Sanchez-Llamas v. Oregon (04-10566); Bustillo v. Johnson (05-51)


Appealed from: Sanchez: Supreme Court of Oregon; Bustillo: Supreme Court of Virginia

Oral argument: March 29, 2006

Both Petitioners in these cases are foreign nationals convicted of crimes within the United States. They argue that under Article 36 of the Vienna Convention on Consular Relations, they were entitled to both notification of their right to speak with their respective consulates and that law enforcement officials inform those consulates of their detentions. They further argue that because police violated their rights to consular notification under the Convention, any statements they made to authorities during interrogation must be suppressed and their convictions overturned. Therefore, the Court must determine whether the VCCR creates personally enforceable rights, and if so, whether the appropriate remedy for a violation of those rights is suppression of incriminating statements. Further, the Court must determine whether state courts will be forced to hear these sorts of cases regardless of state jurisdictional bars that may exist.

[Question(s) presented] | [Issue(s)] | [Facts] | [Discussion] | [Analysis]

Questions Presented

Sanchez-Llamas v. Oregon (04-10566):

Does the Vienna Convention convey individual rights of consular notification and access to a foreign detainee enforceable in the Courts of the United States?

Does the state's failure to notify a foreign detainee of his rights under the Vienna Convention result in the suppression of his statements to police?

Bustillo v. Johnson (05-51):

Whether, contrary to the International Court of Justice's interpretation of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 100-101, state courts may refuse to consider violations of Article 36 of that treaty because of a procedural bar or because the treaty does not create individually enforceable rights.

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Issues

Does the Vienna Convention convey individually enforceable rights of consular notification to foreign detainees such that the remedy for violations of consular notification rights is suppression of statements made to the police?

May state courts refuse to consider violations of the Vienna Convention because of a procedural bar or because the treaty does not create individually enforceable rights, even though the International Court of Justice has interpreted the Vienna Convention to the contrary?

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Facts

In 1963, the United Nations passed the Vienna Convention on Consular Relations. At issue in this case is Article 36 which states that “[w]ith 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…inform the consular post of the sending State if…a national of that State is arrested or committed to prison…or is detained in any other manner….The said authorities shall inform the person concerned without delay of his rights under this subparagraph.” See Article 36 of the Vienna Convention on Consular Relations (emphasis added).

On December 3, 1999 Petitioner Moises Sanchez-Llamas, a Mexican national, was arrested after shooting a police officer in the leg during a brief firefight. See Sanchez-Llama’s Brief at 3. Sanchez-Llamas was heavily intoxicated at the time of his arrest and, after failing to drop his weapon at the police officer’s request, the arresting officer tackled him and administered “focus blows” with a flashlight to his leg, neck and arms. See Sanchez-Llama’s Brief at 3. The police interrogated Sanchez-Llamas at various times during the evening after informing him of his Miranda rights in both English and Spanish. See Sanchez-Llama’s Brief at 5-6. Although the police were aware of Sanchez-Llamas Mexican nationality, they never notified the Mexican consulate of his arrest and interrogation or of the right to discuss his case with the consulate as proscribed by Article 36 of the Vienna Convention on Consular Relations (VCCR). See Sanchez-Llama’s Brief at 6.

In Oregon v. Sanchez-Llamas, the defendant argued that because he was not informed of his right to communicate with the Mexican Consulate, he was denied his due process rights and the statements he made to the police should not be admitted. See Sanchez-Llama’s Brief at 6-7. However, the Oregon Supreme Court disagreed with the defense and ruled that the VCCR does not grant individual rights to foreign nationals. See Sanchez-Llama’s Brief at 7.

On December 10, 1997 Petitioner Bustillo, a Honduran national, was arrested after several eye-witnesses identified him as the man who struck and killed a man with a baseball bat. See Bustillo’s Brief at 4-5. Bustillo and other witnesses maintain that another Honduran national known as ‘Sirena’ committed the murder. See Bustillo’s Brief at 5. Like Sanchez-Llamas, Bustillo was never told of the Vienna Convention treaty that would allow him to speak with the Honduran Consulate and the police never notified the Honduran Consulate of Bustillo’s arrest. See Bustillo’s Brief at 5-6. Based only on the eye-witness testimony, Bustillo was convicted of first-degree murder. See Bustillo’s Brief at 6-7. On appeal, counsel realized that Bustillo was never advised of his right to consular communication and was informed that the Honduran Consulate would have provided assistance at trial had they known of his arrest and indictment. See Bustillo’s Brief at 8-9. 

