                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2047
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                     Rocio Chavez

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                           Submitted: December 13, 2012
                              Filed: February 6, 2013
                                  ____________

Before WOLLMAN, BYE, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Rocio Chavez pled guilty to misuse of a social security number, in violation of
42 U.S.C. § 408(a)(7)(B). Her conditional plea allows this appeal. Chavez alleges
that the district court should have dismissed the indictment because her arrest and
detention violated Federal Rule of Criminal Procedure 5(a). Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
                                         I.

       In January 2011, the Department of Homeland Security investigated all I-9
forms of Nebraska Beef, Inc. DHS identified 178 as possibly suspect, and 14 as
matching identity-theft complaints on file with the Federal Trade Commission. One
of these 14 was “Gloria Ester Blanco.”

       On May 3, 2011, DHS agents went to Nebraska Beef for interviews. The
woman purporting to be Blanco did not speak English. Once a Spanish-speaking
agent arrived, the woman refused to answer any questions. She was arrested without
a warrant and taken to the Office of Enforcement and Removal Operations in Omaha.
There, the woman’s fingerprints were taken and she received Miranda warnings. She
remained unresponsive to questions about her identity. The agents did not know her
identity.

       Agents learned that Nebraska Beef planned to remove and destroy the contents
of the woman’s locker. In response to the agents’ request, a Nebraska Beef employee
gave them her purse. Inside it, agents found identifying documents in the names of
Gloria Blanco and Rocio Chavez, and a business card of an Omaha Public Schools
employee.1 Shown a picture of the woman, the employee identified her as “Rocio.”
At this point, the agents believed that “Blanco” was Rocio Chavez, and processed her
for removal proceedings.

      On May 5, the agents referred the case to the United States Attorney for
consideration of the identity-theft charges. Chavez was indicted on May 20, and
taken before a magistrate judge for initial appearance on May 27. She moved to
dismiss the indictment, arguing that a hearing was required within 48 hours of her


      1
       The district court later suppressed this evidence, which is not at issue on
appeal.

                                        -2-
initial arrest, pursuant to Rule 5(a). A magistrate judge issued findings,
recommending that the motion be denied. United States v. Chavez, No. 8:11CR165,
2011 WL 5570696 (D. Neb. Oct. 3, 2011). The district court adopted the findings,
and denied Chavez’s motion to dismiss.

                                           II.

      Because this case involves a rule of procedure, this court reviews the legal
conclusions de novo and the findings of fact for clear error. United States v.
Shepard, 462 F.3d 847, 861 (8th Cir. 2006), citing United States v. Vanhorn, 296
F.3d 713, 719 (8th Cir. 2002). Claims of constitutional error are reviewed de novo.
United States v. Smith, 656 F.3d 821, 826 (8th Cir. 2011).

      “A person making an arrest within the United States must take the defendant
without unnecessary delay before a magistrate judge . . . .” Fed. R. Crim. P.
5(a)(1)(A). The Fourth Amendment requires “a fair and reliable determination of
probable cause as a condition for any significant pretrial restraint of liberty, and this
determination must be made by a judicial officer either before or promptly after
arrest.” Gerstein v. Pugh, 420 U.S. 103, 125 (1975) (footnotes omitted). This
constitutional requirement generally requires defendants to be brought before a
magistrate within 48 hours of arrest. County of Riverside v. McLaughlin, 500 U.S.
44, 56-57 (1991).2



      2
        Rule 5(a) and the Gerstein/Riverside standard, while related and analogous,
are distinct concepts. See United States v. Garcia-Echaverria, 374 F.3d 440, 452
n.17 (6th Cir. 2004) (“It is not entirely clear to what extent the McLaughlin rule and
Fed. R. Crim. P. 5(a) overlap.”); United States v. Encarnacion, 239 F.3d 395, 398
n.2 (1st Cir. 2001) (“While the Rule 5(a) and Fourth Amendment contexts are
certainly analogous, the 48-hour rule is a requirement of the Fourth Amendment, not
Rule 5(a).” (citation omitted) (internal quotation marks omitted)).

                                          -3-
       In this case, Chavez was arrested without a warrant. Immigration officials can
make warrantless arrests in certain circumstances. 8 U.S.C. § 1357(a). First, an
official has the power

      to arrest any alien in the United States, if he has reason to believe that
      the alien so arrested is in the United States in violation of any such law
      or regulation and is likely to escape before a warrant can be obtained for
      his arrest, but the alien arrested shall be taken without unnecessary delay
      for examination before an officer of the Service having authority to
      examine aliens as to their right to enter or remain in the United States.

