United States v. Nai Fook Li , 206 F.3d 56 ( 2000 )

OPINION EN BANC

STAHL, Circuit Judge.

Defendants-appellants Hui Lin, Nai Fook Li, Yiu Ming Kwan, Ju Lin, Mao Bing Mu, Sand Li, and Ben Lin (the “appellants”) appeal their convictions and sentences, which arose from a failed attempt to smuggle Chinese aliens into the United States.- This opinion addresses their claim that the convictions and sentences should be overturned because the United States violated them purported rights under two international treaties.¹ We hold that even if the treaties granted individual rights to the appellants, the remedies they seek would be unavailable. Therefore, we reject the treaty-based challenges. A companion opinion issued today by the panel that originally heard the appeals addresses the various other claims raised by the appellants.

Factual Background

In December, 1995, Yiu Ming Kwan, a Chinese national, met in Boston with Michael Rendon, whom he believed owned a boat which could be hired to meet a freighter transporting illegal aliens from the People’s Republic of China (“China”) to the United States. Rendon was actually an undercover agent of the Immigration and Naturalization Service (“INS”). At the first meeting, Kwan told Rendon that his associates wished to smuggle about 100 illegal aliens into the United States. Ren-don proposed a price of $500,000 to meet the smugglers’ ship at sea, take in the aliens, and bring them into the United States on his vessel. After this preliminary discussion, Kwan asked Rendon to meet him and two associates at Logan International Airport the following day.

The next day, Rendon, along with Coast Guard Agent Rick Cox and two other agents, brought Kwan, Hui Lin, and another male — the latter two also Chinese nationals — to view Rendon’s craft. The vessel had a fifty-foot hold with a single light and a partial wooden plank floor. The hold contained no tables, chairs, windows, bathroom, or kitchen. The smugglers told the agents they were satisfied with the boat’s accommodations.

On July 22, 1996, Rendon and Cox met with Kwan, Hui Lin, Nai Fook Li, and an unidentified man. At this meeting a site about 180 miles north of Bermuda was chosen as a rendezvous point. A discussion ensued about the spartan conditions in the hold of Rendon’s vessel, and Hui Lin stated that the aliens ‘'will have to sit there” and would not be able to sleep for the two days it would take for the craft to return to port. Nai Fook Li told Rendon that life jackets for each smuggled alien would not be necessary. Rendon sought and received assurances that the smugglers would assign individuals to his ship to control the aliens. A final price of $500,000 was agreed upon for the offloading of 120 aliens, plus $4,000 for each additional person. The smugglers also agreed to pay a $35,000 deposit to cover Rendon’s expenses.

Meanwhile, defendant Sang Li and others contacted individuals in China offering passage to the United States. Sang Li quoted prices between $20,000 and $30,000 per person, to be lent to the emigrants at very high interest rates. On or about August 11, 1996, those who took up the offer were loaded into the XING DA, a 210-foot freighter that had previously carried agricultural chemicals. Among the passengers were Sang Li, Mao Bing Mu, Ju Lin, and Ben Lin.

Eighty-three aliens were confined to the XING DA’s hold for approximately 54 days as the ship traveled to the Bermuda rendezvous. Food in the hold consisted of buckets of rice and turnips lowered below twice each day. About once every ten days, each emigrant was given one bottle of water. The aliens were allowed above deck to use the bathrooms only during the daytime. The living area, which was never cleaned, thus became littered with urine and feces. Apparently, Sang Li .and Mao Bing Mu directed one of the aliens on four or five occasions to ladle the human waste into a bucket. Several times, aliens in the hold attempted to steal additional food and water. Those who were caught were beaten. One alien as punishment was denied food for two days. Twenty-six of the passengers lived above deck.

Kwan kept Rendon apprised of the XING DA’s position. On September 23, 1996, Rendon and Cox met with Kwan, Hui Lin, and Nai Fook Li. Li gave Cox the XING DA’s current location and told him that approximately 120 people would be transferred from the XING DA to Ren-don’s vessel. Li agreed to board Rendon’s vessel to help control the passengers. The men met again on September 25, 1996 and decided that Rendon’s vessel would leave port on September 28 to meet the XING DA. Lin gave $5,000 to Nai Fook Li, who then gave it to Rendon to be used to obtain temporary shelter for the passengers upon arrival in the United States. At Cox’s request, Hui Lin provided him another $1,000 for food. On September 27, 1996, the five men met again, and Hui Lin gave Rendon $29,000 to complete the deposit. It was agreed that the aliens would live in a warehouse until the defendants had paid the remainder of the $500,000 to Rendon, at which time the aliens would be taken to New York City.

