United States v. Montague

18-2975-cr
United States v. Montague
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2022
No. 18-2975-cr
UNITED STATES OF AMERICA,
Appellee,
v.
COLIN MONTAGUE,
Defendant-Appellant,
CHARLTON OSBORNE, ANTOINE SHANNON, COLLIN THOMAS,
CLIVE HAMILTON, ALYSSA SPRAGUE, JARA JENKINS CARMICHAEL,
RACHEL VAIL, DAVID CAESAR, SHELDON PALMER, JERMAINE SWABY,
MICHAEL MOSGROVE, LOU PERRY SLAUGHTER, AKIL LAZARUS,
CLUETH BURTON, MONTAGUE ENTERPRISES, INC.,
Defendants. *
On Appeal from the United States District Court
for the Western District of New York
ARGUED: SEPTEMBER 29, 2022
DECIDED: MAY 9, 2023
* The Clerk of Court is directed to amend the caption as set forth above.
Before: JACOBS, BIANCO, and MENASHI, Circuit Judges.
Defendant-Appellant Colin Montague appeals from a jury
verdict finding him guilty of nine narcotics and money-laundering
offenses, including operating a continuing criminal enterprise
(“CCE”) in violation of 21 U.S.C. § 848. Montague challenges his
conviction primarily on two grounds. First, he argues that his
indictment insufficiently stated the CCE count because it did not
identify the conduct constituting the “continuing series of violations”
that 21 U.S.C. § 848(c)(2) requires. Second, Montague argues that the
district court improperly instructed the jury when it construed
§ 848(b)(2)(A) to allow aggregation of drug amounts across the
continuing series of violations rather than requiring that a single
narcotics offense “involve” at least 150 kilograms of cocaine. We hold
that the indictment was sufficient under our previous decision in
United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002). We also hold that
the district court plainly erred when it instructed the jury but that the
error did not affect Montague’s substantial rights. We affirm the jury
verdict on all counts.
Judge Bianco concurs in a separate opinion. Judge Jacobs
concurs in part and dissents in part in a separate opinion.
ROBERT MARANGOLA, Assistant United States Attorney
(Tiffany H. Lee, Assistant United States Attorney, on the
brief), for James P. Kennedy, Jr., United States Attorney
for the Western District of New York, for Appellee.
2
MICHAEL JOSEPH WITMER, Law Office of Michael Joseph
Witmer, Rochester, NY, for Defendant-Appellant.
MENASHI, Circuit Judge:
Defendant-Appellant Colin Montague appeals a jury verdict
finding him guilty of engaging in a continuing criminal enterprise
(“CCE”) in violation of 21 U.S.C. § 848, money laundering conspiracy
in violation of 18 U.S.C. § 1956(h), and substantive money laundering
offenses in violation of 18 U.S.C. § 1957(a).
The CCE statute is “aimed at what Congress perceived to be a
peculiar evil: the drug kingpin.” Richardson v. United States, 526 U.S.
813, 828 (1999) (Kennedy, J., dissenting). Montague argues that he
cannot be convicted under the kingpin statute primarily for two
reasons. First, Montague says that his indictment was inadequate. The
CCE statute requires that the defendant engaged in a “continuing
series of violations” of the federal narcotics laws. 21 U.S.C. § 848(c)(2).
Along with most of our sister circuits, we have interpreted this
provision to require three predicate violations, each of which is an
element of a CCE offense. See, e.g., Monsanto v. United States, 348 F.3d
345, 348 (2d Cir. 2003). Montague argues that his indictment did not
identify the three predicate violations and therefore failed to charge a
CCE.
Second, Montague contends that the district court improperly
interpreted 21 U.S.C. § 848(b)(2)(A) when it instructed the jury. That
subsection provides that a minimum sentence of life in prison must
be imposed if “the violation referred to in subsection (c)(1) involved
at least 300 times the quantity of a substance described in subsection
841(b)(1)(B) of this title.” 21 U.S.C. § 848(b)(2)(A). The district court
3
instructed the jury that it could aggregate the drug amounts involved
across the three predicate violations in order to reach the threshold
quantity. Montague argues this instruction was erroneous because
§ 848(b)(2)(A) refers to a single violation.
We are not persuaded by Montague’s challenge to his
indictment because the indictment satisfies the test we announced in
United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002). In fact, the
indictment here is not meaningfully different from the one we
considered in Flaharty. We agree, however, with Montague’s
interpretation of § 848(b)(2)(A). That provision requires the threshold
drug amount to be “involved” in a single felony violation of the drug
laws. The district court’s interpretation, which permitted aggregation,
was erroneous. Nevertheless, we conclude that the error was
harmless in light of the overwhelming evidence introduced against
Montague. As a result, we affirm Montague’s conviction on all counts.
