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Guerrera v. Johnson: Brief Amicus Curiae of United Mexican States
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20443

RICARDO ALDAPE GUERRA,

Petitioner-Appellee,

v.

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,
Respondent-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS,

HOUSTON DIVISION

AMICUS CURIAE BRIEF OF 
THE GOVERNMENT OF THE UNITED MEXICAN STATES,
IN SUPPORT OF THE PETITIONER-APPELLEE

Mary Lou Soller

Grant D. Aldonas

Androa Bjorklund

Mlller  Chevalier, Chartered

655 15th Street, N.W.

Suite 900

Washington, D.C. 20005

(202) 626-5800

Attorneys tor Amicus Curiae

INTEREST OF AMICUS CURIAE

Mexico has a vital stake in the treatment of the citizens by other governments. As a sovereign nation, Mexico -- like all nations -- is responsible under customary principles of international law for the welfare of its citizens, wherever they are located.1 That responsibility extends to Petitioner-Appellee, Ricardo Aldape Guerra,2 a citizen of Mexico. As a member of the community of nations, Mexico also has a vital interest in assuring compliance by other states with matters covered by international law. Under both the International Covenant on Civil and Political Rights ("Covenant" )3 and customary international law, nations must ensure that the protection of their laws is extended to foreign nationals within their territories. In this instance, Mexico is not seeking preferential treatment for Mr. Aldape Guerra. Rather, consistent with the dictates of international law, Mexico seeks to ensure that the protections provided by the laws of the United States and of the State of Texas are fully extended to him.

Furthermore, under both the Covenant and customary principles of international law, the United States is obligated to avoid acts contributing to discrimination based on race or national origin. As a neighbor, Mexico has a particularly acute interest in ensuring that the State of Texas, by its official actions, discourage., rather than encourages, any prejudices that exist in the United States against Mexican nationals. This interest is heightened when such prejudices, as alleged here, affect a jury's deliberations on the life of a Mexican citizen,

TABLE OF CITATIONS

CASES

Aldridge v. United States, 283 U.S. 308 (1931)
Furman. V. Georgia, 408 U.S. 238 (1971)
Gholson v. Estelle, 675 F.2d 734(5th Cir. 1982
Mathews v. Diaz, 426 U.S. 67(1976)
Paguete Habana, 175 U.S. 677(1900)Penry v. Lynaugh, 492 U.5. 302 (1989)
Plyer v. Doe, 457 U.S. 202 reh'g denied, 458 U.S. 1131 (l982)
Riascos v. State, 792 S.W. 2d 754(Tex. App. Houston [l4th Dist.]1990)
United States v. Doe, 903 F.2d l6(D.C. Cir. 1990)
United States v. Sanchez, 482 F.2d 5(5th Cir.1973

STATUTES

Tex. Code Crim. Proc. Ann. art.37.071 Sec. 2(b)(1)(1991).

MISCELLANEOUS

Amici Curiae Brief of American Immigration Lawyers Assn.,et al. Supporting the Petitioner-Appellee (Feb. 29, 1996) 13
First Application for Writ of Habeas Corpus
Petitioner-Appellee's Response to Respondent-Appellant's
Answer, Motion for summary Judgment and Brief in Support
J.L. Brierly, The Law of Nations(6th ed.1963)
International Covenant on Civil and Political Rights(999 U.N.T.S. 171) passim
Article 2
Article 14
Artlcle 26
International Covenant on Economic, social and Cultural Rights (993 U.N.T.S. 3) 8, 9
R. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens(1983)
Restatement (Third) of Foreign Relations Law of the United states
(1987): Section 111 9 - Section 115 9 Section 701 - Section 702 - Section 711
- Section 713 - Section 722 - Part VII, Introductory Note 8
Universal Declaration of Human Rights. G.A. Res. 217, 3 GAOR U.N. Doe. A1810 (Dec. 10, 1948)

STATEMENT OF THE ISSUE

Amicus curiae, The Government of the United Mexican States ("Mexico"), submits this brief to assist the Court in determining whether to uphold the federal district court's decision to issue a Writ of Habeas corpus for the release of Petitioner-Appellee, Ricardo Aldape Guerra, from confinement because, among other reasons, (l) his due process rights were violated in the trial below and (2)his status as an undocumented immigrant was improperly considered by the jury as evidence in the capital sentencing proceeding.SUMMARY OF ARGUMENTThe court below found a litany of substantial violations of Mr. Aldape Guerra's statutory and constitutional rights to substantive and procedural due process. If this ruling is reversed, Mr. Aldape Guerra would effectively be denied the equal protection of the laws of the United States that both the Covenant and customary international law provide. Such action would necessarily violate the United States' international obligations. In addition, the district court concluded that the government's usage of Mr. Aldape Guerra's immigration status as a relevant factor in the jury's decision whether to impose the death penalty was "mothing more than an appeal to ethnic or national origin prejudice which is constitutionally impermissible." 6 R 1504. If the district court opinion were reversed, an untenable legal precedent might be established in Texas. This form of discrimination on the basis of race or national origin would also entail a violation of the United States' obligations under the Covenant and principles of customary international law.

