term \"without delay,\" but
the legislative history of the Vienna Convention and subsequent
international practice make clear that the phrase was intended to
prevent delays of several days, not several hours, in notification and
advice. See Official Records at 338-339. Even the British representative
to the Vienna conference, who championed the need for timely
notification, recognized that a delay of up to 48 hours would be
acceptable under a standard requiring advice and notification \"without
delay.\" *Id.* at 340. Other representatives discussed the periods of
delay in terms of months, not days, and supported delay \"rather longer
than the forty-eight hours suggested by the United Kingdom
representative.\" *Id.* at 340-341; see *id*. at 338, 341.

Subsequent bilateral consular agreements confirm that delays of one to
four days are acceptable to the international community. As the State
Department\'s brochure on consular

notification explains, most bilateral consular agreements adopted after
the Vienna Convention either require notification \"immediately\" or
\"without delay,\" as in the Vienna Convention itself, or \"within two,
three, or four days.\" United States Department of State, *Consular
Notification and Access 20* (1998) \[hereinafter State Brochure\]. In
particular, Article 41 of our consular convention with Hungary provides
for notification \"without delay and in any event within three days.\"
July 7,

1972, 24 U.S.T. 1141, 1973 WL 35878. Article 12 of our consular
convention with the Soviet Union requires notification \"immediately,\"
and a protocol to the convention explains that the requirement is
satisfied if notification occurs within \"one to three days.\" June 1,
1964, 19 U.S.T. 5018, 1968 WL 18422. Our consular convention with Poland
calls for notification \"immediately\" (Article 29), and provides in
Articles 1-2 of a protocol for delays of up to three days. May 31, 1972,
24 U.S.T. 1231, 1973 WL 35853. Finally, Article 35 of our consular
convention with China calls for notification within four days or \"as
soon as possible\" thereafter. Sept. 17, 1980, 33 U.S.T.

2973, 1982 WL 212240. See also 8 C.F.R. § 236.1(e) & n.1 (providing for
72-hour notification*).* Consular advice and notification are given
\"without delay**\"** under the Vienna

Convention if they are given within these time periods.

Consistent with that understanding of the phrase \"without delay,\"
consular notification will normally be timely if it is made at or before
the defendant\'s initial appearance before a judicial officer**.**
Article 36(2) of the Vienna Convention provides that \"(t)he rights
referred to in paragraph 1 of this Article shall be exercised in
conformity with the laws and regulations of the receiving State, subject
to the proviso, however, that the said laws and regulations must enable
full effect to be given to the purposes for which the rights accorded
under this Article are intended.\" The closest American analogue to
Article 36\'s timing requirement is the provision in Fed. R. Crim. P. 5
that an arrested person must be taken before a magistrate judge for
initial appearance \"without unnecessary delay\" - generally within 48
hours, depending on the circumstances. See *Mallory v. United States*,
354 U.S. 449, 455 (1957); *United States v. Wilson*, 838 F.2d 1081, 1085
(9th Cir. 1988); cf. 18 U.S.C. 3501.^5^

In non-petty cases, the initial appearance serves to advise the
defendant of the sworn criminal complaint against him, of his rights to
remain silent, to have retained or appointed counsel, and to pretrial
release, and, where no indictment has been

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

^5^ In state courts, a judicial determination. of probable cause is
required, also generally within 48 hours of arrest without an
indictment. See *County of Riverside* *v. McLaughlin,* 500 U.S. 44
(1991).

returned, of his right to a preliminary examination to contest the
allegations of probable cause underlying the complaint.

Given that these constitutional warnings are properly made at initial
appearance, there is nothing untoward in the conclusion is that consular
advice is also timely given there.

Notification at initial appearance "enable\[s\] full effect to be given
to the purposes for which the rights accorded under \[Article 36\] are
intended. Vienna Convention, Article 36(2). The purpose of advice and
notification is to permit foreign nationals, who may not be familiar
with the American judicial system, to consult with officials from their
native country. That purpose is satisfied if *notification* takes place
at the commencement of those judicial proceedings.6

The purpose of Article 36 does not require consular notification at the
instant of arrest or in advance of questioning. Indeed, as a matter of
timing and function, consular advice is quite unlike the warnings
required by *Miranda*