His conviction was affirmed on appeal and during state habeas proceedings, the Circuit Court denied the introduction of new evidence, namely a videotape of ‘Sirena’ admitting that the wrong man was convicted of the crime, and dismissed the Vienna Convention defense because it was not properly preserved for appeal. See Bustillo’s Brief at 11.

On November 7, 2005, the Supreme Court granted certiorari in Moises Sanchez-Llamas v. Oregon and Bustillo v. Johnson and consolidated the cases for argument.

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Discussion

Background

In both cases, the Supreme Court faces the treaty-interpretational task of clarifying the scope of the rights conveyed under Article 36 of the Vienna Convention on Consular Relations (“VCCR”). The United Nations enacted the VCCR in 1963 as a means of facilitating “the development of friendly relations among nations, irrespective of their differing constitutional and social systems.” (VCCR at 2.) Article 36 of the VCCR – “Communication and contact with nationals of the sending State” – provides for consular notification when a foreign national is arrested, in prison, in custody or otherwise detained. (VCCR at 15.) Article 36 dictates that the arresting authorities must notify the foreign national’s consulate of the arrest, as well as notify the foreign national of his or her right to communicate with the consulate. These notifications are to take place “without delay.” Id.

Sanchez

In Sanchez, the Court must decide whether the VCCR conveys individual rights, enforceable by foreign criminal defendants in the courts of the United States, or, alternatively, does the VCCR convey only guidelines for relations between nations enforceable only between and among nations. Further, if the Court holds that the VCCR does indeed convey individually enforceable rights to foreign nationals who are arrested or detained in the United States, the Court must then decide if the appropriate remedy for a violation of such rights is the suppression of statements made by the defendant/foreign national to authorities.

Petitioner Sanchez argues that Article 36 does convey individually enforceable rights and that his Article 36 rights were violated. He argues that because he was not informed of his right to communicate with the Mexican consulate, and because the Mexican consulate was not notified of his arrest and detention, his incriminating statements made to Oregon State authorities should have been suppressed at trial. Respondent Oregon State counters that the plain language of the VCCR is contrary to creating an individually enforceable right, and that the history of the treaty establishes “that it was intended to create obligations for the signatories that would further their ability to establish and maintain consular relations with one another.” Brief for Petitioner Sanchez at 7. Oregon further asserts that even if the VCCR did convey individually enforceable rights, the appropriate remedy would not be suppression of Petitioner’s incriminating statements. Suppression is a remedy historically reserved only for constitutional violations and violations of federal statutory obligations, and in the latter case, only in federal tribunals.

Bustillo

The Supreme Court, in Bustillo, faces a related question: whether a state procedural bar can prevent a state tribunal from considering a VCCR claim, or alternatively, whether the VCCR does not convey individually enforceable rights.

Petitioner Bustillo argues that the violation of his VCCR rights resulted in his false conviction.  He claims that if the Honduran Consulate were notified or if he were informed of his right to speak with the Honduran Consulate his trial would have resulted in an acquittal. Because his case hinged on the identity of ‘Sirena,’ another Honduran national, the consulate could have assisted Bustillo’s defense in identifying ‘Sirena’ and providing proof of his existence and alleged guilt. Bustillo’s argument is also dependent on the VCCR conveying individually enforceable rights. Respondent Johnson insists that the VCCR does not convey individually enforceable rights, based largely on the same reasoning as respondent Oregon. Further, Johnson argues that the VCCR is not a cognizable claim in habeas proceedings and that recognizing it as such would be requiring Virginia to ignore Virginia state law.

Potential Implications

One purpose of the United Nations is to promote communication and friendly relations among member nations. A foreign national arrested in a foreign country often finds herself in a confusing and frightening situation primarily due to her ignorance of the foreign country’s law and system of government. By allowing foreign nationals access to their respective Consulate, the VCCR attempts to facilitate understanding and fair dealing between nations and fair treatment of citizens world-wide. However, interpreting the VCCR in such a way that any foreign nationals could assert individual rights under the treaty during criminal suppression proceedings, the Court would open the door to a myriad of procedural and law enforcement issues.