BACKGROUND
I
Montague began investing in real estate in the Rochester area
around 2006. According to Montague, his real-estate business was
legitimate: After purchasing properties, he would rent them out and
use the profits to buy new properties.
But in 2012, the authorities in Greece, New York—the
municipality in which Montague resides—opened an investigation
on the suspicion that he was engaged in drug trafficking. According
to the government, Montague was the head of a vast drug ring that
purchased cocaine as far away as the West Coast, transported it to the
Rochester area, sold it to lower-level drug dealers, and laundered the
4
profits through Montague’s real-estate business. In May 2013, the
results of the investigation were presented to a state grand jury, which
declined to indict Montague.
The investigation into Montague continued, however. In
January 2014, officers affiliated with the Greater Rochester Area
Narcotics Enforcement Team (“GRANET”), which includes federal as
well as state and local law-enforcement agencies, secured warrants to
wiretap the telephones of Montague and his associates. On June 26,
2014, GRANET officers executed a search warrant at Montague’s
home and seized drug ledgers and other materials. Montague was not
present during the search and no drugs were found. In August 2014,
a federal grand jury indicted Montague. The grand jury returned a
superseding indictment about a month later. On December 9, 2014,
the grand jury filed a second superseding indictment (hereinafter “the
indictment”). On December 11, 2014, U.S. marshals arrested
Montague in Atlanta, Georgia.
II
The indictment charged Montague with nine counts: One count
of engaging in a CCE in violation of 21 U.S.C. § 848; one count of
narcotics conspiracy in violation of 21 U.S.C. § 846; one count of
money laundering conspiracy in violation of 18 U.S.C. § 1956(h); and
six counts of substantive money laundering offenses in violation of
18 U.S.C. § 1957(a). The CCE count of the indictment stated in
relevant part that Montague “did knowingly, willfully, intentionally
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.” App’x 32. Apart from Count Two—the charge for narcotics
5
conspiracy in violation of 21 U.S.C. § 846—the indictment contained
no details about Montague’s alleged violations of §§ 841(a)(1) and
846. Before trial, Montague moved to dismiss the indictment as
inadequate. That motion was denied.
Montague’s trial lasted seven weeks. The jury heard from
dozens of witnesses and listened to scores of telephone calls collected
from wiretaps. The government submitted thirty-four pages of a drug
ledger. Those pages reflect about six months of the enterprise, which
according to the government ran for eighty-four months.
After closing arguments, Montague submitted a jury charge
request. In relevant part, he asked the district court to “utilize the
standard jury instructions as set forth in the Hon. Leonard Sand’s
Modern Federal Jury Instructions Criminal except as modified
herein.” App’x 5553. The modifications Montague requested are not
related to his arguments on appeal.
When instructing the jury, the district court stated that the jury
could not find Montague guilty of engaging in a CCE (Count One) if
it did not first find him guilty of narcotics conspiracy (Count Two).
The court continued:
[T]he Government must prove beyond a reasonable
doubt … that this offense was part of a continuing series
of violations of the federal narcotics laws. A continuing
series of violations is three or more violations of the
federal narcotics laws committed over a definitive period
of time. These three or more violations do not have to be
convictions or separate counts in the indictment. They
may even be acts not mentioned in the indictment at all.
As long as the defendant, Colin Montague, had the intent
6
to violate the narcotics laws when he committed these
acts, you must … unanimously agree on which three acts
constitute the continuing series of violations.
App’x 5680-81. When explaining the verdict sheet to the jury, the
district court noted that, should the jury find Montague guilty of
engaging in a CCE, it must determine “whether the continuing series
of violations undertaken involved 150 kilograms or more of cocaine.”
App’x 5720.
The jury found Montague guilty on all nine counts. In
particular, the jury decided it was “[p]roven” that Montague’s
“continuing series of violations of 21, U.S.C., Section 841(a)(1) and
846 … involved at least 150 kilograms of cocaine.” App’x 5748, 5766.
