UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-11300

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEJANDRO JIMENEZ-NAVA,

Defendant-Appellant,

Appeal from the United States District Court for the

Northern District of Texas

February 26, 2001

Before JOLLY, JONES, and SMITH, Circuit Judges

EDITH H. JONES, Circuit Judge:

Alejandro Jimenez-Nava (“Jimenez-Nava”) appeals from his

conviction for possession of counterfeit immigration-related

documents in violation of 18 U.S.C. § 154 6(a). He entered a

conditional plea of guilty, reserving the rig ht to appeal the

district court’s denial of his pretrial motion to suppress. He now

arg ues that the Vienna Convention on Consular relations (“Vienna

Convention”), April 24, 196 3, [1970] 21 U.S.T. 77, T.I.A.S. No.

6820, bestows on foreign nationals individual rights, t hat his

rights were violated, and that exclusion of his incriminating1 This recitation of facts derives from the suppression hearing.

-2- statements to immigration agents is the appropria te remedy. We

disagree and affirm his conviction.

I. BACKGROUND 1

On March 7, 1999, Immigration and Naturalization Service

(“INS”) agents, suspecting that Jimenez-Nava was involved in making

fraudulent immigration documents, went to his apartment and

introduced themselve s. After one agent asked Jimenez-Nava, in

Spanish, about his immigration status, Jimenez-Nava admitted that

he was an illegal alien from Mexico. The agent ascertained that

Jimenez-Nava had no immigration documents, placed him under arrest

and read him his Miranda rights in Spanish. Jimenez-Nava did not

invoke Miranda rights and consented to a search of his apartment.

During the search, Jimenez-Nava was given his M iranda

warnings a second time and advised that he could tell the agents to

stop at any time. Jimenez-Nava allegedly told the agents that he

would show them where the fraudulent documents were made. At the

end of the search, Jimenez-Nava signed a consent-to-search form and

was transported to INS to be processed. Jimenez-Nava later stated

at the suppression hearing that he had not wanted to sign this

form.

At INS, Jimenez-Nava was processed by a different agent

who spent twenty to twenty-five minutes with him. Jimenez-Nava was-3-

given a standard INS notice of rights form written in Spanish that

advised him of his right to legal representation and right to

communicate with a consular officer of his country. Jimenez-Nava’s

initials appear on this notice of rights, next to a box that he

checked, admitting that he was in the United States illegally and

that he waived his right to a hearing before a judge. His

signature also appears on a standard INS processing form.

Subsequently, one of the agents who arrested Jimenez-Nava

returned to the INS and asked Jimenez-Nava to take him to a

document lab. Jimenez-Nava showed them to an apartment and orally

agreed to a search of it. Jimenez-Nava now denies that he gave

consent.

After this search, the agents returned with Jimenez-Nava

to the INS office, continued to question him, and once again gave

him his Miranda rights. An agent then wrote Jimenez-Nava’s

statement: he was from Hidal go, Mexico and admitted he was not a

United States citizen; he discussed how he entered this country and

his plans to work for a man named Miguel Hernandez by selling false

immigration and social security cards. At some point, Jimenez-Nava

refused to answer further questions and ended the interview.

Jimenez-Nava testified at the suppression hearing that he

was shown the form informing him that he could speak to a consular

officer after he was asked questions about Hernandez and the-4-

selling of fraudulent documents. During cross-examination,

Jimenez-Nava testified that after each of three Miranda warnings,

h e declined to request a lawyer. He admitted that he knew, from

the form, that he could have access to a Mexican consular official,

but he did not want one. However, he also testified that he did

not know the function of consular officers and that he did not want

to speak to the consular officer because the agents were treating

him like an immigrant and he was not concerned about being

deported. He stated that he would have wanted to contact a

consular official had he known that he had a right to speak to one

about the document fraud investigation.

The suppression hearing was convened because, after his

indictment, Jimenez-Nava conte nded that he was prejudiced by a

violation of his treaty rights under the Vienna Convention. He

requested suppression of his statements to the INS agents and the

evidence taken from the search at the second apartment. The

district court denied relief, ruling both that the treaty does not

require suppression and that Jimenez-Nava consented to the

apartment search. Jimenez-Nava entered a conditional guilty plea.

