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Public officials stationed in a foreign country who are responsible for developing and securing the economic interests of their government and safeguarding the welfare of their government's citizens who might be traveling or residing within their jurisdiction.

Sanchez-Llamas v. Oregon

In a closely-watched case of international import, a divided U.S. Supreme Court held, in Sanchez-Llamas v. Oregon, No.04-10566, 548 U.S. ____ (2006), that a defendant Mexican national could not have incriminating statements suppressed, simply because arresting police did not notify him of his right (under Article 36 the Vienna Convention) to access the Mexican consulate. In a companion, consolidated case, Bustillo v. Johnson, Virginia Department of Corrections, No.05-51, the high court also denied a foreign defendant a reversal of conviction based on the same alleged failure of authorities to advise him of his right to notify the Honduran Consulate. He had raised this argument for the first time under a habeas petition filed after his conviction and prison sentence.

In deciding these cases, the majority opinion relied on the language of the treaty itself to find (in the first case) that suppression of evidence was not an appropriate remedy for an alleged violation. The Court held, in the second case, that states may subject Vienna Convention Article 36 claims to the same procedural default rules that generally apply to other federal-law claims.

Article 36(1)(b) of the Vienna Convention on Consular Relations (the Vienna Convention), (ratified in 1969, and to which 170 countries, including the United States and Mexico, are signatories), states, in relevant part, that if a person being detained by a foreign country "so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State" of such a detention, and "inform the [detainee] of his rights under this sub-paragraph." This provision is followed by Article 36(2), which specifies that the above rights "shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso … that the said laws … must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

In Sanchez-Llamas's case, police responded to a call that an intoxicated man was threatening two women with a handgun. When police arrived and ordered him to drop the gun, the man shot at the officers, wounding one. He then ran behind a building and put the gun and another handgun on the ground. He was arrested, and an interpreter advised him of his Miranda rights. He waived his rights and agreed to talk to the police. During questioning, he made several incriminating statements, later used as evidence at his trial. However, prior to trial, defense counsel for Sanchez-Llamas notified the Mexican consulate of his arrest and pending charges. At trial, Sanchez-Llamas moved to suppress his statements, claiming that because his consulate was notified after he made incriminating statements, they must be suppressed. Moreover, Sanchez-Llamas claimed his Miranda waiver was involuntary. The trial court denied both claims, and he was convicted and sentenced to prison. Both the Oregon Court of Appeals and the state supreme court affirmed the conviction, the latter court specifically concluding that Article 36 did not create rights that a detained individual could enforce in a judicial proceeding.

In the second case, Mario Bustillo, a Honduran national, was arrested, tried, and convicted of murder in Virginia. His conviction and sentence were upheld on appeal. He then filed a habeas petition in state court, arguing for the first time that authorities had violated his Article 36 rights to consular notification. The court denied his claim as procedurally barred because he had failed to raise this issue at either trial or upon appeal. The Virginia Supreme Court found no reversible error.

Now before the U.S. Supreme Court, both cases were consolidated. Chief Justice Roberts, writing for the 6-justice majority, clarified the three questions before the Court as: (1) whether Article 36 created rights that defendants could invoke against the detaining authorities in a criminal trial or in a post-conviction hearing; (2) did a violation of Article 36 require suppression of a defendant's statements to police; and (3) whether a State, in a post-conviction hearing, treat a defendant's Article 36 claim as procedurally defaulted for failure to raise that claim at trial.

The Court concluded that, even assuming the Convention created judicially-enforceable rights, suppression of evidence is not an appropriate remedy for a violation of Article 36 (Sanchez-Llamas), and further, that a State may apply its regular rules of procedural default to Article 36 claims (Bustillo). Because both defendants were not entitled to relief, the Court concluded that it need not resolve whether the Vienna Convention even granted individuals enforceable rights; however, the Court assumed so in resolving the cases before it. In so holding, the Supreme Court affirmed the decisions below.

As to Sanchez-Llamas, the Court noted that the Vienna Convention did not mandate suppression or any other specific remedy, and it is not for the federal courts to impose a remedy on the States through lawmaking of their own. Even if Article 36 were read to require a judicial remedy in order "to give full effect" to its purpose, the exclusionary rule would not be an appropriate remedy. Used primarily for Fourth and Fifth Amendment violations, the exclusionary rule has nothing to do with Article 36; neither does the Article guarantee defendants any assistance at all. Therefore, the suppression remedy sought by Sanchez-Llamas for his asserted right had nothing to do with the gathering of evidence. Other remedies, including diplomatic avenues (the primary means of enforcing the treaty) remain open.

In Bustillo's case, the Court found Breard v. Greene, 523 U.S. 371, controlling. In that case, the petitioner's failure to raise an Article 36 claim in state court prevented him from later attempting to raise it at a subsequent federal habeas proceeding.

Justice Breyer, joined by Justices Stevens, Souter, and (in Part II) Ginsburg, dissented. The dissent concluded that a criminal defendant may raise Article 36 claims at trial or at post-conviction hearings. Further, sometimes state procedural default rules must yield to the Convention's proviso that domestic law "enable full effect to be given to the purposes for which" Article 36's rights were intended. And sometimes, suppression of evidence may be an appropriate remedy. After answering the three questions in this manner, the dissent would have remanded the cases, permitting States to apply their own procedural and remedial laws.

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