ARGUMENT

I. The United States' Obligations Under International Law Dictate That Mr. Aldape Guarra's Conviction Cannot Stand.

In this instance, both the United States' treaty obligations under the International Covenant on Civil and Political Rights and principles of customary international law apply with equal force to the issues raised by Mr. Aldape Guerra's case.

The Covenant requires each signatory nation "to ensure to all individuals within its territory and subject to its jurisdiction" certain basic rights. Covenant, art. 2(1). As a matter of customary international law,[a] state is obligated to respect the human rights of persons subject to its jurisdiction . . . [t]hat states generally are bound to respect as a matter of customary international law.

Restatement (Third) of Foreign Relations Law of the United States ("Restatement") 701(b) (1987). Those recognized principles in turn establish two standards of particular relevance here.

First, at a minimum, each nation is obligated to ensure that foreign nationals receive the fair national treatment of its laws, both substantively and procedurally. See id. 711, comment c (customary international law "requires that foreign nationals be accorded the equal protection of the laws and forbids unreasonable distinctions between aliens and nationals"). That protection extends to all foreign nationals, "even those unlawfully in the country." Id. at comment I.4 This protection is repeated in the covenant, which mandates that each signatory nation protect the rights of "all individuals" and "all person." Covenant arts. 2(1) and 26. It draws no distinction~ between a nation'~ obligation. to aliens and its nationals.

Second, every nation must ensure that its official actions do not contribute to a systematic pattern of discrimination based on race. See Restatement 702 (a nation "violates international law if as a matter of state policy, it practices, encourages or condones . . . systematic racial discrimination"). As a signatory to the Covenant, the United States has further undertaken "to guarantee to all persons equal and effective protection against discrimination," including that based on "race, colour, . . . national or social origin, . . . birth or other status."5 Covenant art. 26; see also Covenant art. 2(1).

In this case, both of these principles -- and the United States' international obligations -- would be violated if the federal district court's ruling is overturned. The United States Supreme Court has consistently held that customary international law is a part of the law of the United States that is to be applied by courts of the United States. See Paquete Habana, 175 U.S. 677, 700 (1900). The requirement to adhere to international law is applicable to state courts as well. See Restatement 111, comment d ("As the law of the United States, international law is also the law of every State . . ."); id. 702, comment c ("The customary law of human rights is part of the law of the United States to be applied as such by State as well as federal courts"); see also Restatement 111(I) and 115, comment e; R. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens 333 (1983). Failure of the trial court to conform its rulings to these customary standards of international law was entirely inconsistent with the United states, obligations under those same standards. The opinion of the federal district court should be affirmed in order to avoid that conflict with the international obligations of the United States.

II. Failure to Afford Mr. Aldape Guerra the Due Process Rights Available Under United States and Texas Law Violates the International obligations of the United States.

As noted above, Mexico is responsible for the welfare of its nationals, wherever located. Because it shares a border and has extensive ties with both the United States and Texas, Mexico has a particular interest in ensuring that all of its citizens receive the full protection of the laws of the United States and Texas.

In this case, Mexico has long expressed concern as to whether these protections have been afforded to Mr. Aldape Guerra. The allegations made by Mr, Aldape Guerra about the injury he has suffered as a result of the violation of his due process rights are substantial. See First Application for Writ of Habeas Corpus ("Application"). Mexico has reviewed the pleadings in this case and is persuaded by Mr. Aldape Guerra's arguments -- and the evidence -- that there appear to have been violations of his due process rights. The district court's findings should be upheld under the laws of both the United States and Texas.6 Mr. Aldape Guerra has alleged -- and the court below found -- violations of his due process rights beginning at the time of his arrest and continuing through the sentencing phase of the trial. These violations occurred at the hands of the police, prosecutors, and the trial court. These include -- as separate errors and cumulatively -- pretrial intimidation of witnesses, the denial of Mr. Aldape Guerra's rights to the discovery of exculpatory evidence, the use of suggestive identification procedures, the prosecutors' damaging manner of conducting volr dire, their use of improper and highly prejudicial evidence and statements of "facts" and inferences it knew to be false, and the utilization of improper factors in the jury's consideration of the death penalty. l R 1500-01, 1507, 1508, 1521, 1533.

