Amicus Curiae Brief — Sanchez-Llamas v. Oregon

Nos. 0436866 & Ob=5Y”

IN THE Supi. cre Court, U.S.

. FILED

Supreme Court of the United Statés

DEC 23 2005

MOISES SANCHEZ-LLAMAS, OFFICS OF THE CLERK

Petition =

Vv.

&. coos .

OREGON,

Respondent.

MARIO A. BUSTILLO,

Petitioner,

Vv.

GENE M. JOHNSON, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent.

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF OREGON AND THE

SUPREME COURT OF VIRGINIA

BRIEF FOR AMICI CURIAE REPUBLIC OF HONDURAS

AND OTHER FOREIGN SOVEREIGNS

IN SUPPORT OF PETITIONERS

ASIM BHANSALI PAUL R.Q. WOLFSON

KEKER & VAN NEST LLP Counsel of Record

710 Sansome Street ANNE K. SMALL

San Francisco, CA 94111 JON CONNOLLY

(415) 391-4500 WILMER CUTLER PICKERING

HALE AND DORR LLP

Counsel for Amici Curiae 2445 M Street, N.W.

Peru and Uruguay Washington, DC 20037

(202) 663-6000

Counsel for Amici Curiae

Honduras, Argentina,

Bolivia, Brazil, Chile,

Colombia, El Salvador,

and Guatemala

————

TABLE OF CONTENTS

Page

SR Te Bia ys 1) | Seen ii

INTEREST OF AMICI CURIAE ..ccsssssssssssssssssssssssssesssnssssseees 1

SUMMARY OF ARGUMENT. ......cccscsssssossscsssssssssessssecsssssseeeses 3

FERRER REY eRe TET TT

A. Article 36 Is A Critical Part Of The Tradi-

tional Consular Function Of Protecting

The Interests Of A Sending State’s Na-

ce cinentiensintiniitnsthicuinsniiviingrtiniaccnitannineninivitiniesempaneta 5

B. Reciprocity, Comity, And Uniform Treaty

Interpretation Principles Counsel In Fa-

vor Of Adhering To The ICJ’s Interpreta-

tion Of The Vienna Convention ..................scceececseseees 9

C. Article 36 Of The Vienna Convention Cre-

ates Individually Enforceable Rights ................... 15

D. The Rights Afforded Under Article 36 Are

Not Subject To State Procedural Default

EEN Ea eae Ce oF a eT CT Eee SO A 17

E. Breard Should Not Be Followed In These

1 TEER aN FE MOT AEN DTS Oe 22

F. The Importance Of The Right To Consular

Notification Is Convincingly Demon-

I Be ee i isitecccevinecnteicennninininsvantinnnicin 24

Sea AAP Rorieeneccensieenstentainnenciniapntertinislecinaniaiansininnemaiesinniensii 26

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Air France v. Saks, 470 U.S. 392 (1985)..........ccccssecssesseersees 14

American Insurance Ass’n v. Garamendi, 539 U.S.

Sr Cee cacsincinsipnisepsitsinnicicnstinsiiinnsectinitiiiiagpainetilanasteticsensaniisen 19

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

iii ssninsisisecepannsaciensabapesinsiniiiiaienmnisenianniamennimemsenintedaies 19

Bradshaw v. Stumpf, 125 S. Ct. 2398 (1995) ........sscsseseseseeeseees 7

Breard v. Greene, 523 U.S. 371 (1998) (per curiam).....passim

Dickerson v. United States, 5380 U.S. 428 (2000) .........ccceeces 25

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155

Spel assidesiossnibcsiiedhitceetiatniadaiaietianctiaieninatiteainiutniabiinentibbeepiasinnis 14

First National City Bank v. Banco Nacional de

Se, Se Sree PE ceiectercinitiosineenertareniatenermeentin 19

Halbert v. Michigan, 125 S. Ct. 2582 (2005)........cccccsessessseseeees 8

Hilton v. Guyot, 159 U.S. 113 (1895).......cccccsccccsoressosorseceresees 10

Hohn v. United States, 524 U.S. 236 (1998) ..........csscssesceseeees 24

Massaro v. United States, 538 U.S. 500 (2008)................ 21, 22

Medellin v. Dretke, 125 S. Ct. 2088 (2005) (per cu-

| Se sansunsacetnentenntatentanensenneneeseseeesuneeeeNes 9

Olympic Airways v. Husain, 540 U.S. 644 (2004)........c0008 14

Patterson v. Illinois, 487 U.S. 285 (1988)........scscsssssessseeeeees 21

Polk County v. Dodson, 454 U.S. 312 (1981) .........ccccesceeeseeees 7

Ramirez v. State, 619 S.E.2d 668 (Ga. 2005) .0.........:ecceceseeees 16

Société Nationale Industrielle Aerospatiale v.

United States District Court, 482 U.S. 522

eee ciiicinecienitastitiienniaanintintdigeninnnininteniinnininiintaennts 12, 13

Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App.

iri sictcensnsepnilionincensncdieoniianinapivistepnbiiapiinnentomenemmuinennthins 16

State v. Byron, 683 N.W.2d 317 (Minn. Ct. App

ee sitripstincieecccinnitcesieinntniansiieianieniandjiniapanatiientenninenmnediie 16

Taylor v. Illinois, 484 U.S. 400 (1988) ..........ccsceseseeseseresees 20, 21

United States v. Arjona, 120 U.S. 479 (1887).......sssesserserees 10

United States v. Beckford, 2000 U.S. App. LEXIS

6752 (4th Cir. 2000) (unpublished) .................ccseseseeserees 16

United States v. Cazares, 60 Fed. Appx. 223 (10th

Ci, SEED COND es ccrccsercctntatnecsestttnininmainttintiennenins 16

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Contreras-Cortez, 41 Fed. Appx.

252 (10th Cir. 2002) (unpublished) .............csssssceseeseeeeeees 16

United States v. Emuegbunam, 268 F.3d 377 (6th

esiinhs TITIUTED sciosinshbesteiehaniuehdtacimeceaeadicaiatliiaiaataieastsiataatinsatipiadnees 16

United States v. Felix-Felix, 275 F.3d 627 (7th Cir.

Sie icticaiiesciecitnsaieapciipuiiiitasiiicetandelinbeitinacasahanisitaniitidninitamniatbinniienten 16

United States v. Gamez, 301 F.3d 1138 (9th Cir.

SIT litactnienssiiprineseitniinicapnineapeenieniniabesnsiueiehbeiaipamnintiedeisereecns. 16

United States v. Gonzales, 339 F.3d 725 (8th Cir.

TE ichnehchrictesindieeitiadiniciiidaiade ibeinithadeeleniiiieidiibisbeapbindtionedens 16

United States v. Guerrero, 45 Fed. Appx. 265 (4th

ts ne NINE i sesicieniccnsesiinsipunseniiidtdinihaenbeninenessians 16

United States v. Minjares-Alvarez,-264 F.3d 980

Se AAAI UTI cieseiriutiiinsiisbieiliiaptainetuleiaaihbieiniiniletanannmanseianiesdans 16

United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002) ............. 16

United States v. Percheman, 32 U.S. (7 Pet.) 51

Sieieiiinioniicsicnitsniinnisidibtninainicthilianatisiinduastsanutninlatviamciniaieeitis 23

United States v. Pink, 315 U.S. 208 (1942) .0.........sccsceseseeseeee 19

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) ...........c.ccceseeseenese 19

Zicherman vy. Korean Air Lines Co., 516 U.S. 217

RRR RR en a ar Ser ae eT PO Te 10

Zschernig v. Miller, 389 U.S. 429 (1968) .........ccccccsceseeseseeseeees 19

CONSTITUTIONAL AND STATUTORY PROVISIONS

i ntaliieniorlh 3

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 oe 23

INTERNATIONAL MATERIALS

Case Concerning Avena and Other Mexican

Nationals (Mex. v. U.S.), 2004 L.C.J. 128 (Mar.

vii cienschsigitcectemetaritasqunnscicanistanntimiinaasnauciiansinaneindigins 3, 9, 15, 18

Case Concerning United States Diplomatic & Con- ~

sular Staff in Tehran (U.S. v. Iran), 1980 L.CJ.