At sentencing in June 2018, Montague moved to dismiss his
narcotics conspiracy conviction (Count Two) on the ground that it
was a lesser included offense of engaging in a CCE. The government
did not oppose the motion, so the district court dismissed Montague’s
conviction for narcotics conspiracy. Because the jury found as proven
the facts needed to be convicted under § 848(b), the district court
sentenced Montague to life in prison for his CCE charge. It also
sentenced him to 240 months imprisonment for conspiracy to commit
money laundering and 120 months imprisonment for the substantive
money-laundering charges, all to run concurrently with his life
sentence. Montague now appeals the verdict, arguing principally that
he cannot be convicted of engaging in a CCE because the indictment
was inadequate and that the district court incorrectly interpreted 21
U.S.C. § 848(b)(2)(A) when it permitted the jury to aggregate drug
amounts across the continuing series of violations in order to reach
the 150-kilogram threshold.
7
STANDARD OF REVIEW
Review of a district court’s denial of a motion to dismiss an
indictment “entails mixed questions of law and fact.” United States v.
Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). “[M]ixed questions
of law and fact are … reviewed de novo.” FDIC v. Providence Coll., 115
F.3d 136, 140 (2d Cir. 1997); see also United States v. Daley, 702 F.3d 96,
99-100 (2d Cir. 2012) (“The question whether the district court
properly denied [the] motion to dismiss the indictment is a mixed
question of fact and law, subject to de novo review.”).
Typically, “[t]his court reviews a district court’s statutory
interpretation de novo.” United States v. Kozeny, 541 F.3d 166, 171 (2d
Cir. 2008) (citing United States v. Rood, 281 F.3d 353, 355 (2d Cir. 2002)).
However, Montague did not object to the district court’s
interpretation of § 848(b)(2)(A) when it instructed the jury. When a
party “failed to raise th[e] statutory challenge below,” we “review the
district court’s interpretation … for plain error.” United States v.
Rosario, 7 F.4th 65, 69 (2d Cir. 2021).
“The defendant has ‘the burden of establishing entitlement to
relief for plain error.’” Greer v. United States, 141 S. Ct. 2090, 2097
(2021) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004)). The Supreme Court has identified four prongs of plain error
analysis: (1) there must be an error; (2) the error must be plain,
meaning it must be “clear or obvious, rather than subject to
reasonable dispute”; (3) the error must have “affected the appellant’s
substantial rights” in that it affected the outcome of the proceedings;
and (4) if these other “three prongs are satisfied, the court of appeals
has the discretion to remedy the error … if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.”
8
Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation
marks, alteration, and emphasis omitted); see also Fed. R. Crim. P.
52(b).
DISCUSSION
Congress has mandated a minimum sentence of twenty years
for anyone convicted of engaging in a “continuing criminal
enterprise.” 21 U.S.C. § 848(a). A continuing criminal enterprise
consists of five elements. See generally United States v. Aiello, 864 F.2d
257, 263-64 (2d Cir. 1988). First, the defendant must commit a felony
violation of 21 U.S.C. Chapter 13. 21 U.S.C. § 848(c)(1). Second, that
felony must be a “part of a continuing series of violations” of 21 U.S.C.
Chapter 13. Id. § 848(c)(2). Third, those violations must be undertaken
with five or more persons. Id. § 848(c)(2)(A). Fourth, the defendant
must act in a “position of management” with respect to those five
persons. Id. Fifth, the defendant must “obtain[] substantial income or
resources” from the continuing series of violations. Id. § 848(c)(2)(B).
Montague’s challenge to the indictment centers on the second
element. See infra Part I.
A life sentence is required if the government proves that the
defendant acted not simply in a position of management but as “the
principal administrator, organizer, or leader of the enterprise” or one
of such leaders. 21 U.S.C. § 848(b)(1). As applicable to Montague’s
case, the government must also prove that “the violation referred to
in subsection (c)(1) involved at least 300 times the quantity of a
substance described in subsection 841(b)(1)(B).” Id. § 848(b)(2)(A).
The parties do not dispute that 150 kilograms of cocaine is the correct
amount needed to satisfy this provision. Montague’s challenge to the
9
jury instructions concerns which violations may be considered in
arriving at the 150-kilogram threshold. See infra Part II.
I
Montague contends that the district court erred by failing to
dismiss his indictment, which he argues did not adequately charge
him with engaging in a CCE. Montague’s argument proceeds in four
steps. First, as stated above, the second element of a CCE offense
requires that there be a “continuing series of violations” of the
narcotics laws. 21 U.S.C. § 848(c)(2). We have held that the phrase
“continuing series of violations” means three violations. United States
v. Losada, 674 F.2d 167, 174 (2d Cir. 1982); United States v. Young, 745
F.2d 733, 747 (2d Cir. 1984); Aiello, 864 F.2d at 264; Monsanto, 348 F.3d
at 348.
