United States v. Michael MontgomeryUnited States v. Michael Montgomery
GRIFFIN, Circuit Judge.
Defendant Michael Montgomery appeals his convictions by a jury of being a felon in possession of a firearm and possession with intent to distribute crack cocaine, in violation of
On the evening of January 31, 2008, seven officers from the Flint, Michigan, Police Department (FPD) executed a search warrant at 3072 Roanoke Street in Flint. The FPD team was led by Sergeant Frank Sorensen, a twenty-three-year veteran of the force. When no one answered the door, the officers entered the home by ramming a side door. Sergeant Wayne Suttles, the first officer to enter the home, saw Montgomery in the kitchen. When Suttles announced police, police, Montgomery turned and ran down a hallway and into the bathroom. Sergeant Suttles followed and saw Montgomery throw something into the toilet and reach for the handle in an attempt to flush it. But before he could do so, Suttles tackled him, and they fell into the shower area. Suttles managed to handcuff Montgomery, stood him up, and led him out of the bathroom. Sergeant Suttles returned to the bathroom, where he retrieved a plastic bag containing two individually packaged rocks of crack cocaine from the toilet and a plastic baggie containing marijuana from the shower.
Montgomery was arrested and placed in a room of the house while the officers searched the entire premises. Montgomery was the only person found there. The small two-bedroom home was fully furnished and appeared to be lived in. In the living room, the officers discovered a still-smoldering, half-smoked marijuana cigarette and a small amount of marijuana on a coffee table next to a chair that faced the television. The television was turned on and the remote control was on the floor next to the chair. The officers found two unloaded revolvers underneath the seat cushion of the chair. In the kitchen were two digital scales, one with suspected (and later confirmed) powder cocaine residue on it, and a box of plastic baggies. The police also searched Montgomery and found a small baggie of powder cocaine and $281 in cash in his pants pockets.
The officers transported Montgomery to the police station where, at 10:20 p.m., Sergeant Sorensen commenced an interview in his office with Montgomery. Sergeant Sorensen first ascertained that Montgomery was literate, that he understood the reason for his arrest, and that he was not under the influence of drugs or alcohol. At 10:25 p.m., Sergeant Sorensen advised Montgomery of his Miranda
Montgomery told Sergeant Sorensen that when he first moved to Flint from Detroit in November 2007, he sold a few balls of cocaine from a house on Russell Street where he stayed. He named and described his two suppliers—Cig and Tone—from Detroit. According to Sergeant Sorensen, Montgomery volunteered to do his suppliers, and Sorensen responded by advising Montgomery that if he wished to cooperate, he would have to write out a statement taking responsibility for what [he] did up there on Roanoke. Montgomery agreed and proceeded to handwrite the following statement:
I, Michael Montgomery, take full responsibility for my actions on January 31, 2008 for the two guns, not loaded[,] a sack of weed and crack cocaine I received. I come down with Cig and Tone to hustle and make money on Russell Street. I sell about one ounce crack cocaine a week, about $900 worth a week.
Montgomery signed and dated the statement, as did Sergeant Sorensen, who then terminated the interview at 11:05 p.m., immediately after Montgomery made the confession. Pending further investigation, Montgomery was released that same evening without being charged, despite the fact that he had outstanding warrants for his arrest.
In March 2009, a federal grand jury issued a one-count indictment charging Montgomery with being a felon in possession of a firearm, in violation of
The district court denied Montgomery’s
At the trial, the government called as its witnesses the officers who participated in the execution of the search warrant. Sergeant William Meyer, an experienced FPD officer, testified on behalf of the government as an expert in the sale and distribution of illegal drugs. At the close of the government’s case-in-chief, Montgomery moved for a judgment of acquittal based on the insufficiency of the evidence. The court reserved its ruling, but ultimately denied Montgomery’s motion. The defense rested without calling any witnesses, and the jury convicted Montgomery on both counts. In April 2011, the district court sentenced Montgomery to concurrent terms of 190 months in prison. Montgomery timely appeals his convictions.
II.
Montgomery contends that his written statement was the product of police coercion and should have been suppressed. He argues that, during the interview, Ser-
On appeal from a motion to suppress, we review a district court’s factual findings for clear error and its legal conclusions de novo. United States v. Jones, 673 F.3d 497, 501 (6th Cir. 2012). There are three requirements for finding that a defendant’s confession was involuntary due to police coercion: (i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant’s will; (iii) and the alleged police misconduct was the crucial motivating factor in the defendant’s decision to offer the statement. United States v. Stokes, 631 F.3d 802, 808 (6th Cir. 2011) (citation and internal quotation marks omitted). The government bears the burden of demonstrating by a preponderance of the evidence that Montgomery’s confession was voluntary. United States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003).
