In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-2721 & 99-2874

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN CHAPARRO-ALCANTARA and
JAIME ROMERO-BAUTISTA,

Defendants-Appellants.



Appeals from the United States District Court
for the Central District of Illinois.
No. 98 CR 30070--Jeanne E. Scott, Judge.


Argued December 7, 1999--Decided August 21, 2000



      Before HARLINGTON WOOD, JR., RIPPLE and ROVNER, Circuit
Judges.

      RIPPLE, Circuit Judge. Juan Chaparro-Alcantara
and Jaime Romero-Bautista are Mexican nationals
who were arrested for transporting illegal
aliens. After their arrest, an INS agent informed
them of their Miranda rights, but the agent did
not inform them of their right under Article 36
of the Vienna Convention ("Article 36") to
contact the Mexican Consulate. The two then made
inculpatory statements to the officers
interviewing them. Both defendants sought to
suppress the statements. They argued that the
failure to inform them of their rights under
Article 36 mandated the exclusion of the
evidence.

      Mr. Romero-Bautista also sought to have the INS
detain other passengers in the van as possible
material witnesses. Initially the district court
ordered that the witnesses be held, but it
eventually ordered that they be released to the
INS. The INS then removed the witnesses from the
country. Mr. Romero-Bautista subsequently moved
to dismiss the indictment on the ground that the
Government improperly had deported material
witnesses essential to his case.

      The district court refused to suppress the
defendants’ statements or to dismiss the
indictment against Mr. Romero-Bautista. Both
defendants then entered conditional guilty pleas.
For the reasons set forth in the following
opinion, we hold that the district court
correctly refused to invoke the exclusionary rule
in response to the officers’ violation of Article
36. We also hold that the district court did not
err in refusing to dismiss the indictment against
Mr. Romero-Bautista.

I
BACKGROUND

      Juan Chaparro-Alcantara and Jaime Romero-
Bautista were among 15 individuals found on
October 21, 1998, at a disabled van in South
Jacksonville, Illinois. Thirteen occupants of the
van were undocumented Mexican nationals; Mr.
Chaparro-Alcantara and Mr. Romero-Bautista were
Mexican nationals with lawful permanent resident
status in the United States. The two were
arrested for transporting illegal aliens, and INS
Agent Tom Merchant informed them of their Miranda
rights in Spanish. He did not inform them,
however, of their right under the Vienna
Convention to contact the Mexican consulate;
Article 36 of the Vienna Convention provides that
officials arresting foreign nationals should
inform the foreign national of his right to
inform his consulate of his arrest. After hearing
their Miranda rights, both Mr. Chaparro-Alcantara
and Mr. Romero-Bautista made inculpatory
statements.

      On October 22, counsel and a translator were
appointed for the defendants. That day, defense
counsel was informed that the INS intended to
deport most of the other passengers in the van on
Saturday, October 24. On October 23, the
defendants moved to have the passengers detained
in the United States on the ground that some had
given statements contradictory to the reports
prepared by the Government. The district court
granted the motion, and it ordered the Government
to delay deporting the passengers for one week.
During that week, Mr. Romero-Bautista became ill
while in pretrial detention and was transported
to a hospital. On October 29, he was transferred,
despite his objection, to a Bureau of Prisons
medical facility.

      On November 2, the district court held a hearing
to determine whether the other passengers from
the van should continue to be held as potential
material witnesses or, instead, be released to
the custody of the INS for possible deportation.
Mr. Chaparro-Alcantara informed the court that he
had withdrawn his objection to the release of the
witnesses. Counsel for Mr. Romero-Bautista,
however, argued that the witnesses should
continue to be detained in order to permit him to
take their depositions. Mr. Romero-Bautista’s
attorney told the court that Mr. Romero-Bautista
would not be able to attend the depositions due
to his medical condition. Counsel further
informed the court that he had attempted to
obtain from Mr. Romero-Bautista a waiver of his
right to attend the depositions, but his client
was sedated heavily with morphine and, thus, in
counsel’s view, incapable of waiving his right to
attend the depositions.

      The district court ruled that the passengers
should no longer be held as material witnesses.
The district court first noted the high expense
of continuing to detain the witnesses and the
indefinite duration of Mr. Romero-Bautista’s
medical condition. It also considered the
potential value of the passengers’ expected
testimony. The district court concluded that the
passengers, who were not charged with any crime,
ought not be detained as potential witnesses.
They therefore were released from the court’s
custody with the expectation that the INS would
then deport them. Among those released were
Armando Ruiz-Ruiz and Jacoba Hernandez. Both
Ruiz-Ruiz and Hernandez were returned to Mexico
on November 4.

