The Vienna Convention on Consular Relations (VCCR) is a treaty to which the United States is a party and which requires local law enforcement officers to advise every foreign national, who has been arrested, of his or her right to contact the embassy for assistance.  In United States v. Lombera-Camorlinga,[443] the Ninth Circuit, sitting en banc, found that the VCCR does not provide personal rights that are enforceable by the defendant for the failure to advise with a motion to suppress any subsequent statement.  The court did not address whether the treaty creates personal rights that can be enforced by individual defendants in other ways, such as by invalidating a guilty plea that would not have been entered if the treaty had not been violated.

 

Where the courts have rejected arguments that violations of the VCCR require suppression of evidence, they appear motivated to some extent by reluctance to create a new “suppression of evidence” remedy that might result in the unavailability of valid evidence of guilt and the freeing of the guilty.  These concerns are not present when the noncitizen is not arguing that evidence should be suppressed, but rather that an invalid guilty plea flowed from the treaty violation.  In this latter case, prejudice is shown if there is a reasonable probability, absent the treaty violation, that the plea would not have been entered.  This is a familiar prejudice test, analogous to that required in the context of a claim of ineffective assistance of counsel, or prosecutorial suppression of evidence.  See § 6.8(B), supra.

 

The argument holds that if the defendant had been informed of his or her right to contact the consulate, the consul would have informed the noncitizen, either directly or through counsel experienced in immigration consequences, of the immigration consequences of the situation.  Counsel would have been retained who would have known how to prevent the adverse immigration consequences from occurring.  Thus, it can be argued where the advice was lacking, that there is a reasonable probability that a plea with damning immigration effects would not in fact have been entered.

 

            The issue may be raised during state criminal proceedings.[444]

[443] United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000).

[444] Zapata v. State, 12 S.W.3d 178 (Tex.App. Feb. 23, 2000), opinion withdrawn and superseded on reconsideration, see Zapata v. State, 15 S.W. 3d 661 (Apr. 26, 2000) (Vienna Convention on Consular Relations conveys standing to contest violations of  treaty).

POST CON RELIEF " GROUNDS " VIENNA CONVENTION ON CONSULAR RELATIONS
Garcia v. Texas, 131 S.Ct. 2866 (Jul. 7, 2011) (denying application for a stay of an execution on the grounds that conviction was obtained in violation of the Vienna Convention on Consular Relations; neither the Avena decision nor the executive memorandum purporting to implement that decision constituted directly enforceable federal law where the Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment).

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346 (Mar. 25, 2008) (neither an International Court of Justice case, Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions, affirming dismissal of a habeas petition in a death penalty case raising a claim that petitioner was not informed of his Vienna Convention right to notify the Mexican consulate of his detention).

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Sanchez-LLamas v. Oregon, 548 U.S. __ (Jun. 28, 2006) (even assuming that the Vienna Convention on Consular Relations creates judicially enforceable rights, suppression is not an appropriate remedy for a violation of Article 36 of the Convention, requiring consulate notification of a noncitizen is placed in criminal proceedings, and a state may apply its regular rules of procedural default to Article 36 claims). http://laws.findlaw.com/us/000/4-10566.html

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Medellin v. Dretke, ___ U.S. ___(May 23, 2005) (certiorari to review defendant's habeas corpus petition, alleging violation of Vienna Convention rights, improvidently granted where Texas state courts may provide defendant with the relief he seeks).
http://laws.findlaw.com/us/000/04-5928.html

POST CON RELIEF - VIENNA CONVENTION
Medellin v. Dretke, 544 U.S. 660, 125 S.Ct. 2088 (2005) (per curiam) (United States courts must comply with ruling by International Court of Justice that they must reconsider claims for relief under the Vienna Convention on Consular Relations)

