Do Foreign Nationals Have Miranda Rights ?
In United States v. Esparza-Ponce, 7 F. Supp. 2d 1084, 1097 (S.D. Cal. 1998), the First Circuit Court of Appeals rejected the argument of the defendant that, as with a Miranda violation, prejudice should be presumed when law enforcement officials do not inform a foreign national that he has a right to contact his national consulate.
It cited the second circuit's holding in Waldron v. Immigration & Naturalization Services, and the fifth circuit's holding in Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996), cert. denied, 519 U.S. 995, 117 S. Ct. 487, 136 L. Ed. 2d 380 (1996), in requiring a party seeking relief under the Convention to show actual prejudice in order to be entitled to that relief. Esparza-Ponce, 7 F. Supp. 2d at 1097.
To establish prejudice, a defendant must show that:
(1) he did not know of his right to contact the consulate for assistance;
(2) he would have availed himself of the right;
(3) there was a likelihood that the consulate would have assisted defendant. Chaparro-Alcantara, 37 F. Supp. 2d at 1126; United States v. Tapia-Mendoza, 41 F. Supp. 2d 1250, 1254 (D. Utah 1999).
Applying this test to the instant case, defendant has not established prejudice.
Defendant has failed to assert that he would have exercised his right to speak with the consulate and would have exercised his fifth amendment rights after speaking with the Mexican Consulate.
Indeed, there is nothing in the record to suggest that defendant contacted the consulate once he was made aware of his right to do so. See Esparza-Ponce, 7 F. Supp. 2d at 1097.