                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 13 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-6314
                                                    (D.C. No. 99-CR-149-T)
    ALLEN CHARLES DAY,                                    (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Allen Charles Day appeals his convictions for manufacturing and

distributing methamphetamine, as well as conspiracy to do the same, in violation

of, respectively, 21 U.S.C. § 841(d)(2) and 21 U.S.C. § 846. We affirm.

      During the investigation of a large-scale methamphetamine operation in

Oklahoma City, the Federal Bureau of Investigation learned of the possible

involvement of Mr. Day. Two agents interviewed Mr. Day, who at the time was

incarcerated on unrelated charges in an Oklahoma county jail. Mr. Day made

inculpatory statements during the interview. He later repeated the statements in

testimony before the grand jury. In a pretrial motion, Mr. Day moved to exclude

the statements on the ground that they were involuntary. Following a hearing,

the trial court denied the motion to suppress. Mr. Day was convicted by a jury

and sentenced to a lengthy prison term. He appeals, challenging only the denial

of his motion to suppress.

      We review the voluntariness of Mr. Days’s inculpatory statements      de novo ,

although the trial court’s rulings regarding subsidiary factual questions are

subject to review under the clearly erroneous standard.   United States v. Short ,

947 F.2d 1445, 1449 (10th Cir. 1991).

      A defendant’s due process rights under the Fourteenth and Fifth

Amendments are violated if his conviction rests upon an involuntary confession.

Jackson v. Denno , 378 U.S. 368, 376 (1964). “A defendant’s confession is


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involuntary if the government’s conduct causes the defendant’s will to be

overborne and his capacity for self-determination critically impaired.”            United

States v. McCullah , 76 F.3d 1087, 1101 (10th Cir. 1996) (quotation omitted).

“In determining whether the defendant’s will was overborne in a particular case,

the court examines the totality of all the surrounding circumstances–both the

characteristics of the accused and the details of the interrogation.”        Id.

       Relevant factors to be considered include “the age, intelligence, and

education of the suspect; the length of the detention and questioning; the use or

threat of physical punishment; whether      Miranda safeguards were administered;

the accused’s physical and mental characteristics; and the location of the

interrogation.”   United States v. Perdue , 8 F.3d 1455, 1466 (10th Cir. 1993).

In addition, the court must “consider the conduct of the police officers.”          Id.

       Our independent review of the record establishes that Mr. Day’s statements

were voluntarily given. He was advised of his constitutional rights before he

spoke to the FBI and was re-advised of those same rights before his grand jury

testimony; he signed separate written statements waiving his rights prior to each

event. The interview with FBI agents took place not in his jail cell but in the

sheriff’s office. The door to the sheriff’s office was open, the thirty-three year

old Mr. Day was not handcuffed during the hour and a half interview, and the




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agents were not visibly armed. Mr. Day does not claim that he was physically

coerced or otherwise threatened in any manner by the agents.

      The most Mr. Day alleges is that the FBI agents made an implied promise

of immunity to him, one that amounted to an unlawful “psychological ploy” given

his limited educational background. Appellant Br. at 6. He was told, he claims,

that his cooperation may dissuade prosecutors from charging him with any

crimes. He argues that this “gave him false hope that if he talked, he would not

be prosecuted.”   Id. at 5. This may be so, but we cannot agree that the agents’

routine comments violated the constitution.

      According to testimony provided at the suppression hearing, the agents told

Mr. Day, truthfully, that the contents of his interview would be provided to the

prosecuting attorney’s office, and that, equally truthfully, any decision to charge

him with crimes resulting from his participation in the drug ring rested

exclusively with the prosecutors assigned to the case. The agents further told

him that, as a result of the information he provided, it was possible that he would

not be charged with any crimes. This too is true. But, in the absence of some

indication of coercion, neither it nor any other statement made by the agents runs

afoul of the Fifth Amendment.    See United States v. Nguyen , 155 F.3d 1219,

1223 (10th Cir. 1998) (relying on agent’s testimony that he made no offers of

leniency and holding that “a statement to inform the prosecutor of a defendant’s


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cooperation without any other indications of coercion does not constitute

a promise of leniency”).

       The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.


                                                  Entered for the Court



                                                  Wade Brorby
                                                  Circuit Judge




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