      Mr. Romero-Bautista later moved to dismiss the
indictment against him on the ground that the
passengers were material witnesses who had been
deported improperly. The district court held a
hearing on that motion on February 10, 1999. At
that hearing, Mr. Romero-Bautista offered the
testimony of Sofia Stanford, his court-appointed
translator. Stanford stated that the detained
witnesses had said, in prison interviews, that
Mr. Romero-Bautista was not involved in
transporting the aliens. Stanford testified that
each of the witnesses had been asked whether Mr.
Romero-Bautista was transporting illegal aliens;
she testified that each of the witnesses had
stated that Mr. Romero-Bautista was not a
"coyote," or someone who brought illegal aliens
into the United States for profit. Further, she
testified, they all stated that Mr. Romero-
Bautista had not been driving the van. She also
testified that, according to the witnesses, Mr.
Romero-Bautista had not asked for money in
payment for their transportation, but had asked
for money only for food or drinks.

      Stanford spoke in more detail about the
Government’s interview with Hernandez. She
testified that, in the interview with witness
Hernandez, Hernandez had stated that INS agents
pressured her to say that Mr. Romero-Bautista was
a coyote. Stanford added that other witnesses
stated that they had been pressured in the same
way.

      Also at the February 10 hearing, Agent Merchant
testified that Hernandez had not been deported
and stated further that Ruiz-Ruiz was still
available to testify. The district court then
refused to dismiss the indictment, on the ground
that Hernandez and Ruiz-Ruiz, both potentially
material witnesses, were in the United States and
could be brought to court to testify. Contrary to
the Government’s representation, however, neither
Ruiz-Ruiz nor Hernandez was available at that
time. Ruiz-Ruiz did become available later when
the Government captured him after he illegally
re-entered the United States.

      On March 5, the district court denied the
defendants’ motion to suppress their statements.
Mr. Chaparro-Alcantara and Mr. Romero-Bautista
had sought to have those statements suppressed
because Agent Merchant had not informed them of
their rights under the Vienna Convention. Mr.
Chaparro-Alcantara then entered a conditional
guilty plea.

      On March 19, the district court held a hearing
to reconsider Mr. Romero-Bautista’s motion to
dismiss the indictment. At that hearing, the
Government conceded that, at the time of the
February 10 hearing, Hernandez had not been
available to testify, even though Agent Merchant
had testified then that she was available. Agent
Merchant then testified at the March 19 hearing
and stated that his testimony at the February 10
hearing had been accurate to the best of his
knowledge. He also testified that he had learned
on March 2 that Hernandez had been returned to
Mexico in November. After the conclusion of Agent
Merchant’s testimony, the district court
acknowledged that Hernandez, who was now missing,
was probably the best witness for Mr. Romero-
Bautista. The district court refused, however, to
dismiss the indictment. Instead, the district
court allowed the case to proceed, but it ruled
that it would allow Stanford to testify at trial
about the substance of her conversations with
Hernandez. It acknowledged that such testimony
normally would be hearsay. Rather than proceed to
trial, Mr. Romero-Bautista entered a conditional
guilty plea.

II
DISCUSSION
A. Rights Under the Vienna Convention

      Mr. Chaparro-Alcantara and Mr. Romero-Bautista
seek the suppression of statements made after
their arrests. They concede that they were
informed of their Miranda rights, but argue that,
because they were not informed of their rights
under the Vienna Convention, the statements
should not have been admitted.

      The text of Article 36(1)(b) reads, in full:

1.          With a view to facilitating the exercise of
consular functions relating to nationals of the
sending State:[/1]

. . . .

(b) If he so requests, the competent authorities
of the receiving state shall, without delay,
inform the consular post of the sending State if,
within its consular district, a national of that
state is arrested or committed to prison or to
custody pending trial or is detained in any other
manner. Any communication addressed to the
consular post by the person arrested, in prison,
custody or detention shall also be forwarded by
the said authorities without delay. The said
authorities shall inform the person concerned
without delay of his rights under this sub-
paragraph[.]

Vienna Convention on Consular Relations, Apr. 24,
1963, art. 36, 21 U.S.T. 77.