Id. § 1357(a)(2). “Reason to believe” requires the official to have probable cause that
the person is in the United States illegally. United States v. Quintana, 623 F.3d
1237, 1239 (8th Cir. 2010). Because immigration proceedings are civil, persons
arrested under § 1357(a)(2) do not have the protections of Rule 5(a). Id. at 1240 n.1,
citing United States v. Encarnacion, 239 F.3d 395, 398-99 (1st Cir. 2001); United
States v. Perez-Perez, 337 F.3d 990, 997 (8th Cir. 2003).

      Additionally, an immigration official has the authority, without a warrant,

      (4) to make arrests for felonies which have been committed and which
      are cognizable under any law of the United States regulating the
      admission, exclusion, expulsion, or removal of aliens, if he has reason
      to believe that the person so arrested is guilty of such felony and if there
      is likelihood of the person escaping before a warrant can be obtained for
      his arrest, but the person arrested shall be taken without unnecessary
      delay before the nearest available officer empowered to commit persons
      charged with offenses against the laws of the United States; and

      (5) to make arrests –

             (A) for any offense against the United States, if the offense
             is committed in the officer’s or employee’s presence, or


                                          -4-
             (B) for any felony cognizable under the laws of the United
             States, if the officer or employee has reasonable grounds to
             believe that the person to be arrested has committed or is
             committing such a felony, if the officer or employee is
             performing duties relating to the enforcement of the
             immigration laws at the time of the arrest and if there is a
             likelihood of the person escaping before a warrant can be
             obtained for his arrest.

8 U.S.C. § 1357(a)(4)-(5). These arrests are criminal, and Rule 5(a) applies. Fed. R.
Crim. P. 5(a)(1)(A). Subsection 4, relating to immigration-related felonies, confirms
this point by stating that “the person arrested shall be taken without unnecessary
delay before the nearest available officer empowered to commit persons charged with
offenses against the laws of the United States.” 8 U.S.C. § 1357(a)(4).

      The parties agree that the issue here is whether Chavez was taken into civil,
non-pretextual custody. See Encarnacion, 239 F.3d at 399-400. If so, Rule 5(a) does
not apply. If the arrest was criminal, however, Rule 5(a) applies.

       The district court said: “In this case, Agent Wimer initially arrested Chavez
based on probable cause that she had committed the crime of identity theft. At the
same time, Agent Wimer had reasonable suspicion to detain Chavez as an illegal
alien.” Chavez, 2011 WL 5570696, at *4. This characterization is correct. The
social security number Chavez used on her I-9 form was the subject of an FTC
complaint for identity theft – giving probable cause for criminal arrest. Conversely,
the only evidence of her illegal immigration status was her inability to speak English,
her refusal to answer questions, and her use of a social security number subject to an
identity-theft complaint. Agent Wimer testified that he had probable cause as to the
identity-theft offense, but only reasonable suspicion of the immigration offense. See
Alabama v. White, 496 U.S. 325, 330 (1990) (“Reasonable suspicion is a less
demanding standard than probable cause not only in the sense that reasonable


                                         -5-
suspicion can be established with information that is different in quantity or content
than that required to establish probable cause, but also in the sense that reasonable
suspicion can arise from information that is less reliable than that required to show
probable cause.”).

       The district court nonetheless ruled that Chavez was taken into civil custody.
Chavez, 2011 WL 5570696, at *4. This is incorrect. A warrantless arrest for a civil
immigration offense requires probable cause. Quintana, 623 F.3d at 1239. The
agent, therefore, lacked authority to arrest Chavez pursuant to § 1357(a)(2),3 because
the only ground for arrest was criminal. This court holds that Chavez was taken into
criminal custody.

       That Chavez’s illegal status was confirmed “within a couple hours” is
irrelevant to determining of the type of arrest in this case. See Chavez, 2011 WL
5570696, at *4. So too are the deportation procedures after the arrest. The type of
arrest must be measured when the arrest was made. Devenpeck v. Alford, 543 U.S.
146, 152 (2004) (“Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.”). As no authority then existed for civil arrest, Chavez’s arrest was criminal.
This case is dissimilar from cases involving alleged Rule 5(a) violations when the
arrest was properly civil. See, e.g., United States v. Dyer, 325 F.3d 464, 470 (3d Cir.




      3
        Chavez argues in her reply brief – for the first time – that there also was no
authority under § 1357(a)(2) because agents did not establish that Chavez was likely
to escape before a warrant could be obtained. This court will not consider this
argument because it was raised for the first time in the reply brief. Allen v. United
States, 590 F.3d 541, 543 n.1 (8th Cir. 2009). Further, the argument was not raised
before the district court, and this court will generally not consider arguments made
for the first time on appeal. United States v. Green, 691 F.3d 960, 965 (8th Cir.
2012).

                                         -6-
2003); Encarnacion, 239 F.3d at 399; United States v. Noel, 231 F.3d 833, 837 (11th
Cir. 2000) (per curiam).