On September 28, 1996, Rendon, Cox, Nai Fook Li, and four undercover agents apparently posing as Rendon’s crew departed in the vessel heading for the rendezvous with the XING DA. The agents also had arranged for a Coast Guard cutter to trail their boat and intercept the XING DA.

On October 2, 1996, a different Coast Guard cutter — the RELIANCE — spotted the XING DA and followed it for about three miles. After the RELIANCE crew attempted to make contact several times, the XING DA finally responded and consented to be boarded by the Coast Guard. Officer Patrick Hilbert and seven other Coast Guard officers boarded the XING DA. When Hilbert asked who was in charge, Ju Lin represented that he was the ship’s master. After Hilbert viewed the ship’s documentation, a second boarding party came on board and discovered the eighty-three aliens in the hold.

The XING DA was taken to Bermuda. During this trip, the XING DA’s crew retained operational control, and Ben Lin steered and handled the navigation. All aboard the XING DA were offloaded in Bermuda and flown to Guantanamo Bay, Cuba, where they were interviewed by INS officers. During the week of November 18, 1996, after negotiations between the United States Department of State and the government of China, ninety-three aliens were repatriated and returned to China.

Meanwhile, on' October 3, 1996, Hui Lin, Yiu Ming Kwan, and Nai Fook Li (the “land-based defendants”) were arrested, and on October 8, 1996, an indictment was returned against them. On November 5, 1996, a superceding indictment was returned, adding Ju Lin, Ben Lin, Mao Bing Mu, and Sang Li (the “shipboard defendants”) as defendants. The shipboard defendants, who had been detained at Guantanamo, were arrested on November 15, 1996 and were provided with counsel five days later. A final superceding indictment was issued on March 18, 1997, charging all defendants with (1) conspiracy to bring aliens into the United States for purposes of commercial advantage, in violation of 18 U.S.C. § 371; (2) alien smuggling in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); (3) conspiracy to bring aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(II); and (4) attempting to bring aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. §§ 1324(a)(l)(A)(i), (v)(II).

On March 27, 1997, all seven defendants moved to dismiss the indictment on the grounds that the government failed to comply with the provisions of (1) Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, 1967 WL 18349 (ratified November 24, 1969) (the “Vienna Convention”) and (2) Article 35 of the United States — People’s Republic of China Bilateral Convention on Consular Relations, September 17, 1980, 33 U.S.T. 2973, 1982 WL 212240 (ratified February 19, 1982) (the “Bilateral Convention”). The shipboard defendants subsequently moved, on the same grounds, to suppress (1) all physical evidence seized from the XING DA; (2) all identifications made by any Chinese national who had not been notified of his or her purported rights under the treaties; and (3) all testimony regarding the events of the voyage by any Chinese national who had not been notified of his or her rights under the treaties.

On April 3, 1997, the district court denied the appellants’ motions to dismiss and to suppress. First, the district court found that the treaties bestowed no enforceable rights upon individual detained aliens. Second, the court found that no constitutional or statutory provision conferred jurisdiction to enforce the treaties upon Article III courts. Third, the district court concluded that even if the appellants had standing to enforce the treaty, dismissal of the indictment would be an inappropriate remedy.

Defendants Nai Fook Li, Yiu Ming Kwan, Hui Lin and Ju Lin each pled guilty to all four counts but reserved their rights to appeal the pretrial rulings. Following a twelve-day jury trial, defendants Ben Lin, Mao Bing Mu, and Sang Li were convicted on all four counts. The defendants were individually sentenced, with terms of imprisonment ranging from 36 months to 144 months, plus supervised release of 36 months each. All appellants challenged their sentences, and those defendants who went to trial contested their convictions as well. Although the appellants raise various arguments, we deal in this en banc opinion solely with those relating to the alleged violations of the Vienna Convention and the Bilateral Convention.

A three-member panel of this Court heard oral argument on April 6, 1999. On August 6, 1999, before the panel released an opinion, we issued a sua sponte order holding that the court would convene en banc to decide two issues related to the treaties:

(1) Whether the Vienna Convention ... and/or the ... Bilateral [Convention] create individual rights as to consular notification and access, that are enforceable by such individuals in court proceedings, and

(2) If so, is there a remedy (such as suppression of evidence or dismissal of the [indictments]) for past violations of these rights that can be invoked by a defendant in a criminal prosecution in a federal or state court?