      We review for clear error the district court’s
findings of fact after a suppression hearing and
review de novo conclusions of law and mixed
questions of law and fact. See United States v.
Meyer, 157 F.3d 1067, 1079 (7th Cir. 1998), cert.
denied, 526 U.S. 1070 (1999).

1.

      As a general rule, international treaties, as
agreements among sovereign nations, do not create
individual rights that are enforceable by an
individual. See Matta-Ballesteros v. Henman, 896
F.2d 255, 259 (7th Cir. 1990); United States v.
Rodrigues, 68 F. Supp.2d 178, 181 (E.D.N.Y.
1999). The Supreme Court of the United States has
acknowledged, however, that this general rule has
exceptions, see United States v. Alvarez-Machain,
504 U.S. 655, 667-68 (1992), and, indeed, has
said that section 36 of the Vienna Convention
"arguably confers on an individual the right to
consular assistance following arrest," Breard v.
Greene, 523 U.S. 371, 376 (1998) (per curiam).
Like the Ninth Circuit in Lombera-Camorlinga, 206
F.3d 882, 885 (9th Cir. 2000) (en banc), we need
not decide this issue definitively. It is
sufficient for present purposes to assume that
such an individual right is created by the
Convention and to confront squarely whether the
exclusionary rule is the appropriate sanction for
a violation of that right.
2.

      We therefore consider whether a violation of a
detainee’s Article 36 rights in the course of
obtaining a confession ought to lead to the
suppression of that confession. We begin by
recalling some basic principles. Application of
the exclusionary rule is only appropriate when
the Constitution or a statute requires it. See
United States v. Caceres, 440 U.S. 741, 754-55
(1979); United States v. Condon, 170 F.3d 687,
689 (7th Cir.), cert. denied, 526 U.S. 1126
(1999). There is no exclusionary rule generally
applicable to international law violations. See
United States v. Sainsbury-Suarez, 797 F.2d 931,
933 (11th Cir. 1986). Indeed, the rights
protected by the Vienna Convention are equivalent
to rights protected by a statute because treaties
and statutes have been held by the Supreme Court
to be "on the same footing" with each other under
the Constitution. Whitney v. Robertson, 124 U.S.
190, 194 (1888); see also Breard, 523 U.S. at 376
("We have held ’that an Act of Congress . . . is
on a full parity with a treaty . . .’" (citing
Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality
opinion)). Therefore, as in the case of statutes,
the exclusionary rule is an appropriate sanction
for a violation of a treaty provision only when
the treaty provides for that remedy. See United
States v. Giordano, 416 U.S. 505, 524 (1974)
("The issue does not turn on the judicially
fashioned exclusionary rule aimed at deterring
violations of Fourth Amendment rights, but on the
provisions of [the statute]."); United States v.
Li, 206 F.3d 56, 61 (1st Cir. 2000) (en banc);
Hussong v. Warden, Wisc. State Reformatory, 623
F.3d 1185, 1187 n.7 (7th Cir. 1980) (quoting
Giordano); cf. United States v. Thompson, 936
F.2d 1249, 1251 (11th Cir. 1991) (collecting
cases holding that suppression is inappropriate
for statutory violations).

      To hold that suppression is the necessary
consequence of a violation of Article 36, we must
find the suppression remedy in the text of the
Convention itself. Upon examination of the text,
however, it is clear that nothing in the text of
the Vienna Convention indicates that a remedy of
suppression is appropriate for violations of
Article 36. See United States v. Ademaj, 170 F.3d
58, 67 (1st Cir.) (holding that "the Vienna
Convention itself prescribes no judicial remedy
or other recourse for its violation"), cert.
denied, 120 S. Ct. 206 (1999); United States v.
Enger, 472 F. Supp. 490, 545 (D.N.J. 1978).
Indeed, the records of the Convention demonstrate
that the delegates did not discuss the issue of
whether suppression was an appropriate remedy for
violations of Article 36. See Official Records,
United Nations Conference on Consular Relations
(Volumes I & II) (1963); see also Lombera-
Camorlinga, 206 F.3d at 886 (stating that
"[t]here is no reason to think the drafters of
the Vienna Convention had these uniquely American
rights in mind"). Because the Vienna Convention,
by its terms, does not require the application of
the exclusionary rule to violations of Article
36, we cannot require the suppression of
statements made by defendants who have not been
informed of their Article 36 rights. We cannot
attach the judicially created remedy of
suppression to the Vienna Convention without some
explicit support from the treaty itself. Only the
legislature can require that the exclusionary
rule be applied to protect a statutory or treaty-
based right.