       As Chavez was taken into criminal custody, she was entitled to the protections
of Rule 5(a). She was not taken promptly before a magistrate judge. Rule 5(a) was
violated. See Fed. R. Crim. P. 5(a)(1)(A). The district court’s contrary ruling was
error. Additionally, the lack of a prompt probable-cause determination violated the
Fourth Amendment. See Gerstein, 420 U.S. at 125.

                                         III.

      Even so, the appropriate remedy is not dismissal of the indictment. Chavez
claims that there must be some remedy for the violation of these rights. Remedies
may exist for violations like those here, but dismissal is not one of them.

      This court – among others – has held that a Rule 5(a) violation will not affect
a conviction absent a showing of prejudice. United States v. Nazarenus, 983 F.2d
1480, 1483 (8th Cir. 1993); see also United States v. Causey, 835 F.2d 1527, 1529
(5th Cir. 1988); United States v. Studley, 783 F.2d 934, 937 n.2 (9th Cir. 1986).
Further, the Third Circuit has explained,

      the remedy for [a Rule 5(a)] violation is not dismissal of the indictment.
      Rather, since the provisions of Fed. R. [Crim.] P. 5(a) are procedural,
      not substantive, the sanction imposed by federal courts for failure to
      comply with Rule 5(a) is suppression of statements taken during the
      period of unnecessary delay.

Dyer, 325 F.3d at 470 n.2 (citations omitted) (internal quotation marks omitted); see
also Studley, 783 F.2d at 937 n.2. In this case, there is no showing of prejudice to
Chavez from the delay between arrest and appearance. Even if there were, the


                                         -7-
appropriate remedy would be suppression of the statements made during that period,
not dismissal of the indictment.

       Dismissal is also not the appropriate remedy for a Gerstein violation. Gerstein,
420 U.S. at 119 (“[I]llegal arrest or detention does not void a subsequent
conviction. . . . [A] conviction will not be vacated on the ground that the defendant
was detained pending trial without a determination of probable cause.”); United
States v. Means, 252 F. Appx. 830, 835 (9th Cir. 2007) (mem. op.) (“[E]ven if a
Gerstein violation occurred, dismissal of the charges is not a correct remedy.”);
United States v. Garcia-Echaverria, 374 F.3d 440, 452 n.17 (6th Cir. 2004) (noting
that a dismissal of the indictment would not be an appropriate remedy, and citing
United States v. Fullerton, 187 F.3d 587, 590-92 (6th Cir. 1999), which suggests that
the exclusionary rule or a Bivens action would be appropriate); United States v.
Davis, 785 F.2d 610, 616 (8th Cir. 1986) (“It has been held time and time again that
an illegal arrest and detention, without more, does not void a subsequent
prosecution.”). This court and the Supreme Court have not decided whether even a
suppression remedy is available for a Gerstein violation. United States v. Davis, 174
F.3d 941, 946 n.8 (8th Cir. 1999), citing Powell v. Nevada, 511 U.S. 79, 85 n.*
(1994).

       Chavez cites to several Speedy Trial Act cases, arguing that her arrest was a
“mere ruse,” and dismissal is therefore appropriate. See, e.g., United States v. De La
Pena-Juarez, 214 F.3d 594, 598 (5th Cir. 2000); United States v. Grajales-Montoya,
117 F.3d 356, 366 (8th Cir. 1997); United States v. Cepeda-Luna, 989 F.2d 353, 355-
56 (9th Cir. 1993). First, these situations are incongruent. The prejudice in the mere-
ruse cases is that civil arrest does not trigger the time clock under the Act, giving
investigators more time to develop charges. Here, Chavez does not demonstrate any
prejudice. Further – contrary to her contention – the remedy in the mere-ruse cases
is not dismissal of the charges; the remedy is for the time clock to begin at initial
arrest. See De La Pena-Juarez, 214 F.3d at 598; Grajales-Montoya, 117 F.3d at 366.

                                         -8-
Although recalculating the time clock may result in dismissal of the charges if they
were not timely filed, the recalculation itself does not automatically dismiss the
charges.

       Moreover, there is no “ruse” in this case. Chavez’s argument incorrectly
assumes she was being held in civil custody. As the district court explained, probable
cause existed for the criminal charges at the time of arrest. Chavez was thus properly
arrested in criminal custody. She is therefore entitled to the rights and remedies
available to criminal detainees (but not to dismissal of her indictment). The
immigration officials did not arrest Chavez pursuant to civil authority as a mere ruse
to further investigate criminal charges.

       Despite the district court’s error in finding no Rule 5(a) or Fourth Amendment
violation, dismissal is not the appropriate remedy.

                                    *******

      The judgment of the district court is affirmed.
                     ______________________________




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