Second, the Supreme Court has explained that each violation
composing the continuing series “amounts to a separate element” of
the CCE offense, so a jury must “agree unanimously about which
specific violations make up the ‘continuing series of violations.’”
Richardson, 526 U.S. at 815, 819.
Third, because each of the three violations composing the
continuing series of violations is an element of the CCE offense, each
element must appear in the indictment. See Hamling v. United States,
418 U.S. 87, 117 (1974) (“[A]n indictment is sufficient if it … contains
the elements of the offense charged and fairly informs a defendant of
the charge against which he must defend.”).
Fourth, Montague argues that the indictment here failed to
describe three violations constituting a continuing series of violations.
He acknowledges that Count Two—which charged narcotics
10
conspiracy in violation of 21 U.S.C. § 846—sufficiently alleges one
violation. But he says that the indictment does not sufficiently
describe two other violations. Count One—which charged the CCE
offense—stated only that Montague “engage[d] in a Continuing
Criminal Enterprise in that he did violate … Sections 841(a)(1) and
846, which violations were part of a continuing series of violations of
said statutes undertaken by the defendant.” App’x 32. Citing United
States v. Bansal, 663 F.3d 634 (3d Cir. 2011), Montague claims that this
recitation of statutory provisions did not put him on notice of the
conduct alleged to have constituted the other two violations. On these
grounds, Montague contends that three violations do not appear in
his indictment and it was accordingly defective.
It is undisputed that the violations composing a continuing
series are elements of the CCE offense and must appear in the
indictment. The question is the level of detail with which the
violations must appear. Montague essentially urges us to adopt a
facts-and-circumstances test. That is, he claims that an adequate CCE
charge must include sufficient factual detail to put the defendant on
notice of precisely which three acts the government will seek to prove
at trial that constitute the continuing series of violations.
We confronted this very question in United States v. Flaharty,
295 F.3d 182 (2d Cir. 2002), and declined to adopt a facts-and-
circumstances test. We said in that case:
Count three of the superseding indictment in the present
case … referred only to “felony violations of … Sections
848(a)(1) and 846,” and counts one and two simply
charged § 846 conspiracies to violate §§ 848(a)(1) and
860; but we cannot conclude that the superseding
11
indictment thereby failed to allege an offense. In order to
state an offense, “[a]n indictment need only track the
language of the statute and, if necessary to apprise the
defendant ‘of the nature of the accusation against
him,’ … state time and place in approximate terms.”
Count three here closely tracked the language of § 848(c),
and it alleged that the continuing series of felonies were
violations of §§ 841(a)(1) and 846, and that the enterprise
was conducted “[i]n or about and between 1992 and
April 1998 … within the Eastern District of New York
and elsewhere.” We thus conclude that count three did
not fail to charge an offense.
Flaharty, 295 F.3d at 198 (citations omitted).
The Flaharty test has two requirements. First, the indictment
must track the language of the statute. Second, and only if necessary,
the indictment must state the approximate time and place of the
offense. Nowhere in Flaharty did we say that the violations composing
the continuing series must be alleged in separate counts or that the
facts and circumstances amounting to a violation must be mentioned
elsewhere in the indictment. On the contrary, we held that an
indictment referring “only to ‘felony violations of … Sections
841(a)(1) and 846’” sufficiently tracks the language of § 848(c) and
does not “fail to charge” a CCE offense. Id.
Montague’s indictment clearly passes this test. Count One of
the indictment “closely tracked the language of § 848(c),” it “alleged
that the continuing series of felonies were violations of §§ 841(a)(1)
and 846,” and it stated the time frame and location at which the
12
enterprise was conducted. Id. Thus, it sufficiently alleged the
violations that compose the continuing series of violations.