In both Sanchez and Bustillo the prosecution conceded that a violation of the VCCR occurred. The question before the Court is what should be the legal outcome of these violations. In both cases, the petitioner is arguing for increased procedural rights for foreign national defendants, beyond the procedural rights of United States citizens.

Sanchez is arguing for suppression of his incriminating statements to police because he was not notified of his right to speak with the Mexican Consulate. If the court agrees with petitioner Sanchez that the VCCR does indeed convey individually enforceable rights and that the proper remedy for a violation of such rights is suppression, this will place a new sword in the hands of foreign nationals who are accused of crimes in the United States. Such an outcome would make a violation of VCCR procedures a grounds for appeal for foreign criminal defendants; a right not available to United States citizens. Additionally, such a ruling may unduly burden law enforcement officials in the United States who must determine whether suspects are foreign nationals and proceed accordingly (and “without delay”) during any investigation or interrogation. This outcome seems implausible.

Unfortunately the facts of these cases, Bustillo in particular, cloud the legal analysis of the issues. In reality, if authorities had notified the Honduran Consulate and Bustillo was able to speak with him or her, Bustillo may still have been convicted. If Bustillo was falsely accused, the violation of his VCCR rights most likely did not cause this ill fortune. However, if foreign criminal defendants are able to claim violation of VCCR rights in habeas petitions, they would gain an additional avenue for habeas relief; one not available to United States citizens.

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Analysis

Summary of Issues

The Court must determine three issues between these two consolidated cases. They first must decide whether the VCCR conveys individually enforceable rights, for which both petitioners Sanchez and Bustillo advocate and both respondents Oregon and Johnson oppose. If the Court finds that the VCCR does not convey individual rights, then they will not reach the second issue and likely not the third. But, if they hold that the VCCR does convey individually enforceable rights, then they must decide whether suppression of incriminating evidence is the appropriate remedy for a violation of these rights. Petitioner Sanchez advocates for such a remedy while Respondent Oregon opposes it. The third issue the Court must decide, if they find that the VCCR conveys individually enforceable rights, is whether the VCCR dictates that a state court, if faced with a state jurisdictional bar, must ignore state law in order to hear the VCCR claim. Petitioner Bustillo advocates for such a rule while Respondent Johnson opposes it.                                                                                             

A. Individual Rights

Petitioner Sanchez argues that Article 36 of the VCCR provides for individually enforceable rights to foreign nationals who are detained or arrested. Sanchez argues that these rights include informing the arrested or detained foreign national of the right to speak with their consulate as well as notification to their consulate of their arrest. In support of his argument, Sanchez argues that the VCCR was intended to protect affected individuals, not just the foreign states which are privy to the VCCR and the relations among and between these foreign states. Brief for Petitioner Sanchez at 8. Sanchez also argues that Miranda warnings alone are not sufficient to protect foreign nationals. Id. at 11.

Petitioner Bustillo argues that Article 36 of the VCCR does convey individually enforceable rights to foreign nationals for many of the same reasons as Petitioner Sanchez. Bustillo argues that because the VCCR is self-executing, the “rights” conveyed by it are enforceable by individual foreign nationals. Further, he argues the plain text of Article 36 supports this argument in that it uses language that is “customarily associated with the creation of individual rights.” Brief for Petitioner Bustillo at 12.

Respondent Oregon, in its brief, counters Petitioner Sanchez’s argument, arguing that the VCCR does not convey individually enforceable rights to foreign nationals. Oregon advocates that the history of the VCCR provides evidence that it “was intended to create obligations for the signatories that would further their ability to establish and maintain consular relations with one another.” Brief for Respondent Oregon at 7. Further, they argue, that “[t]he fact that individuals may benefit from these obligations is insufficient to establish a right that the individual can enforce against one of the signatories.” Id.

