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 elements must be set forth in the indictment to ensure that “indictment reflects the judgment of a grand jury rather than only that of the prosecutor.” Id. at 546. Where the indictment alleged no discrete predicates but only statutory citations, “the grand jury here likely did not even know what the predicate violations were, let alone find probable cause that Montague committed them.” Id. at 547.
Judge Perez and the four Circuit judges agreed with Judge Jacobs. The “opaque references to statutory citations” violated the “black-letter law” that “each predicate offense and its elements must be set forth in the indictment.” 2023 WL 6852846 at *1. With no elements or factual details alleged, the indictment here established only that the grand jury “found probable cause to believe that Montague ‘undertook’ unspecified ‘violations of’ statutes with unspecified elements – that’s it.” Id. “Permitting such perfunctory allegations all but voids a key function of the indictment” – to ensure that the offenses were charged by a group of “fellow citizens acting independently of either prosecuting attorney or judge.” Id. at *2. To serve that function, “the grand jury must know and agree to the charge” put before it and the indictment provides the “necessary assurance” that it did so.
Judge Perez noted the well-established precedent, e.g., United States v. Dupree, 870 F.3d 62, 70 (2d Cir. 2017); United States v. Gonzalez, 686 F.3d 122, 132 (2d Cir. 2012) that an indictment may not simply allege a violation of a numbered statutory section – such as the defendant “did violate Title 21, United States Code, Sections 841(a)(1) and 846.” 2023 WL 6852846 at *2. The decision in Montague created an exception to this rule for CCE predicate offenses, for no reason. Id. The dissent also noted that Montague creates a split with the Third Circuit’s holding in United States v. Bansal, 663 F.3d 634, 647 (3d Cir. 2011) that a RICO indictment must allege the facts and circumstances comprising at least three predicates, inviting intervention “from above.” Id. at 3-4.