Discussion

Those courts that have faced the issues before us have come to divergent conclusions as to whether the Vienna Convention and the Bilateral Convention bestow any rights upon individuals, as opposed to states. We need not, however, address these issues, for we believe that even if the treaties do confer individual rights, the appellants’ claims could only succeed if violations of those rights could be remedied by the suppression of evidence or the dismissal of an indictment. We hold that irrespective of whether or not the treaties create individual rights to consular notification, the appropriate remedies do not include suppression of evidence or dismissal of the indictment.²

I. The Treaties

Article 36(l)(b) of the Vienna Convention states that the authorities of a “receiving state” — in this case, the United States — -shall, without delay, inform any detained foreign national of his right to have the consular post of the “sending state” — in this case, China — notified of his detention. Vienna Convention, art. 36(l)(b). Article 36(l)(c) gives consular officers the right to visit and correspond with the detained foreign national and to arrange for his legal representation. See id. art. 36(l)(c).

Article 35(2) of the Bilateral Convention states that if a foreign national is detained, the authorities of the receiving state shall, within four days of the date of detention, notify the consulate of the sending state. See Bilateral Convention, art. 35(2). Moreover, the receiving country’s authorities are required to advise the detainee of his right to communicate with a consular officer. See id. art. 35(3). The Bilateral Convention further guarantees a consular official’s entitlement to visit and correspond with the detainee and to assist in arranging for legal representation and for an interpreter. See id. art. 35(4).

II. Interpreting the Treaties

The United States Constitution provides that ratified treaties are to be regarded as the law of the land. See U.S. Const, art. VI, cl. 2. However, treaties do not generally create rights that are privately enforceable in the federal courts.

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamation, so far as the injured parties choose to seek redress.... It is obvious that with all this the judicial courts have nothing to do and can give no redress.

Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed. 798 (1884); see also Charlton v. Kelly, 229 U.S. 447, 474, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 306, 7 L.Ed. 415 (1829) (“The judiciary is not that department of the government, to which the assertion of its interest against foreign powers is confided.”). “[E]ven where a treaty provides certain benefits for nationals of a particular state ... it is traditionally held that any rights arising from such provisions are, under international law, those of states and ... [that] individual rights are only derivative through the states.” Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.1990) (quoting United States ex. rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.1975)) (internal quotation marks omitted); see also Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.1992); Committee of United States Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 937-38 (D.C.Cir.1988).

Even stronger than the presumption against private rights of action under international treaties is the presumption against the creation of rights enforceable by the suppression of evidence or by the dismissal of an indictment. Historically, such remedies have 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. See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Fifth Amendment); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (Sixth Amendment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (Fourth Amendment); see also United States v. Hensel, 699 F.2d 18, 29 (1st Cir.1983) (observing that the exclusionary rule is designed “to protect certain specific, constitutionally protected rights”); United States v. Rodrigues, 68 F.Supp.2d 178, 185 (E.D.N.Y.1999) (“[A]s the effect of [suppression] is the loss of relevant and probative evidence, this remedy is not applied for every violation of a federal law but is reserved only for breaches of the most basic constitutional rights.”).

Article 36 of the Vienna Convention, and the complementary Article 35 of the Bilateral Convention, do not create — explicitly or otherwise — fundamental rights on par with the right to be free from unreasonable searches, the privilege against self-incrimination, or the right to counsel. See, e.g., United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.1999) (“[T]he Vienna Convention itself prescribes no judicial remedy or other recourse for its violation.”); Waldron v. INS, 17 F.3d 511, 518 (2d Cir.1993) (“Although compliance with our treaty obligations clearly is required, we decline to equate such a provision with fundamental rights.”); United States v. Chaparro-Alcantara, 37 F.Supp.2d 1122, 1125 (N.D.Ill.1999) (“It is clear that Article 36 does not create a ‘fundamental’ right, such as the Sixth Amendment right to counsel, or the Fifth Amendment right against self-incrimination which originates from concepts of due process.”). Defendants 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. See, e.g., United States v. Thompson, 936 F.2d 1249, 1252 (11th Cir.1991) (“Absent a specific reference to an exclusionary rule, it is not appropriate for the courts to read such a provision into [an] act.”); United States v. Kington, 801 F.2d 733, 737 (5th Cir.1986) (holding that rights created by Congress are not enforceable by suppression unless Congress has specifically provided for that remedy); Chaparro-Alcantara, 37 F.Supp.2d at 1125 (“[Article 36] does not create a ‘fundamental’ right,” and therefore “the suppression remedy must be available, if at all, from the Vienna Convention itself.”).