The indictment in this case is not meaningfully different from
the one we considered in Flaharty. The defendant in Flaharty was
charged with three relevant counts: one count of engaging in a CCE
and two counts of narcotics conspiracy in violation of § 846. Flaharty,
295 F.3d at 198. Montague was charged with two relevant counts: one
count of engaging in a CCE and one count of narcotics conspiracy in
violation of § 846. The only notable difference between the two
indictments is that Montague was charged with one fewer count of
narcotics conspiracy. But the Flaharty opinion did not say that the
extra narcotics conspiracy count was at all relevant in evaluating
whether the indictment “track[s] the language of the statute.” Id. And
it could not have made such an argument: Three violations are needed
to constitute a “continuing series” of violations under § 848(c)(2). See
Aiello, 864 F.2d at 264. The Flaharty indictment described only two. 1
1 The dissent claims that “there was indeed a series of three offenses alleged
in Flaharty.” Post at 7 n.4. The dissent arrives at the number three by
counting the two narcotics conspiracy counts as well as “a felony drug
violation in the CCE count.” Id. But that is mistaken; there was no felony
drug violation mentioned in the CCE count in the Flaharty indictment. The
CCE count considered in Flaharty read as follows:
[T]he defendants … did knowingly and intentionally engage
in a continuing criminal enterprise, in that they committed
felony violations of Title 21, United States Code, Sections
841(a)(1) and 846, which violations were part of a continuing
series of violations of those statutes undertaken by the above-
referenced defendants in concert with five or more persons
with respect to whom the above-referenced defendants
occupied positions of organizer, supervisor and manager, and
13
Under a facts-and-circumstances test, an indictment that includes
facts and circumstances for only one or two violations would be
defective. But Flaharty pointedly did not hold that the indictment was
defective for failing to allege facts and circumstances that would
amount to three violations. Instead, we held that the Flaharty
indictment adequately charged a CCE offense, and there is no
meaningful distinction between the Flaharty indictment and the
indictment before us now.
At oral argument, Montague suggested that this understanding
of Flaharty conflicts with our opinion in United States v. Joyner, which
considered an indictment in which there was “nothing … identifying
which three violations served as the predicate for the CCE charge.”
313 F.3d 40, 48 (2d Cir. 2002). However, Flaharty and Joyner are
distinguishable. In Joyner, we characterized the indictment as saying
“nothing” about the predicate violations, while in Flaharty we noted
that the indictment specified that the underlying violations were
violations of §§ 841(a)(1) and 846. 2 These two cases stand for the
from which continuing series of violations the above-
referenced defendants obtained substantial income and
resources.
Superseding Indictment at 3, United States v. Johnson, No. 1:98-CR-420
(E.D.N.Y. Mar. 8, 1999), ECF No. 73. This language does not describe the
facts and circumstances of a predicate felony drug violation—unless the
dissent believes that the reference to “felony violations” of 21 U.S.C.
§§ 841(a)(1) and 846 is sufficient to describe such a violation. If so, then the
language of the indictment in this case must also be sufficient.
2 Rather than examining our opinions in Joyner and Flaharty, the dissent
looks behind those decisions to the underlying indictments. See post at 5.
But our opinions in those cases control our decision here. “It is usually a
judicial decision’s reasoning—its ratio decidendi—that allows it to have life
14
proposition that when a CCE count says nothing about the three
underlying violations it is defective (Joyner), but when it alleges
predicate violations by reference to the violated statutory provisions
it sufficiently charges a CCE offense (Flaharty). The indictment before
us is not legally distinguishable from the Flaharty indictment, and we
conclude it sufficiently charges the CCE offense. 3
and effect in the disposition of future cases.” Ramos v. Louisiana, 140 S. Ct.
1390, 1404 (2020). We examine the reasoning that our prior “opinions
turned on”; we do not apply prior judgments “stripped from any
reasoning” articulated in those cases. Id. Our reasoning in Joyner was
compatible with our reasoning in Flaharty: When the indictment says
“nothing” about the predicate violations, the indictment is insufficient;
when the indictment specifies the underlying violations by reference to
statutory sections, the indictment is sufficient. The dissent suggests that we
should sidestep the reasoning articulated in our prior opinions because the
underlying indictments in Joyner and Flaharty were not meaningfully
different. See post at 8-9 (“[T]he indictment in Joyner did discuss predicate
offenses—and did so in the same way as the Flaharty and Montague
indictments.”). That may be. But we cannot relitigate Joyner and Flaharty
here. We must accept the reasoning of those cases to decide the one before
us.
3 The dissent claims that our decision creates a circuit split with the Third
Circuit’s decision in Bansal. Post at 11. Our decision, however, rests on a
straightforward application of Flaharty. If there is a split between our
circuits, it emerged when the Third Circuit adopted a facts-and-
circumstances test in Bansal after our court declined to adopt one in Flaharty.
