          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


                                - 3 -
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.




                                    - 4 -
          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


                                      - 6 -
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).


                                  - 7 -
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).


                                - 8 -
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.


                                     - 9 -
           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


                                   - 10 -
            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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