Mexican Denied Rights in Drug Case, Judges Rule

A federal appeals court threw a 1998 drug conviction into limbo Thursday, ruling that a Mexican citizen’s rights were violated because U.S. officials failed to inform him that he had a right to contact Mexican consular officials before answering questions about marijuana found in his car.

The ruling potentially could affect thousands of criminal cases in the nine Western states that come within the court’s jurisdiction.

The U.S. 9th Circuit Court of Appeals in San Francisco ruled 3 to 0 that Jose Lombera-Camorlinga was denied his rights under the Vienna Convention of 1963 after being arrested at the California-Mexican border by customs officials who discovered 39.3 kilograms of marijuana in his car.

The treaty, signed by 140 nations including the United States and Mexico, provides that individuals arrested in a foreign country must be informed by the authorities “without delay” that they have a right to contact their country’s consulate. If an individual requests it, U.S. law enforcement officials are required to notify the consulate.

The appeals court did not reverse outright Lombera’s conviction. The court sent the case back to a federal trial judge in San Diego for a hearing on the issue of whether Lombera’s rights were prejudiced by the failure of U.S. Customs officials to inform him that he was entitled to speak to the Mexican Consulate. If he makes a showing that his case was prejudiced, the burden would then be on the government to rebut it.

On the key legal issue, the appeals court flatly rejected the position of the U.S. attorney’s office in San Diego that only the Mexican government had the right to seek to enforce alleged violations of the treaty--one of whose purposes is to help consular officials perform their duties.

“Foreign nationals are more than incidental beneficiaries of the treaty,” federal appeals court Judge Harry Pregerson of Woodland Hills wrote. “It has long been recognized that, where treaty provisions establish individual rights, these rights must be enforced by the courts of the United States at the behest of the individual.”

Judges Robert Boochever of Pasadena and Michael Daly Hawkins of Phoenix joined in the decision.

The judges also chastised U.S. authorities for a general failure to adhere to the treaty. “Despite the importance of the Vienna Convention, and its status as the supreme law of the land, law enforcement officials continue to overlook the rights [it] establishes for foreign nationals, who are arrested, in prison, custody or detention,” Pregerson wrote.

In recent years, several foreign countries, including Mexico, have criticized U.S. officials for not honoring the treaty, particularly in the context of the death penalty. According to Amnesty International, there are nearly 70 foreign nationals on death rows across the country and hardly any of them were informed of their rights under the treaty at the time of their arrests.

Thus far, however, U.S. courts have declined to overturn any death sentences because of Vienna Convention violations. In the past six years, 10 foreign nationals have been executed in the United States, including three from Mexico.

Some State Department officials have expressed concern about the failure of U.S. authorities to observe the treaty for fear that other countries will begin refusing treaty protections for Americans abroad. About 2,500 Americans are arrested overseas each year, including more than 300 from California, the State Department said.

Thursday’s decision marked the first time that a U.S. appeals court intervened in a criminal proceeding because of a Vienna Convention violation, said Century City attorney Stephen F. Rohde, an expert on the treaty.

“This decision is a wake-up call that the courts are going to take the Vienna Convention very seriously,” Rohde said.

Benjamin Coleman, the federal public defender who represents Lombera, said, “We’re thrilled with the decision.”

Coleman had asked a trial judge to suppress incriminating statements because Lombera had not been informed before being questioned that he had the right to speak to the consulate. A federal trial judge rejected this argument. Lombera then entered into a conditional guilty plea, so he preserved the right to lodge an appeal.

A spokeswoman for the U.S. attorney’s office in San Diego declined comment on the ruling, other than to say that the office would seek approval from Justice Department officials in Washington to ask for a rehearing from a larger panel of 9th Circuit judges.