^6^As noted in our petition for rehearing, the State Department advises
police officers to provide advice and notification \"as soon as
reasonably possible under the circumstances,\" and explains that it
\"would ordinarily expect the foreign national to have been advised \*
\* \* by the time (he) is booked for detention.\" The State Department
also \"encourages judicial authorities to confirm during court
appearances of foreign nationals that consular notification has occurred
as required.\" State Brochure 20 (excerpted in the addendum to our
rehearing petition, and also discussed in Letter 2). The State
Department reviewed this brief (and our initial rehearing petition) and
agrees that advice and notification are given \"without delay\" under
the Vienna Convention if they are given by the time of initial
appearance.

v\. *Arizona, 384 U.S. 436 (1966). Miranda* rights are tied explicitly
to custodial interrogation, see *Illinois v. Perkins, 496 U.S. 292, 297
(1990),* and accordingly they must be given before such interrogation
takes place. There is, however, no independent requirement that
arresting officers advise a defendant of his *Miranda* rights, and they
need not warn him at all if they are prepared to forego questioning. By
contrast, the Vienna Convention requires consular advice regardless of
whether questioning takes place. See Letter *A-4.*

> More importantly, consular advice serves a purpose wholly

different from *Miranda.* In keeping with its role in protecting

against involuntary confessions, *Miranda* requires the police to

cease interrogation when a defendant invokes his rights.

*Michigan v. Mosley, 423 U.S. 96 (1975).* The Vienna Convention contains
no such limitation, and the police are therefore free to continue
questioning a foreign national even after he asks to communicate with
his consulate. Letter *A-4.* That follows not only from the absence of
any language in the Convention preventing questioning, but also from the
fact that a consular officer need not, and sometimes will not, provide
any assistance at all to the foreign national. See ibid. Thus, consular
advice is not analogous to *Miranda* warnings, and it has no direct
connection to custodial interrogation.

Practical concerns also support conducting advice and notification at
initial appearance. When a police officer arrests a person in our
multi-ethnic society, he will often have no way of knowing whether the
person is a foreign national. In some cases a foreign national will be
carrying a passport, but in others he will not; in some cases he will
tell the arresting officer his nationality, but in others he will not.
There may be language barriers to effective communication, and some
defendants may have an incentive to represent themselves as U.S.
nationals in hopes of avoiding deportation. Given the vast number of
foreign nationals who visit the United States, and the number of
countries from which they come, it will often be very difficult for a
policeman to accomplish immediate consular notification. As explained in
the President\'s message to the Senate accompanying the Vienna
Convention, there is a significant \"cost and effort of researching the
nationality of the person in custody, \* \* \* engag\[ing) in directory
searches to locate the proper consular post (there are about 1,000
foreign consular posts in the United States), and \* \* \* notify\[ing)
foreign consular posts of all such arrests.\" Presidential Message at
59. Permitting advice and notification to be made at booking or initial
appearance accords with these difficulties.

Although results may vary from case to case, it is clear in these cases
that the defendants made their statements before their initial
appearances, and that those initial appearances

were timely. (In *Oropeza-Flores,* the panel held that defendant\'s
initial appearance was timely, 1999 WL 195621, at \*1, and in
*Lombera-Camorlinga,* no claim of delay was advanced.) Thus, even if the
Vienna Convention creates individual rights, and even if those rights
could be vindicated through suppression motions, we submit that
defendants\' convictions should be affirmed. Any violation of the
Convention in these cases did not occur until after the defendants\'
statements were made, and suppression is therefore not appropriate.

In closing, it is important to reiterate the point made at the outset of
our rehearing petition in these cases. The United States takes seriously
its reciprocal obligations of providing consular notification and access
under the Vienna Convention, and the State Department is working to
improve both federal and state compliance. The importance of the Vienna
Convention, however, and our efforts to ensure that it is followed, have
no bearing on the legal questions presented here. While the United
States is committed to its obligations under the Vienna Convention -
just as it expects other nations to comply with their obligations when
American nationals are detained abroad - that commitment is not subject
to enforcement in domestic courts by foreign nationals through
suppression of evidence.

> CONCLUSION
>
> The judgments of the district courts should be affirmed.

GREGORY A. VEGA

*United States Attorney*

*Southern District of California*

David P. Curnow

*Assistant* *United States Attorney*

*Southern District of California*

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> **CERTIFICATE OF COMPLIANCE WITH TYPEFACE & LENGTH LIMITATIONS**

This brief has been prepared using WordPerfect 7, Courier New, 12 point
typeface. Exclusive of this certificate, the table of contents, the
table of citations, the addendum, and the certificate of service, the
brief contains 9035 words, as permitted by this Court\'s order of
November 12, 1999.

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