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Counter-Memorial Of The United States of Amer-

ica, Case Concerning Avena and Other Mexi- -

can Nationals (Mex. v. U.S.) (Nov. 3, 2008) ........0..c0000000 9

LaGrand Case (F.R.G. v. U.S.), 2001 IL.CJ. 466

CTE TIED cesncsecstinseccsiiiaiitiiihtininininsiieciihidainaiaaiaiateel tated eile 3

Memorial of the United States, Case Concerning

United States Diplomatic and Consular Staff

in Tehran, (U.S. v. Iran), 1980 1.C.J. Pleadings

SG GERI. BED cccrscccecsnsccsutnssiemintnsesasintisielisiaipaiiliedasmmaisiniaiiae 11

Optional Protocol Concerning the Compulsory Set-

tlement of Disputes, Apr. 24, 1963, 21 U.S.T.

SED, GS BES ie Ta cccenssensssiteemnesttininninainnanaiaaiiin 1,2, 13

Vienna Convention on Consular Relations, Apr. 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261 .......0..... 1, 5, 6, 15, 23

OTHER AUTHORITIES

Aceves, William J., The Vienna Convention on

Consular Relations: A Study of Rights, -

Wrongs, and Remedies, 31 Vand. J. Transnat’]

a, TEU Cie ccccccscitcaiciinsnisinsiasttiitebeaintinithicsinttaiidsinaissinandaiiigaiiie 11

Damaska, Mirjan, Evidentiary Barriers to Convic-

tion and Two Models of Criminal Procedure: A

Comparative Study, 121 U. Pa. L. Rev. 506

Cre inccincecrccsinncicinsninecentcitiitiaiiasintl intact eal iieatitiaeii eel 7

The Federalist No. 80 (J. Cooke ed. 1961) (A. Ham-

eno ecyatemnnassanieientutpanssneigaisianesiatialainiineiiaiiaiiaeivasiinitis 19

7 Foreign Affairs Manual (2004), available at

http://foia.state.gov/REGS/fams.asp?level=2&i

r,s ncccinticniaiiitinnsiiniiiaasiainciishasiiiniaetliaitiaal 8, 9,12

Lee, Luke, Consular Law and Practice (2d ed.

De Pccnansntierniceisepitdccniiamsinitiaaaitisiintiaiiieainiiiadiae 7, 8,11, 12

Lerner, Renée Lettow, The Intersection of Two

Systems: An American on Trial For an

American Murder in the French Cour D’As-

91908, D001 U.. TED. Le. Rev. TO1 ...cccccccccccsscccssscenessenssssssssessesse 7

Vv

TABLE OF AUTHORITIES—Continued

McGinley, Gerald P., Ordering a Savage Society: A

Study of International Disputes and a Pro-

posal for Achieving Their Peaceful Resolution,

25 Harv. Int’l LJ. 43 (1984).......ccsesecsssesnssessesesees

Posner, Eric A. & Yoo, John C., Judicial Independ-

ence in International Tribunals, 93 Cal. L.

ERTS a ne

Table FBP-1, Profile of Selected Demographic and

Social Characteristics: 2000, available at http://

www.census.gov/population/cen2000/stp-159 (last

visited Dec. 21, 2005)... ibieeroaitiiaaitiiiah tthe mniiiatians

US. Dep’t of Justice, Bureau of Justice Statistics,

Census of State and Federal Correctional Fa-

cilities, 2000, available at http//www.ojp.usdoj.gov/

bjs/abstract/csfcfO0. tm ............ccesceceseseeeeseeceseseerenes

US. Dep’t of State, Consular Notification and Ac-

cess (2003), available at http://travel.state.gov/

SII SOE. cncsnssesnnsemmsinsnenieinsesmninansane

Page(s)

sonusngue 16

Amici curiae Republic of Honduras, Argentine Repub-

lic, Republic of Bolivia, Federative Republic of Brazil, Re-

public of Chile, Republic of Colombia, Republic of El Salva-

dor, Republic of Guatemala, Republic of Peru, and Oriental

Republic of Uruguay respectfully submit this brief in sup-

port of the petitioners in these cases.

INTEREST OF AMICI CURIAE

Each amicus, like the United States, has adopted the

Vienna Convention on Consular Relations, Apr. 24, 1963, 21

U.S.T. 77, 596 U.N.T.S. 261 (“Vienna Convention” or “Con-

vention”). In addition, amici Argentina, Chile, Colombia,

Peru, and Uruguay are signatories to the Vienna Conven-

tion’s Optional Protocol Concerning the Compulsory Settle-

ment of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S.

488 (“Optional Protocol”). The United States was, until ear-

lier this year, also a signatory to the Optional Protocol.

Article 36(1)(b) of the Convention provides that a signa-

tory state that detains a foreign national must, upon request

of the detainee, promptly inform the foreign national’s con-

sulate of the detention, and also must promptly advise the

detainee of “his rights” to consular notification under the

Convention. Article 36(2) of the Convention provides that

signatory states must ensure that their laws and regulations

give “full effect” to the protections afforded by Article 36(1)

of the Convention.

These protections are of critical importance to amici.

Hundreds of thousands of amici’s citizens reside in the

United States,’ and many more visit every year. Article 36

ensures that those foreign nationals may receive the benefit

' No counsel for a party authored this brief in whole or in part. No

person or entity other than amici or their counsel has made a monetary

contribution to the preparation or submission of this brief. Counsel for all

parties consented in writing to the filing of this brief.

? See, e.g., Table FBP-1, Profile of Selected Demographic and Social

Characteristics: 2000, available at http://www.census.gov/population/

cen2000/stp-159 (last visited Dec. 21, 2005).

2

cf consular assistance when they are confronted with crimi-

nal proceedings in surroundings that may be unfamiliar to

them. Unless a detained individual receives prompt notifica-

tion that he may seek consular assistance, that benefit is of-

ten lost and his ability to mount an effective defense may

well be hindered.

The Optional Protocol is also of great importance to the

amici who are signatories to that agreement. The Optional

Protocol provides that “(djisputes arising out of the inter-

pretation or application of the Convention shall lie within the

compulsory jurisdiction of the International Court of Jus-

tice.” Optional Protocol art. 1, 21 U.S.T. at 325. The Op-

tional Protocol thus provides a means within the established

framework of international law whereby parties to the Con-

vention may resolve their differences over the interpreta-

tion and application of the Convention, with the understand-

ing that, once the International Court of Justice (“ICJ”) ren-

ders a decision, those parties will abide by that decision in

the future. Moreover, the [CJ was given jurisdiction not

only to decide whether any country had violated the Con-

vention, but also to resolve any dispute over the interpreta-

tion of the Convention—indicating that parties that agreed

to submit disputes to the ICJ (including, previously, the

United States) would thenceforth be bound by that court’s

“interpretation” of the treaty.