POST CON - GROUNDS - VIENNA CONVENTION
Mali v. Keeper of Common Jail (Wildenhuss Case), 120 U.S. 1, 17 (1887) (consult has standing under treaty to bring habeas corpus petition on behalf of foreign national); see also Consulate Gen. Of Mexico v. Phillips, 17 F. Supp. 2d 1318, 1322-23 (S.D. Fla. 1998); People v. Corona, (1989) 211 Cal.App.3d 529, 538; 259 Cal. Rptr. 524. LaGrand (Germany v. USA), 2001 I.C.J. 466 (June 27) (Vienna Convention creates individual rights, not only right of consulate) Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31) (Vienna Convention creates individual rights, not only right of consulate) United States v. Rangel-Gonzales, 617 F.2d 529, 532 (9th Cir. 1980) ("The right established by the [INS] regulation and in this case by the treaty is a personal one . . . . personal rights cannot be abrogated simply because others do not exercise them."). United States v. Chaparro-Alcantara, 37 F. Supp. 2d 1122, 1125 (C.D. Ill. 1999) ("[Defendants] have an individual right to consular notification under Article 36 which in turn grants them standing to object to a violation of that provision."). United States v. Miranda, 65 F. Supp. 2d 1002, 1005 (D. Minn. 1999) (two day period in which authorities failed to notify noncitizen of rights under Convention was in violation of Convention requirement that notification be given "without delay"). United States v. Wendy G., 255 F.3d 761, 766 (9th Cir. 2001) (noncitizen juvenile defendants have right to contact parents or consulate if parents are not available, and the parents or consulate must also be informed of the right to communicate with the juvenile before questioning by the police).

POST CON RELIEF - GROUNDS - MISADVICE TO DEFENDANT CONCERNING MATERIAL LEGAL ISSUE AS GROUND TO WITHDRAW THE PLEA
Any unconditional guilty plea in federal court must be "knowing and voluntary." McCarthy v. United States, 394 U.S. 459, 464-67 (1969). The basis of a motion to set aside a guilty plea is a showing that the "accused does not understand the nature of the constitutional protections that he is waiving." Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). The cases that follow support an argument that incorrect judicial advice concerning a fact (such as the effectiveness of a JRAD) that is material to the decision to enter a plea renders the plea involuntary. Mistake in the estimate of appellants sentence. United States v. Erskine, 355 F.3d 1161 (9th Cir. Jan. 21, 2004). The Defendant chose to represent himself in court in prosecution for making threats to FBI agents. In course of Feretta v. California, 422 U.S. 806 (1975) hearing to establish that the defendant understood the dangers of self-representation, the court correctly informed the defendant of the specific dangers of self representation, but failed to correctly inform the defendant of the maximum penalty he would face if convicted. The court therefore found that his sixth amendment right to counsel had been violated for failure of the court to ensure that the defendant understood the possible penalties. United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998). Defendant was an INS agent who solicited sexual favors from eight women in exchange for assistance with their immigration documents. Appellant was initially indicted on 11 counts including felony sexual abuse, felony deprivation of rights under color of law and bribery. Appellant agreed to plead guilty in exchange for the governments filing of a superceding 8-count information. The superceding information changed count one from a felony to a misdemeanor and deleted all references to sexual acts and bodily injuries. The remaining seven counts charged the seeking of sexual favors by a public official. During the plea hearing appellant was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months. The discussion that took place during the plea hearing shows that both the governments attorney and the district judge confirmed appellants understanding. The subsequent pre-sentence report recommended 199 months. After the receipt of the pre-sentence report, appellant moved to withdraw his guilty plea to count one in order to eliminate criminal sexual abuse as the underlying offense. The court denied his motion following a hearing and sentenced him to 109 months. The court of appeal determined that appellant had been misinformed by the court, government counsel and his own counsel that the basic guideline range for all counts would be 10 to 16 months. Because of the misinformation, the appeals court determined that appellant was not " equipped intelligently to accept the plea offer made to him, " and found that the plea was involuntary. Mistaken belief that an appeal issue was preserved: United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997). Appellant pled guilty to three immigration offenses (not specified). He filed a motion to dismiss, alleging violations of the Speedy Trial Act. The motion was denied, he entered a guilty plea and was sentenced. During the plea hearing, the record unequivocally indicated that appellant intended to plead guilty on the condition that - and only after having been assured by the court that - he had preserved the speedy trial issues for appeal. He appealed the denial of the speedy trial issues and the government countered by arguing that the guilty plea waived appellants right to raise the speedy trial issues on appeal. These facts raise two related issues:

1. When a defendant enters a guilty plea based on his reasonable belief that he has preserved his right to appeal a non-jurisdictional issue, is the plea a conditional one within the meaning of Fed.R.Crim.P. 11?
2. If the plea is not conditional, was it still knowingly and voluntarily entered?