He was sentenced to a twenty-four month term of imprisonment and

three years’ supervised release. Jimenez-Nava has timely appealed

the court’s application of the Vienna Convention.2 In Faulder v. Johnson

, 81 F.3d 515 (5 th Cir. 1996), this court stated

that the treaty requires an arresting government to notify a foreign national of

his right to contact his consul. However, this court found the violation of the

Convention to be harmless error, not meriting reversal. This court later stated

in Flores that “[w]e do not read our opinion in Faulder as recognizing a personal

right under the Convention. Rather, the panel dispatched the claim with its

conclusion that any violation was harmless. Any negative implication inherent

in rejecting the claim as harmless lacks sufficient force to support a contention

that the panel held that the Convention created right s enforceable by

individuals.” Flores , 210 F.3d at 457. This court likewise did not reach the

merits of this question in Flores because the defendant’s assertion was at best

-5- II. DISCUSSION

This court reviews a district court’s interpretation of

a treaty de novo. K reimerman v. Casa Veerkamp

, 22 F.3d 634, 639

(5 th Cir. 1994).

The Vienna Convention is a 79-article, multilateral

treaty negotiated in 1963 and ratified by the United States in

1969. See United States v. Lombera-Camorlinga , 206 F.3d 882, 884

(9 th Cir. 2000). Mexico is a signatory nation. The treaty governs

“the esta blishment of consular relations, [and] defin[es] a

consula te’s functions in a receiving nation.” U nited States v.

Alvarado-Torres

, 45 F. Supp.2d 986, 988 (S.D. Cal. 1999). JimenezNava asserts that Article 36 of the treaty bestows a private,

judicially-enforceable right on foreign nationals to consult with

consular officials. He argues that because this right was

violated, his post-arrest statements and tangible evidence should

have been suppressed. These are issues of first impression for

this circuit. S ee Flores v. Johnson

, 210 F.3d 456, (5 th Cir.

2000). 2Teague -barred. Id.

3 “[E]ven where a treaty provides certain benefits for nationals of a

particular state -- such as fishing rights - it is traditionally held that any

rights arising out of such provisions are, under international law, those of the

state and

. . . individual rights ar e only derivative through the states.”

United States v. Gengler

, 510 F.2d 62, 66 (2d Cir. 1974). S ee also United States

v. Rosenthal

, 793 F.2d 1214, 1232 (11th Cir. 1986) (finding no merit in the

defendants ’ argument that the actions of the United States violated its

extradition treaty wit h Colombia because “[u]nder international law it is the

-6- A. Whether The Vienna Convention Confers An Enforceable

Individual Right

Ratified treaties become the law of the land on an equal

footing with federal statutes. U.S. Const. art. VI, cl. 2. They

are to be construed initially according to their terms. U nited

States v. Alvarez-Machain

, 504 U.S. 665, 663, 112 S.Ct. 2188, 2193

(1992). Treaty construction is a particularly sensitive business

because international agreements should be consistently interpreted

among t he signatories. “Treaties are contracts between or among

independent nations.” U nited States v. Zabaneh

, 837 F.2d 1249,

1261 (5th Cir. 1988). As such, they do not generally create rights

that are enforceable in the courts. U nited States v. Li

, 206 F.3d

56, 60 (1st Cir. 2000); s ee also Goldstar v. United States

, 967

F.2d 965, 968 (4th Cir. 1992) (“International treaties are not

presumed to create rights that are privately enforceable”); MattaBallesteros v. Henman

, 896 F.2d 255, 259 (7th Cir. 1990) (“It is

wel l established that individuals have no standing to challenge

violations of international treaties in the absence of a protest by

the sovereigns involved.”). 3contracting foreign governmen t that has the right to complain about a

violation”).

-7-

For enforcement of its provisions, a treaty depends “on

the interest and honor of the governments which are parties to it.”

Head Money Cases

, 112 U. S. 580, 598, 5 S.Ct. 247 , 254 (1884).

“[I]nfraction becomes the subject of international negotiations and

reclamations.” I d

. (“It is obvious that with all this the

judicial courts have nothing to do and can give no redress.”). S ee

also United States v. Williams

, 617 F.2d 1063, 1090 (5 t h Cir.

1980)(“[R]ights under international co m mon law must belong to

sovereig n nations, not to individuals, just as treaty rights are

the rights of the sovereign.”).

Against the backdr op of these general principles, the

Vienna Convention appears to be a standard treaty whose purpose is

to facilitate consular activity in receiving states. The Preamble

states:

Believing that an international convention on consular

relations, privileges and immunities would also

contribute to the development of friendly relations among

nations, irrespective of their differing constitutional

and social systems, [and] Realizing that 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

States . . . (emphasis added).