Respondent Johnson supports his argument against the VCCR conveying individually enforceable rights by citing a laundry list of appellate courts throughout the United States judicial system that have held accordingly. Additionally Respondent Johnson cites cases in Australia and Canada that have come to this conclusion as well, reinforcing the international nature of this issue and its implications. Brief for Respondent Johnson at 2. Although Respondent Johnson concedes that the International Court of Justice has held that the VCCR does create judicially enforceable individual, they have held so only in the context where a foreign national faces a “severe” criminal penalty. See Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12, ¶ 151 (Mar. 31).

B. Suppression

Petitioner Sanchez argues from a practical standpoint, starting from the assumption that Article 36 of the VCCR does in fact convey individually enforceable rights to foreign nationals. He asserts that the proper remedy for violations of such rights is suppression of any evidence gained in the process of the violation. Sanchez argues that because duly ratified treaties are on par with statutes in the United States, the VCCR should be given force equal to a US statute, requiring suppression as the remedy for violations of rights conveyed by it. Brief for Petitioner Sanchez at 10. Sanchez further supports his position by arguing that suppression is the appropriate remedy because “[i]f Article 36 violations had no consequences in U.S. law, law-enforcement agencies would have no incentive to comply with the rights that Article 36 creates” Id. at 11.

Respondent Oregon asserts that suppression of incriminating statements would not be the remedy for violations of rights conveyed by Article 36, if such rights are held in fact to be conveyed by the VCCR. Respondent Oregon argues that suppression is not appropriate because there is no causal relationship between the violation of Article 36 and the voluntary incriminating statements Petitioner Sanchez made to police officers. Brief for Respondent Oregon at 7. Additionally, Respondent Oregon asserts that the Court does not have the authority to invoke such a remedy in this situation. Respondent argues that treaties are on par with federal statutes and the Supreme Court “has recognized, it lacks the ability to impose suppression of evidence on state criminal courts for violations of federal statutory rights.” Id.

C. State Law

Petitioner Bustillo argues, assuming that the VCCR creates individually enforceable rights to foreign nationals in US courts, that state procedural rules should not bar a foreign national from asserting a VCCR claim for the first time on habeas review. He argues that the reason he did not assert the VCCR violation at trial was a direct consequence of such violation: because he was not informed of his right to consult with his Consulate, he was not aware of the violation of his rights at the time of trial. Bustillo asserts that the Commonwealth is using the procedural bar to veil their own violation of the treaty. Brief for Petitioner Bustillo at 13. He further supports his position by asserting that the treaty violation in this case would have been outcome determinative in his case given that the Honduran Consulate would have been able to assist in his defense by proving the existence of “Sirena.” Id. at 14. Bustillo further argues that holding otherwise would be contrary to the purposes of both the VCCR and the United States criminal justice system. Id. at 15.

Respondent Johnson asserts that the state trial court and the Supreme Court of Virginia properly dismissed Bustillo’s VCCR claim in his state habeas petition because he did not assert the VCCR claim at trial. State law in Virginia plainly bars such claims when a claimant has had “ample time to raise the issue at trial or on appeal.” See Virginia Code § 8.01-654(A)(2); see also Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). Johnson argues that if the Court were to rule otherwise, this would require states to ignore their own state’s procedural and jurisdictional rules when facing a VCCR claim, at any point in a litigation. Brief for Respondent Johnson at 4. Johnson argues this outcome would be a violation of States’ sovereignty and give preference to treaties over the Constitution. Id.

Impacts

A. Individual Rights

It is likely that the Supreme Court granted certiorari in these cases in order to clarify and stabilize the law surrounding the VCCR and any rights conveyed to foreign nationals under such. To illustrate, Respondent Johnson’s brief cites a laundry list of United States courts which have held that the VCCR does not convey individual judicially enforceable rights. However, it concedes in a footnote that there are several federal trial courts that have held the opposite. Brief for Respondent Johnson at 2.

On the first issue, the Court will likely rule that the VCCR does not convey individual judicially enforceable rights to foreign nationals who are arrested or detained in this country. To hold otherwise would be to arm foreign nationals accused of crimes in our country greater procedural rights than those available to United States citizens. Should the Court rule in favor of individual rights for foreign nationals under Article 36, law enforcement authorities throughout the country would be subject to an additional burden on the collection of evidence in certain criminal proceedings. Additionally, the Court would be required to rule on the two further issues presented in these petitions.

