## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 27 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIO MINJARES-ALVAREZ, Defendant-Appellant. No. 00-2004

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR. 99-159-LH)

Lissa J. Gardner, Assistant Federal Public Defender(Stephen P. McCue, Federal Public Defender, and Shari Lynn Allison, Research a nd Writing Specialist, with her on briefs), Las Cruces, New Mexico. Sarah Y. Vogel, Assistant United States Attorney (N orman C. Bay, United States Attorney, with her on brief), Las Cruces, New Mexic o.

Before EBEL , PORFILIO , and LUCERO , Circuit Judges.

EBEL , Circuit Judge.

Appellant Mario Minjares-Alvarez (“Minjares”) chall enges his conviction under 8 U.S.C. § 1326 for illegally reentering the United States after being deported to Mexico for an aggravated felony. Minja res argues that we should- 2 -

vacate his conviction because statements he made to a United States Border Patrol agent, which were introduced by the prosecution at his trial, were coerced. Moreover, Minjares argues that his statements shoul d have been excluded because he was never informed of his right to consult with the Mexican consulate, as provided by the Vienna Convention on Consular Relat ions, Apr. 24, 1963, art. 36, 21 U.S.T. 77-78, 101, 596 U.N.T.S. 261 (hereinafter“Vienna Convention”). We AFFIRM Minjares’s conviction.

I. BACKGROUND
On December 23, 1998, Dona Ana County, New Mexico s heriff’s deputy Guillermo Ruiz (“Deputy Ruiz”) stopped Minjares forsuspicion of driving while intoxicated. Deputy Ruiz observed a twelve-pack of beer, several empty beer bottles, and a partially consumed beer in the car w ith Minjares. Deputy Ruiz smelled alcohol in the car and on Minjares. Althou gh Minjares did not have a driver’s license, he gave Deputy Ruiz his name and told Deputy Ruiz that he was a Mexican citizen without immigration documents. D eputy Ruiz ran a check for outstanding warrants and learned that an INS arrestwarrant had been issued for a person matching Minjares’s name and description. D eputy Ruiz then placed Minjares under arrest. Deputy Ruiz decided not to administer a roadside sobriety test, however. This was because Minjares did not appear to be significantly- 3 -

intoxicated, he was to be arrested in any case, and , given Minjares’s condition as a paraplegic, Deputy Ruiz was unsure how to conductthe tests. The sheriff’s department notified the United States Border Patrol (“Border Patrol”) that Deputy Ruiz had arrested Minjares. D eputy Ruiz then took Minjares’s keys and told him to remain in his own c ar until Border Patrol agents arrived. Deputy Ruiz cited Minjares for having an open container of alcohol, driving with a suspended license, and for a traffic infraction. Border Patrol Agent Desi D. DeLeon (“Agent DeLeon”) responded to the sheriff department’s notification that it had Minja res under arrest. Agent DeLeon arrived on the scene, verified Minjares’s identity, and ran a second check for warrants which also came back positive. Agent DeLe on asked Minjares his name, date of birth, citizenship, and whether he had prev iously been deported. Minjares responded to each question, answering “yes” when as ked if he had previously been deported. Agent DeLeon then drove Minjares ap proximately 30 minutes to a Border Patrol station without further questioning. At the Border Patrol station, Agent DeLeon read Min jares a form, written in Spanish, that notified him of his rights to coun sel and to remain silent. Minjares signed the form and waived his rights in t he presence of Agent DeLeon and two other Border Patrol agents. Agent DeLeon d id not inform Minjares that the Vienna Convention afforded him a right of acces s to a Mexican consulate and- 4 -