The dissent also claims that our understanding of Flaharty creates “serious
tension” with cases from the First, Seventh, Eighth, and Tenth Circuits. Id.That is incorrect. Those cases each described a sufficient condition for an
indictment charging a CCE offense to be adequate: When another count (or
counts) in the indictment describes three violations of the narcotics laws,
the count charging a CCE offense is sufficient. See United States v. Soto-
Beniquez, 356 F.3d 1, 26 (1st Cir. 2003) (holding that, “at least where the CCE
15
An alternative pleading rule would not necessarily provide
more information to the defendant. Courts that have adopted facts-
and-circumstances tests acknowledge that separate counts of
narcotics violations satisfy that test. See, e.g., Bansal, 663 F.3d at 647-
48. When all three predicate violations are narcotics conspiracies and
are charged as separate counts in the indictment, not much additional
information will be provided. An indictment charging narcotics
conspiracy need only allege “the existence of a narcotics conspiracy,
a relevant time frame, and the statute alleged to be violated.” United
States v. Macklin, 927 F.2d 1272, 1276 (2d Cir. 1991). Such allegations
are similarly subject to the criticism that a defendant might need more
notice of the charges. The proper way to address such concerns is
through a bill of particulars. “An indictment that fulfills the
requirements of Federal Rule of Criminal Procedure 7(c)(1) but is
nonetheless insufficient to permit the preparation of an adequate
defense may be supplemented with a bill of particulars.” United States
v. Rigas, 490 F.3d 208, 237 (2d Cir. 2007) (internal quotation marks
count incorporates by reference predicate offenses charged elsewhere in the
indictment,” the indictment sufficiently charges a CCE offense despite its
failure to identify the predicate offenses in the CCE count); United States v.
Moya-Gomez, 860 F.2d 706, 752 (7th Cir. 1988) (holding that six separate
narcotics charges gave “actual notice of the predicate acts” for the CCE
charge); United States v. Becton, 751 F.2d 250, 256 (8th Cir. 1984) (“[O]ther
counts of the indictment gave Becton notice of the underlying felonies.”);
United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir. 1989) (en banc) (“[A]
CCE indictment is sufficient where, as here, the CCE counts charge
appellants in the language of the statute, and the indictment additionally
alleges at least three violations in another count or counts.”). We agree that
charging separate narcotics counts suffices to allege the predicate acts that
constitute the continuing series of violations. But these cases announced a
sufficient rather than a necessary condition and therefore do not conflict
with our decision today.
16
omitted). Although a bill of particulars “cannot save an invalid
indictment,” Russell v. United States, 369 U.S. 749, 770 (1962), “the bill’s
purpose is to ‘advise the defendant of the specific acts of which he is
accused,’” Rigas, 490 F.3d at 237 (quoting United States v. Walsh, 194
F.3d 37, 47 (2d Cir. 1999)). While Montague sought a bill of particulars
and requested information about the violations constituting the
continuing series, he did not appeal the district court’s denial of that
request, so it is not before us.
For the reasons stated, the indictment was sufficient. The
district court did not err when it failed to dismiss it.
II
Montague also argues that there was insufficient evidence to
convict him of engaging in a CCE under 21 U.S.C. § 848(b). He
contends that the district court misinterpreted § 848(b)(2)(A) when it
instructed the jury. Because Montague did not raise this question of
statutory interpretation before the district court, we review it for plain
error. Rosario, 7 F.4th at 69. Although we agree with Montague that
the district court’s interpretation was erroneous and that the error
was plain, Montague’s substantial rights were not affected. The jury
was presented with overwhelming evidence such that, had the
district court properly instructed the jury, the jury would have
returned a guilty verdict. For that reason, we affirm.
A
“Any person who engages in a continuing criminal enterprise
shall be sentenced to a term of imprisonment which may not be less
than 20 years.” 21 U.S.C. § 848(a). Subsection (c) defines “continuing
criminal enterprise” and identifies the five elements we described
17
above. Id. § 848(c). Importantly, the first element is stated in
subsection (c)(1): A person is engaged in a continuing criminal
enterprise only if he “violates any provision of this subchapter or
subchapter II the punishment for which is a felony.” 21 U.S.C.
§ 848(c)(1). Subsection (c)(2) then explains that the felony violation
described in subsection (c)(1) must be “a part of a continuing series of
violations” of the narcotics laws. Id. § 848(c)(2). Subsection (c)(2) does
not require that the other violations in the series be felonies. Id.
Subsection (b) of § 848 provides for mandatory life
imprisonment for engaging in a CCE under certain circumstances. Id.
