Violation of MLAT treaty confers no right to suppress

The defendant alleged a violation of his rights in The Netherlands by actions of the DEA. The Second Circuit held that the DEA’s action was not subject to suppression under The Treaty on Mutual Assistance in Criminal Matters between the United States and the Netherlands (commonly known as MLAT). United States v. Rommy, 2007 U.S. App. LEXIS 25732 (2d Cir. November 5, 2007):

By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:

Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.

Id. art. 18, subsec. 1. This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others’ countries. To the contrary, it means that, when securing evidence with out MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable “domestic laws.” Id. Thus, when DEA agents proceeded to use DeVries as a confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that “federal law governs the admissibility of evidence in a federal criminal trial”); United States v. Brown, 52 F.3d 415, 420 (2d Cir. 1995) (noting that “federal law is applicable in a federal prosecution even when state police officers [are] involved” in investigating case); United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir. 1987) (stating that “federal law governs federal prosecutions in federal court” (internal quotation marks omitted)); cf. United States v. Alvarez-Machain, 504 U.S. 655, 670, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) (holding that defendant’s forcible abduction from Mexico, authorized by DEA officials, did not prohibit trial in United States for violations of United States criminal laws). Rommy makes no claim on appeal that the DEA’s undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.

A second reason Rommy’s MLAT argument fails is that he cannot demonstrate that the treaty creates any judicially enforceable individual right that could be implicated by the government’s conduct here. As the Supreme Court has long observed, absent explicit treaty language conferring individual enforcement rights, treaty violations are generally addressed by the signatory sovereigns through diplomatic channels. See Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (1884) (noting that “treaty is primarily a compact between independent nations” and “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it”). For any number of reasons, sovereigns may elect to overlook non-compliance with particular treaty requirements in given cases. Thus, a proper respect for the diplomatic choices of sovereign nations prompts courts generally to apply “a strong presumption against inferring individual rights from international treaties.” United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001).