Archive | CCE

Monday, October 30th, 2023

Five Second Circuit Judges Dissent From Denial Of Rehearing En Banc On Whether RICO Predicate Offenses Must Be Factually Set Forth In The Indictment.

In United States v. Montague, __ F.4th __, 2023 WL 6852846 (2d Cir. Oct. 18, 2023), Judge Perez, joined by Judges Lee, Robinson, Nathan, and Merriam, dissented from the Circuit’s denial of rehearing en banc. The dissent posed the question (and answer) of “exceptional importance”: “does an indictment for a crime with predicated offenses as necessary elements require any factual detail regarding those predicate offenses? The answer, in our view, should be an easy ‘yes.’”

A divided panel of the Second Circuit (Menashi and Bianco; Jacobs dissenting) had upheld a bare bones indictment alleging the predicates – which are elements of RICO – only as “violations of Title 21 United States Code, Sections 841(a)(1) and 846″ with no factual detail. United States v. Montague, 67 F.3d 520 (2d Cir. 2023). See Blog Post, May 12, 2023. Judge Jacobs dissented on the ground that the specific acts constituting the …

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Categories: CCE, grand jury, indictment

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Categories: CCE, grand jury, indictment

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Friday, May 12th, 2023

A Divided Panel Of The Second Circuit Upholds A Barebones CCE Indictment That Identifies No Predicate Acts

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 …


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Categories: CCE, grand jury, indictment, plain error

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