§ 848(b); see United States v. Torres, 901 F.2d 205, 246 (2d Cir. 1990). To
obtain a conviction under § 848(b), the government must prove two
additional elements. First, it must show that the defendant was “the
principal administrator, organizer, or leader of the enterprise or is one
of several such principal administrators, organizers, or leaders.” 21
U.S.C. § 848(b)(1). Second, the government must show either that “the
violation referred to in subsection (c)(1) involved at least 300 times the
quantity of a substance described in subsection 841(b)(1)(B) of this
title,” id. § 848(b)(2)(A), or that “the enterprise … received $10 million
dollars in gross receipts during any twelve-month period of its
existence,” id. § 848(b)(2)(B). The jury was not instructed on this last
possibility—that Montague’s enterprise received $10 million dollars
in gross receipts during a twelve-month period. Consequently, he
was properly convicted under § 848(b) only if “the violation referred
to in subsection (c)(1) involved at least 300 times the quantity of a
substance described in subsection 841(b)(1)(B).” Id. § 848(b)(2)(A).
Neither party disputes that 150 kilograms of cocaine is the quantity
needed to satisfy that requirement.
18
After instructing the jury on the five elements of the CCE
offense listed in subsection (c)—which Montague does not
challenge—the court addressed the requirements of subsection (b). It
stated: “[I]n the event you determine the defendant, Colin Montague,
to be guilty of engaging in a criminally continuing criminal enterprise
as charged in Count 1, you must determine … whether the continuing
series of violations undertaken involved 150 kilograms or more of
cocaine.” App’x 5719-20 (emphasis added). The verdict sheet
described this requirement as follows: “We the jury find the allegation
that the continuing series of violations of 21 USC §§ 841(a)(1) and 846
undertaken by the Defendant Colin Montague involved at least 150
kilograms of cocaine.” App’x 5766 (emphasis added). The foreman
marked this element as “Proven.” Id.Montague contends that the plain language of § 848(b)(2)(A)
requires that the 150 kilograms of cocaine must be “involved” in “the
violation referred to in subsection (c)(1).” 21 U.S.C. § 848(b)(2)(A).
That is, 150 kilograms of cocaine must be involved in the single felony
violation described in subsection (c)(1), rather than involved in the
“continuing series of violations” of the narcotics laws described in
subsection (c)(2). The district court erred, he says, because it
instructed the jury that it must determine “whether the continuing
series of violations undertaken involved 150 kilograms or more of
cocaine.” App’x 5720.
B
We agree that the district court’s interpretation of
§ 848(b)(2)(A) was erroneous. “In statutory interpretation disputes, a
court’s proper starting point lies in a careful examination of the
ordinary meaning and structure of the law itself.” Food Mktg. Inst. v.
19
Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). According to the
government, § 848(b)(2)(A) permits the aggregation of smaller drug
quantities across the three violations composing the continuing series
of violations. This is the interpretation the district court adopted when
it instructed the jury. Montague argues that this interpretation is
erroneous because the statute requires that the single felony violation,
which is a part of the continuing series of violations, involve the
required drug quantity.
We agree with Montague that the government’s interpretation
is erroneous because it conflicts with the text. Subsection (b)(2)(A)
refers to “the violation” in the singular. 21 U.S.C. § 848(b)(2)(A). But
the government’s interpretation maintains that drug amounts may be
aggregated across multiple violations. See Aiello, 864 F.2d at 264(noting that three violations are needed for a continuing series of
violations).
Moreover, the text of subsection (b)(2)(A) explicitly refers to
this single violation as the “violation referred to in subsection (c)(1).”
21 U.S.C. § 848(b)(2)(A). Subsection (c)(1), in turn, describes the first
element of the CCE offense: that the defendant “violates any
provision of this subchapter or subchapter II the punishment of which
is a felony.” Id. § 848(c)(1). In other words, subsection (c)(1) refers to
the single predicate felony violation, not the entire series of violations.
The government’s erroneous interpretation, however, would allow
drug amounts involved in other violations to be aggregated, even
though these violations need not be felonies. See id. § 848(c)(2) (stating
that the violations constituting the continuing series need only be
“violations of this subchapter or subchapter II”). The government’s
interpretation errs by incorporating the concept of a “continuing
series of violations,” which is not found in subsection (c)(1). Rather,
20
that concept appears in subsection (c)(2), which is not referenced at
all in subsection (b)(2)(A).
Montague’s proposed interpretation avoids these problems.
Under his interpretation, 150 kilograms of cocaine must be involved
in a single violation of subchapter I or subchapter II and that violation
must be a felony. It does not allow for multiple violations when the
statutory text uses the singular, and it relies on the mandate of
subsection (c)(1) that the violation be a felony.