This la nguage would appear to preclude any possibility that

individuals may benefit from it when they travel abroad, even,-8-

perhaps, if they are among the consular corps. Moreover, only one

article out of 79 in the Treaty even arguably protects individual

non-consular officials. Article 36, titled “Communication and

Contact With Nationals of Receiving State,” provides:

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 sendi ng State if, within its consular

district, a national of that State is arrested or

committed to prison or to custody pending tr ial 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 i nform the person concerned without delay of his

rights under this sub-paragraph;

(c) consular officers shall have the right t o visit a

national of the sending State who is in prison, custody

or detention, to converse and correspond with him and to

a rrange for his legal representation. They shall also

have the right to visit any national of the sending State

who is in prison, custody or detention in their district

in pursuance of a judgment. Nevertheless, consular

officers shall refrain from taking an action on behalf of

a national who is in prison, custody or detention if he

expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article

shall be exercised in conformity with the laws and

reg ulations 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.4 See United States v. Page , 2000 WL 1682523, *3 (6 t h Cir. 2000);

United States v. Chanthadara

, 2000 WL 1637516 (10 th Cir. 2000); United States v.

Chapar ro-Alcantara , 2000 WL 1182450, *4 (7 t h Cir. 2000); United States v.

Cordoba-Mosquera

, 212 F.3d 1194 (11 th Cir. 2000); United States v. Li

, 206 F.3d

56 (1 st Cir. 2000)(en banc); United States v. Lombera-Camorlinga , 206 F.3d 882,

885 (9 th Cir. 2000)(en banc); U nited States v. Cordoba-Mosquera

, 202 F.3d 1194

(11 th Cir. 2000).

-9-

Principally be cause of the references to “rights” in

Article 36, the circuit courts have so far declined to decide

whether the Vienna Convention intended to enact indivi dually

enforceable rights of consultation. 4 The Supreme Court, i n dicta

,

has also held the question open. Breard v. Greene , 523 U.S. 371,

376, 118 S.Ct. 1352, 1355 (1998).

A strong argument has been made that such diffidence is

unnecessary and that the Vienna Convention is not ambiguous as to

whether it creates private rights. In L i

, Judges Selya and Boudin

stated:

Nothing in [the] text expl icitly provides for judicial

enforcement o f . . . consular access provisions at the

behest of priv ate litigants. Of course, there are

references in the treaties to a ‘right’ of access, but

these refe rences are easily explainable. The contract

States are granting each other rights, and telling future

detainee s that they have a ‘right’ to communicate with

their consul is a means of im plementing the treaty

obligations as between States. Any other way of phrasing

the promise as to what will be said to detainees would be

artificial and awkward.

Li

, 206 F.3d at 60, 66. (Selya, J. & Boudin, J., concurring). In

any event, as these judges pointed out, even if t he treaty is

ambiguous, the presumption again st implying private rights comes5 See e.g. Vienna Convention, Art. 27 (providing for the protection of

the consular prem ises and archives in exceptional circumstances); Art. 34

(ensuring freedom of movement and travel to all members of consular post); Art.

35 (protecting freedom of communication for the consular post); Art. 41

(providing personal inviolability of consular officers); Art. 43 (providing

immunity f r om jurisdiction for consular officers or employees with certain

exceptions); Art. 44(detailing under what conditions consular post members either

should or alternatively, may refuse to, give evidence in the course of judicial

or administrative proceedings).

-10- into play. Finally, as both the majority and concurring judges in

Li recognized, the U.S. State Department has consistently taken the

position that the Vienna Convention does not establish rig hts of

individuals, but only state-to-state rights and obligations. The

State Department’s view of treat y interpretation is entitled to

substantial deference. Li , 206 F.3d 63-66.

Jimenez-Nava’s arguments in support of individually

enforceable rights ultimately emphasize the treaty’s ambiguity.

First, by dwell ing on the plain language concerning “rights” in

Article 36, Jimenez-Nava must discount the equally plain language

in the Preamble that the treaty’s purpose “is not to benefit

individuals”. Appellant would confine the limitation to consular

officials, but that interpreti ve route hardly assists him, since

consular officials are the specific beneficiaries of many of the

treaty provisions. 5 If the treaty cannot benefit them by creating

individually enforceable rights, how can it intend t o confer

enforceable rights on all foreign nationals detained in the

receiving state?6 In the Head Money Cases

, the Court stated that treaties may contain

provisions which confer certain rights, but it implied that these are limited to

matters concerning “municipal law” that “are capable of enforcement as between

private parties in the courts of the country.” H ead Money

, 112 U.S. at 598, 5

S.Ct. at 254. “An illustration of this character is found in treaties, wh ich

regulate the mutual rights of citizens and subjects of the contracting nations

in regard to rights of property by descent or inheritance, when the individuals

concerned are aliens.” Id.