The cases before the Court, both of which involve con-

ceded violations of the Vienna Convention by state officials,

raise the question of whether and how the United States will

comply with the Vienna Convention, and in particular

whether and how the United States will provide an effective

remedy for amici’s citizens who have been prejudiced by

violations of the Convention. More broadly, these cases un-

derscore the importance of treaty obligations to amici in

their relations with the United States. Compliance with

treaty obligations reinforces the principle of reciprocity that

is the bedrock of international relations. When amici enter

into treaties with the United States, they rely on the inter-

national law principle that treaties will be followed—the

3

cardinal rule of pacta sunt servanda. And although amici

are well aware of the federal system of government in the

United States, they necessarily depend on the domestic law

principle that ensures that treaties will be honored, at all

levels of government in the United States—the U.S. Consti-

tution’s Supremacy Clause, which provides that “all Treaties

made ... under the authority of the United States, shall be

Supreme Law of the land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U.S.

Const. art. VI, § 2.

SUMMARY OF ARGUMENT

Consular relations by nature often involve protection of

the interests of individuals. Thus, the Vienna Convention,

which codified the law of consular relations, offers significant

protections for individuals traveling and living abroad. Con-

sular assistance helps an individual overcome the substantial

obstacles he may face in understanding and navigating an

unfamiliar criminal justice system. The United States has

continuously demonstrated its support for these protec-

tions—at the Vienna Convention itself and in cases involving

Vienna Convention violations relating to U.S. citizens.

The ICJ has issued several decisions interpreting the

Vienna Convention. In particular, it has held that at least in

criminal cases involving “severe penalties,” judicial remedies

must be available to the individual whose rights have been

violated. Specifically, the ICJ has ruled that the Vienna

Convention creates individually enforceable rights and that

judicial remedies for violations of these rights cannot be

barred by state procedural default rules. See Case Concern-

ing Avena and Other Mexican Nationals (Mex. v. U.S.),

2004 I.C.J. 128 (Mar. 21); see also LaGrand Case (F.R.G. v.

U.S.), 2001 1.C.J. 466 (June 27).

Whether or not the ICJ’s Avena decision on the inter-

pretation of the Convention binds this Court, principles of

reciprocity, comity, and uniformity of treaty interpretation

all favor following that decision. The Vienna Convention,

4

like other treaties, is built on the assumption that all nations

will comply. Its drafters anticipated that parties would ac-

cord great weight to the ICJ’s interpretations and applica-

tions of the Convention. This Court’s cases concerning

treaty interpretation also favor adhering to judicial con-

structions of treaties rendered by international courts, in

recognition of the principle that parties to multilateral trea-

ties desire uniform interpretations of those treaties.

The plain language of the Vienna Convention supports

the ICJ’s determination that the treaty does create indi-

vidually enforceable rights. Logic dictates the same result.

Despite federal efforts to ensure compliance, violations by

state officials persist. Individual judicial remedies for such

violations are therefore necessary if these protections are to

have their intended effect.

The same principles of reciprocity, comity, and uniform-

ity also support a holding by this Court that state procedural

default rules will not bar claims under the Vienna Conven-

tion. The ICJ has so concluded and its order is supported by

the nature of the right itself. The Vienna Convention re-

quires states to inform detained individuals of their rights; in

the case of a violation, the individual will not be informed of

his or her rights and cannot be expected to raise such claims

at trial. Moreover, the significance of the violation may be-

come clear only after the trial is over.

The Court’s opinion accompanying the denial of certio-

rari in Breard v. Greene, 523 U.S. 371 (1998) (per curiam),

which addressed the question of procedural default, should

not be followed in these cases. Breard did not address the

questions of individually enforceable rights and suppression

that are also before the Court. Also, the Breard opinion was

issued before the ICJ had interpreted the Vienna Conven-

tion. It has now done so, in two adjudications to which the

United States was a party. The ICJ’s determination coun-

sels in favor of the renewed assessment of the questions dis-

cussed in Breard. Moreover, Breard was not rendered after

full briefing and argument on the merits, but was issued in

exigent circumstances immediately before Breard’s execu-

5

tion, and, moreover, the Court’s statements about proce-

dural default were not essential to the opinion.

These cases aptly demonstrate the enormous value of

the rights secured by Article 36. In Bustillo, the Vienna

Convention violation prevented Bustillo from securing sub-

stantial exculpatory evidence available to the consulate. In

Sanchez-Llamas, the Vienna Convention violation denied

Sanchez-Llamas the opportunity to have consular assistance

in understanding his Miranda rights; his apparent lack of

comprehension led to a confession of questionable reliability.

ARGUMENT

A. Article 36 Is A Critical Part Of The Traditional

Consular Function Of Protecting The Interests Of

: A Sending State’s Nationals

An important focus of the consular function is and al-

ways has been the protection of the interests of a sending

state’s nationals who reside in or are visiting a receiving

state. Thus, in adopting the Vienna Convention, which codi-

fied the principles underlying consular relations, the parties

recognized the role of consular relations “in promoting the

development of friendly relations among nations, and ensur-

ing the protection and assistance for aliens resident in the

territories of other states.” Case Concerning United States

Diplomatic and Consular Staff in Tehran (U.S. v. Iran),

1980 LC... 3, 40 (May 24) (“Diplomatic and Consular

Stajy’).

Article 5 of the Vienna Convention lists various consu-

lar functions, many of which advance and protect the inter-

ests of the sending state’s nationals. Most pertinent to these

cases, Article 5(e) states that a central consular function is

“helping and assisting nationals, both individuals and bodies

corporate, of the sending states.” 21 U.S.T. at 83. Article

36 facilitates this “help[]” and “assist[ance]” by prohibiting

receiving states from impeding communications between

consular officials and nationals of the sending state. Specifi-

cally, Article 36(1)(a) provides that “consular officers shall

be free to communicate with nationals of the sending State

and to have access to them,” and that “(nJationals of the

6

sending State shall have the same freedom with respect to

communication with and access to consular officers of the

sending State.” /d. at 101. Other articles of the Vienna

Convention similarly address the interests of individual na-

tionals of sending states. See, e.g., Article 5(d), 21 U.S.T. at

83 (regarding the issuance of travel documents to individu-

als); Article 5(h), 21 U.S.T. at 83, (respecting the safeguard-

ing of the interests of minors); Article 37, 21 U.S.T. at 102

(concerning assistance in the case of “deaths, guardianship

or trusteeship, wrecks and air accidents”).

The parties to the Convention anticipated that nationals

of sending states would be particularly in need of consular

assistance when they were detained on charges in a receiv-

ing state. To ensure that their nationals would be able to

obtain the benefit of consular assistance in such circum-

stances, the Convention requires detaining authorities spe-

cifically and promptly to inform detained foreign nationals of

their right to contact their consulate for assistance:

[1]f he so requests, the competent authorities of the

receiving State shall, without delay, inform the con-

sular post of the sending State if, within its consular

district, a national of that State is arrested or com-

mitted to prison or to custody pending trial or is de-

tained in any other manner. Any communication

addressed to the consular post by the person ar-

rested, in prison, custody or detention shall] also be

forwarded by the said authorities without delay.

The said authorities shall inform the person con-

cerned without delay of his rights under this sub-

paragraph.

Art. 36(1)(b), 21 U.S.T. at 101. Article 36 further provides

that consular officers have the right to visit the national in

prison “to converse and correspond with him, and to arrange

for his legal representation.” Jd. Furthermore, although

these rights “shall be exercised in conformity with the laws

and regulations of the receiving State,” all states’ laws and

regulations must give “full effect” to the purposes for which

the rights at issue were created. Id.