Nor are such defendants entitled to the dismissal of an indictment: “Because the public maintains an abiding interest in the administration of criminal justice, dismissing an indictment is an extraordinary step.” United States v. Stokes, 124 F.3d 39, 44 (1st Cir.1997); see also United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (concluding that the dismissal of an indictment was unwarranted absent a constitutional violation that prejudiced defendant’s case); Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1359 (1st Cir.1995) (“When a federal court uses its supervisory power to dismiss an indictment it directly encroaches upon the fundamental role of the grand jury. That power is appropriately reserved, therefore, for extremely limited circumstances.”); United States v. Carrillo, 70 F.Supp.2d 854, 862 (N.D.Ill.1999) (holding that violation of Vienna Convention would not require suppression of evidence or dismissal of indictment). Thus, we will infer neither an entitlement to suppression nor an entitlement to dismissal absent express, or undeniably implied, provision for such remedies in a treaty’s text. We find no such provision here.

A. The Treaties’ Texts

“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 665, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992); see also Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988); Marquez-Ramos v. Reno, 69 F.3d 477, 480 (10th Cir.1995); Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 638 (5th Cir.1994). But the Vienna Convention and the Bilateral Convention are both facially ambiguous on the subject of whether they create individual rights at all, and do not even address whether those rights would justify suppression of evidence or the dismissal of an indictment. First, it is far from clear that the Vienna Convention confers any rights upon criminal defendants. Cf. Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 1356, 140 L.Ed.2d 529 (1998) (“[N]either the text nor the history of the Vienna Convention clearly provides a ... right of action in United States’ courts to set aside a criminal conviction and sentence for violation of consular notification provisions.”). The appellants emphasize the privileges purportedly conferred by Article 36, but the Vienna Convention’s preamble explicitly disclaims any attempt to create individual rights: “[T]he purpose of such privileges and immunities [as are created by the treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts.” Preamble to Vienna Convention, 21 U.S.T. 77, 79. Moreover, the preamble’s drafters cite an intent to “contribute to the development of friendly relations among nations” without ever mentioning any intent to equip defendants with the extraordinary remedies sought by appellants. Id.

The Bilateral Convention, too, is ambiguous. Article 35 is replete with references to consular officers’ entitlements, see Bilateral Convention arts. 35(1), 35(4), 35(5), 35(6), but only once speaks of the “rights” of detained nationals, and never proposes any particular remedies for the violation of any such rights. Article 35(3) reads as follows:

The competent authorities of the receiving state shall immediately inform the national of the sending State of the rights accorded to him by this Article to communicate with a consular official.

This language, however, offers insufficient support for appellants’ arguments. Even if we were to hold that Article 35(3) in fact provided individuals with judicially enforceable rights — and we decline to so hold in this case — this language hardly justifies the inference that violation of such rights should be remedied via the suppression of evidence or the dismissal of an indictment. As described above, these remedies are reserved for extraordinary encroachments upon the most fundamental individual rights. Nothing in Article 35(3) of the Bilateral Convention suggests that the “rights” to which it refers are at all comparable to the right to be free from unreasonable searches and seizures, the privilege against self-incrimination, or the right to representation during a criminal proceeding.

Indeed, the balance of Article 35 clearly mitigates any focus on the individual that section (3) might suggest. Even those provisions that arguably serve the interests of criminal defendants are couched instead in terms of the interests of the consular officer. Thus, for example, Article 35(1) provides that “[a] consular officer shall be entitled ... to communicate and meet with any national of the sending State,” and Article 35(4) states that “[a] consular officer shall be entitled to visit a national of the sending State who has been arrested.” We believe that if the authors of the Bilateral Convention intended Article 35 to confer fundamental individual rights of the sort that could be remedied by suppression or dismissal, they would have drafted that Article in terms of those rights, rather than focusing so intently upon the entitlements of consular officers — officers whose protections under such a clause would be far less reaching than those of criminal detainees.

B. Nontextual Sources

To the extent that the treaties’ terms are ambiguous with respect to the issue before us, we will rely upon nontextual sources “such as the treaty’s ratification history and its subsequent operation.” United States v. Stuart, 489 U.S. 353, 366, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989).

1. State Department Interpretation

We first consult the United States Department of State’s interpretation of the two treaties, to which we accord substantial deference. See, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 119 S.Ct. 662, 671, 142 L.Ed.2d 576 (1999) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.”); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”); Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) (same).