In such circumstances, overturning the court's ruling would result not only in a denial of equal protection under the law of the United States and Texas, but also in a violation of the United States' obligations under the Covenant and customary principles of international law. Article 14 of the Covenant obligates every signatory nation -- including the United States -- to ensure that all persons tried on a criminal charge "shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Based on the litany of violations found in this case to exist by the district court, Mexico is concerned that this guarantee was not provided to Mr. Aldape Guerra. For example, Article 14(3)ta) of the Covenant specifically mandates that every defendant have "adequate time and facilities for the preparation of his defense." As Mr. Aldape Guerra has set forth, this right was not afforded to him. Id. at 207-37. Mexico therefore urges this Court, consistent with the United States' obligations under the Covenant and consistent with the principles of customary international law, to affirm the district court's opinion and ensure that the treatment afforded to Mr. Aldape Guerra, as a Mexican national, meets the full measure of protection required under the law of the United States and Texas.

III. The Use of Mr. Aldape Guerra's Immigration Status as a Factor in the Jury's Consideration of the Death Penalty Resulted in the Sanctioning of Ethnic Discrimination by the Court and Its Officers in Violation of International Law. As noted above, every nation is obliged to avoid any official action that "encourages or condones, as a matter of state policy, systematic racial discrimination," Restatement 702. Further, and more importantly, the United States is required to ensure "the equal protection of the law" by "prohibiting] any discrimination and [by] guarantee[ing] to all persons equal and effective protection against discrimination on any ground such as race, colour, . . . national or social origin . . . birth or other status." Covenant art. 26. Mexico is particularly concerned that derogatory prosecutorial statements; regarding Mr. Aldape Guarra's status as an undocumented Mexican immigrant were permitted in the sentencing phase of his trial. As early as voir dire, the prosecutors raised this point with several members of the jury. See. e.g., 1 R 400-01 nn.77-78. In their written . . .

[page missing] 7

. . . thus sought to promote

(or, at least, had the undeniable impact of promoting) discrimination based on race and national origin. Mexico is deeply concerned that any representative of the State of Texas would attempt to base any sentence -- much less a sentence of death -- on such a patently discriminatory factor. Texas is one of Mexico's closest neighbors and a state with which Mexico has extensive ties. Many Texas citizens are Mexican immigrants, For the State of Texas to imply that an undocumented worker, based on his immigrant status alone, is somehow a danger to the community or that this status reveals something about the individual's criminal tendencies is deeply troubling. As noted above, international law enjoins official actions that contribute to discrimination based on race. See Covenant arts. 2(2) and 26; Restatement 702. That principle applies with particular force in judicial proceedings when an individual's basic rights -- and indeed, his life -- are at stake.

While Mexico is immediately concerned about the impact of the use of a discriminatory factor in Mr. Aldape Guerra's case, Mexico is as concerned about the continuing effect of the trial court's ruling on this issue if it were reinstated. Specifically, Mexico is concerned that this will serve as a precedent in other capital cases and, in effect, may gain the status as an accepted rule of law in Texas. If this occurs, the racial discrimination that occurred in this case will be systematically repeated in other cases. This will exacerbate the discrimination prohibited by the Covenant.8

Fortunately, in this instance, the applicable international law would appear to require no more than the law of the United States would otherwise provide. As the supreme Court has held, the United States Constitution itself forbids any State from urging the jury to utilize sentencing factors that appeal to racial or other such prejudices, Furman v. Georgia, 408 U.S. 238, 242 (1971); Aldridge v, United States, 283 U.S. 308, 313 (1931).9 Thus, it would be a violation of both United States and international law to allow this practice to stand here or continue in the future.

CONCLUSION

For the foregoing reasons, in addition to those raised in Petitioner-Appellee's brief, the judgment of the court below should be affirmed.

Respectfully submitted,

Mary Lou Soller
Grant D. Aldones
Andrea Bjorklund
Miller Chevalier,
Chartered
655 15th Street, N.W.Suite 900 Washington, D.C.
20005(202) 626-5800
Eduardo Pena Hallar Legal Advisors 0ffice
United Mexican StatesForeign Ministry
Tlatelolco, Mexico D.V.(011) 525-254-7306
Attorneys for the Government of the United Mexican States

March _, 1996

CERTIFICATE OF SERVICE

I hereby certify that two true and accurate copies of the foregoing Motion for Leave to File Amicus Curiae Brief and Brief of Amicus Curiae Supporting Brief of Petitioner-Appellee was served by first-class mail, postage prepaid, this 6th day of August, 1993, on counsel of record tn this proceeding, as follows:

Scott J. Atlas, Esquire
Vinson Elkins L. L. P.
2500 First city Tower
1001 Fannin Houston, Texas 77002-6760
Attorney for Petitioner-Appellee
William C. Zapalac, Esquire
Assistant Attorney General Enforcement Division
P.O. 12548 Capitol Station Austin, Texas 78711
Attorney for Respondent-Appellant
Mary Lau Soller
Attorney for the Government of the United Mexican States

FOOTNOTES

1 . See J.L. Brierly, The Law of Nations 276 (6th ed.1963);Restatement (Third) of Foreign Relations Law of the United States ("Restatement") 713, comment b (1987). The United States has often intervened or expressed concern in situations similar to the instant case. For example, in September 1991, the United States expressed its concern to the government of Pakistan about the sentence imposed on two U.S. citizens (Daniel and Charles Boyd). The conviction and sentence were ultimately overturned.

2 . The Petitioner's surname is "Aldape." For the purposes of clarity and consistency with pleadings filed by other parties in this case, Mexico will hereinafter refer to the Petitioner as "Mr. Aldape Guerra."

3 . 999 U.N.T.S. 171. This Covenant was adopted by the United Nations on December 19, 1966. It was ratified by Mexico on March 23, 1976, and by the United States on September 8, 1992.

4 . It is axiomatic that a nation's laws also must satisfy a minimum standard of justice. The most "accepted general articulation of recognized rights" is the Universal Declaration of Human Rights. G.A. Ren, 217, 3 GAOR U.N. Doc. A1810 at 71 (Dec. 10, 1948); Restatement Pert VII, Introductory Note, n.2; Restatement 701, reporters' note 6. These rights include "a fair and public trial for persons charged with crime, with guarantees necessary for one's defense; the presumption of innocence; [and] the right to be convicted only according to law . . . ." Id,; see also International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3; Restatement Part VII, Introductory Note, n.3.

5 . This language precisely conforms to that used in Article 2 of the Universal Declaration of Human Rights, as well. These same principles are also repeated in the International covenant on Economic, Social and Cultural Rights. See Restatement 701, reporters' note 6.

6 .All persons in the United States, of course, are entitled to the guarantees provided in the Constitution, including due process -- whether or not they are U.S. citizens. Plyler V. Doe, 457 U.S. 202, reh'g dented, 458 U.S. 1131 (1982); Mathews v. Diaz, 426 U.S. 67, 77 (1976); see also Restatement

723(1) and comments a and k.

7 .missing

( . . . continued) fears about the effect of the passage of the Immigration Reform Control Act and a Supreme Court decision ruling that the children of illegal aliens were entitled to attend free public schools. Id. at 124-28.

8 .The Covenant does not differentiate in its prohibition of racial and ethnic discrimination between single acts and systematic practices. On the other hand, under customary principles of international law, "[o]ccasional official practices of racial discrimination might not rise to the level of a violation of customary principles." See Restatement 702, comment I. In this case, however, Mexico is concerned that both are likely to occur. Under the United States' system of jurisprudence where the principle of stare decisis controls, establishing a judicial precedent that officially sanctions discrimination on the basis of race would "encourage[] or condone[] as a matter of state policy, . . . systematic racial discrimination," contrary to customary international law. Id. Where -- as is possible here -- the"official practice" involves a ruling that may be binding on future courts, the nature and effect of the rule is to induce the systematic discrimination by future courts (and the judicial process) on the basis of race alone. This is precisely the type of discrimination that the customary rules of international law are designed to prevent.

9 .Indeed, the United states constitution does not permit the use of any sentencing criteria that are based on or involve racial aspects, even when -- unlike here -- that might be probative of the issue of future dangerousness. Furman, 408 U.S. at 364-65 n. 154 (Marshall, J., concurring). Capital sentences must be based on "reason and reliable evidence,. not on prejudice and innuendo. See, e.g., Penry v. Lynaugh, 492 U.S. 302 (1989); Gholson v. Estelle, 675 F.2d 734 (5th Cir. 1982); United States v. Sanchez, 482 F.2d 5 (5th Cir. 1973). This is particularly true if the prejudice at issue is racially based. See. e.g. , United States v. Doe, 903 F.2d 16, 25 (D.C. Cir. 1990) ("Racial fairness of the trial is an indispensable ingredient of due process and racial equality a hallmark of justice."); United States v. Sanchez, 482 F.2d 5 (5th cir. 1973); Riascos v, States, 792 S.W.2d 754 (Text App. Houston [ 14th Dint.] 1990).



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