a right to consult with a consul. Agent DeLeon int erviewed Minjares, and Minjares signed a sworn statement that he had previ ously been deported and had last entered the United States on March 31, 1998. Agent DeLeon testified that Minjares “was attentive, answering willingly withou t hesitation,” that he did not slur his speech or stumble, that he understood whatwas happening to him, and that he never asked for a lawyer or sought to stop the interrogation. Minjares was not handcuffed or placed in a cell prior to or duri ng his interrogation, and Agent DeLeon maintained a conversational tone of voice wh ile speaking to Minjares. Agent DeLeon could not smell alcohol on Minjares an d could remember nothing that suggested Minjares was intoxicated during the interrogation. Minjares moved to suppress the statements he had ma de to police, asserting two separate theories. First, Minjares argued thathis statements were not voluntary. Second, Minjares argued that his statem ents should be suppressed because he was never informed that he had a right t o consult with consular officials from Mexico pursuant to the Vienna Conven tion. See 21 U.S.T. at 101. Although Minjares acknowledges he understood his co nstitutional rights, he testified at his suppression hearing that he would have had a better appreciation of the gravity of his situation had he known of his Vi enna Convention rights. Minjares also submitted a letter from Anibal Gomez- Toledo, the Consul for Protection with the Mexican Consulate in El Paso, T exas, stating that he would1 The district court did not expressly address Minjar es’s more general

assertion that the totality of the circumstances – including the time of day, the presence of armed and uniformed officers, and Minja res’s own fatigue – rendered his statements involuntary. It is sufficient for t he purpose of this analysis, however, to note that Minjares’s statements were ad mitted in spite of these objections. - 5 - have advised Minjares of his rights under U.S. law and that, generally, he advises Mexican citizens who are arrested in the United States to assert those rights. Minjares thus contends that he was prejudiced becau se the consul’s advice would have influenced him to stand on his constitutional rights rather than make the incriminating statements that he now seeks to suppr ess. The district court denied Minjares’s motion to supp ress his statements, specifically concluding that he was not intoxicated during the interrogation. 1 Further, it made a factual finding that Minjares wo uld not have asserted his consular rights had he known of them, and therefore held that he had not suffered prejudice despite the Government’s admitted violati on of the Vienna Convention. Procedural History After the district court denied Minjares’s motion t o suppress, he was tried in a three-day jury trial beginning July 15, 1999. A critical issue at trial was whether Minjares had actually left the United State s, or whether he was instead merely subject to an order of deportation that was never properly exercised. To rebut Minjares’s evidence that he never actually le ft the United States after he- 6 -

was ordered deported, the Government submitted Minj ares’s sworn statement that he had been deported and subsequently reentered the United States, as well as Agent DeLeon’s testimony describing the interrogati on. The jury convicted Minjares, and he was sentenced to 84 months in pris on and ordered to pay a $100 special assessment. Minjares now appeals that conviction on the ground that the trial judge erred in denying his motion to suppress, and he req uests this court to vacate his conviction and order a new trial.
II. STANDARD OF REVIEW “On appeal from a motion to suppress, we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevail ing party.” United States v. Maden , 64 F.3d 1505, 1508 (10th Cir. 1995). “The credib ility of witnesses and the weight to be given the evidence is the province of the district court.” United
States v. Patten , 183 F.3d 1190, 1193 (10th Cir. 1999). We review de novo the ultimate issue of whether a statement was voluntary , taking into account the totality of the circumstances surrounding the confe ssion. See United States v. Nguyen , 155 F.3d 1219, 1222 (10th Cir. 1998); United Stat es v. Glover , 104 F.3d 1570, 1579 (10th Cir. 1997).- 7 - III. DISCUSSION A. Fifth Amendment Voluntariness Minjares’s first assignment of error is that the di strict court erred in refusing to suppress statements he made to Agent De Leon of the Border Patrol. After receiving testimony from Minjares, Agent DeLe on, and Deputy Ruiz, the district court made a factual finding that Minjares was not intoxicated at the time he waived his Fifth Amendment right to silence. Fu rther, the district court found that Minjares “clearly knew” he did not have to tal k to the Border Patrol agents without an attorney present. The district court th erefore denied Minjares’s motion. Minjares contends that, given the totality of the c ircumstances, the district court erred in concluding his statements were volun tary. Specifically, Minjares argues that the district court’s finding that he wa s not intoxicated when he waived his rights was clearly erroneous. Moreover, he con tends that his statements were coerced because he was arrested late at night afterhe had been drinking, he was fatigued during and after his arrest, he was not gi ven Mirandawarnings for approximately three hours after his arrest, and the interrogations took place in the company of armed, uniformed officers. The Supreme Court recently held that the advisement s first required by Miranda v. Arizona , 384 U.S. 436 (1966), arise out of the constitutio n, and that a2 Minjares argued to the district court that his pre- Mirandastatement to

