United States Court of Appeals
For the First Circuit
No. 18-1350
UNITED STATES,
Appellee,
v.
MARIO ERNESTO GARCIA-ZAVALA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter,* Associate Justice,
and Kayatta, Circuit Judge.
Robert C. Andrews, with whom Robert C. Andrews Esquire P.C.
was on brief, for appellant.
Julia M. Lipez, Assistant U.S. Attorney, with whom Halsey B.
Frank, U.S. Attorney, was on brief, for appellee.
March 25, 2019
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Circuit Judge. This case concerns the denial of
pretrial motions brought by a defendant attacking his conviction
for illegal reentry after removal from the United States.
Mario Ernesto Garcia-Zavala was a passenger in a van
stopped in Maine for seatbelt violations. The Maine State Trooper
conducting the stop spoke with the driver and passengers, several
of whom did not appear to be wearing their seatbelts or to speak
English. The Trooper contacted an Immigration and Customs
Enforcement (ICE) Officer for help identifying the passengers.
When asked for his identification, Garcia-Zavala
produced a consular ID card. An ICE Officer ran that ID through
ICE databases and determined that Garcia-Zavala was suspected of
illegal reentry. When ICE officers arrived at the scene, they
placed Garcia-Zavala in administrative custody. Thirteen days
later, he was charged with one count of illegally entering the
United States after removal, in violation of 8 U.S.C. § 1326(a),
and made his initial court appearance. Garcia-Zavala was convicted
after a bench trial.
His appeal essentially raises two issues: (1) whether
the district court erred in not dismissing his indictment for delay
in presentment, in violation of Federal Rule of Criminal Procedure
5(a), and (2) whether the district court erred in not suppressing
information that law enforcement had gathered about him, including
his identity.
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We affirm the district court's denial of Garcia-Zavala's
motion to dismiss and motion to suppress.
I.
The district court helpfully detailed a minute-by-minute
account of the traffic stop. United States v. Garcia-Zavala, 2018
WL 1091973, at *1-4 (D. Me. Feb. 28, 2018). We summarize that
account here.
On September 9, 2017, Maine State Trooper Robert Burke
III observed a van whose front-seat passenger appeared not to be
wearing a seatbelt, a violation of Maine law. Id. at *1 (citing
Me. Stat. tit. 29-A, § 2081(3-A)). Burke pulled the van over at
12:20 p.m. and asked the driver for identification. Id. He then
moved to the other side of the van to ask the passengers questions.
Id. After receiving minimal responses, Burke asked if anyone in
the van spoke English. Id. Burke remarked that several passengers
did not appear to be wearing seatbelts and did not seem to speak
English. Id.
Burke returned to his car and called Elliot Arsenault,
an ICE Deportation Officer. Id. at *2. Burke told Arsenault that
he had stopped a van for a seatbelt violation and that he thought
Arsenault should "come out" because he believed that the stop would
"lead to people from out of this country." Id. Burke said that
he intended to issue tickets for seatbelt violations, so he needed
ICE assistance in identifying the van's occupants. Id. Arsenault
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asked Burke to get any consulate ID cards or other means of
identification, so Burke did. Id.
The driver produced a Mexico consular ID card. Id. Some
of the other passengers produced consular ID cards, including
Garcia-Zavala, who had a Honduran consular ID card. Id. Burke
told the van occupants that they were not free to leave, returned
to his vehicle, and sent photographs of the ID cards to Arsenault.
Id. And because the van's driver was unlicensed, Burke also tried
to determine whether any of the van passengers had a valid driver's
license to allow one of them to drive the van from the scene. Id.
Trooper Jason Cooley soon arrived. Id. He and Burke
spent the next several minutes inspecting the IDs. Id. Since
none of the van's occupants produced a driver's license, Burke
asked dispatch to call a tow truck to the scene. Id.
By 12:41 p.m., just over twenty minutes after the stop
had begun, Arsenault had determined that Garvia-Zavala was
suspected of reentry after removal. Id. He communicated that
information to ICE Officer John Lenotte, who was in Maine and
available to go to the scene. Id. Arsenault also sent the reentry
information to Burke. Id. Burke replied that there was time for
ICE Officers to make it to the scene because he intended to arrest
the driver of the van for driving without a license and to have
the van towed. Id.
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Burke explained to the van's occupants that he intended
to write each of them a ticket for failing to wear a seatbelt,
that this would take about half an hour, and that they would have
to wait for the tickets. Id. at *3. He returned to the van with
the first ticket about five minutes later. Id.
