                                                    NOT PRECEDENTIAL


            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 10-1776
                          ____________

                UNITED STATES OF AMERICA

                                v.

                ANTHONY E. MONTGOMERY,
                               Appellant
                      ___________

          On Appeal from the United States District Court
                    for the District of New Jersey
             (D.C. Criminal No. 3-09-cr-000386-001)
           District Judge: Honorable Anne E. Thompson
                            ___________

            Submitted Under Third Circuit LAR 34.1(a)
                       November 18, 2010

Before:   BARRY, CHAGARES, and VANASKIE, Circuit Judges.

                   (Filed: December 14, 2010 )
                           ___________

                   OPINION OF THE COURT
                        ___________
VANASKIE, Circuit Judge.

       Appellant Anthony E. Montgomery (“Montgomery”) appeals the District Court‟s

denial of his motion to suppress his confession as involuntary. Although he admits to

being a “seasoned arrestee,” he claims that his “mental state, coupled with [an FBI

Agent‟s] false promise of an immediate transfer into federal custody in exchange for [his]

confession, was so powerful as to negate the voluntariness of Montgomery‟s confession.”

(Appellant‟s Br. at 14.) The Government argues that the record supports the voluntary

nature of Montgomery‟s confession and, therefore, the District Court‟s denial of his

motion to suppress should be affirmed.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291.     For the following reasons, we will affirm

the judgment of the District Court.

                                            I.

       On May 1, 2008, Montgomery was arrested on state charges after he fled a motor

vehicle traffic stop in Tinton Falls, New Jersey. After his arrest, Montgomery was sent to

Monmouth County Correctional Institute (“MCCI”), a New Jersey state prison facility.

While at MCCI, Montgomery became a suspect in a federal investigation concerning the

armed robbery of a Sovereign Bank branch in Toms River, New Jersey.

       Eight days after Montgomery‟s arrest, FBI Special Agent R. J. Gallagher met with

him to take his fingerprints and ask him about the bank robbery. Montgomery told

Gallagher that he had “no statement” concerning the robbery, and the interview ceased.

Subsequently, Agent Gallagher obtained via subpoena recordings of Montgomery‟s

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phone calls from the MCCI and listened to them as part of his bank robbery investigation.

According to Agent Gallagher, Montgomery‟s telephone calls made references to a

potential prison escape, and he alerted MCCI authorities. Consequently, Montgomery

was moved from the general population to J-Pod, an area used to house prison inmates

who require greater supervision.

       While in J-Pod, Montgomery was charged with committing, inter alia, Unlawful

Possession of a Weapon, Aggravated Assault, Assault of a Corrections Officer, Criminal

Attempt, and Possession of Escape Implements. On May 27, 2008, MCCI correctional

officers found a “shank” knife in Montgomery‟s possession, and on November 7, 2008,

several correctional officers restrained Montgomery, who was assaulting another

correctional officer. As a result of these incidents, Montgomery alleged that various

correctional officers retaliated against him by tampering with his food and verbally

abusing him. He claimed, moreover, to be frequently shuffled between prison cells,

unable to sleep, and continuously hungry because he refused to eat his meals.

       Unhappy with his prison conditions, Montgomery directed his attorney to file a

motion to have him transferred to another state prison institution. After his motion was

denied, Montgomery told his attorney to set up a meeting with Agent Gallagher, to

inform the agent that he desired to be transferred into federal custody, and to notify Agent

Gallagher that he would be “interested” in what Montgomery had to say. In his own

words, Montgomery “[p]retty much” understood that if he gave a statement to Agent

Gallagher, then he would be transferred to a federal correctional facility. (A. 126.)

Agent Gallagher, however, merely indicated to Montgomery‟s attorneys that he believed

                                             3
it was possible to move their client into federal custody, and never promised counsel that

such a transfer could be arranged. (A. 135, 137, 144.)