7

These provisions reflect the signatories’ judgment that

“(djetained foreign nationals are inevitably distressed by the

prospect of securing and preserving their rights in a legal

system with whose institutions and rules they are not famil-

iar.” Luke Lee, Consular Law and Practice 145 (2d ed.

1991) (quoting U.S. Dep't. of State, Telegram 40298 to Em-

bassy Damascus, Feb. 21, 1975). For example, United States

nationals detained abroad may not understand the function

of magistrates, who play a much greater role in criminal

prosecutions than do judicial officers in the Unites States.’

Conversely, detained foreign nationals may find many

aspects of the U.S. criminal justice system deeply puzzling.

Foreign nationals may not understand the importance of

statements given during police interrogations.‘ They also

may not understand the function of a public defender or ap-

pointed attorney, who represents the client’s interests de-

spite being paid by the state. See Polk Cownty v. Dodson,

454 U.S. 312, 322 (1981). Therefore, they may not meaning-

fully apprehend the promise of the Miranda statement that

an attorney will be appointed for a defendant who cannot

afford representation. Likewise, they may not understand

the central role of plea-bargaining in the U.S. criminal jus-

tice system, including the fact that a guilty plea establishes

the defendant’s guilt just as definitively as a guilty verdict at

trial. See Bradshaw v. Stumpf, 125 S. Ct. 2398, 2405-2407

(1995). And if a foreign national is convicted, it may be ex-

’ See, e.g., Renée Lettow Lerner, The Intersection of Two Systems:

An American on Trial For an American Murder in the French Cour

D’Assises, 2001 U. Ill. L. Rev. 791, 800-806; see generally Mirjan Dam-

aska, Evidentiary Barriers to Conviction and Two Models of Criminal

Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506 (1973) (contrast-

ing the Anglo-American adversarial system with the inquisitorial system).

* As amicus Mexico notes (Br. 10-1 1), under the laws of some other

nations, statements given to the police outside the presence of a magis-

trate or public prosecutor are not admissible against the defendant at

trial. A citizen of such a nation who was detained in,the United States

might be surprised to discover that his statement to the police may well

serve as a crucial piece of evidence against him in a criminal case.

8

ceptionally difficult for him to understand the process of

pursuing an appeal, including whether he needs to obtain

new counsel. Cf. Halbert v. Michigan, 125 S. Ct. 2582, 2592-

2593 (2005).

Consular officials can help detained foreign nationals

navigate the waters of the criminal justice system and

thereby help them secure their rights within that system.

Of particular importance is the consulate’s ability to help lo-

cate culturally sensitive counsel who can translate unfamil-

iar aspects of the receiving state’s criminal justice system to

the detained individual. Consular officers also can communi-

cate with the prosecuting authorities, perhaps presenting

reasons not to seek the death penalty in capital cases. The

consulate can help identify and locate evidence that is in the

home country and inaccessible to the detained foreign na- —

tional’s lawyer. Such evidence may include exculpatory evi-

dence or mitigating evidence for use in capital cases (e.g.,

school records or other evidence about the defendant’s early

experiences of the kind frequently introduced in capital

cases). Finally, consular officials may monitor proceedings

to ensure compliance with international standards; indeed,

many countries publish specific guidelines for such monitor-

ing.’

The importance of these kinds of consular assistance

should not be underestimated. The State Department has

repeatedly recognized the “essential function” of the Vienna

Convention in protections nationals who travel to foreign

countries. 7 Foreign Affairs Manual § 411 (1984), available

at http://foia.state.gov/REGS/fams.asp?level=2&id=8&fam=0.

The Department explained:

One of the basic functions of a consular officer is to

provide a “cultural bridge” between the host com-

munity and the officer’s own compatriots traveling

> For example, the State Department’s guidelines state that its con-

sular officials must attend trials, protest discrimination, and monitor the

well-being of the individual incarcerated. Consular Law and Practice 125.

9

or residing abroad. No one needs a cultural bridge

more than the individual U.S. citizen who has been

arrested in a foreign country or imprisoned in a for-

eign jail.

Id. § 401; see also id. §§ 400-426.2-1 (2004) (recognizing the

role of the consulate in aiding the national unfamiliar with

the foreign legal system).

B. Reciprocity, Comity, And Uniform Treaty Inter-

pretation Principles Counsel In Favor Of Adher-

ing To The ICJ’s Interpretation Of The Vienna

Convention

The U.S. government has argued, to both the ICJ and

this Court, that Article 36 of the Convention does not create

or secure individual rights, and that a violation of that Arti-

cle’s consular notification provision may not be remedied in

the criminal justice system but only through state-to-state

adjustment, such as a formal apology.’ Whatever the merits

of these submissions may have been before the Avena rul-

ing, they come to this Court in a decidedly different posture

now. In Avena, the ICJ fully examined and then rejected

those contentions. After extensively examining the text and

purpose of Article 36, the ICJ concluded that that Article

does indeed create “individual rights,” and that the detain-

ing state must permit a criminal conviction to be judicially

re-examined, where a violation of a detained foreign na-

tional’s right to consular notification under that Article may

have prejudiced him in a criminal prosecution, resulting in

“severe penalties.” See Avena, 4¥ 139-143.

Reciprocity, comity, and uniformity, which form the un-

derpinnings of international law, favor adherence to the

. SeeCounter-Memorial of The United States of America 74-78, Case

Concerning Avena and Other Merican Nationals (Mez. v. U.S.), (Nov. 3,

2003), available at http://www.icj-cij.org/icjwww/idocket/imus/imusframe

-htm; Brief for the United States as Amicus Curiae 33-38, Medellin v.

Dretke, 125 S. Ct. 2088 (2005) (per curiam) (No. 04-5928); see also Medel-

lin, 125 S. Ct. at 2104-2105 (O’Connor, J., dissenting).

10

ICJ’s interpretation of the Convention in Avena. To reach

that conclusion, this Court need not decide that, strictly

speaking, either the United States as a general matter or

this Court in particular is “bound” by the ICJ’s construction

of that treaty in cases, such as these, that do not involve the

specific individuals at issue in Avena. Nor need this Court

conclude that the ICJ’s reading of the Convention is the only

possible correct one. Rather, it is sufficient to observe that

the ICJ’s decision is entitled to great weight because it is

fully consistent with the principles underlying Article 36 in

particular and the Convention in general, and it enjoys broad

support in the international community—as demonstrated

by the significant level of support shown for that decision in

amicus curiae briefs in this Court.

1. The Vienna Convention—like all treaties—rests on

the fundamental norm of reciprocity. This principle lies at

the heart of international law and international relations. As

this Court has long acknowledged, “international law obliga-

tions are of necessity reciprocal in nature.” United States v.

Arjona, 120 U.S. 479, 487 (1887); see also Hilton v. Guyot,

159 U.S. 113, 228 (1895) (“[IJnternational law is founded upon

mutuality and reciprocity ... .”).. The heart of this reciproc-

ity principle is the idea that “what is law for one is, under

the same circumstances, law for the other.” Arjona, 140

US. at 487. This principle strongly suggests that, where, as

here, numerous other parties to the Convention understand

a particular practice to be essential to full compliance with

the Convention, the United States should adopt that under-

standing as well. Where “postratification understanding” of

other contracting parties supports one reading of a treaty

over another, that understanding is to be preferred. See

Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226

(1996).