For a conditional plea, Rule 11 requires, inter alia, the approval of the court, the consent of the government and a writing. The definition of "consent" varies among the circuits. In the 9th Circuit, Rule 11 consent is interpreted to require "unequivocal government acquiescence." See United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986), infra. The appeals court held that, as in this case, silence or inaction by the government does not constitute consent, and found that the plea was unconditional under Rule 11. The appeals court then held that because appellant entered - and the district court accepted - this guilty plea only on the reasonable (but mistaken) belief that appellant had preserved the speedy trial issues for appeal, his plea was, as a matter of law, not knowing and voluntary. The court found that the defendant had been misinformed by the court, government counsel, and his own counsel of the basic guideline range. Judges Failure to Explain Nature of the Charges. United States v. Pena, 314 F.3d 1152 (9th Cir. Jan. 9, 2003). The Ninth Circuit held that plain error occurred where the defendant was never informed by the prosecutor or the court of the nature of the offense, in violation of Rule 11. The district court had merely asked whether the defendant had read the plea agreement, and asked the defendants counsel whether he understood and agreed with the elements of the offense. The Ninth Circuit found that, except for application of the plain error rather than harmless error standard, all prior Ninth Circuit case law regarding Rule 11 violations still apply. United States v. Bruce, 976 F.2d 552 (9th Cir. Oct. 1, 1992). Rule 11 requires that "[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands the nature of the charge to which the plea is offered" Fed. R. Crim.P. 11(c)(1). This procedure is not constitutionally mandated. The determination depends upon the the particular facts of each situation, looking to both the complexity of the charge and the personal characteristics of the defendant, bases solely on the basis of the record of the plea proceeding. United States v. Kramer, 781 F.2d 1380 (9th Cir.), cert. denied, 479 U.S. 819 (1986). The judge informed the defendant that he was charged, under a superceding indictment, of "conspiracy to manufacture methamphetamine," when the defendant was actually charged with aiding and abetting a conspiracy to possess a controlled substance with intent to distribute. The Ninth Circuit held both that the district court erred in misstating the charge, and in failing to meet the Rule 11(c)(1) requirement that he be informed of the nature of the charge: A trial judge fails to satisfy his obligation under Rule 11 when, as here, he does not fully inform the defendant of the meaning and application of legal argot and other legal concepts that are esoteric to an accused, including the meaning and application of the term conspiracy. United States v. Bruce, 976 F.2d, at 560 (internal citations and quotation marks omitted). Mistaken belief whether a motion could be filed after an unconditional plea. United States v. Cortez, 973 F.2d 764 (9th Cir. 1992). Appellant was charged with distributing and possessing crack within 100 ft of a video arcade. Shortly before his trial, appellant moved for a continuance so that he could prepare a motion to dismiss for selective prosecution. The United States opposed the motion stating that it could properly be heard post-conviction and that it was not therefore necessary to grant a continuance. The court denied appellants motion assuring him that he had "the right to make a selective prosecution motion after trial if he was convicted." After the jury was impaneled, appellant pled guilty to both counts. On the day of sentencing, appellant filed the selective prosecution motion. He also filed a motion requesting that "if the court believes that the guilty pleas act as a waiver of the selective prosecution motion, the defendant would then move to withdraw his guilty pleas and enter conditional guilty pleas." The court denied the selective prosecution motion and made no ruling on the motion to withdraw the guilty plea. Appellant was sentenced. The court of appeal found that appellants plea was not conditional because the Court and the United States did not acquiesce. (Fed.R.Crim.P. 11) The court furthermore determined that appellants unconditional plea was a waiver of his right to appeal on the basis of selective prosecution, When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of Constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. Tollett v. Henderson, 411 U.S. 258 (1973). However, the court of appeals determined that appellants unconditional plea was not knowingly and voluntarily entered into because he believed that his unconditional guilty plea allowed him to appeal his selective prosecution claim. The court wrote, "the discussions at the hearing prior to trial indicate that all parties believed the selective prosecution claim could be made post-conviction." The court clearly distinguished this case from one in which the defendants attorney incorrectly predicts the outcome of some aspect of defendants case. Here, all parties present including, the district judge, the U.S. Attorney and appellants counsel shared the same erroneous belief. Appellants plea was set aside. Attorney misrepresented to defendant that a sentence agreement had been made with the judge. Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986). Appellant was charged with child molesting and pled nolo contendre in exchange for the dismissal of the charge of contributing to the delinquency of a minor. As part of his plea, he signed a Boykin waiver form by which he initialed that his decision to plead had been made freely and voluntarily and that he understood that "regardless of motions or recommendations made by others . . . the sentence will be decided solely by the judge." Before sentencing, appellant moved to withdraw his plea on the grounds that the plea had been induced by his attorneys assurance that a plea bargain had been struck and that the maximum sentence would be 90 days. His motion to withdraw the plea was summarily denied and he was sentenced to 180 days. The issue on appeal was whether the plea was involuntary because it was based on the misrepresentation of his attorney that the trial judge had committed himself to a particular sentence, notwithstanding that appellant has signed a waiver form. The court distinguished this case from one where appellants counsel erroneously predicts favorable consequences. Here, appellants plea was involuntary because it was induced by his counsels misrepresentations as to what his sentence in fact would be. (Note here that unlike almost every case so far, there is no other party contributing to this mistaken belief. It is defendants counsel alone.) United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986). Appellant was indicted for conspiracy to transport and harbor illegal aliens, and for harboring illegal aliens. Before trial, appellant filed a motion to suppress evidence and the district court denied the motion. The government offered appellant a conditional plea agreement where appellant would enter a conditional plea of guilty to count one in return for the governments dismissal of count two. Appellant would thereby be able to preserve his right to appeal the suppression motion. Appellant and the co-defendant accepted the plea, but the government withdrew the offer before the pleas were entered. The appellant then pled guilty to count one and prepared for trial on count two. Count two was then, sua sponte dismissed by the court. Appellant argues that the government gave sufficient consent to the conditional plea based on the discussion on the record and in writing. The court of appeals found the pre-plea discussions on the record to be vague and "[do] not establish that the government manifested assent to a conditional plea. The government attorney reasonably could have believed, based on the exchange, that appellant was entering an unconditional plea." The appeals court also found the writing to be deficient because it did not specify which pretrial issues would be reserved for appeal. Therefore, the court of appeals found that there was insufficient assent manifested by the government for a conditional plea, and that the plea was therefore unconditional. Based on the same pre-plea conversations between counsel and the court, the appeals court found that appellant did not understand that her plea was unconditional, and it was therefore not knowing and voluntary. Appellants sentence was vacated. Temporal scope of an appeal waiver. United States v. Johnson, 67 F.3d 200 (9th Cir. 1995). Appellant was charged with possession of heroin with intent to distribute, and with the importation of heroin. In a written plea agreement, defendant pled guilty to count one. The agreement, acknowledging that count one carried a mandatory minimum sentence of 10 years, stated that appellant waived "the right to appeal any sentence imposed by the district judge." The district court, sua sponte, raised the question of whether appellant could qualify for sentencing under the newly enacted Violent Crime Control and Law Enforcement Act of 1994. The "crime bill" added a section that allowed the court to sentence certain drug offenders without regard to the statutory minimum sentences. The court ultimately concluded that the new section did not apply to appellant because of his criminal history. He was sentenced to the statutory minimum of 10 years. Appellant appealed the sentence claiming that the district court was incorrect in its belief that the new crime bill section did not apply to appellant. The government moved to dismiss the appeal on the ground that Johnson waived his right to appeal his sentence. Appellant argues that, although he knowingly and intelligently waived all appealable issues from the sentence based upon the status of the law at the time of his plea and waiver, such voluntary relinquishment of known rights was not intended to encompass, and could not logically extend to, appeal of a sentencing error premised upon a law not yet enacted at the time of the waiver. In this case of first impression, the court of appeal held that appellants appeal waiver encompasses appeals arising out of the new law applicable to his sentencing. The appeals court found that because the waiver refers to "any sentence imposed by the district judge," and not "any sentence imposed under the laws currently in effect" it is reasonable to find that the waiver includes any new laws enacted after the agreement. The appeals court also concluded that the waiver was knowing and voluntary as to the laws enacted after the waiver was executed. The court wrote that "the fact that [appellant] did not foresee the specific issue that he now seeks to appeal does not place that issue outside the scope of his waiver." (See United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990).