When the tow truck arrived at 1:19 p.m., Burke told its
driver that they would wait for ICE Officers to arrive before
towing the vehicle. Id. The first ICE Officer, Patrick Mullen,
arrived on the scene about twenty minutes later. Id. Lenotte
soon followed. Id. Both ICE Officers knew from Arsenault that
Garcia-Zavala was subject to detention for illegal reentry. Id.
Without administering a Miranda warning, Lenotte asked
Garcia-Zavala for his name and date of birth. Id. In response,
Garcia-Zavala provided answers matching the information on the
Honduran consular ID card previously given to Burke.1 Id.
ICE officers took Garcia-Zavala into administrative
custody and transported him to an ICE office for booking. Id.
The district court found this was ICE's "standard process." Id.
Fingerprints and additional record checks conducted at the office
confirmed that Garcia-Zavala had been removed from the United
States in 2014. Id. After the booking was complete, Garcia-
1 Garcia-Zavala also admitted to Lenotte that he was in
the country illegally. The government committed not to introduce
this statement at trial. Id. at *3 n.9.
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Zavala was transported to Cumberland County Jail, where ICE paid
to house him. Id.
On Monday, September 11, 2017, Lenotte transported
Garcia-Zavala from the jail back to the ICE office. Id. at *4.
He administered a Miranda warning with the aid of an interpreter.
Id. Garcia-Zavala invoked his right to remain silent. Id.
Lenotte then returned him to the jail. Id.
Lenotte received Garcia-Zavala's alien file (A-file) on
Friday, September 15, 2017. Id. By the following Monday,
September 18, 2017, Lenotte had sent the necessary paperwork to
the U.S. Attorney's Office with a recommendation for criminal
prosecution, which the U.S. Attorney's Office accepted. Id. The
office prepared a criminal complaint against Garcia-Zavala and
presented it to a Magistrate Judge on September 19, 2017. Id.
That same day, a criminal arrest warrant was issued for Garcia-
Zavala, who remained in custody at the Cumberland County Jail.
Id.
Garcia-Zavala made his initial appearance on September
22, 2017 and, on that same day, was transferred to the custody of
the U.S. Marshal. Id. Garcia-Zavala was in custody for thirteen
days before making his initial appearance. Id.
Garcia-Zavala moved to dismiss his indictment, claiming
that the government violated Federal Rule of Criminal Procedure
5(a) by unnecessarily delaying his initial appearance on a pending
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charge. He also moved to suppress his identity, his consular card,
his fingerprint card, his A-file, and statements he had made to
Lenotte.
The district court denied the motion to dismiss, finding
no Rule 5(a) violation, and concluding that, in the alternative,
dismissal was not the appropriate remedy for a presentment delay.
Id. at *5. The district court denied the motion to suppress
because the traffic stop did not violate Garcia-Zavala's rights,
the stop was not unduly lengthy, and identity information is not
subject to suppression. Id. at *5-8.
The district court also, despite Garcia-Zavala's
arguments otherwise, found no "factual support" for the assertion
"that the stop was racially motivated." Id. at *5.
This appeal followed.2
II.
A. Motion to Dismiss
We review the district court's legal conclusions de
novo, its factual findings for clear error, and its "ultimate
2 Though the government states that "Garcia-Zavala has
completed serving his term of imprisonment and likely has been
deported," the appeal is not moot. Collateral legal consequences
flow from the challenged conviction. See, e.g., United States v.
Marsh, 747 F.2d 7, 9 n.2 (1st Cir. 1984) (concluding that although
all defendants had completed their jail time and been deported,
their record of conviction constituted a continuing harm, so their
appeals were not moot).
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ruling" for abuse of discretion. United States v. Doe, 741 F.3d
217, 226 (1st Cir. 2013) (internal quotation marks omitted).
Garcia-Zavala's argument is that the government violated
Federal Rule of Criminal Procedure 5(a) by unnecessarily delaying
his initial appearance on a pending charge.3 Rule 5(a) requires a
"person making an arrest within the United States [to] take the
defendant without unnecessary delay before a magistrate judge, or
before a state or local judicial officer as Rule 5(c) provides,
unless a statute provides otherwise." Fed. R. Crim. P. 5(a)(1)(A).
But Rule 5(a) does not generally apply to civil detainees. See
United States v. Encarnacion, 239 F.3d 395, 398-99 (1st Cir. 2001).