Reciprocity is a particularly important principle in a

multilateral treaty, such as the Convention, that protects the

interests of individuals. Millions of American citizens live

and travel around the world secure in the belief that agents

of their government will be available to assist them in the

11

event they are detained abroad. They enjoy such security

precisely because other nations trust the United States to

comply with its treaty obligations in turn and to afford the

same protections to their citizens who visit the United

States. Should any nation that is a party to the Convention

consistently fail to comply with its obligations under that

treaty, the mutual trust and sense of obligation underpin-

ning the Convention could unravel.

For its part, the United States has consistently sought

to strengthen the protections offered by the Vienna Conven-

tion. In cases before the ICJ and elsewhere, the United

States has emphasized the vital importance of the safe-

guards that the Convention offers United States citizens de-

ta*ned by another signatory to the Convention. Thus, when

Iran seized the United States embassy and detained em-

bassy personnel, the United States argued to the ICJ in the

Diplomatic and Consular Staff case that “a principal func-

tion of the consular officer is to provide varying kinds of as-

sistance to nationals of the sending State, and for this rea-

son, the channel of communication between consular officers

and nationals must at all times remain open.” Memorial of

the United States, Case Concerning United States Diplo-

matic and Consular Staff in Tehran, (U.S. v. Iran), 1980

I.C.J. Pleadings 174 (Jan. 12).

The United States has assertively challenged other

governments that fail to provide consular rights to detained

American citizens. When Syria detained two United States

citizens, the State Department used the Convention to gain

access to these individuals. See William J. Aceves, The Vi-

enna Convention on Consular Relations: A Study of Rights,

Wrongs, and Remedies, 31 Vand. J. Transnat’l L. 257, 271

(1998). The United States complained of the violation of the

Vienna Convention, stating: “The right of governments,

through their consular officials, to be informed promptly of

the detention of their nationals in foreign states, and to be

allowed prompt access to those nationals, is well established

in the practice of civilized nations.” Consular Law and

Practice 145. In so doing, it stressed “considerations of re-

12

ciprocity” and the fact that the United States would cer-

tainly abide by its obligations in the reverse scenario. Jd.’

But the United States has also recognized that its con-

cern for protecting the rights of Americans abroad requires

it to have a federal policy of attentive support for consular

rights domestically. As the State Department has explained

to state and local law enforcement agencies:

The Department of State appreciates the continued -

cooperation of federal, state, and local law enforce-

ment agencies in helping to ensure that foreign na-

tionals in the United States are treated in accor-

dance with these instructions. Such treatment will

permit the United States to comply with its consu-

lar legal obligations domestically and to continue to

expect rigorous compliance by foreign governments

with respect to United States citizens abroad."

2. Closely connected to the reciprocity principle is the

principle of comity. Comity has been aptly described as “a

principle under which judicial decisions reflect the systemic

value of reciprocal tolerance and goodwill.” See Société Na-

tionale Industrielle Aerospatiale v. United States Dist. Ct.,

482 U.S. 522, 555 (1987) (Blackmun, J., concurring in part

and dissenting in part). Comity favors an approach that

“furthers, rather than impedes, the development of an or-

dered international system. A functioning system for solv-

ing disputes across borders serves many values, among

7 In one case, the United States complained about a Vienna Conven-

tion violation—the detention of two Americans for 32 hours—even after

the individuals were released. Consular Law and Practice 145, 149. The

United States’ commitment to protecting its citizens’ right to consular

notification and access is sufficiently deep that the State Department as a

matter of policy and procedure requires local consular officials to protest if

they learn of an American citizen who is detained without consular notifi-

cation for more than 72 hours. See 7 Foreign Affairs Manual § 426.2-1

(2004).

5 US. Dep’t of State, Consular Notification and Access 13 (2003),

available at http://travel.state.gov/pdf/C N A_book.pdf.

13

them predictability, fairness, ease of commercial interac-

tions, and stability through satisfaction of mutual expecta-

tions.” Id. at 557.

The principle of comity favors adherence to the ICJ’s in-

terpretation of the Vienna Convention in Avena. The Op-

tional Protocol designated the 1CJ—a widely respected in-

stitution on which the world’s leading scholars of interna-

tional law have served—as a leading institution with compe-

tence to adjudicate disagreements between sovereigns about

the treaty’s proper scope and meaning. Optional Protocol

art. 1,21 U.S.T. at 326. Thus, the drafters of the Convention

and the Optional Protocol clearly intended the [CJ to have a

leading role in interpreting and applying the Convention.

While that role is not exclusive—national courts may fre-

quently have occasion to interpret and apply the Conven-

tion—ICJ decisions on the Vienna Convention quite prop-

erly have a unique force, for the ICJ represents, in effect, a

court of last resort for parties that differ over the meaning

of the Convention. Moreover, parties historically have in-

voked the ICJ’s jurisdiction only in cases of surpassing im-

portance, giving its decisions even greater weight.’ Indeed,

when the occasion demanded it, the United States turned to

the ICJ to resolve the Article 36 dispute in the Diplomatic

and Consular Staff case arising out of the seizure of the U.S.

Embassy in Teheran.

3. Finally, the principle of uniform treaty interpreta-

tion, recognized in several of this Court’s treaty cases, fa-

vors adherence to interpretations of treaties rendered by

foreign and international courts. Thus, even though the

United States has withdrawn from the Optional Protocol,

” See Gerald P. McGinley, Ordering a Savage Society: A Study of In-

ternational Disputes and a Proposal for Achieving Their Peaceful Reso-

lution, 25 Harv. Int’l L.J. 43, 44-46 (1984) (sovereigns do not invoke the

ICJ’s jurisdiction lightly); see also Erie A. Posner & John C. Yoo, Judicial

Independence in International Tribunals, 93 Cal. L. Rev. 1, 34-41 (2005)

(compiling data on ICJ action and concluding that states rarely invoke its

jurisdiction).

14

the ICJ’s Avena decision, rendered while the United States

was a party to that Protocol, nonetheless retains strong per-

suasive force—as indeed it would have even if the United

States had never adhered to the Optional Protocol in the

first instance. This Court has long paid special heed to

treaty interpretations rendered by foreign and international

courts. As this Court noted in Breard, “we should give re-

spectful consideration to the interpretation of an interna-

tional treaty rendered by an international court with juris-

diction to interpret such.” 523 U.S. at 375. In cases involv-

ing treaty interpretation, it is commonplace for this Court to

review and adhere to decisions of foreign courts interpreting

the relevant provisions, even though the Court might not be

bound by those decisions. See, e.g., El Al Israel Airlines,

Ltd. v. Tseng, 525 U.S. 155, 175-176 (1999) (noting that deci-

sions rendered by of courts of other signatory nations are

entitled to “cousiderable weight”); Air France v. Saks, 470

U.S. 392, 402-403 (1985) (same).

One important reason for giving great weight to foreign

and international courts’ treaty interpretation is that treaty

drafters are generally presumed to desire a uniform con-

struction of a treaty, and so “their respective courts should

strive to interpret the treaty consistently.” Olympic Air-

ways v. Husain, 540 U.S. 644, 661 (2004) (Scalia, J., dissent-

ing). Uniformity of application and interpretation is espe-

cially important in a multilateral treaty like the Vienna Con-

vention, which cannot be easily amended if the signatories’

interpretations and applications diverge." It would cer-

tainly advance the parties’ expectation of uniformity for this

Court to follow the ICJ’s Avena decision. A eontrary con-

'° Given that the policy of uniformity counsels in favor of this Court’s

following the lead of other countries’ courts that have construed a treaty

even when no supranational institution is empowered to construe the

treaty—as the Court has done in its Warsaw Convention cases—it has

even greater import in a case involving the Vienna Convention, where

many of the parties to the treaty (including, at the time the treaty was

signed, the United States) agreed to establish the ICJ as a leading exposi-

tor of the meaning of the treaty.

