                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0871n.06

                                           No. 11-1518

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Aug 09, 2012
UNITED STATES OF AMERICA,                                )                   LEONARD GREEN, Clerk
                                                         )
       Plaintiff-Appellee,                               )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF MICHIGAN
MICHAEL MONTGOMERY,                                      )
                                                         )
       Defendant-Appellant.                              )
                                                         )


BEFORE: MOORE, ROGERS, and GRIFFIN, Circuit Judges.

       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 18

U.S.C. §§ 922(g)(1) and 924(e), and 21 U.S.C. § 841. Specifically, he challenges the sufficiency of

the evidence underlying both offenses, the admission of a law enforcement officer’s expert testimony

regarding the modus operandi of drug dealers, and the district court’s denial of his motions to

suppress evidence and to dismiss the superseding indictment. For the reasons set forth below,

Montgomery’s claims are without merit, and we therefore affirm the district court’s judgment.

                                                 I.

       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
No. 11-1518
United States v. Montgomery


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


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United States v. Montgomery


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 rights, but Montgomery waived his rights and continued the interview.

       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 18 U.S.C. §§ 922(g)(1) and 924(e).

Montgomery moved unsuccessfully to suppress his written statement, arguing that it was the product

of police coercion. Subsequent plea-bargaining proved to be unsuccessful and, on August 18, 2010,

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United States v. Montgomery


a grand jury issued a first superseding indictment charging Montgomery with an additional count of

possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841. The new count

was based on the crack cocaine seized from the Roanoke residence during the January 31, 2008, raid.

       The district court denied Montgomery’s Rule 48(b) motion to dismiss the first superseding

indictment, and a two-day jury trial ensued in February 2011.          The parties stipulated that

Montgomery was a convicted felon, that the firearms traveled in interstate commerce, and that the

seized crack cocaine and marijuana were controlled substances. The remaining issues to be tried to

the jury were whether Montgomery constructively possessed the two firearms discovered underneath

the chair cushion at the Roanoke residence and whether he intended to distribute the .4 grams of

crack cocaine retrieved from the toilet by Officer Suttles.

       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.




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        Montgomery contends that his written statement was the product of police coercion and

should have been suppressed. He argues that, during the interview, Sergeant Sorensen told him that

he could go home only if he took responsibility for the weapons, meaning that his confession was

a prerequisite to his release or leniency.       Montgomery does not allege any other coercive

conduct—physical or psychological—on the part of Sergeant Sorensen or the FPD.1

        “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



        1
         It is undisputed that Montgomery was not handcuffed or physically restrained during the
forty-five minute interview, and, by his own admission, it was conducted in a conversational tone.

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No. 11-1518
United States v. Montgomery


involuntary.” United States v. Delaney, 443 F. App’x 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


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United States v. Montgomery


cooperated with the police after his interview with Sergeant Sorensen.

        The district court credited Sergeant Sorensen’s testimony over that of Montgomery, noting

that Sergeant Sorensen had a better recollection of the interview and no motive to fabricate his

testimony, whereas Montgomery had a “clear motive” to do so in order to avoid criminal charges.

Based upon this credibility determination, the court found that “[Sergeant] Sorensen did not promise

[Montgomery] freedom or eventual leniency in exchange for his statement. Instead, [Montgomery’s]

statement was motivated by his own desire to cooperate.”2 The court concluded that Montgomery’s

statement was not the product of coercive police conduct. According “considerable deference” to

the district court’s credibility findings, we agree. United States v. McCauley, 548 F.3d 440, 447 (6th

Cir. 2008) (citation and internal quotation marks omitted).

        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



       2
         A magistrate judge conducted the evidentiary hearing and issued a report and
recommendation (“R & R”) proposing that Montgomery’s motion to suppress the evidence be denied
for, inter alia, lack of objective evidence of coercive police conduct. The district court issued an
opinion and order in which it adopted the R & R in its entirety.

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United States v. Montgomery


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 Federal Rule of Criminal Procedure 29. We review this

issue de novo, “examin[ing] the evidence in the light most favorable to the prosecution to determine

whether any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). “When engaged

in this analysis, we are bound to make all reasonable inferences and credibility choices in support

of the verdict.” Id. “[A] defendant claiming insufficiency of the evidence bears a very heavy

burden” which, in this case, Montgomery has not met. United States v. Abboud, 438 F.3d 554, 589


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United States v. Montgomery


(6th Cir. 2006) (citation and internal quotation marks omitted).

       With regard to the contested element of Montgomery’s constructive possession of the

firearms found at the Roanoke residence, this is not, as he would have it, a case in which the

evidence establishes only his “mere proximity” to the firearms. Under 18 U.S.C. § 922(g)(1),

“constructive possession may be proven if the defendant merely had dominion over the premises

where the firearm is located.” United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007) (citation

and internal quotation marks omitted). Although “‘[p]resence alone’ near a gun . . . does not show

the requisite knowledge, power, or intention to exercise control over the gun to prove constructive

possession,” the existence of “other incriminating evidence . . . [may] tip the scale in favor of

sufficiency.” United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc) (citation and

internal quotation marks omitted). Consequently, “evidence of some other factor—including

connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement

indicating involvement in an enterprise—coupled with proximity may suffice.” United States v.