      In concluding that suppression is not an
available remedy under Article 36 of the Vienna
Convention, we note our agreement with our
colleagues in the Ninth Circuit in Lombera-
Camorlinga, the First Circuit in Li, and the
Eleventh Circuit in United States v. Cordoba-
Mosquera, 212 F.3d 1194, 1195-96 (11th Cir.
2000). We also note that to impose judicially
such a drastic remedy, not imposed by any other
signatory to this convention, would promote
disharmony in the interpretation of an
international agreement. See Restatement of
Foreign Relations Law sec. 325 cmt. d (1987)
("Treaties that lay down rules to be enforced by
the parties through their internal courts or
administrative agencies should be construed so as
to achieve uniformity of result despite
differences between international legal
systems.").

      Although we hold that the exclusionary rule is
not appropriate for a violation of Article 36, we
emphasize that compliance with Article 36 is an
important responsibility. Faithful adherence to
our treaty obligations is important not only to
the foreign relations of the United States but
also to the integrity of our criminal justice
system. It is essential that foreign nationals in
the United States criminal justice system be
given the opportunity to draw on the resources of
their consulate. One commentator has written:

Consular access serves two functions. It serves
the needs of foreign nationals who benefit from
prompt communication with consular officials, as
well as their intervention during legal
proceedings; at a minimum, it provides a cultural
bridge for detained nationals who must otherwise
navigate through an unfamiliar and often hostile
legal system. It also enables governments to
monitor the safety and fair treatment of their
nationals abroad, to reassure relatives and
friends at home, to promote respect for human
rights, and to avoid disruptions in foreign
relations that could result from the mistreatment
of detained persons. The United States has long
recognized the importance of these functions.
Accordingly, it places high priority on ensuring
consular access to U.S. citizens detained abroad
at the earliest possible opportunity.

William J. Aceves, Murphy v. Netherland, 92 Am.
J. Int’l L. 87, 89-90 (1998). We agree with the
Ninth Circuit that "it remains difficult from a
practical standpoint to equate being advised [of
rights] by the INS in an adversary setting with
being advised by the Mexican Consulate." United
States v. Rangel-Gonzales, 617 F.2d 529, 532-33
(9th Cir. 1980). Moreover, the failure to protect
the treaty rights of foreign citizens may have
repercussions for United States citizens abroad.
See Republic of Paraguay v. Allen, 134 F.3d 622,
629 (4th Cir. 1998), aff’d sub nom. Breard v.
Greene, 523 U.S. 371 (1998) (per curiam)./2

B.   Deportation of Witnesses

      Mr. Romero-Bautista also submits that the
district court erred in refusing to dismiss the
indictment against him. He claims that the
Government, exercising its deportation authority,
caused the absence of witnesses essential to his
case. The Government replies that it took no
action in bad faith and that, in the absence of a
showing of bad faith, the district court was
correct in its refusal to dismiss the indictment.
The district court decided that Mr. Romero-
Bautista did need to show bad faith and that he
had failed to do so. We must now examine whether
the district court was correct in employing that
standard and, if it was, whether it correctly
applied that standard to the facts of this case.

      The issue of whether Mr. Romero-Bautista must
show that the Government acted in bad faith is a
question of law that we review de novo. See
United States v. Goad, 44 F.3d 580, 585 (7th Cir.
1995) ("Whether the district court applied the
correct standard of proof is a question of law,
subject to de novo review."). The issue of
whether the standard was applied properly in this
case is one of fact that we review deferentially.
See Mathis v. John Morden Buick, Inc., 136 F.3d
1153, 1155 (7th Cir.) ("’Bad faith’ is a question
of fact like any other, so the trier of fact is
entitled to draw any reasonable inference."),
cert. denied, 525 U.S. 898 (1998); Door Sys. v.
Pro-Line Door Sys., Inc., 126 F.3d 1028, 1031
(7th Cir. 1997) ("Bad faith, like negligence, is
a traditional jury issue, implying deferential
review; and it is hard to see why less deference
ought to be paid the trier of fact when it
happens to be a judge rather than a jury.").
1.

