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Thursday, June 27th, 2024

Supreme Court Summarily Vacates Second Circuit’s Opinion In United States v. Montague, Which Upheld A Barebones CCE Indictment Alleging No Specific Predicate Violations.

In United States v. Montague, 67 F.4th 520 (2d Cir. 2023), a divided panel of the Second Circuit affirmed a barebones CCE indictment alleging 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,” without specifying any predicate violations. Judge Menashi wrote the opinion, joined by Judge Bianco. Judge Jacobs dissented. The opinions are fully discussed in our blog post dated May 12, 2023.

On October 18, 2023, the full Circuit denied rehearing en banc, over the dissent of five judges, written by Judge Perez. United States v. Montague, 84 F.4th 583 (2d Cir. 2023).

On June 17, 2024, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to the …

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Friday, February 23rd, 2024

Circuit upholds conviction based on a plea to an indictment mistakenly alleging that the crime occurred on a date four months earlier than the actual date.

In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although the offense indisputably occurred on August 31, 2020. Morgan was sentenced for the crime occurring on August 31, 2020, which had been charged in the original complaint, but not in the indictment to which he pled guilty. The Circuit concluded that there was no constructive amendment because “the conduct Morgan was charged with, pled guilty to, and ultimately was sentenced for was one and the same,” and he was on notice of the “essence of the crime.”…

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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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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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Tuesday, August 9th, 2016

Failure to Charge Loss Amount in 18 U.S.C. 641 Case Harmless Error

In United States v. Lee, 15-458, the Second Circuit affirmed a conviction under 18 U.S.C. 641 and the 30-month sentence that followed.

Relying in part on Apprendi, the Court concluded that a loss amount in excess of $1000 is an element of a felony offense under Section 641 and that, to allege a felony, the indictment should allege that the loss amount exceed $1000.  In this case, however, where the pretrial discovery and the trial included “overwhelming” evidence that hundreds of thousands of dollars worth of government property had been stolen, the violation of the Fifth Amendment’s Grand Jury Clause was harmless.  Opinion at 3.  The deficient indictment gave Lee “specific notice of the nature of the offense and the core of the criminal conduct to be proven at trial.”  Opinion at 22.…

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Friday, August 24th, 2012

Grand Slam

United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ)

Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with “mixtures and substances containing a detectable amount of cocaine.” The indictment did not allege a drug quantity, and cited 21 U.S.C. §§ 846 and 841(b)(1)(C), a penalty section that carries no mandatory minimum. Before trial, the government superseded again. The second superseding indictment was identical to the first except it replaced the citation to § 841(b)(1)(C) with a citation to § 841(b)(1)(B), a penalty provision that, in cases involving 500 grams or more of cocaine, has a five-year mandatory minimum; in 500+ gram cases like Mr. Gonzalez’, where the government files a prior felony information, it specifies a ten-year minimum.

During trial, the defense, after seeing the government’s proposed jury instructions, objected, noting that trafficking in …

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Thursday, August 9th, 2012

Circuit Buries The Lede

United States v. Esso, No. 11-570-cr (2d Cir. June 27, 2012) (Walker, Lynch, Droney, CJJ)

The published opinion in this case is a short and fairly unremarkable decision holding that the district court did not err in allowing the members of a deliberating jury to take the indictment – it charged conspiracy to commit wire and bank fraud and substantive bank fraud – home with them to read overnight. The judge instructed the jurors that they must not show the indictment to – or discuss it with – anyone else, or conduct any outside research, and that the indictment was not evidence. 

That said, however, the circuit strongly “question[ed] the wisdom of the practice,” and “urge[d] caution on district courts considering it.” The practice increases the chance that jurors will be exposed to outside influences in a way that the court cannot monitor and also risks overemphasizing the significance …

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Sunday, April 22nd, 2012

Remorse Code

United States v. Aleynikov, No. 11-1126 (2d Cir. April 11, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Sergey Aleynikov, a former Goldman Sachs computer programmer, stole a portion of Goldman’s proprietary high frequency trading (“HFT”) computer code, apparently in preparation for taking a related, but higher paying, job at a startup company.  A jury convicted him of violating 18 U.S.C. § 2314, which makes it a crime to transport stolen “goods” in interstate commerce, and § 1832, which makes it a crime to steal a trade secret that is related to or included in a “product” that is “produced for or placed in” commerce.  Two months ago, the circuit reversed these convictions in a one-line order with an opinion to follow.

And here it is. While we were all expecting a sufficiency-of-the-evidence opinion, the court instead concluded that the indictment charging Aleynikov with those crimes was itself insufficient because it …

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Saturday, October 6th, 2007

IF THE CRIME DOESN’T FIT THEY CAN’T FORFEIT

United States v. Capoccia, No. 06-0669-cr (2d Cir. September 19, 2007) (Sotomayer, Katzmann, CJJ, Gertner, DJ)

In this case, the district court erred in ordering forfeiture of the proceeds of conduct that occurred prior to the date of the conduct with which the defendant was charged. The decision turned on a very narrow reading of the indictment, as well as on the nature of the statute under which the defendant was charged.

At issue was money that Capoccia, a lawyer, misappropriated from a credit counseling/debt reduction service that he founded. Capoccia was convicted of misappropriating unearned client retainer fees, failing to give complete refunds to clients who withdrew from the program, and embezzling client escrow funds that was supposed to be paid to credit card companies to settle clients’ debts.

Capoccia was charged with interstate transportation of stolen money under 18 U.S.C. § 2314. While the indictment referenced a “scheme” …

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