We have recognized that, in certain circumstances, [p]olice promises of leniency and threats of prosecution can be objectively coercive. Id. at 261. Generally, however, promises of leniency are coercive only if they are broken or illusory, id. at 262, and promises to recommend leniency or speculation that cooperation will have a positive effect do not make subsequent statements involuntary. United States v. Delaney, 443 Fed. Appx. 122, 129 (6th Cir. 2011) (citation and internal quotation marks omitted).
At the suppression hearing, Montgomery and Sergeant Sorensen offered different versions of what was said during the interview. Sergeant Sorensen testified unequivocally that he made no promises to induce Montgomery‘s statement. He neither asked for Montgomery‘s cooperation nor promised Montgomery that he would be released, given leniency, or that the charges would be dismissed in exchange for a statement. Instead, according to Sergeant Sorensen, Montgomery brought up the possibility of cooperating by offering to do his suppliers. Sergeant Sorensen‘s response, based upon his personal policy, was that Montgomery must first take responsibility for his conduct. Sergeant Sorensen testified that he did not give Montgomery any further direction regarding what taking responsibility entailed—that is, he did not tell Montgomery what to write in his statement.
Montgomery‘s testimony at the suppression hearing was less certain. He initially testified that Sergeant Sorensen told him that if I took responsibility for the weapons, that I can go home. On cross-examination, however, he could not recall whether Sergeant Sorensen told him that he would not be released if he did not cooperate, and he later admitted that Sergeant Sorensen did not tell him that if he did not give a statement, he would be going to jail for a long time. It was simply Montgomery‘s understanding that Sergeant Sorensen would not give him a chance to work off the firearms charge unless he made a statement in which he took responsibility for the revolvers found under the chair cushion. No evidence was introduced showing if or how Montgomery cooperated with the police after his interview with Sergeant Sorensen.
The district court credited Sergeant Sorensen‘s testimony over that of
Contrasted with Sergeant Sorensen’s unwavering testimony (corroborated by his notes taken during the interview) that he made no promises contingent upon a confession, Montgomery’s nebulous understanding that he must t[ake] responsibility for the weapons so that he could go home falls far short of the objective evidence of coercion necessary to suppress his statement, particularly when his status as a seasoned career offender is taken into consideration. See Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994) (factoring in the defendant’s prior experience with the criminal justice system and resultant appreciation of the lessons of that experience in holding that his confession was not coerced). As was the case in United States v. Wrice, 954 F.2d 406, 411 (6th Cir. 1992), we find nothing in the discussion between [Sergeant Sorensen and Montgomery] rising to the level of an irresistible inducement that would render the confession involuntary, and [n]othing in the record indicates that [Montgomery] was especially sensitive to pressure, that he had been physically abused, or that his emotional or psychological equilibrium had been upset by his treatment at the hands of officials. Id. at 411. Quite to the contrary, the record fully supports the district court’s conclusion that Montgomery made the confession in order to market his information to the police for his personal benefit, not [as] the result of illegitimate efforts to coerce [him] to confess. Id. In any event, any alleged promise to release Montgomery if he gave a statement was not illusory, because he was released following the interview. The district court, therefore, did not err in denying Montgomery’s motion to suppress.
III.
Next, Montgomery reasserts the sufficiency-of-the-evidence claims originally made in his motion for judgment of acquittal pursuant to
Here, such additional evidence exists in the form of Montgomery‘s confession, in which he [took] full responsibility for [his] actions on January 31, 2008, for the two guns not loaded[.] Telllingly, Montgomery took responsibility for the unloaded guns, a fact not conveyed to him by the police before he gave his statement. Moreover, during the booking process and his interview, he gave 3072 Roanoke as his current address. And the jury could reasonably infer from the evidence that, immediately before the police entered the house, Montgomery had been sitting in the living room chair with the guns tucked in the cushion underneath it. Thus, there is ample evidence that Montgomery exercised the requisite dominion and control over the firearms found in the house in which he was, at the time of arrest, the sole occupant. United States v. Jenkins, 593 F.3d 480, 484 (6th Cir. 2010); Grubbs, 506 F.3d at 439; United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005); United States v. Whitehead, 415 F.3d 583, 588-89 (6th Cir. 2005).3
The evidence was likewise sufficient to support Montgomery‘s conviction for possession with intent to distribute cocaine. [T]he government [is] not required to establish any specific quantity, or any intent to distribute a specific quantity, in order to establish guilt of possession with intent to distribute under
Here, despite the relatively small quantity of crack cocaine retrieved from the
IV.
