United States v. Polanco-Polanco

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This order and judgment is not binding precedent, except under the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
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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
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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
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