15

struction of Article 36 by this Court, by contrast, would

greatly undermine the goal of uniformity and would raise

the possibility that the United States was in continuing non-

compliance with the Convention. Amici respectfully submit

that, to avoid that prospect, the Court should adopt the

ICJ’s reading of Article 36.

C. Article 36 Of The Vienna Convention Creates In-

dividually Enforceable Rights

The U.S. government’s argument that the consular noti-

fication and access provisions of Article 36 do not create in-

dividually enforceable rights is difficult to square with the

plain language of Article 36(1)(b). That provision first sets

forth the requirement that detaining authorities in the re-

ceiving state inform the consulate without delay of the de-

tention of one of its nationals (if the detained person so re-

quests). It then requires the detaining authorities to “in-

form the person concerned without delay of his rights under

this sub-paragraph.” Article 36(1)(b), 21 U.S.T. at 101 (em-

phasis added.) The drafters of the Convention thus con-

ceived of the consular notification and access requirements

as individual rights of detained persons. See Avena, ¥{ 40,

140, 153 (concluding that Article 36 creates individual

rights); see also Breard, 523 U.S. at 376 (observing that the

Convention “arguably confers on an individual the right to

consular assistance following arrest”). That is hardly a sur-

prising conclusion, for, as discussed in Section A, supra, con-

sular relations by nature often involve protection of the in-

terests of individuals.

If violations of the Vienna Convention were highly in-

frequent or largely a thing of the past, then there might be

little cost to adopting a reading of the Convention that does

not create individually enforceable rights. In fact, although

the State Department has made commendable efforts to en-

courage local law enforcement officers to fulfill their Vienna

16

Convention obligations,'’ those efforts have not yielded the

hoped-for results. The numerous reported cases involving

allegations of Convention violations suggest that the prob-

lem persists." These continued violations have substantial

practica] import for signatory nations and their nationals in

the United States, where state criminal justice proceedings

regularly involve foreign nationals. In 2000, over 5% of state

prisoners, or more than 56,000 individuals, were not US.

citizens."

Given that the State Department’s outreach efforts

have not yielded demonstrable improvement in state com-

pliance, experience teaches that Article 36 will have its in-

tended effect only if judicial remedies are available to indi-

viduals whose rights under the Convention have been vio-

* lated. Local law enforcement authorities, unfortunately,

have little incentive to ensure that those rights are scrupu-

lously respected, and may well view the involvement of the

consulate as a nuisance. And while the federal government

must deal on an ongoing basis with the disappointment of

foreign sovereigns whose nationals have not been informed

'' In 1998, the State Department issued guidelines to encourage local

law enforcement officials to fulfill their Vienna Convention obligations.

See Consular Notification and Access, supra n8.

'? See, e.g., Ramirez v. State, 619 S.E.2d 668, 673 (Ga. 2005); Sorto v.

State, 173 S.W.3d 469 (Tex. Crim. App. 2005), State v. Byron, 683 N.W.2d

317, 323 (Minn. Ct. App. 2004), United States v. Gonzales, 339 F.3d 725,

729 (8th Cir. 2003); United States v. Cazares, 60 Fed. Appx. 223, 226 (10th

Cir. 2003) (unpublished); United States v. Guerrero, 45 Fed. Appx. 265,

266 (4th Cir. 2002) (unpublished); United States v. Ortiz, 315 F.3d 873, 881

(8th Cir. 2002); United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir.

2002); United States v. Contreras-Cortez, 41 Fed. Appx. 252, 255 (10th Cir.

2002) (unpublished); United States v. Emuegbunam, 268 F.3d 377, 387

(6th Cir. 2001); United States v. Feliz-Feliz, 275 F 3d 627, 632 (7th Cir.

2001); United States v. Minjares-Alvarez, 264 F.3d 980, 983 (10th Cir.

2001); United States v. Beckford, Nos. 97-4924 et al., 2000 U.S. App.

LEXIS 6752, at *40 (4th Cir. Jan. 28, 2000) (unpublished).

'? See U.S. Dep't of Justice, Bureau of Justice Statistics, Census of

State and Federal Correctional Facilities, 2000, at vi, 8 & tbl. 14, available

at http://www.ojp.usdoj.gov/bjs/abstract/esfcf00. htm.

17

of their rights to contact the consular post, the State De-

partment and the Justice Department cannot intervene di-

rectly in state criminal prosecutions or sanction local law en-

forcement officials who decline to observe the Convention’s

requirements. Only a judicial remedy, therefore, will ensure

that detained foreign nationals are promptly informed of

their right to contact the consulate—as the Convention un-

ambiguously requires.

Law enforcement officials are no doubt concerned that

judicial enforcement of individual rights under the Conven-

tion will diminish the prospects for convictions on criminal

charges. But amici ask the Court to do nothing more than

ensure that the Convention’s requirements are observed.

The Convention exists precisely because its drafters recog-

nized that special concerns arise when a national of one state

faces serious criminal charges in the courts of another state.

This is as true abroad as it is in the United States. An

American citizen detained overseas, especially in an unfamil-

iar setting, would want reassurance about the nature of the

proceedings against him, and the United States government

would want to be certain that those proceedings would not

result in an unwarranted conviction because the American

citizen did not understand that he could ask his consulate for

help. So too, the United States’ judicial system should en-

sure that a foreign national, who may speak little or no Eng-

lish and who may be unfamiliar with the American criminal

justice system, receives the full measure of assistance avail-

able to him. Individual enforcement of the rights secured

under Article 36 is necessary to ensure that those rights are

consistently honored.

D. The Rights Afforded Under Article 36 Are Not

Subject To State Procedural Default Rules

A central question in the Bustillo case is whether a de-

fendant should be precluded from challenging his conviction

on the ground that his Vienna Convention rights were vio-

lated if he did not raise that issue at or before trial. The

Virginia courts, applying the state law of procedural default,

declined to entertain Bustillo’s Vienna Convention claim on

18

the ground that Bustillo had defaulted on that claim. Amici

respectfully submit that state procedural default rules

should not bar Vienna Convention claims for two reasons:

first, enforcing those rules after Avena would violate the

reciprocity and comity principles discussed above; and sec-

ond, a procedural default rule is inconsistent with the nature

of the right itself.

1. In Avena, the ICJ ruled that the Vienna Conven-

tion bars the application of state procedural default rules

that would preclude judicial review and reconsideration of a

criminal conviction against an individual whose rights to

consular notification and access were violated. See Avena,

77 112, 121. This Court should follow the ICJ’s lead and hold

similarly. For the reasons articulated above, the same in-

terests in comity, reciprocity, and uniformity favor a ruling

in accordance with that of the ICJ. This Court should rule in

a way that gives full effect to the Vienna Convention, re-

flecting its status as controlling law in the United States and

out of respect for the ICJ judgment and interpretation of

that treaty.

Although it is certainly true that, ordinarily, even fed-

eral constitutional claims are defaulted unless raised at trial,

see Breard, 523 U.S. at 376, rights based in multilateral trea-

ties such as the Vienna Convention raise different considera-

tions. The application of state procedural default rules to

rights grounded in multilateral treaties would raise serious

questions about the United States’ compliance with interna-

tional law—especially now that the ICJ has concluded that

such procedural default rules may not be applied. In effect,

each time that a state court refuses to entertain an other-

wise meritorious Vienna Convention claim based on a proce-

dural default rule, that court places the United States in vio-

lation of its international obligations as determined by the

ICJ, above and beyond the initial violation committed when

the foreign national was not informed of his rights as re-

quired by Article 36.