Agent DeLeon effectively let the “cat out of the ba g,” and thus his subsequent, post-Mirandastatements were fruit of the poisonous tree. Minj ares has not raised this argument on appeal or cited authorities in its favor, and therefore we express no view of its merits in this opinion. Cf. State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (failure to r aise an issue in the opening brief waives the issue). - 8 - defendant’s post-arrest statements must therefore b e excluded unless the defendant was first notified of his Mirandarights. See Dickerson v. United
States , 530 U.S. 428 (2000). Since Minjares did not rece ive any advisement of his rights at the scene of his arrest, those statem ents he made prior to being transported to the Border Patrol Station were inadm issible pursuant to Dickerson and Miranda . None of these statements, however, were submitte d to the jury. Therefore whatever deprivation of rights Minjares m ay have suffered at that point did not affect his trial. 2 The Government did, however, enter into evidence th e statements Minjares made during his interrogation at the Border Patrol station. Minjares concedes that he made these statements after Agent DeLeon had ful ly advised him of his constitutional rights. He contends, however, that the circumstances surrounding his waiver of rights was so coercive as to render h is statements involuntary despite the advisements. We have stated: In determining whether a particular confession is c oerced, we consider the following factors: (1) the age, intell igence, and education of the defendant; (2) the length of the d etention; (3) the- 9 -

length and nature of the questioning; (4) whether t he defendant was advised of [his] constitutional rights; and (5) whe ther the defendant was subjected to physical punishment. Glover , 104 F.3d at 1579 (citing Schneckloth v. Bustamont e , 412 U.S. 218, 226 (1973)). None of these factors supports Minjares’s contention that his statements were involuntary. Nothing in the record demonstrates that the distric t court clearly erred in concluding that Minjares was not intoxicated when h e waived his rights. The officers testified that Minjares was lucid, that he was physically able to move into and out of his wheelchair, and that he showed no si gns of intoxication during Agent DeLeon’s interrogation. Thus, the district c ourt’s finding is amply supported. Moreover, the evidence shows that Minja res was an adult high school graduate with some college education. Agent DeLeon conducted the interrogation in a polite and conversational manner. The interro gation lasted only a few minutes, and there is no allegation that Agent DeLe on ever threatened Minjares or made any promises in exchange for Minjares’s statem ents. Both Deputy Ruiz and Agent DeLeon described Minjares as alert and attent ive, and Agent DeLeon testified that Minjares participated willingly thro ughout the interrogation. Although Minjares testified during his suppression hearing, he said nothing to rebut this evidence. To the contrary, he told the court he was aware of and understood his rights at the time he waived them, a nd based his decision to do so- 10 -

on a misunderstanding concerning the severity of av ailable sanctions for reentering the United States following a deportatio n. See Colorado v. Spring , 479 U.S. 564, 574 (1987) (“The Constitution does not re quire that a criminal suspect know and understand every possible consequence of awaiver of the Fifth Amendment privilege.”) Based on this record, we conclude there was suffici ent evidence to support the district court’s conclusion that Minjares was n ot intoxicated during his interrogation, and that his responses were voluntary. B. Vienna Convention Minjares next argues that his statements should be suppressed because they were taken in violation of his rights under the Vie nna Convention. Article 36 of the Vienna Convention reads, in relevant part: 1. With a view to facilitating the exercise of con sular functions relating to nationals of the sending state . . . . (b ) if he so requests, the competent authorities of t he receiving State shall, without delay, inform the consular post of t he sending State if, within its consular district, a national of that st ate is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the c onsular post by the person arrested, in prison, custody or detentio n shall also be forwarded by the said authorities without delay. T he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