Newsom, 452 F.3d 593, 610 (6th Cir. 2006) (citation and internal quotation marks omitted).

       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[.]”

Tellingly, 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


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United States v. Montgomery


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. “The 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 21 U.S.C. § 841(a). McPhearson v. United States, 675 F.3d 553, 561 (6th

Cir. 2012) (citing United States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003)). To determine intent

to distribute drugs, a court can look to a number of factors: “the possession of quantities of drugs

too large for personal use; the value of the drugs; the presence of drug distribution paraphernalia,

including scales and packaging materials; the concurrent seizure of large amounts of currency; and

the purity of the drugs.” United States v. Burton, 440 F. App’x 474, 477 (6th Cir. 2011) (citation

and internal quotation marks omitted).

        Here, despite the relatively small quantity of crack cocaine retrieved from the toilet, a rational



        3
         Montgomery argues that there was no fingerprint testing performed on the firearms and no
evidence regarding ownership of the guns. However, there is no requirement that the firearm be
registered in the felon’s name or that the felon’s fingerprints be on the firearm in order to sustain a
conviction under § 922(g)(1). United States v. Thompson, 361 F.3d 918, 923 (6th Cir. 2004) and
United States v. Martin, 399 F.3d 750, 754 (6th Cir. 2005). Montgomery’s argument bears upon the
weight, not the sufficiency, of the evidence.

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No. 11-1518
United States v. Montgomery


trier of fact could have found, beyond a reasonable doubt, that Montgomery possessed the cocaine

with intent to distribute it. The baggie found in the toilet contained two individually wrapped rocks

of cocaine, each weighing .2 grams and worth approximately ten dollars apiece. Montgomery

admitted not only receiving crack cocaine, but also to “sell[ing] about one ounce crack cocaine a

week, about $900 worth a week.” Packaging material and two digital scales—one of which field-

tested positive for cocaine—were found in the home, yet there was no paraphernalia indicating

Montgomery’s personal use. As Sergeant Meyer testified, the packaging and “dime” amount of the

crack cocaine were consistent with distribution, as was the presence of the guns for protection. The

totality of these circumstances supports the jury’s verdict. United States v. Harris, 192 F.3d 580,

589 (6th Cir. 1999); United States v. Rodriguez, 882 F.2d 1059, 1063 (6th Cir. 1989).

                                                 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


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United States v. Montgomery


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); Swafford, 385 F.3d at 1030 (“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).

       Federal Rule of Evidence 704(b) states that “[i]n a criminal case, an expert witness must not

state an opinion about whether the defendant did or did not have a mental state or condition that

constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact

alone.” The central concern under this rule is “whether the expert actually referred to the intent of

the defendant or, instead, simply described in general terms the common practices of those who

clearly do possess the requisite intent, leaving unstated the inference that the defendant, having been

caught engaging in more or less the same practices, also possessed the requisite intent.” Combs, 369


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No. 11-1518
United States v. Montgomery


F.3d at 940 (quotation omitted). As was the case in Combs, the record shows that Sergeant Meyer

“did not actually testify regarding the intent of the defendant to distribute drugs. Rather, he testified

regarding conduct that would be consistent with an intent to distribute and left to the jury the final

conclusion regarding whether the defendant actually possessed the requisite intent.”                Id.

Accordingly, the district court did not abuse its discretion in permitting Sergeant Meyer’s testimony.

                                                   V.

        Montgomery unsuccessfully sought to dismiss the first superseding indictment pursuant to

Federal Rule of Criminal Procedure 48(b), arguing that he suffered substantial prejudice and a

violation of his due process rights because of the government’s intentional delay in bringing the

drug-distribution charge. He asserts that he was prejudiced by the delay in two ways—he was unable

to locate two potential witnesses, and he spent a considerable amount of time formulating a defense

based solely upon the original firearm-possession charge.

        “[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 F.


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United States v. Montgomery


App’x 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 F. App’x 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 plea


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United States v. Montgomery


agreement with [defense] counsel before filing an indictment . . . constitutes a valid reason for the

delay.” United States v. Beigali, 405 F. App’x 7, 14 (6th Cir. 2010). Although “prosecutorial

vindictiveness can potentially be found in the pre-trial addition of charges following pre-trial

assertions of protected rights[,] . . . if the charges are brought simply as the result of failure of the

plea bargaining process, they are not vindictive.” United States v. Suarez, 263 F.3d 468, 479 (6th

Cir. 2001) (citing United States v. Andrews, 633 F.3d 449, 454, 456 (6th Cir. 1980) (en banc), and

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)).

        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.




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