      We first consider whether the district court was
correct in its ruling that Mr. Romero-Bautista
must show that the Government acted in bad faith
when, exercising its deportation authority,/3 it
caused the absence of witnesses that, in his
view, are important to his case. The basic
principles of law are well-established. The
Supreme Court has explained that there is a
difference between those situations in which the
police fail to disclose to the defendant evidence
that it knows to be material and exculpatory, and
those situations in which police simply fail to
preserve potentially exculpatory evidence. See
Arizona v. Youngblood, 488 U.S. 51, 57-58 (1989).
In Youngblood, the Court reaffirmed that, when
the Government has evidence that it knows to be
exculpatory, it must disclose that evidence to
the defendant. See id. at 57; see also Brady v.
Maryland, 373 U.S. 83, 87 (1963). That situation
is different, the Court held, from one in which
the Government loses or destroys evidence that it
does not know to be exculpatory. See Youngblood,
488 U.S. at 57-58. With respect to lost or
destroyed evidence, the Court held that "unless a
criminal defendant can show bad faith on the part
of the police, failure to preserve potentially
useful evidence does not constitute a denial of
due process of law." Id. at 58.

      Indeed, before Youngblood, in United States v.
Valenzuela-Bernal, 458 U.S. 858, 873 (1982), the
Supreme Court had been confronted with a
situation similar to the one before us that
called for the application of these principles.
In that case, the defendant was arrested for
transporting an alien illegally in the United
States. The Government retained one of the
illegal aliens who had been a passenger in the
vehicle in order to provide a nonhearsay basis
for the Government’s case. Two other illegal
aliens who also had been in the vehicle were
initially apprehended, but they were later
deported after an Assistant United States
Attorney determined that they had no evidence
material to the defendant’s case. The defendant
moved to dismiss the indictment on the ground
that the deportation of these other passengers
deprived him of an opportunity to interview these
witnesses and to determine whether they would be
of assistance in his defense. The district court
denied the motion, a determination ultimately
affirmed by the Supreme Court. The Supreme Court
explained that a showing of Government bad faith
is necessary to establish a constitutional
violation in these circumstances:

[T]he responsibility of the Executive Branch
faithfully to execute the immigration policy
adopted by Congress justifies the prompt
deportation of illegal-alien witnesses upon the
Executive’s good-faith determination that they
possess no evidence favorable to the defendant in
a criminal prosecution. The mere fact that the
Government deports such witnesses is not
sufficient to establish a violation of the
Compulsory Process Clause of the Sixth Amendment
or the Due Process Clause of the Fifth Amendment.
A violation of these provisions requires some
showing that the evidence lost would be both
material and favorable to the defense.

Valenzuela-Bernal, 458 U.S. at 872-73 (emphasis
added). Notably, in Youngblood, the Court
reaffirmed this holding by pointing to
Valenzuela-Bernal as an example of a case in
which the defendant was required to show bad
faith. See Youngblood, 488 U.S. at 57. If bad
faith is shown, the defendant has satisfied the
first prong of the Valenzuela-Bernal test, but he
must still show that the evidence would be
material and favorable to his defense. See
Valenzuela-Bernal, 458 U.S. at 873. The
principles of Valenzuela-Bernal have been
followed uniformly by the courts of appeals. See
United States v. Romero-Cruz, 201 F.3d 374, 377
(5th Cir.) (citing Valenzuela-Bernal for the
proposition that "[t]he Government is justified
in promptly deporting alien witnesses after
making a good faith determination that the
witness possesses no evidence favorable to the
defendant in a criminal prosecution"), cert.
denied, 120 S. Ct. 2017 (2000); United States v.
Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997)
(defendant must show bad faith when Government
allowed witness to voluntarily depart); United
States v. Dring, 930 F.2d 687, 693-94 (9th Cir.
1991) (applying the two-pronged test of
Valenzuela-Bernal); Buie v. Sullivan, 923 F.2d
10, 11-12 (2d Cir. 1990) (same); United States v.
McLernon, 746 F.2d 1098, 1121 (6th Cir. 1984)
(same).

      The Supreme Court in Youngblood said that "[t]he
presence or absence of bad faith by the police
for purposes of the Due Process Clause must
necessarily turn on the police’s knowledge of the
exculpatory value of the evidence at the time it
was lost or destroyed." See Youngblood, 488 U.S.
at 56 n.*. We acknowledged that standard in Jones
v. McCaughtry, 965 F.2d 473 (7th Cir. 1992),
adding that the defendant must prove "’official
animus’ or a ’conscious effort to suppress
exculpatory evidence.’" Id. at 477 (citations
omitted)./4 Our focus, then, must be on the
Government’s knowledge when, exercising its
deportation authority, it arranged for the
departure of the witnesses, not on any of its
subsequent conduct.