If the VCCR is held to convey individual rights to foreign nationals, the burden on arresting authorities in the United States would be high. In addition to reading Miranda warnings, police officers would be required to determine whether the suspect is a foreign national. Possible complications with this burden can be easily imagined: what if the suspect does not have identification; lies about his or her nationality/citizenship; is unconscious or intoxicated; or refuses to talk altogether out of fear of deportation, fear of legal authorities, or other factors. Moreover, when would the violation occur? In addition, when police do determine they are dealing with a foreign national, would failure to notify the Consulate and the suspect within one day be appropriate?  What about 12 hours? If so, what is the scope of their burden to uncover whether the suspect is a foreign national – what lengths must they go to? In locals where minority populations are very high, any such burden could be prohibitively cumbersome to effective law enforcement.

B. Suppression

If the Court rules in favor of the Petitioners on the individual rights issue, they then must decide whether suppression is the appropriate remedy for violations of such rights. Again, it seems unlikely that the Court would rule in favor of the Petitioners on this issue, if they do in fact reach it.

Holding that suppression of evidence is the appropriate remedy for violation of Article 36 of the VCCR would be an overly broad remedy and would encroach on constitutional concerns of federalism and state sovereignty.

The overly broadness of such a remedy is illustrated nicely by the case at bar. Sanchez, in his case, did not prove a causal relationship between the violation of any rights conveyed to him under the VCCR and his incriminating statements made to police officers. Holding suppression of the evidence as the appropriate remedy in this case would be tantamount to requiring arresting officers to discourage foreign national suspects from making wholly voluntary statements, which is what Sanchez did in his arrest scenario. If suppression were the unilateral remedy in cases like Sanchez’s, foreign nationals accused of crimes in the United States would have additional procedural protections, beyond those of US citizens. This outcome is unlikely.

Additionally, the Court arguably does not have the ability to impose such a remedy. Respondent Oregon cites several authority for the Court’s inability to impose suppression of evidence on state criminal courts for violations of federal statutory rights. Brief for Respondent Oregon at 41. The Court’s ability to impose such a remedy is limited to constitutional violations, and where such a remedy is proscribed in a statute or treaty. Because the VCCR proscribes no such remedy, and because there is no constitutional violation at issue in either of these cases, the Court will likely hold, in agreement with Respondent Oregon, that they lack the authority to impose suppression of evidence as the remedy in this case.

C. State Law

Again, the Court will only reach the question of state procedural bar of the VCCR claim if they hold that the VCCR does in fact convey individually enforceable rights to foreign nationals. The Court will likely rule that states’ procedural rules trump the VCCR on this issue. If the Court were to rule otherwise, such a holding would encroach on State’s Sovereignty, a Constitutional notion, upon which the United States were founded. The Constitution grants states the authority to enact their own judicial procedures and rules. As long as these rules are not in violation of the Constitution, they will be upheld by the Supreme Court if challenged. Here, because the VCCR is treated as on par with a federal statute, holding that the VCCR mandates ignoring state law, would trigger a major federalism question. The Court is unlikely to take this step in support of any individual rights conveyed under Article 36 of the VCCR.

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Conclusion

The Court must determine whether Congress intended to create individually enforceable rights for foreign nationals suspected of crimes within the United States when it signed the VCCR in 1963. Because many treaties have been interpreted as simply creating rights between and among countries, Petitioners have a difficult case. The Court may rule that the VCCR creates personally enforceable rights, but that suppression is not the correct remedy for a violation of those rights. Whether or not the Court would suggest an alternative solution is open to conjecture. Should the Court agree that the VCCR requires consular notification in order to preserve any statements made to law enforcement during interrogation, both Petitioners’ cases will be remanded and foreign nationals convicted for or being tried for crimes within the United States will be able to appeal if the authorities either failed to notify their consulate of the arrest or interrogation or failed to inform the suspect of her rights under the Convention. This case has enormous implications for the future of criminal procedure should the Court agree with Petitioners.

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Authors

Prepared by: Liz Hanks and Amy McDonald

Additional Sources

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