       On March 16, 2009, Agent Gallagher interviewed Montgomery concerning the

Sovereign Bank robbery in Toms River. The interview was videotaped and a transcript

was made. Agent Gallagher read Montgomery his Miranda rights, which Montgomery

waived, agreeing to speak without his attorney present. (A. 242-43.) In fact, prior to the

interview, Montgomery had made it clear to his attorney that he wanted to talk to Agent

Gallagher by “himself,” and that “[h]e didn‟t want [counsel] there.” (A. 107.) After

reading Montgomery his rights, Agent Gallagher stated that he was “not here to make any

promises . . . [and] I can‟t promise you anything[.]” (A. 243.) Nonetheless, Montgomery

proceeded to fully confess that he committed the bank robbery, and details of how he

committed it.

       Subsequently, Montgomery filed a motion to suppress his confession. Finding

that the confession was made knowingly and voluntarily, the District Court denied

Montgomery‟s motion. After a bench trial, the District Court found Montgomery guilty

of bank robbery by force or violence, in violation of 18 U.S.C. § 2113(a) and (d), and of

using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).

Following entry of the judgment of conviction and sentence, Montgomery timely

appealed, challenging only the denial of his suppression motion.

                                             II.

       It is well settled that “only voluntary confessions may be admitted at the trial of

guilt or innocence[.]” United States v. Swint, 15 F.3d 286, 288-89 (3d Cir. 1994)

                                              4
(quoting Lego v. Twomey, 404 U.S. 477, 478 (1972)). “To determine the voluntariness

of a confession, the court must consider the effect that the totality of the circumstances

had upon the will of the defendant.” Miller v. Fenton, 796 F.2d 598, 604 (3d Cir. 1986)

(citations omitted). “The question in each case is whether the defendant‟s will was

overborne when he confessed.” Id. “In determining whether a defendant‟s will was

overborne in a particular case, the Court has assessed . . . both the characteristics of the

accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218,

226 (1973) (listing factors such as youth of accused, lack of education, lack of advising

accused of constitutional rights, repeated and prolonged interrogation, “and the use of

physical punishment such as the deprivation of food or sleep”) (citations omitted). We

“review the district court's denial of the motion to suppress for clear error as to the

underlying facts, but exercise plenary review as to its legality in light of the court's

properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (internal

quotation marks, brackets, and citations omitted).

       Applying the totality of the circumstances test and discerning no clear error as to

the District Court‟s factual findings, we conclude that Montgomery‟s confession was

made voluntarily and knowingly. He was a seasoned arrestee and was explicitly advised

of his constitutional rights. While it does appear that he was sleep-deprived and felt

mistreated by the correctional officers, the record undisputedly shows that Mr.

Montgomery initiated the interview by directing his attorney to set up a meeting with

Agent Gallagher to discuss the Sovereign Bank robbery. (A. 242-43.) Agent Gallagher‟s

conduct was not coercive. While he informed MCCI authorities that Montgomery was

                                               5
making possible escape references on the telephone,1 he had nothing to do with where

Montgomery was relocated. Agent Gallagher was never asked, nor did he express an

opinion, concerning Montgomery‟s prison cell arrangements. Additionally, Agent

Gallagher stated repeatedly to Montgomery that he was not making any promises in

exchange for the confession. (A. 243, 244, 246, 268, 272, 275.) As the District Court

aptly noted, the “fact that [Mr. Montgomery] had an agenda of his own—i.e., to transfer

into federal custody—does not transform this interaction with federal agents into a forced

confession.” (A. 8-9.) Ultimately, Montgomery‟s “confession [was] the product of an

essentially free and unconstrained choice[.]” Schneckloth, 412 U.S. at 225.

                                           III.

      For the foregoing reasons, we will affirm the District Court‟s judgment.




1     Montgomery stated, inter alia, on the telephone:

       He will be out soon; When his opportunity comes, he will be taking it; „When this
shit happens, no one will believe it;‟ He will be on the run; The whole „hood‟ will be
talking about him and what he has done; His stock will be the highest in the hood.

(A. 197.)

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