. . . . 2. The rights referred to in paragraph 1 of this A rticle shall be exercised in conformity with the laws and regulatio ns of the receiving State, subject to the priviso, however, t hat the said laws- 11 -

and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are in tended. 21 U.S.T at 100-101. Minjares interprets this lang uage to create an individual right of access to consular officials, a right to c onsult with them, and a right to be notified by police of those entitlements. Further, Minjares argues that he was prejudiced by the officers’ failure to inform him o f these rights because, had he known of them, he would have consulted with the con sul and refused to waive his constitutional rights. Finally, Minjares argues th at established principles of criminal law require that the Government be barred from using statements taken in derogation of one’s Vienna Convention rights at trial. It remains an open question whether the Vienna Conv ention gives rise to any individually enforceable rights. See Breard v. Greene , 523 U.S. 371, 376 (1998) (per curiam) (stating in dicta that the Vien na Convention “arguably confers on an individual the right to consular assi stance following arrest”). In recent years several courts of appeals, including t he Tenth Circuit, have considered this question and declined to address itdirectly, concluding that even if the Vienna Convention does create individual rig hts, suppression is not an appropriate remedy for a violation of those rights. See , e.g. , United States v. Chanthadara , 230 F.3d 1237, 1255-56 (10th Cir. 2000); United S tates v. Li , 206 F.3d 56, 66 (1st Cir. 2000) (en banc); United State s v. Page , 232 F.3d 536, 541 (6th Cir. 2000); United States v. Chaparro-Alcantar a , 226 F.3d 616, 622 (7th Cir.- 12 -

2000); United States v. Cordoba-Mosquera , 212 F.3d 1194, 1196 (11th Cir. 2000); United States v. Lombera-Camorlinga , 206 F.3d 882, 885 (9th Cir. 2000) (en banc); cf. United States v. Jimenez-Nava , 243 F.3d 192, 198-99 (5th Cir. 2001) (finding both that the Vienna Convention creates no individual rights and that suppression of evidence would be inappropriate if i t did). Our opinion in Chanthadaraheld, under a plain-error standard of review, that suppression is not an appropriate remedy for aviolation of Article 36 of the Vienna Convention, see 230 F.3d at 1255 (citing Lombera-Camorlinga , 206 F.3d at 886; Li , 206 F.3d at 60), and we now reaffirm that holding in this case under a de novo standard of review. Accordingly, once agai n we need not decide whether the Vienna Convention creates individually enforcea ble rights. Several considerations support the outcome that suppressionis not an appropriate remedy. First, “[t]he exclusionary rule was not fashioned t o vindicate a broad, general right to be free of agency action not authorized by law, but rather to protect specific, constitutionally protected rights.” Page , 232 F.3d at 540 (quotation mark omitted); see also Li , 206 F.3d at 61 (“Historically, [suppression has] been available only in cases implicating the most fundam ental of rights. This class has heretofore been limited to those paramount protecti ons secured by the Fourth, Fifth, and Sixth Amendments to the United States Co nstitution.”). Since the Vienna Convention does not create fundamental right s on par with those set forth- 13 -

in the Bill of Rights, see Jimenez-Nava , 243 F.3d at 199; Page , 232 F.3d at 541; Li , 206 F.3d at 61, we are unwilling to enforce Artic le 36 with the judicially created remedy of suppression. Further, “[d]efendants who assert violations of a s tatute or treaty that does not create fundamental rights are not generally ent itled to the suppression of evidence unless that statute or treaty provides forsuch a remedy.” Li , 206 F.3d at 61. As courts reviewing the Vienna Convention have consistently recognized, the treaty does not expressly incorporate a suppressionremedy. See id. at 61-62 (citing cases). There is no evidence that the Vien na Convention’s drafters intended to remedy violations of Article 36 through the suppression of evidence.
See Chapparo-Alcantara , 226 F.3d at 621 (“Indeed, the records of the Conv ention demonstrate that the delegates did not discuss the issue of whether suppression was an appropriate remedy . . . .” (citing Official Records, United Nations Conference on Consular Relations (Volumes I & II) ( 1963))). Moreover, “[t]here is no reason to think the drafters of the Vienna Co nvention had [the] uniquely American [Fifth and Sixth Amendment] rights in mind . . . given the fact that even the United States Supreme Court did not requir e the Fifth and Sixth Amendment post-arrest warnings until it decided Mir andain 1966, three years after the treaty was drafted.” Lombera-Camorlinga , 206 F.3d at 886. Indeed, no other country has interpreted the Vienna Convention to require suppression as a3 Following oral arguments in this case, Minjares sub mitted media accounts

