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 Second Circuit “for further consideration in light of the confession of error by the Solicitor General.” Montague v. United States, Supreme Court Docket No. 23-959, 2024 WL 3014465 (June 17, 2024).
The SG had conceded that the barebones indictment was inadequate but argued that the error was harmless, and that such an indictment “an outlier” not consistent with the government’s standard charging practices. It asked the Supreme Court to deny certiorari or “at most,” grant, vacate and remand for further consideration. 2024 WL 2274434, May 17, 2024. The Supreme Court decided that the opinion could not stand and chose vacate it and remand the case.
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