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 and Writing Specialist, with

her on briefs), Las Cruces, New Mexico.

Sarah Y. Vogel, Assistant United States Attorney (Norman C. Bay, United States

Attorney, with her on brief), Las Cruces, New Mexico.

Before EBEL, PORFILIO, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Appellant Mario Minjares-Alvarez (“Minjares”) challenges his conviction

under 8 U.S.C. § 1326 for illegally reentering the United States after being

deported to Mexico for an aggravated felony. Minjares argues that we should
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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 should 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 Relations, 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 sheriff’s deputy

Guillermo Ruiz (“Deputy Ruiz”) stopped Minjares for suspicion of driving while

intoxicated. Deputy Ruiz observed a twelve-pack of beer, several empty beer

bottles, and a partially consumed beer in the car with Minjares. Deputy Ruiz

smelled alcohol in the car and on Minjares. Although 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. Deputy Ruiz ran a check for

outstanding warrants and learned that an INS arrest warrant had been issued for a

person matching Minjares’s name and description. Deputy 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
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intoxicated, he was to be arrested in any case, and, given Minjares’s condition as

a paraplegic, Deputy Ruiz was unsure how to conduct the tests.

The sheriff’s department notified the United States Border Patrol (“Border

Patrol”) that Deputy Ruiz had arrested Minjares. Deputy Ruiz then took

Minjares’s keys and told him to remain in his own car 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 Minjares 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 DeLeon asked Minjares his name,

date of birth, citizenship, and whether he had previously been deported. Minjares

responded to each question, answering “yes” when asked if he had previously

been deported. Agent DeLeon then drove Minjares approximately 30 minutes to a

Border Patrol station without further questioning.

At the Border Patrol station, Agent DeLeon read Minjares a form, written

in Spanish, that notified him of his rights to counsel and to remain silent. 

Minjares signed the form and waived his rights in the presence of Agent DeLeon

and two other Border Patrol agents. Agent DeLeon did not inform Minjares that

the Vienna Convention afforded him a right of access to a Mexican consulate and
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a right to consult with a consul. Agent DeLeon interviewed Minjares, and

Minjares signed a sworn statement that he had previously been deported and had

last entered the United States on March 31, 1998. Agent DeLeon testified that

Minjares “was attentive, answering willingly without hesitation,” that he did not

slur his speech or stumble, that he understood what was 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 during his interrogation, and Agent

DeLeon maintained a conversational tone of voice while speaking to Minjares. 

Agent DeLeon could not smell alcohol on Minjares and could remember nothing

that suggested Minjares was intoxicated during the interrogation.

Minjares moved to suppress the statements he had made to police, asserting

two separate theories. First, Minjares argued that his statements were not

voluntary. Second, Minjares argued that his statements should be suppressed

because he was never informed that he had a right to consult with consular

officials from Mexico pursuant to the Vienna Convention. See 21 U.S.T. at 101. 

Although Minjares acknowledges he understood his constitutional 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 Vienna Convention rights. 

Minjares also submitted a letter from Anibal Gomez-Toledo, the Consul for

Protection with the Mexican Consulate in El Paso, Texas, stating that he would
1The district court did not expressly address Minjares’s more general

assertion that the totality of the circumstances – including the time of day, the

presence of armed and uniformed officers, and Minjares’s own fatigue – rendered

his statements involuntary. It is sufficient for the purpose of this analysis,

however, to note that Minjares’s statements were admitted in spite of these

objections.

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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 because 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 suppress.

The district court denied Minjares’s motion to suppress his statements,

specifically concluding that he was not intoxicated during the interrogation.1

 

Further, it made a factual finding that Minjares would 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 violation of the Vienna Convention. 

Procedural History

After the district court denied Minjares’s motion to 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 States, 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 left the United States after he
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was ordered deported, the Government submitted Minjares’s sworn statement that

he had been deported and subsequently reentered the United States, as well as

Agent DeLeon’s testimony describing the interrogation. The jury convicted

Minjares, and he was sentenced to 84 months in prison 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 requests 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 prevailing party.” United States v.

Maden, 64 F.3d 1505, 1508 (10th Cir. 1995). “The credibility 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 confession. See United States v.