Montgomery contends that the district court erred in admitting the testimony of FPD Sergeant William Meyer, a twenty-year veteran FPD officer, who testified as the government‘s expert regarding the means, methods, and techniques of illegal drug sales and distribution. Sergeant Meyer was one of the officers who executed the search warrant at 3072 Roanoke on January 31, 2008. Although defense counsel did not dispute Meyer‘s qualifications, she argued in support of her pretrial motion in limine that Meyer‘s testimony was unnecessary and would effectively usurp the jury‘s function on the close question of intent to distribute the small quantity of cocaine involved in this case. The district court denied the motion, finding that the testimony would be helpful to a lay juror. The court then gave a cautionary instruction to the jury on the dual roles of a law enforcement officer as a fact witness and as an expert witness, see generally United States v. Lopez-Medina, 461 F.3d 724, 743-44 (6th Cir. 2006), and defense counsel expressed satisfaction with the instruction.
Courts have overwhelmingly found police officers’ expert testimony admissible where it will aid the jury‘s understanding of an area, such as drug dealing, not within the experience of the average juror. Lopez-Medina, 461 F.3d at 742 (citation and internal quotation marks omitted); see also United States v. Ham, 628 F.3d 801, 805 (6th Cir. 2011) (holding that a federal agent‘s expert testimony regarding the characteristics of crack cocaine and the methods of its distribution was admissible and highly relevant in helping the jury resolve the central issue of whether the defendant possessed crack cocaine with intent to distribute) (citation and internal quotation marks omitted); U.S. v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (Our court regularly allows qualified law enforcement personnel to testify on characteristics of criminal activity, as long as appropriate cautionary instructions are given, since knowledge of such activity is generally beyond the understanding of the average layman.) (citation and internal quotation marks omitted).
V.
Montgomery unsuccessfully sought to dismiss the first superseding indictment pursuant to
[T]he Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay, but dismissal is called for only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage. United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009) (citation and internal quotation marks omitted). The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative. United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir. 1997). Witness unavailability constitutes prejudice only if the defendant shows that the delay relates to the witness’s absence. United States v. Thomas, 404 Fed. Appx. 958, 961 (6th Cir. 2010) (citation and internal quotation marks omitted). [B]are assertions, without supporting evidence, are not sufficient to demonstrate prejudice. United States v. Vaughn, 444 Fed. Appx. 875, 879 (6th Cir. 2011) (citation and internal quotation marks omitted).
Although Montgomery alleged in his motion to dismiss that there were possible witnesses, whereabouts unknown, who would provide exculpatory testimony at trial if they could be located, he did not identify these witnesses until the first day of his trial. As it turns out, the potential witnesses were two women who allegedly were the renters of the house on Roanoke Street at the time of the January 2008 raid. It was Montgomery’s theory that these witnesses would testify that he was merely a social invitee in the home on the day in question; however, whether he rented, lived in, or owned the residence is neither determinative of his guilt or innocence on both counts nor exculpatory in nature. Montgomery offered no insights into his steps taken to locate these witnesses or how the delay in issuing the superseding indictment corresponded to their inability to testify. The district court did not err in finding the claim to be speculative.
Likewise, Montgomery’s claim that preparation of his defense was compromised by the belated addition of the cocaine charge rings hollow. Both counts stemmed from the same event, and the drug-distribution charge was based upon information that was known to Montgomery from the date of his arrest.
Nor is there any merit in Montgomery’s contention that the pre-indictment delay was an intentional device used by the government to gain a tactical advantage and that the cocaine count was the product of prosecutorial vindictiveness. [T]he ongoing effort by the government to reach a
After Montgomery’s March 2009 indictment on the firearms charge, the parties engaged in plea negotiations, but Montgomery rejected two Rule 11 plea agreements offered by the government. It was only after his rejection of the second agreement in August 2010 that the government sought to add the drug-distribution charge through the issuance of a superseding indictment, which was forthcoming on August 18, 2010. There is no due process violation arising out of these circumstances, where the plea bargaining failed, not for want of the government’s efforts. United States v. Wade, 266 F.3d 574, 584-85 (6th Cir. 2001); United States v. Wells, 211 F.3d 988, 1001-1002 (6th Cir. 2000).
VI.
For the above reasons, we affirm Montgomery’s convictions.