7 The Supreme Court later distinguished Rauscher on additional grounds,

pointing both to Rauscher ’s reliance on the federal statutes and that the Court

implied a term in the treaty “because of the practice of nations with regard to

extradition treaties.” U nited States v. Alvarez-Machain

, 504 U.S. 655, 660, 667,

112 S.Ct. 2188, 2191, 2198 (1992). Neither of these factors is present in the

instant case.

8 Based upon this language and purpose, the Court has easily rejected

a claim that two treaties providing that a nation “shall indemn ify” or shall

compensate private parties for certain damage inflicted on the high seas thereby

created private rights of action cognizable in United States courts. A rgentine

Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 442, 109 S.Ct. 683, 692

(1989). The Court described these treaties as setting forth “only” substantive

rules of conduct, not private rights of action. Id.

-11- Second, while acknowledging the general rule against

implication of personal rights in treaties , Jimenez-Nava notes

that, like any agreement, treaties may explicitly confer individual

rights. 6 He cites as an example Supreme Court’s construction of an

extradition treaty in United States v. Rauscher

, 119 U.S. 407, 7

S.Ct. 234 (1886). That case is inapposite, however, for an

explicit purpose of the treaty in Rauscher was to govern “the

giving up of criminals, fugitives from justice in certain cases”.

Id

. At 410, 7 S.Ct. at 236. Unlike the Vienna Convention, the

purpose and provisions of the extradition treaty related directly

to the individual right asserted. I d

. at 410, 7 S.Ct. at 236. 7

Rauscher demonstrates at most the necessity for ca reful

interpretation of each treaty. 8-12- In his final thrust, Jimenez-Nava points out that the

State Department’s manual on the treatment of foreign nationals

advises arresting officers to inform detainees of their ri ght to

consular communication pursuant to the treaty. U.S. Dept. Of

State, Foreign Affairs Manual § 411 (1994). Further, a “Memorandum

of Understanding on Consular Protection of Mexican and United

States Nationals” was entered into between this country and Mexico

to adopt procedures and views concerning communication between

consuls and foreign nationals. Memorandum of Understanding, May 7,

1996, Dept. of State File No. P96 0065-0984/0987 . Such documents

do no more than express this country’s laudable determination to

abide by the treaty. But the implementation of the treaty by the

Federal government is wholly different from the implication that it

may be enforced in court by individual detainees.

The sum of Jimenez-Nava’s arguments fails to lead to an

ineluctable conclusion that Article 36 creates judicially

enforceable rights of consultation between a detained forei g n

national and his consular office. Thus, the presumption against

such rights ought to be conclusive. If this conclusion suffers

from any defect, however, it is beyond dispute

-- among the federal

circuit courts -- that analogizing the proffered right to consult

with Miranda rights is utterly unfounded.-13-

B. The Exclusionary Rule Is Not An Appropriate Remedy

Jimenez-Nava argues that his right of consular

communication and notification is a “fundamental right,” analogous

to the Fifth and Sixth Amendment, which merits protection through

use of the exclusion ary rule. He contends that the terms of the

Vienna Convention require courts to elect a remedy to “enable full

effect to be given to the purposes for w hich the rights accorded

under [Article 36] are intended.” Vienna Convention, Art. 36(2).

“Full effect,” he argues, re quires exclusion in criminal

prosecutions of statements given without appropriate information

about consultation rights.

All of our sister circuits have held that suppression of

evidence is not a remedy for an Article 36 violation. S ee e.g.

United States v. Lawal

, 2000 WL 1647914 (7 th Cir. 20 00); C ordobaMosquera

, 212 F.3d at 1195-96; Lombera-Camorlinga

, 206 F.3d at 886;

Li

, 206 F.3d at 60; and cases cited at n.4 supra

. “The

exclusionary rule was ‘not fashioned to vindicate a broad, general

right to be fr ee of agency action not ‘authorized’ by law, but

rather to protect specific, constitutionally protected rights.’”

United States v. Page

, 2000 WL 1682523, *3 (6 th Cir. 2000). We

agree that “there is no indication that the drafters of the Vienna

Convention had these ‘uniquely American rights in mind, especially

given the fact that even the United States Supreme Court did not-14-

require Fifth and Sixth Amendment post-arrest war nings until it

decided Miranda in 1966, three years after the treaty was drafted.”