Nguyen, 155 F.3d 1219, 1222 (10th Cir. 1998); United States v. Glover, 104 F.3d

1570, 1579 (10th Cir. 1997).
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III. DISCUSSION

A. Fifth Amendment Voluntariness

Minjares’s first assignment of error is that the district court erred in

refusing to suppress statements he made to Agent DeLeon of the Border Patrol. 

After receiving testimony from Minjares, Agent DeLeon, 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. Further, the district court found

that Minjares “clearly knew” he did not have to talk to the Border Patrol agents

without an attorney present. The district court therefore denied Minjares’s

motion.

Minjares contends that, given the totality of the circumstances, the district

court erred in concluding his statements were voluntary. Specifically, Minjares

argues that the district court’s finding that he was not intoxicated when he waived

his rights was clearly erroneous. Moreover, he contends that his statements were

coerced because he was arrested late at night after he had been drinking, he was

fatigued during and after his arrest, he was not given Miranda warnings 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 advisements first required by

Miranda v. Arizona, 384 U.S. 436 (1966), arise out of the constitution, and that a
2Minjares argued to the district court that his pre-Miranda statement to

Agent DeLeon effectively let the “cat out of the bag,” and thus his subsequent,

post-Miranda statements were fruit of the poisonous tree. Minjares 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 raise an issue in the opening

brief waives the issue).

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defendant’s post-arrest statements must therefore be excluded unless the

defendant was first notified of his Miranda rights. See Dickerson v. United

States, 530 U.S. 428 (2000). Since Minjares did not receive any advisement of

his rights at the scene of his arrest, those statements he made prior to being

transported to the Border Patrol Station were inadmissible pursuant to Dickerson

and Miranda. None of these statements, however, were submitted to the jury. 

Therefore whatever deprivation of rights Minjares may have suffered at that point

did not affect his trial.2

The Government did, however, enter into evidence the statements Minjares

made during his interrogation at the Border Patrol station. Minjares concedes that

he made these statements after Agent DeLeon had fully advised him of his

constitutional rights. He contends, however, that the circumstances surrounding

his waiver of rights was so coercive as to render his statements involuntary

despite the advisements. We have stated:

In determining whether a particular confession is coerced, we

consider the following factors: (1) the age, intelligence, and

education of the defendant; (2) the length of the detention; (3) the
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length and nature of the questioning; (4) whether the defendant was

advised of [his] constitutional rights; and (5) whether the defendant

was subjected to physical punishment.

Glover, 104 F.3d at 1579 (citing Schneckloth v. Bustamonte, 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 district court clearly erred in

concluding that Minjares was not intoxicated when he 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 signs of intoxication during

Agent DeLeon’s interrogation. Thus, the district court’s finding is amply

supported. Moreover, the evidence shows that Minjares was an adult high school

graduate with some college education. Agent DeLeon conducted the interrogation

in a polite and conversational manner. The interrogation lasted only a few

minutes, and there is no allegation that Agent DeLeon ever threatened Minjares or

made any promises in exchange for Minjares’s statements. Both Deputy Ruiz and

Agent DeLeon described Minjares as alert and attentive, and Agent DeLeon

testified that Minjares participated willingly throughout 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, and based his decision to do so
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on a misunderstanding concerning the severity of available sanctions for

reentering the United States following a deportation. See Colorado v. Spring, 479

U.S. 564, 574 (1987) (“The Constitution does not require that a criminal suspect

know and understand every possible consequence of a waiver of the Fifth

Amendment privilege.”)

Based on this record, we conclude there was sufficient evidence to support

the district court’s conclusion that Minjares was not 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 Vienna Convention. Article 36 of

the Vienna Convention reads, in relevant part:

1. With a view to facilitating the exercise of consular functions

relating to nationals of the sending state . . . .

(b) if he so requests, the competent authorities of the receiving State

shall, without delay, inform the consular post of the sending State if,

within its consular district, a national of that state is arrested or

committed to prison or to custody pending trial or is detained in any

other manner. Any communication addressed to the consular post by

the person arrested, in prison, custody or detention shall also be

forwarded by the said authorities without delay. The said authorities

shall inform the person concerned without delay of his rights under

this sub-paragraph. 

. . . . 

2. The 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 priviso, however, that the said laws
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and regulations must enable full effect to be given to the purposes for

which the rights accorded under this Article are intended.