In the State Department’s view, the treaties do not create individual rights at all, much less rights susceptible to the remedies proposed by appellants. After “devotfing] considerable time to the issue,” see Department of State Answers to the Questions Posed by the First Circuit in United States v. Nai Fook Li (“Answers”) at A-2, the State Department has concluded that

[t]he [Vienna Convention] and the US-China bilateral consular convention are treaties that establish state-to-state rights and obligations.... They are not treaties establishing rights of individuals. The right of an individual to communicate with his consular official is derivative of the sending state’s right to extend consular protection to its nationals when consular relations exist between the states concerned.

Id. at A-3; see also id. at A-1. “The [only] remedies for failures of consular notification under the [Vienna Convention] are diplomatic, political, or exist between states under international law.” See id. at A-3.³

Nor is the State Department’s position of recent origin. A 1970 letter sent by a Department legal adviser to the governors of the fifty states shortly after the Vienna Convention’s ratification advised that the Department did “not believe that the Vienna Convention will require significant departures from the existing practice within the several states of the United States.” Needless to say, the creation of rights on par with those guaranteed by the Fourth, Fifth, and Sixth Amendments to the United States Constitution would constitute just the sort of “significant departure[]” disclaimed by this letter. Accordingly, the Department has denied the availability of criminal remedies for failures of consular notification. In 1989, a letter from a Department legal adviser informed a foreign national being held in an American prison that “[w]hile the U.S. authorities are required to comply with the obligations [of Vienna Convention Article 36], failure to do so would have no effect on [his] conviction or incarceration.”

Moreover, the State Department has advanced the same view before at least two international tribunals. In 1998, Paraguay brought suit against the United States in the International Court of Justice (“ICJ”). Paraguay, which sought to halt the execution of a Paraguayan national named Angel Breard in the Commonwealth of Virginia, argued that Breard had not received consular notification and that his conviction was therefore tainted. In an oral presentation to the ICJ, a State Department Assistant Legal Adviser for United Nations Affairs offered the following response:

Paraguay’s Application maintains that the necessary legal consequence for any ... breach [of the consular notification obligation] is that [an] ensuing conviction and sentence must be put aside. There is absolutely no support for this claim in the language of the [Vienna] Convention. The Court should not read into a clear and nearly universal multilateral instrument such a substantial and potentially disruptive additional obligation that has no support in the language agreed by the parties.

Verbatim Record (Paraguay v. U.S.), 1998 I.C.J. 426, at 3.20,1998 WL 1180014.

The issue also arose in the Inter-American Court of Human Rights (“IACtHR”) in 1998, when Mexico sought an advisory opinion on the availability of criminal remedies for failures of consular notification.⁴ In a written submission to the IACtHR, counsel for the State Department argued that the Vienna Convention “does not require the domestic courts of State parties to take any actions in criminal proceedings, either to give effect to its provisions or to remedy their alleged violation.” Written Observations of the United States of America, Request for Advisory Opinion OC-16, June 1, 1998 (corrected June 10, 1998).

2. Legislative History

Legal materials produced contemporaneously with the two treaties’ passages comport with the State Department’s view that they do not confer rights the violation of which can be remedied in the criminal courts. For example, a State Department legal adviser submitted written testimony on the Vienna Convention to the Senate Committee on Foreign Relations on October 7, 1969. The statement indicated that “[t]he Vienna ... Convention does not have the effect of overcoming Federal or State laws beyond the scope long authorized in existing consular conventions,” except with respect to a warrant requirement not relevant here. The Department’s testimony also emphasized the Vienna Convention’s above-quoted preamble, which states explicitly that the treaty’s purpose is “not to benefit individuals.” Appendix, Sen. Doc. Exec. E, 91st Cong., 1st Sess. (1969).

Two weeks later, the Senate Committee on Foreign Relations transmitted the Vienna Convention to the full Senate and recommended ratification. Committee Chairman Senator J. William Fulbright included a short accompanying Report. The Report again highlighted the treaty’s preamble and then listed five factors that helped to secure the Committee’s approval. The first factor was the Committee’s belief that “[t]he [Vienna] Convention does not change or affect present U.S. laws or practice.” Sen. Doc. Exec. E, 91st Cong., 1st Sess. (1969).