This Court should hesitate to approve a regime under

which a state court could so readily place the United States

19

in violation of international law. The Court has frequently

stated that international relations and the structure of the

Constitution require that the federal government be able to

“speak with one voice” in its dealings with other countries.

See, e.g., American Ins. Ass'n v. Garamendi, 539 U.S. 396,

413-414 (2003); United States v. Pink, 315 U.S. 208, 242

(1942); see also The Federalist No. 80, at 535-536 (J. Cooke

ed. 1961) (A. Hamilton) (“[TJhe peace of the WHOLE ought

not to be left at the disposal of a PART”).

A threat to the United States’ relations with other

countries can come from state courts no less than from other

organs of state governments. This Court has implicitly rec-

ognized that fact in its act of state cases. “The act of state

doctrine is grounded on judicial concern that application of

customary principles of law ... might frustrate the conduct

of foreign relations by the political branches of the govern-

ment.” First Nat'l City Bank v. Banco Nacional de Cuba,

406 U.S. 759, 767-768 (1972) (opinion of Rehnquist, J.) (em-

phasis added); see Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 423 (1964). And the Court has not hesitated to

find that state courts’ application of state law created a po-

tential threat to the federal government’s conduct of foreign

relations, even when the administration of the day dis-

counted that concern. See Zschernig v. Miller, 389 U.S. 429,

434 (1968); Sabbatino, 376 U.S. at 432-433, 436.

When foreign nations such as amici treat with the

United States on matters of consular notification or other

issues, it is imperative that they have assurances that the

United States will comply with its obligations. This compli-

ance includes the individual States and thus requires that

individual state procedural default rules—rules that are not

even consistent across the country—will not prevent review

of claims under the Vienna Convention. This Court there-

fore should confirm the rule announced more than two hun-

dred years ago in Ware v. Hylton, 3 U.S. (3 Dall. 199, 236-

237 (1796): “A treaty cannot be the supreme law of the land,

that is of all the United States, if any act of a State Legisla-

ture can stand in its way,” for courts are under a “declared

20

duty ... to determine any Constitution, or laws of any State,

contrary to [a treaty} made under the authority of the

United States, null and void.”

2. State procedural default rules also are inconsistent

with the very nature of the rights to consular notification

and access. The basis of any claim under Article 36 is that

the defendant was not notified of certain rights, as the Con-

vention requires. The reason why the drafters of the Con-

vention required detaining authorities to inform detained

individuals of their rights to consular notification and access

is that, in all likelihood, such individuals would not know that

they had such rights.

It is not an answer to suggest that the defendant’s law-

yer could have raised any Vienna Convention claim on his

behalf at or before trial, and that the lawyer’s failure to do so

is binding on the defendant. This argument is unpersuasive

for at least three reasons.

First, one of the central purposes of the Vienna Conven-

tion right is to ensure that consular assistance can help the

defendant secure culturally sensitive counsel. Lawyers who

are not accustomed to representing foreign nationals may

well not understand how the consulate could assist their cli-

ents.

Second, this argument assumes that the lawyer should

have been aware of the right to contact the consulate under

the Vienna Convention. But many lawyers may not be

aware of the Vienna Convention’s existence or of the poSsi-

bility that consular assistance is available.

Third, the lawyer’s failure to preserve a Vienna Con-

vention claim should not constitute a default because Article

36 rights are personal to the individual. To be sure, the

United States’ legal system does generally recognize that

“the lawyer has—and must have—full authority to manage

the conduct of the trial.” See, e.g., Taylor v. Illinois, 484

U.S. 400, 417-418 (1988).. But the U.S. criminal justice sys-

tem also recognizes exceptions to that rule; for example, a

lawyer ordinarily may not waive “basic rights,” see id., such

as the defendant’s right to counsel or the right to trial by

21

jury. See, e.g., Patterson v. Illinois, 487 U.S. 285, 298 (1988).

In those circumstances, the defendant must be specifically

and personally advised of his rights, and a “waiver” of those

rights without a record that the defendant was made aware

of them will not be deemed knowing and voluntary. See, ely.,

Taylor, 484 U.S. at 418 (requiring “the fully informed and

publicly acknowledged consent of the client”). if

The rights to consular notification and access are of

similar dimension. Article 36 requires that notification of

the right to consular access be made to the detained individ-

ual, not to the individual’s agent or attorney. Whether to

contact the consulate for assistance is a decision for the de-

tained individual to make. Indeed, it would be particularly

inappropriate to put the defendant’s lawyer in control of that

decision. As discussed above, one of the purposes of Article

36 is to ensure that the consulate can assist its detained na-

tionals in finding counsel who apprehends the unique diffi-

culties of representing someone who is not familiar with the

U.S. criminal justice system and who can communicate with

both the defendant and the consulate about possible lines of

investigation.

Finally, Vienna Convention claims should not be subject

to procedural default because in many cases it may be im-

possible to ascertain whether such a claim would be avail-

able until after trial. In this regard, Vienna Convention

claims are analogous to claims of ineffective assistance of

counsel, which, the Court has recognized, present an excep-

tion to the rule that claims not raised on direct review may

not be raised on collateral review. See Massaro v. United

States, 538 U.S. 500, 504-505 (2003). The Court concluded

that “requiring a criminal defendant to bring ineffective-

assistance-of-counsel claims on direct appeal does not pro-

mote the[] objectives” of conserving judicial resources and

respecting final judgments. /d. at 504. “When an ineffec-

tive-assistance claim is brought on direct appeal, appellate

counsel and the court must proceed on a trial record not de-

veloped precisely for the object of litigating or preserving

the claim and thus often incomplete or inadequate for this

22

purpose.” Jd. at 504-505. Absent factual development, “an

appellate court may not be able to ascertain whether the al-

leged error was prejudicial.” Jd at 505.

The same logic applies to many claims of Vienna Con-

vention violations. In cases where the individual was not

made aware of his Vienna Convention rights until after the

trial, the impact of the violation may not be apparent from

the trial record. Indeed, in many Vienna Convention cases,

the central issue will be what is missing from the trial re-

cord—what facts might have been developed, or what deci-

sions might not have been made, had the consulate been able

to intercede. A habeas court would be able to consider such

additional facts relevant to assessing the prejudicial effects

of the treaty violation. State procedural default rules thus

have no place in the analysis of Vienna Convention claims.

E. Breard Should Not Be Followed In These Cases

Of the three principal questions presented in these

cases—whether Article 36 creates individual rights, whether

a suppression remedy is available for violations of those

rights, and whether those rights are subject to state proce-

dural default rules—only one, the procedural default issue,

was addressed by this Court in its per curiam opinion ac-

companying the denial of certiorari in Breard v. Greene, 523

U.S. 371 (1998). Breard therefore presents no obstacle to a

conclusion by this Court that Article 36 creates individual

rights or that a suppression remedy may be available for a

violation of those rights."