Page

, 2000 WL 1682523, at 3 (citing Lombera-Camorlinga

, 206 F.3d at

886); see also Erik G. Luna & Douglas J. Sylvester, Beyond Breard

,

17 Berkeley J. Int’l L. 147, 179 (1999) (“It would take an enormous

leap in logic, therefore, to argue that the signatories to the

Vien na Convention intended for violations to be cured by the

exclusion of evidence or the dismissal of charges.”). Absent an

express provision in the treaty, the exclusionary rule is an

inappropriate sanction. P age

, 2000 WL 1682523 at *3; see also

Chaparro-Alcantara

, 2000 WL 1182450 at *4 (“Upon examination of the

text

. . . it is clear that n othing in the text of the Vienna

Convention indicates that a remedy of supp ression is appropriate

for violations of Article 36.”).

Were this court to hold that the text of the treaty

creates an individual right and then impose a remedy equal to that

imposed when defendants are not given their Miranda warnings

-- the

remedy of suppression

-- we would be ignoring the directive of

Dickerson v. United States

, 530 U.S. 428, 120 S.Ct. 2326 (2000).

The Supreme Court there stated that “ Miranda and its progeny in

this Court govern the admissibility of statements made during

custodial interrogation i n both state and federal courts.” 530

U.S. at

_____, 120 S.Ct. at 2329-30 (emphasis added). And the-15-

Court added that “‘[c]ases in which a defendant can make a

colorable argument that a self-incriminating statement was

‘compelled’ despite the fact that the law enforcement authorities

adhered to the dictates of Miranda are rare.’” Id

. at 2338 (quoting

Berkermer v. McCarty

, 468 U.S. 420, 104 S.Ct. 3138 (1984)).

Neither of these criteria is met in the instant case. First,

“[a]pplication of the exclusionary rule is only appropriate when

the Constitution or a statute requires it.” U .S. v. ChaparroAlcantara , 226 F.3d at 620. The Vienna Convention, which has the

force of a statute, contains no such requirement. Moreover, where

Miranda warnings have been given, three times no less, we will not

create a rule that increases the risk that a guilty defendant, who

is aware of his rights under the U.S. Constitution and as

articulated by the Supreme Court, go free.

Jimenez-Nava argues that suppressing his statements

constitutes the only effective method of enf orcing the treaty.

Article 36 does not articulate a specific remedy. The treaty

states that the rights of consultation “shall be exercised in

conformity with the laws and reg ulations 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.” Vienna

Conventi on, Art. 36(2). The treaty leaves implementation to the9 The State Department also asserts that suppression is an

inappropriate remedy. S ee Lombera-Camorlinga

, 206 F.3d at 886 (“The State

Depa rtment indicates that it has historically enforced the Vienna Convention

itself, investigating reports of violations and apologizing to foreign

government s and working with domestic law enforcement to prevent future

violations when necessary.”).

-16- discretion of each signatory state so long as its “purposes” to

ensure free communication and access are given full effect. “Yet,

the treaty does not link the required consular notification in any

way to the commencement of police interrogation. Nor does the

treaty, as Miranda does, require law enforcement officials to cease

interrogation once the arrestee invokes his right.” L omberaCamorlinga

, 206 F.3d at 886. Suppressing evidence in a criminal

trial does not further the treaty’s purposes. 9

Finally, most countries do not have a suppression remedy.

See Luna, 17 Berkeley J. Int’l L. at 177 (“Legal rules suppressing

relevant, probative evidence from criminal trials are far and few

between outside of the United States. Continental legal systems

are generally silent as to the admissibility of evidence obtained

by improper legal techniques.”). No other signatories to the

Vienna Convention have suppressed statements under similar

circumstances and two have rejected this remedy. S ee LomberaCamorlinga

, 206 F.3d at 888. If suppression becomes the remedy in

the United States, the treaty would have an inconsistent mea ning

among the signatory nations. Thus, refusing to resort to the10 Lombera-Camorlinga , 206 F.3d at 888 (citing Restatement (Third) of

Foreign Relations § 325 cmt. d (“Treaties that lay down rules to be enforced by

the parties through their internal courts or administrative agencies should be

construed so as to achieve uniformit y of result despite differences between

national legal systems.”)); see also Chaparro-Alcantara , 2000 WL 1182450 at *4

(“We also note that to impose judicially such a drastic remedy, not imposed by

any other signatory to this convention , would promote disharmony in the

interpretation of an international agreement.”)(citing Restatement ( Third) of

Foreign Relations Law § 325 cmt. d (1987)).

11 This analysis renders it unnecessary to construe the “without delay”

provision of the Article 36.

-17- exclusionary rule promotes “harmony in the interp retation of an

international agreement.” 10

IV. CONCLUSION

For the foregoing reasons, 11 the district court did not

err by denying Jimenez-Nava’s motion to suppress.

AFFIRMED.