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                                        FILED
                           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,        
                                          No. 00-2004
               Plaintiff-Appellee,              
         v.                               
                                          
         MARIO MINJARES-ALVAREZ,          
                                          
         Defendant-Appellant.             
                                          
         
                    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
         --------------------------------------------------------------------------------
         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
         --------------------------------------------------------------------------------
         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 

         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 

         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 

         was ordered deported, the Government submitted Minjares's sworn
statement that 

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



         (1)     The 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.
         --------------------------------------------------------------------------------
         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).

         

                                 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 

         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 
              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 

         on a misunderstanding concerning the severity of available sanctions for 
         (2)     Minjares 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).
         --------------------------------------------------------------------------------
         
         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 
              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. 

         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 

         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 

         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 

         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 

         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

         (3)     Following 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. Seegenerally Germany v. United States of America, 2001
I.C.J. 
         __, available at http://www.icjcij.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.
         --------------------------------------------------------------------------------
              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.



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