We agree with the district court that there was no Rule 5(a)
violation here. Garcia-Zavala, 2018 WL 1091973, at *5.
Garcia-Zavala was held in civil ICE detention until the
day of his initial appearance. Garcia-Zavala was detained on
suspicion of having illegally reentered the United States, in
violation of 8 U.S.C. § 1326. Illegal reentry is a civil "status
offense that does not trigger the protections of Rule 5(a) until
the criminal process has been initiated against the detained
alien." United States v. Tejada, 255 F.3d 1, 3 (1st Cir. 2001);
3 In his motion to dismiss, Garcia-Zavala raised a claim
under the Speedy Trial Act (STA), 18 U.S.C. § 3161(b). He has
waived any such claim on appeal for lack of developed
argumentation. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
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see Encarnacion, 239 F.3d at 399. So ICE's administrative custody
of Garcia-Zavala beginning on September 9, 2017, was civil, not
criminal.
We have conjectured that Rule 5(a) may apply when "the
government uses civil detention as a pretext for holding an
individual while it investigates other possible criminal charges."
Tejada, 255 F.3d at 4 (not involving such evidence of pretext).
Garcia-Zavala argues that this is such a case. He argues that,
thirty minutes into the stop, it was already clear that he would
be criminally charged, so the Rule 5(a) "unnecessary delay"
analysis should begin there. But the district court found no
evidence that Garcia-Zavala was "detained for any reason other
than routine inquiry into his suspicious immigration status -- a
civil matter." Garcia-Zavala, 2018 WL 1091973, at *4 (quoting
Tejada, 255 F.3d at 4). And the district court found no evidence
that the government employed "delaying tactics for an
impermissible purpose." Id. (quoting Tejada, 255 F.3d at 5).
Rather, Officer Lenotte followed the course laid out in Tejada and
Encarnacion: He promptly obtained a hard copy of Garcia-Zavala's
immigration A-file, confirmed the previous deportation order, and
then presented the case to the U.S. Attorney's Office for criminal
charges. See Tejada, 255 F.3d at 2; Encarnacion, 239 F.3d at 396-
97. Based on our review of the record, we find no clear error
with the district court's factual findings.
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Garcia-Zavala only entered criminal custody on September
22, 2017, when ICE officials brought him to the courthouse for his
initial appearance. Because Garcia-Zavala made his initial
appearance just as "the criminal process [was] initiated," Tejada,
255 F.3d at 3, there was no "unnecessary delay" before his initial
appearance and so no Rule 5(a) violation.4
B. Motion to Suppress
Garcia-Zavala moved to suppress his identity, his
consular ID card, his fingerprint card, and his A-file. We affirm
the denial of Garcia-Zavala's motion to suppress this evidence for
the reasons stated by the district court, id. at *5-7 (part II.B.1
through II.B.2), and do not reach its identity information ruling,
id. at *7-8 (part II.B.3).
Garcia-Zavala also moved to suppress his unwarned
statements to Lenotte. When questioned by Lenotte during the
roadside stop, Garcia-Zavala identified himself and provided his
date of birth and country of origin. Garcia-Zavala argues that
this information was obtained in violation of Miranda v. Arizona,
384 U.S. 436 (1966), and that this violation warrants suppression.5
4 Because there was no Rule 5(a) violation, "we need not
decide whether Rule 5(a) can ever be a basis for dismissal of an
indictment absent evidence of unwarranted interrogation during the
period of detention." Encarnacion, 239 F.3d at 400 n.5.
5 The district court appears to have resolved this issue
by holding that identity information is not subject to suppression.
See Garcia-Zavala, 2018 WL 1091973, at *7-8. We take a different
tack, noting that we may affirm a district court's "suppression
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There was no Miranda violation. The government agreed
not to use Garcia-Zavala's incriminating responses against him.
And Garcia-Zavala's statements identifying himself, his date of
birth, and his country of origin are not subject to Miranda. See
United States v. Sanchez, 817 F.3d 38, 45 (1st Cir. 2016) (noting
the Miranda exception for routine booking questions not seeking to
elicit incriminating responses).
We note a final matter: At oral argument, Garcia-Zavala
suggested that the van's passengers may have been racially
profiled. But he never developed this argument in his briefs and
he offers no basis for finding clear error in the district court's
factual finding to the contrary.
III.
We affirm the district court's denial of Garcia-Zavala's
motion to dismiss and motion to suppress.
rulings on any basis apparent in the record." United States v.
Arnott, 758 F.3d 40, 43 (1st Cir. 2014).
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