                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAR 30 2000
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 99-4096
          v.                                                D. Utah
 BENANCIO POLANCO-POLANCO,                        (D.C. No. 98-CR-478-S)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before KELLY , MCWILLIAMS , and HENRY , Circuit Judges.




      On September 1, 1998, the defendant Mr. Polanco-Polanco pleaded guilty

to attempted distribution of a controlled substance in Utah state court. Pursuant

to the written state court order, Mr. Polanco-Polanco was placed on probation

and ordered “to leave the United States of America and/or State of Utah if not

deported, defendant to leave within 10 days of release.” Aplt Br. at 5. At

sentencing, the state court judge explained that a condition of his probation was:


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
“that you either voluntarily leave the Country or submit yourself to deportation . .

. and not reenter the Country unless you have the express permission of the

Attorney General of the United States.” Stipulated Record for Appeal, dated Dec.

9, 1999, at 2, attached to Aple Br.

       On September 11, 1998, while incarcerated in a jail in Salt Lake City and

subject to the state court order, INS agents interviewed Mr. Polanco-Polanco.

The agents advised Mr. Polanco-Polanco of his Miranda rights. Mr. Polanco-

Polanco signed a written waiver of his rights and provided the agents with

incriminating statements regarding his true identity, citizenship, entry into the

United States, and criminal history. Based on this information, the United States

brought charges against Mr. Polonco for unlawful re-entry (after conviction of an

aggravated felony), pursuant to 8 U.S.C. § 1326.    See Rec. vol. I, doc. 1, 3.

       Mr. Polanco-Polanco filed a motion to suppress his confession, which the

district court denied.   Consequently, Mr. Polanco-Polanco entered a conditional

plea of guilty on the aggravated re-entry charge, preserving the right to appeal

the district court’s denial of his motion to suppress.

       Mr. Polanco-Polanco now appeals the denial of his motion to suppress his

confession. He argues the waiver of his Miranda rights, given to INS agents who

interviewed him while he was incarcerated in a Salt Lake City jail, was not

voluntary because a Utah state court had ordered him to “submit [himself] to


                                          -2-
deportation” and, therefore, his Fifth Amendment right not to incriminate himself

was violated. We affirm for substantially the same reasons as the district court.

      First, the court order gave Mr. Polanco-Polanco the option of submitting to

deportation or leaving voluntarily. Thus, Mr. Polanco-Polanco was not forced by

the state court order to waive his Miranda rights and provide incriminating

statements to the INS.

      Second, the Fifth Amendment is rooted in protection against government

coercion, but more specifically, improper police tactics. The Supreme Court has

explained that:

      the cases considered by this Court over the 50 years since Brown v.
      Mississippi have focused upon the crucial element of police
      overreaching. While each confession case has turned on its own set
      of factors justifying the conclusion that police conduct was
      oppressive, all have contained a substantial element of coercive
      police conduct. Absent police conduct causally related to the
      confession, there is simply no basis for concluding that any state
      actor has deprived a criminal defendant of due process of law.

Colorado v. Connelly , 107 S. Ct. 515, 520 (1986). Thus, as the government

points out in its brief, “traditional voluntariness analysis focuses on

characteristics of the person, circumstances of the interview, and tactics

employed by the police.” Aple Br. at 6 (citing   United States v. Guerro , 983 F.2d

1001, 1004 (10th Cir. 1993)).

      Yet, Mr. Polanco-Polanco raises no arguments with respect to these issues.

Specifically, he does not allege that the INS agents used coercive tactics during

                                           -3-
the interrogation. Rather, Mr. Polanco-Polanco argues that his statements were

involuntary within the meaning of the Fifth Amendment because there was

“direct government action and actual governmental coercion in the form of a state

court Order.” Aplt Br. at 11. However, we conclude there is insufficient nexus

between the state court order and Mr. Polanco-Polanco’s confession to the INS

agents. More importantly, there is nothing in the state court order that is

improperly coercive or that constitutes government overreaching within the

meaning of the Fifth Amendment privilege against self-incrimination.

      Accordingly, the district court’s denial of Mr. Polanco-Polanco’s motion to

suppress his confession is AFFIRMED.



                                       Entered for the Court,



                                       Robert H. Henry
                                       Circuit Judge




                                         -4-