21 U.S.T at 100-101. Minjares interprets this language to create an individual

right of access to consular officials, a right to consult 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 of these rights because, had he

known of them, he would have consulted with the consul and refused to waive his

constitutional rights. Finally, Minjares argues that 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 Convention gives rise to

any individually enforceable rights. See Breard v. Greene, 523 U.S. 371, 376

(1998) (per curiam) (stating in dicta that the Vienna Convention “arguably

confers on an individual the right to consular assistance following arrest”). In

recent years several courts of appeals, including the Tenth Circuit, have

considered this question and declined to address it directly, concluding that even

if the Vienna Convention does create individual rights, 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 States v. Li, 206

F.3d 56, 66 (1st Cir. 2000) (en banc); United States v. Page, 232 F.3d 536, 541

(6th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 622 (7th Cir.
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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 it did).

Our opinion in Chanthadara held, under a plain-error standard of review,

that suppression is not an appropriate remedy for a violation 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 again we need not decide whether

the Vienna Convention creates individually enforceable rights. Several

considerations support the outcome that suppression is not an appropriate remedy. 

First, “[t]he exclusionary rule was not fashioned to vindicate a broad, general

right to be free of agency action not authorized by law, but rather to protect

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 fundamental of rights. This class has

heretofore been limited to those paramount protections secured by the Fourth,

Fifth, and Sixth Amendments to the United States Constitution.”). Since the

Vienna Convention does not create fundamental rights on par with those set forth
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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 Article 36 with the judicially

created remedy of suppression.

Further, “[d]efendants who assert violations of a statute or treaty that does

not create fundamental rights are not generally entitled to the suppression of

evidence unless that statute or treaty provides for such a remedy.” Li, 206 F.3d at

61. As courts reviewing the Vienna Convention have consistently recognized, the

treaty does not expressly incorporate a suppression remedy. See id. at 61-62

(citing cases). There is no evidence that the Vienna 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 Convention

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 Convention had [the] uniquely

American [Fifth and Sixth Amendment] rights in mind . . . given the fact that

even the United States Supreme Court did not require the Fifth and Sixth

Amendment post-arrest warnings until it decided Miranda in 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 a
3Following oral arguments in this case, Minjares submitted 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 contained 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 International Court of

Justice held that two German nationals prosecuted for murder in Arizona suffered

a deprivation of individual rights created by the Vienna Convention because they

were not informed of their right to consular access, and because they were denied

a review and reconsideration of their convictions for murder in light of Arizona’s

procedural bar. See generally Germany v. United States of America, 2001 I.C.J.

__, available at http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm. It

does not appear that the International Court of Justice considered the applicability

of the exclusionary rule to violations of the Vienna Convention, however.

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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 “unaware of any country party to any

consular convention with the United States that remedies failures of notification

through its criminal justice process.”); Lombera-Camorlinga, 206 F.3d at 888

(“The state department also points out that no other signatories to the Vienna

Convention have permitted suppression under similar circumstances, and that two

(Italy and Australia) have specifically rejected it.”); Linda Jane Springrose, Note,

Strangers in a Strange Land: The Rights of Non-Citizens 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 arguing against a suppression
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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 consular notification under the

[Vienna Convention] are diplomatic, political, or exist 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 interpret treaties for

themselves, the meaning given them by the departments of government

particularly charged with their negotiation and enforcement 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 prejudiced 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 States. 

See id. Minjares understood his constitutional rights, and was generally familiar

with this country’s criminal processes. Moreover, in this case the district court

made a factual finding that Minjares’s assertion that he would have contacted the
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consulate had he been aware of his Vienna Convention rights lacked credibility. 

We defer to a district court’s credibility determinations 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 leaves us with a conviction that

a mistake has been made. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order denying

Minjares’s motion to suppress his statements to Agent DeLeon.
No. 00-2004, United States v. Minjares-Alvarez

LUCERO, Circuit Judge, concurring.

I join in the majority’s resolution of Minjares-Alvarez’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-Alvarez’s Vienna

Convention claim based upon the holding in United States v. Chanthadara that

“[e]ven presuming the Vienna Convention creates individually enforceable

rights,” defendant Minjares-Alvarez, like Chanthadara, “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 the consulate had he been

aware of his Vienna Convention rights lacked credibility.” 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.