As to the issue of procedural default, this Court should

look past Breard because of a fundamental change in the le-

gal landscape in the intervening years: the ICJ’s ruling on

Article 36. In Breard, the Court found it “unfortunate” that

no “ifiternational court” possessing “jurisdiction to inter-

pret” the Vienna Convention had rendered any relevant in-

‘In Breard, the Court assumed that Article 36 created individual

rights. See 523 U.S. at 376 (“The Vienna Convention . . . arguably confers

on an individual the right to consular assistance following arrest.”).

terpretation. 523 U.S. at 375, 378. The Court recognized

that if such a decision had been rendered, this Court “should

give [it] respectful consideration.” Jd. at 375. In the absence

of such prior interpretation, however, the Court noted the

provision of the Vienna Convention declaring that the rights

enforced by the treaty should be “exercised in conformity

with the laws ... of the receiving state,” Vienna Convention,

art. 36(2), 21 U.S.T. at 101, and held that this language indi-

cated that state procedural default rules would still be ap-

plied. 523 U.S. at 375-376. In the present case, unlike in

Breard, not only has the ICJ spoken, it has done so after two

lengthy and thorough adjudications to which the United

States was a party. The “respectful consideration,” id. at

375, due to the ICJ’s interpretation is now a compelling fac-

tor, and the Breard denial of certiorari should bear much

less weight."

Although reaching this conclusion may require depart-

ing from Breard’s statements regarding procedural default,

those statements should not be followed here. First, the

Court’s statement that “Breard procedurally defaulted his

claim, if any, under the Vienna Convention,” 523 U.S. at 375,

was unnecessary to the Court’s disposition of that case, since

the Court also stated that Breard’s failure to establish

prejudice from any violation of the Vienna Convention was

fatal to his claim, id at 377."° Second, the opinion in Breard

'S This Court has previously been willing to revise its interpretation

of a treaty when additional information bearing on the proper interpreta-

tion was brought to its attention. See United States v. Percheman, 32

U.S. (7 Pet.) 51, 88-89 (1833).

'® Indeed, it is not clear that any aspect of Breard rests squarely on a

ruling about procedural default. In Breard, after discussing procedural

default generally, the Court stated that Breard was precluded from relief

by a federal statute, the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). See Breard, 523

U.S. at 376-377. This Court concluded that AEDPA “prevent(ed] Breard

from establishing that the violation of his Vienna Convention rights

prejudiced him,” and that “Breard’s ability to obtain relief based on viola-

tions of the Vienna Convention” was subject to AEDPA because AEDPA

was a “subsequently enacted rule.” Jd. at 376. Bustillo’s case, however,

24

accompanied a denial of certiorari, not a decision on the mer-

its after full briefing and argument. While that opinion was

more elaborate than the typical order denying certiorari or

summarily affirming a lower court decision, the Court has

made clear that it has “felt less constrained to follow prece-

dent where, as here, the opinion was rendered without full

briefing or argument.” Hohn v. United States, 524 U.S. 236,

251 (1998). Third, the Breard per cwiam opinion was ren-

dered under especially exigent circumstances, see Breard,

523 U.S. at 379-380 (Stevens, J., dissenting), which further

counsels against its precedential value.

F. The Importance Of The Right To Consular Notifi-

cation Is Convincingly Demonstrated In These

Cases

Each of these cases forcefully shows the value of consu-

lar notification and the potentially grave consequences when

the requirement of notification is not observed.

1. Virginia’s failure to notify Bustillo of his right to

-contact the Honduran consulate resulted in Bustillo’s failure

to obtain critical exculpatory evidence. The theory of the

defense at trial was that another person, known as “Sirena”)

(now known to be Julio Osorto) a Honduran citizen like

Bustillo, had in fact been the one to kill the victim by strik-

ing him with a baseball bat. The entire case came down to

the testimony of five witnesses, three testifying that Bustillo

was the killer and two saying that he was not (one of whom

identified Sirena as the killer). A defense witness testified

that Sirena had fled the U.S. for Honduras shortly after the

crime. At the time of trial, the defense was unable to locate

or properly identify Sirena.

Since the trial, with the help of the Honduran consulate,

Sirena’s name has been established, his flight to Honduras

(including details specified by the defense witness) con-

has been brought pursuant to Virginia’s habeas corpus law, not AEDPA,

and so the provisions of AEDPA that might otherwise preclude relief are

inapplicable.

25

firmed, and a videotaped confession of Sirena admitting to

striking the victim with a baseball bat has been obtained.

Furthermore, police reports reflect that police stopped Si-

rena near the crime scene, that he falsely told police that he

had not been at the crime scene, that Sirena had red stains

on his clothes at the time, and that another witness saw Si-

rena cock a bat to strike the victim. The Honduran consu-

late has submitted a declaration stating that if it had been

aware of Bustillo’s case before trial—including the fact that

the defense believed another Honduran national had com-

mitted the crime—it could have provided valuable assistance

to Bustillo. Specifically, it could have supplied immigration

records confirming Sirena’s flight to Honduras, a photograph

of Sirena, and it could have attempted to contact and inter-

view Sirena about the events. Habeas Pet. Exs. 26, 26a, 26b. —

The ample prejudice to Bustillo that resulted from the Vir-

ginia authorities’ failure to notify him of his right to contact

the consulate is therefore plain: the Honduran consular offi-

-cials could have obtained evidence that would have crucially

bolstered the defense’s theory of the case and drastically

undercut the prosecution’s tactic of mocking Bustillo’s the-

ory of the case.

2. The case of Sanchez-Llamas likewise offers a lesson

in the importance of the protections offered under the Vi-

enna Convention. Following his arrest and Miranda warn-

ings, but absent notification of his rights under the Vienna

Convention, Sanchez-Llamas made inculpatory statements

to the police. Sanchez-Llamas’s confession was then used to

convict him.

American citizens are, of course, generally familiar with

Miranda warnings and their consequences. - Indeed,

“Miranda has become embedded in routine police practice to

the point where the warnings have become part of our na-

tional culture.” Dickerson v. United States, 530 U.S. 428,

443 (2000). A foreign national, however, may well lack this

familiarity both with the content of the Miranda warnings

and their effects in practice; a foreign national also may not

apprehend the role of appointed counsel or the fact that a

26

statement to the police outside the presence of a magistrate

or public prosecutor may be admissible at trial. Absent con-

sular notification, Sanchez-Llamas was denied the opportu-

nity to receive consular assistance that could have helped

him understand that in the U.S., confessions (regardless of

their accuracy) are not necessarily the fastest way out of

trouble, as they may be in some countries. Had Sanchez-

Llamas been offered consular notification, secured such as-

sistance, and better understood the legal system, he might

not have provided a confession, the reliability of which is

challenged here.

Each of these cases demonstrates the peril that foreign

nationals may face when they encounter an unfamiliar crimi-

nal justice system, and each demonstrates why consular as-

sistance is so important in such situations. Because of the

authorities’ failure to observe Article 36, Bustillo was never

apprised of a means by which he could secure crucial excul-

patory evidence, and Sanchez-Llamas made inculpatory

statements that may well not be reliable. Were a USS. citi-

zen detained abroad to be placed in such a situation, the

United States would have good cause to be troubled by the

violation of its national’s rights. The same is no less true

when the rights of amici’s citizens are violated here.

CONCLUSION

The judgments of the Supreme Court of Oregon and the

Supreme Court of Virginia in these cases should be re-

versed.

ASIM BHANSALI

KEKER & VAN NEST LLP

710 Sansome Street

San Francisco, CA 94111

(415) 391-4500

Counsel for Amici Curiae

Peru and Uruguay

DECEMBER 2005

27

Respectfully submitted.

PAUL R.Q. WOLFSON

Counsel of Record

ANNE K. SMALL

JON CONNOLLY

WILMER CUTLER PICKERING

HALE AND DORR LLP «

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

Counsel for Amici Curiae

Honduras, Argentina,

Bolivia, Brazil, Chile,

Colombia, El Salvador,

and Guatemala