of two unpublished cases in which British courts suppressed statements made by foreign nationals in derogation of statutory rights to consult with consular officials that were apparently similar to those con tained in Article 36 of the Vienna Convention. For the reasons stated in this opinion, we do not find those accounts persuasive. In addition, we note that on June 27, 2001, the Int ernational Court of Justice held that two German nationals prosecuted f or murder in Arizona suffered a deprivation of individual rights created by the V ienna Convention because they were not informed of their right to consular access , and because they were denied a review and reconsideration of their convictions f or murder in light of Arizona’s procedural bar. See generallyGermany v. United States of America , 2001 I.C.J. __, available athttp://www.icj-cij.org/icjwww/idocket/igus/igusfra me.htm. It does not appear that the International Court of Jus tice considered the applicability of the exclusionary rule to violations of the Vienn a Convention, however. - 14 - remedy for a violation of Article 36. See Li , 206 F.3d at 65 (citing submission by United States Department of State that it is “unawa re of any country party to any consular convention with the United States that rem edies failures of notification through its criminal justice process.”); Lombera-Ca morlinga , 206 F.3d at 888 (“The state department also points out that no othe r signatories to the Vienna Convention have permitted suppression under similarcircumstances, and that two (Italy and Australia) have specifically rejected it .”); Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citi zens Under Article 36 of the Vienna Convention on Consular Relations , 14 Geo. Immigr. L.J. 185, 211-12 (1999). 3 In addition, courts have given weight to the United States Department of State’s interpretation of the Vienna Convention arg uing against a suppression- 15 -

remedy. See , e.g. , Lombera-Camorlinga , 206 at 887-888 (noting the State Department believes suppression is an inappropriate remedy for a violation of the Vienna convention); Page , 232 F.3d at 541 (“In the opinion of the State Department, ‘[t]he only remedies for failure of con sular notification under the [Vienna Convention] are diplomatic, political, or e xist between states under international law.’” (quoting Li , 206 F.3d at 63 (alterations in original).)); Kolovrat v. Oregon , 366 U.S. 187, 194 (1961) (“While courts interprettreaties for themselves, the meaning given them by the departmen ts of government particularly charged with their negotiation and enf orcement is given great weight.”). Finally, we find that even if suppression were an appropriate remedy for a violation of the Vienna Convention, it would not be appropriate in this case because Minjares has not demonstrated he was prejud iced by a violation of the treaty. Cf. Chanthadara , 230 F.3d at 1256 (“Even presuming the Vienna Convention creates individually enforceable rights, Mr. Chanthadara has not demonstrated that denial of such rights caused him prejudice.”). Like the appellant in Chanthadara , Minjares was raised primarily in the United State s. See id. Minjares understood his constitutional rights, an d was generally familiar with this country’s criminal processes. Moreover, in this case the district court made a factual finding that Minjares’s assertion th at he would have contacted the- 16 -

consulate had he been aware of his Vienna Conventio n rights lacked credibility. We defer to a district court’s credibility determin ations when reviewing a district court’s findings of fact under a clearly erroneous standard, see Patten , 183 F.3d at 1193, and nothing in the remainder of the record le aves us with a conviction that a mistake has been made.

IV. CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s order denying Minjares’s motion to suppress his statements to Age nt DeLeon.No. 00-2004, United States v. Minjares-Alvarez

LUCERO , Circuit Judge, concurring. I join in the majority’s resolution of Minjares-Alv arez’s Fifth Amendment claim and write separately to concur in the majority’s resolution of defendant’s Vienna Convention claim. Like the majority, I would have resolved Minjares-A lvarez’s Vienna Convention claim based upon the holding in United S tates v. Chanthadarathat “[e]ven presuming the Vienna Convention creates ind ividually enforceable rights,” defendant Minjares-Alvarez, like Chanthada ra, “has not demonstrated that denial of such rights caused him prejudice.” 230 F .3d 1237, 1256 (10th Cir. 2000). As the majority notes, “the district court made a factual finding that Minjares’s assertion that he would have contacted t he consulate had he been aware of his Vienna Convention rights lacked credib ility.” Majority Op. at 16. Having decided the case on that basis, I would not reach the remaining issues. Particularly in matters of international concern, I think it appropriate to reach only those issues necessary for resolution of the dispute before us.