In United States v. Colin Montague, 19-2975 (2d Cir. May 9, 2023), a divided panel of the Second Circuit affirmed a CCE conviction and life sentence based on an indictment that identified no predicate offenses but alleged only that the defendant “did knowingly, willfully and unlawfully engage in a Continuing Criminal Enterprise in that he did violate Title 21 United States Code, Sections 841(a)(1) and 846, which violations were part of a continuing series of violations of said statutes.” Judge Menashi wrote the opinion, joined by Judge Bianco. Judge Jacobs dissented.
The majority acknowledged that “the violations composing a continuing criminal enterprise are elements of the CCE offense and must appear in the indictment.” It posed the question as “the level of detail with which the violations must appear.” Op. 11. It relied on United States v. Flaherty, 295 F.3d 182 (2d Cir. 2002), which it read to hold that an indictment “need only track the language of the statute” and if necessary for notice purposes, “state the approximate time and place of the offense.” It held the indictment in Montague sufficient because it closely tracked the language of the CCE statute and stated a general time frame (of 6 years) and the federal district. Op. at 11-12.
The majority rejected the argument that Flaherty was subsequently refined by the Circuit’s holding in United States v. Joyner, 313 F.3d 40, 47-48 (2d Cir. 2002) that a barebones indictment was deficient where it included “nothing … identifying which three violations served as the predicate for the CCE charge.” Op. 14. It distinguished Joyner on the ground that it characterized the indictment as saying “nothing” about the underlying violations while the indictment in Flaherty referenced the violated statutory provisions. In response to the dissent’s point that the Joyner indictment also referred to the statutory provisions, Dissent at 8-9, the majority insisted that Joyner’s characterization of the facts, not the actual facts, control. Op. 14-15 and n. 2.
Judge Jacobs dissented on the ground that an indictment charging a CCE offense without setting forth each predicate offense violates the grand jury clause of the Fifth Amendment. Judge Jacobs relied on binding Supreme Court precedent holding that the indictment “must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) and that each predicate of the CCE offense is an element. Richardson v. United States, 526 U.S. 813, 817-20 (1999). Dissent at 2-3.
Judge Jacobs focused on the grand jury’s role as “a substantial safeguard against oppressive and arbitrary proceedings,” reasoning that the grand jury right not only guarantees notice of the charges but “ensures that the ‘indictment reflects the judgment of a grand jury rather than only that of the prosecutor.’” Dissent at 3, quoting United States v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001)(en banc). The Montague indictment did “not even allege discrete predicate violations” but “merely gesture[d] at some unknown prior crimes.” The dissent opined that the grand jury “likely did not even know what the predicate violations were, let alone find probable cause that Montague committed them.” Dissent at 5.
Judge Jacobs took issue with the majority’s reading of Flaharty, which held only that an indictment’s failure to identify “which of the alleged violations constituted the series” is not fatal. Dissent at 7. In Flaharty, the indictment alleged the three predicate offenses by alleging one in the CCE charge and two others as separate crimes. Op. At 7 and n. 4. The dissent relied on the Circuit’s subsequent opinion in Joyner that an indictment that does not set forth three predicate offenses in the CCE charge or elsewhere, like the Montague indictment, was deficient. Id. at 8-9. The dissent found further support for its position in United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012), which held that the indictment’s failure to allege the quantity element in a drug distribution indictment could not be cured by citing the statutory section.
Finally, Judge Jacobs noted that the majority opinion “openly splits” with the Third Circuit’s decision in United States v. Bansal, 663 F.3d 634, 647 (3d Cir. 2011), which held, based on the reasoning of Flaharty, that “an indictment must include the facts and circumstances comprising at least three [violations]” comprising a CCE offense. Dissent at 11.
This might be a good case for the Supreme Court.
On the second substantial issue in the case, the full panel agreed that the district court erroneously instructed the jury that it could aggregate the quantities of the three predicates to find the threshold quantity that triggered a life sentence. The Court held that the plain language of 21 U.S.C. (B)(2)(A) and (c)(1) requires that the threshold amount be met in a single violation. Op. at 20-21. However, it affirmed on plain error grounds. A majority (Menashi and Jacobs) held that the charge error was “plain” because the statutory language was so clear, but the error did not affect Montague’s “substantial rights” because the evidence overwhelmingly established that the jury would have found the threshold quantity in a single violation. Op. at 23-28. Judge Bianco concurred, agreeing that the charge was error but disagreeing that the error was “plain” or “obvious.” Concurring Op. 1. Judge Bianco opined that an error can only be “plain” if it is contrary to binding precedent of the Supreme Court or the Circuit, and plainness cannot be based on construction of a complex statute. Id. at 2-11.
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