2.

      The district court held that the Government did
not act in bad faith when it deported the
witnesses on November 4, 1998. At that time, Mr.
Romero-Bautista’s attorney had interviewed almost
all of the witnesses, including the one who
clearly presented the most potential as a defense
witness, Hernandez. He had not yet taken
depositions, however, because Mr. Romero-Bautista
himself was incapacitated and could not attend.
Mr. Romero-Bautista’s attorney had determined
that Mr. Romero-Bautista would not be capable of
waiving his right to attend any deposition
because the medical staff treating him had
administered morphine to alleviate his pain.

      On November 2, the district court held a hearing
to determine whether it ought to continue to
detain the vehicle’s passengers as material
witnesses. (They had not been charged with any
criminal offense.) The district court considered
the likelihood of any improvement to Mr. Romero-
Bautista’s condition, the expense of detaining
the witnesses being held, and the value of the
possible testimony of the passengers. At the end
of the hearing, the court decided to lift its
earlier order that had required the detention of
the passengers as material witnesses. It is clear
that, at the time it made its ruling, the
district court understood that, once its
detention order was lifted, the passengers would
be subject to deportation:

The I.N.S. is represented here by one of its
agents and I think that the proper and
expeditious thing to do is for you to continue,
Agent, in doing what you normally do in a
situation of this nature, and return these
aliens, now non-material witnesses, to their
nation, home of origin, and we will proceed
accordingly with the two Defendants who are still
here.

R.37 at 16.

      The Government acted to return the passengers to
their country only after a United States district
court specifically held that they were not
material witnesses in the criminal case of Mr.
Romero-Bautista and, therefore, lifted the
material witness detention order. No claim is
made that the decision of the district court was
procured by governmental misconduct of any kind.
Under these circumstances, it cannot be said that
the Government acted in bad faith when, after the
district court’s decision, it proceeded to
fulfill its responsibilities under the
immigration laws, a course contemplated by the
Supreme Court in Valenzuela-Bernal and by the
district court during the hearing.

      Later, at the hearing on the motion to dismiss
the indictment, INS Agent Merchant testified--
erroneously--that Hernandez and Ruiz-Ruiz were
available to testify. When the district court
later learned that it had been given false
information by the INS witness, it nevertheless
refused to dismiss the indictment. However, it
stated:

The Court is most displeased with the incorrect
facts provided to the Court by the INS. Since the
INS and its agents are solely responsible for
processing immigrants, the Court should be able
to rely on information provided by INS and its
agents. Moreover, INS and its agents should be
well informed as to the status of immigrants
before testifying under oath. This type of
sloppiness is unacceptable. Nevertheless, such
conduct does not rise to the level of deceit or
bad faith to justify a dismissal of the
indictment.

R.81 at 3. We share the district court’s concern
about the INS’s actions in this case and, like
the district court, do not expect to see again
this sort of conduct by any government official.
The indictment cannot be dismissed based on this
conduct, however, because, at the time the INS
acted to remove the witnesses from this country,
it did so on the authority of the district
court’s order of November 2, 1999, and therefore
it was not acting in bad faith.

Conclusion

      For the foregoing reasons, the judgment of the
district court is affirmed.

AFFIRMED

/1 The sending state is the nation of the arrested
national. The receiving state is the arresting
nation.

/2 See also Aceves, supra, at 91 ("If the United
States does not protect the interests of foreign
governments and their nationals, it may find that
its own ability to protect U.S. nationals abroad
has been damaged."); Gregory Dean Gisvold, Note,
Strangers in a Strange Land: Assessing the Fate
of Foreign Nationals Arrested in the United
States by State and Local Authorities, 78 Minn.
L. Rev. 771, 803 (1994).

/3 The Tenth Circuit has held that, when determining
the Government’s culpability for a witness’
disappearance, it is irrelevant whether the
Government deported the witness or merely allowed
the witness to leave voluntarily. See United
States v. Morales-Quinones, 812 F.2d 604, 608-09
(10th Cir. 1987).

/4 Other circuits have relied on the same language
in Youngblood to frame the proper inquiry for
determining bad faith. See United States v.
Jobson, 102 F.3d 214, 218 (6th Cir. 1996); In re
Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996);
Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir.
1994); United States v. Femia, 9 F.3d 990, 995-96
(1st Cir. 1993); Griffin v. Spratt, 969 F.2d 16,
20 (3d Cir. 1992).