Fifth Circuit

POST CON RELIEF " GROUNDS " VIENNA CONVENTION
Rocha v. Thaler, 619 F.3d 387 (5th Cir. Sept. 9, 2010) (Article 36 of the Vienna Convention, requiring noncitizen to be notified of right to contact Mexican consulate does not create an individual right that would form basis of a motion to suppress).

POST-CON - VIENNA CONVENTION
Gomez v. Quarterman, 529 F.3d 322 (5th Cir. May 27, 2008) (failure to advise Mexican defendant of rights under Vienna Convention did not require suppression of murder confession).

Seventh Circuit

VIENNA CONVENTION - INEFFECTIVE ASSISTANCE
Osagiede v. United States, 543 F.3d 399 (7th Cir. Sept. 9, 2008) (foreign nationals may bring ineffective assistance of counsel claims based on violations of Article 36 of the Vienna Convention; government violated Article 36 by failing to notify petitioner of his right to consular assistance; counsel's failure to raise the violation was deficient performance).

Ninth Circuit

POST CON RELIEF - GROUNDS - VIENNA CONVENTION - VIOLATION OF FEDERAL STATUTE OR TREATY IN STATE COURT PROCEEDINGS
A violation of a federal statute or treaty during the state court proceedings may also provide a basis for federal habeas corpus relief. Benitez v. Garcia, 449 F.3d 971 (9th Cir. 2006) (extradition treaty violation). Like violations of the federal Constitution, violations of statutes and treaties should also be preserved in state court. See, e.g., Breard v. Greene, 523 U.S. 371 (1998) (alleged violation of Vienna Convention was procedurally defaulted by failure to raise claim in state court).

Lower Courts of Ninth Circuit

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
People v. Mendoza, 42 Cal.4th 686, 171 P.3d 2 (Cal. Nov. 29, 2007) (claim under Vienna Convention on Consular Rights must be brought in habeas corpus petition, nor direct appeal; court rejects claim under the Vienna Convention on Consular Rights on the merits and for lack of claim or proof of prejudice).

Tenth Circuit

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that the INS's failure to apprise him that he was entitled to communicate with Mexican consular or diplomatic officers under the Vienna Convention and immigration regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations and 8 C.F.R. 236.1(e), on grounds the argument was waived because he failed to assert the issue before the IJ, and, in any event, Torres could not show that the violation resulted in any prejudice).

Other

POST CON RELIEF - GROUNDS - VIENNA CONVENTION VIOLATIONS
Brook, Joshua A. Note. Federalism and foreign affairs: how to remedy violations of the Vienna Convention and obey the U.S. Constitution, too. 37 U. Mich. J.L. Reform 573-598 (2004).

POST CON RELIEF - GROUNDS - VIENNA CONVENTION VIOLATIONS
Carter, Linda E. Compliance with ICJ provisional measures and the meaning of review and reconsideration under the Vienna Convention on Consular Relations: Avena and Other Mexican Nationals (Mex. v. U.S.). 25 Mich. J. Intl L. 117-134 (2003).

GROUNDS - VIENNA CONVENTION
Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77, TIAS 6820), can be used to attempt to suppress a confession, or vacate a guilty plea, in a criminal or immigration case, in light of the LaGrand and Avena decisions.  LaGrand Case (Germany v. U.S.), 2001 I.C.J. 104 (June 27) available at http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm; Avena and Other Mexican Nationals (Mexico v. United States of America), 2003 I.C.J. 128, http:www.icjcji.org/icjwww/ipresscom/ipress2003/ipress2003-45--mus-- 20031223.htm (as visited February 5, 2004). Madej v. Schomig, 223 F.Supp.2d 968 (N.D. Ill. 2002), recognizes the impact of LaGrand: "After LaGrand, however, no court can credibly hold that the Vienna Convention does not create individually enforceable rights. The International Court of Justice was quite clear on that point, announcing that 'Article 36, paragraph 1, creates individual rights.' LaGrand Case, 2001 I.C.J. 104, at P 77." The impact of Avena can be seen by what happened in the capitol case, Torres v. Mullin, 124 S.Ct. 562 (2003), in which the defendant received a stay, a parole recommendation for clemency, and a commutation, based on Avena and the VCCR. Many police departments have incorporated the Vienna Convention's requirement that the arresting officer inform a noncitizen arrestee of his right to contact his consulate, so counsel may have the argument that the officer violated his duties imposed upon him by his own training manual or department regulations as well as the Vienna Convention.

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
The Washington Defender Association Immigration Project has prepared a description of non-citizens' rights under Art. 36(b) of the Vienna Convention on Consular Relations (VCCR), which requires a foreign consulate to be notified when one of its citizens is being detained by government authorities and what are best practices for ensuring compliance with the VCCR). Washington Defender Ass'n Immigration Project, Practice Advisory on the Vienna Convention (available from Ann Benson, Director, defendimmigrants@aol.com).

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
In order to forestall claims under Article 36 of the Vienna Convention (VCCR) about consular notification, Seattle state prosecutors are trying to get defendants to admit alienage on the record, in court, at arraignment, so the defendant can sign an acknowledgment of having been advised of the right. (Which seems to violate Washington State's own advisal law, which says :"It is further the intent of the legislature that at the time of the plea no defendant be required to disclose his or her legal [i.e., immigration] status to the court."  In case the Supreme Court decides that the International Court of Justice was right and there is an individually enforceable right under the VCCR, and it overturns the law of several circuits to hold that there is a judicially enforceable remedy for a violation of this right, these state-court convictions will be safe from attack.