The Committee on Foreign Relations appended a similar Report when it sent the Bilateral Convention to the full Senate in 1981. Like the treaty itself, the Report characterized Article 35 only in terms of the entitlements bestowed upon consular officials:

Article 35 ... guarantees that a consular officer of a sending state will be notified within a maximum of four days of the arrest or detention of a national of the sending state. The consular official is further entitled to visit such national within two days from the date of the notification of arrest or detention as well as to attend the trial of such person.

Sen. Exec. Rep. No. 97-14, 97th Cong., 1st Sess (1981).⁵ The Committee appended to the Report testimony from Assistant Secretary of State John H. Holdridge, who also cast the treaty’s consular notifications provisions in terms of the privileges conferred upon consular officials, rather than upon criminal defendants. See id.

3. The Treaties’ Historical Application

Finally, the manner in which the Vienna Convention and the Bilateral Convention have been treated since their ratification confirms the lessons learned from the State Department’s interpretation and the treaties’ legislative histories: Individual defendants deprived of consular notification are not entitled to raise their treatment as a defense against criminal prosecution.

Indeed, the State Department is apparently “unaware of any country party to any consular convention with the United States that remedies failures of notification through its criminal justice process. Criminal justice systems vary throughout the world and in [the State Department’s] experience operate independently of consular notification.” Answers at A-l. “Many, if not most, of the countries with which the United States raises concerns that consular notification obligations have been violated with respect to U.S. citizens will undertake to investigate the alleged violation and, if it is confirmed, to apologize for it and undertake to prevent future recurrences.” Id. at A-3. This representation accords with that made to the ICJ by the State Department’s Assistant Legal Adviser for Consular Affairs during the dispute with Paraguay described above. She stated that the Department was “not aware of any practice [among signatories to the Vienna Convention] of attempting to ascertain whether [a] failure of notification prejudiced the foreign national in criminal proceedings.” Verbatim Record (Paraguay v. U.S.), 1998 I.C.J. 426, at 2.15. As she asserted, “[t]his lack of practice is consistent with the fact and common international understanding that consular assistance is not essential to the criminal proceeding against a foreign national.” Id.

The Department’s written directives to United States consular officers are also instructive. The Foreign Affairs Manual (“FAM”) urges United States consular officials aggressively to pursue contact with American nationals detained abroad, and to raise concerns about failures of consular notification with the receiving country. See 7 FAM 410. Nowhere, though, does the FAM state or imply that such failures might be redressed in the host country’s criminal justice system. Thus, the United States has never, to the Department’s knowledge, asked a foreign court to consider a failure of consular notification during deliberation on a criminal case. These practices evidence a belief among Vienna Convention signatory nations that the treaty’s dictates simply are not enforceable in a host nation’s criminal courts, and do not warrant suppression or dismissal in any event.

Conclusion

The remedies sought by appellants are unavailable to them under either the Vienna Convention or the Bilateral Convention. Therefore, irrespective of whether those treaties create individual rights, the defenses asserted must be denied.

The appellants’ treaty-based challenges are rejected, and the balance of this case is remitted to the panel.

Separate opinions follow.

1 . It appears that this issue is only relevant to three of the seven appellants. The notices of appeal filed in this case indicated only that the defendants intended to appeal their sentences and, in the case of those who went to trial, the judgments against them. In their opening appellate briefs, appellants Mao Bing Mu, Sang Li, and Ben Lin explicitly presented arguments regarding their purported rights under the two treaties. The remaining defendants — Hui Lin, Nai Fook Li, Yiu Ming Kwan and Ju Lin — failed to raise, and therefore forfeited, those arguments. See, e.g., Pignons v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983) (finding arguments not raised in initial appellate brief waived).

2 . We do not decide whether a federal court could order access to a national denied a meeting with a consular official.

3 . However, elsewhere in its responses to the court’s inquiries, the State Department acknowledged that "[t]he question whether an individual could enforce consular notification obligations in some other way, such as through a mandamus action” — a question we decline to consider here — "is not [one it] has had to address officially.” Answers at A-6.

4 . The United States is not a party to the treaty that formed the IACtHR, and is not bound by that court’s conclusions. Nonetheless, as a member of the Organization of American States ("OAS”), the United States may participate in the IACtHR’s advisory proceedings.

5 . We emphasize that this history casts further doubt on any argument that Article 35(3)’s stray reference to detainees' "rights” conferred fundamental protections of the sort that can be vindicated by suppression of evidence or the dismissal of an indictment. We do not believe that the committee would choose to focus on consular rights and yet neglect to mention the creation of new fundamental rights for criminal defendants if Article 35 in fact created such rights.