Had Congress wanted to authorize aggregation, it easily could
have done so. The subsections immediately before and after
subsection (b)(2)(A) both describe elements that depend on “the
enterprise.” 21 U.S.C. §§ 848(b)(1), 848(b)(2)(B). Congress could have
written that the drug quantity applies to “the continuing series of
violations referred to in subsection (c)(2).” But it did not. Congress
provided that the quantity applies to “the violation referred to in
subsection (c)(1).” When an examination of the ordinary meaning and
structure of the law “yields a clear answer, judges must stop.” Food
Mktg. Inst., 139 S. Ct. at 2364. We have a clear answer here.
The government does not have a response to this argument. It
simply invokes United States v. Atencio, 435 F.3d 1222 (10th Cir. 2006),
in which the Tenth Circuit also considered § 848(b)(2)(A). The
government’s reliance on Atencio is misplaced. Atencio did not
conclude that the interpretation the government advances here was
correct. The Tenth Circuit said that this interpretation, which allows
for aggregation across the three violations constituting the continuing
series, “may well be erroneous.” Id. at 1230. In fact, the Atencio court
indicated that Montague’s interpretation is the correct one. The court
observed that “§ 848(b)(2)(A) requires that ‘the violation referred to in
21
subsection (c)(1) of this section involved’ at least … 150 kilograms of
cocaine” and that “[s]ubsection (c)(1) describes a single, specific
violation … on which the jury must unanimously agree.” Id. Because
neither party in Atencio proposed Montague’s interpretation, the
Tenth Circuit merely “acknowledge[d] some doubt as to the
correctness of the jury instructions” in that case, id., and resolved the
issue on the ground that any possible error “did not affect the
Atencios’ substantial rights,” id. at 1231. Atencio thus does not support
the government’s position that aggregation is permissible under
§ 848(b)(2)(A).
We hold that a conviction under 21 U.S.C. § 848(b)(2)(A)
requires that “300 times the quantity of a substance described in
subsection 841(b)(1)(B)” be involved in the violation described in
§ 848(c)(1): a single violation that is a felony. 21 U.S.C. § 848(b)(2)(A).
C
For an error to be plain it must be “clear or obvious, rather than
subject to reasonable dispute.” United States v. Marcus, 560 U.S. 258,
262 (2010) (quoting Puckett, 556 U.S. at 135). We do not think the
interpretation of the statute here is subject to reasonable dispute.
Twenty-five years ago, we considered similar jury instructions and
concluded that the district court “improperly instructed the jury that
it could aggregate several predicate offenses to reach this quantity
requirement” under 21 U.S.C. § 848(b)(2)(A). United States v. Goodwin,
22
No. 96-1199, 1997 WL 767408, at *4 (2d Cir. Dec. 12, 1997). We adhere
to that longstanding judgment. 4
Whether an error is plain “can depend on well-settled legal
principles as much as well-settled legal precedents.” United States v.
Brown, 352 F.3d 654, 664 (2d Cir. 2003). Thus, “[e]ven absent binding
case law … an error can be plain if it violates an absolutely clear legal
norm, for example, because of the clarity of a statutory provision.” In
re Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (internal quotation
4 “Although we decided [Goodwin] by nonprecedential summary order,
rather than by opinion, our ‘[d]enying summary orders precedential effect
does not mean that the court considers itself free to rule differently in
similar cases.’” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting
2d Cir. Order of June 26, 2007, adopting 2d Cir. Local R. 32.1, at 3). Goodwin
presented exactly the same statutory interpretation question we consider
here. Because “nonprecedential decisions should be used only when the
legal issue is clear enough that all reasonable judges will come out the same
way,” Swanson v. Bank of Am., N.A., 563 F.3d 634, 635 (7th Cir. 2009), the
Goodwin panel necessarily decided that the question was not subject to
reasonable dispute. See 2d Cir. Order of June 26, 2007, at 3 (“Summary
orders are issued in cases in which a precedential opinion would serve no
jurisprudential purpose because the result is dictated by pre-existing
precedent.”). In other words, the Goodwin panel decided that its
interpretation of § 848(b)(2)(A) was so “clear or obvious, rather than subject
to reasonable dispute,” that an opinion addressing the issue would serve
no jurisprudential purpose. Marcus, 560 U.S. at 262 (quoting Puckett, 556
U.S. at 135); see United States v. Kirilyuk, 29 F.4th 1128, 1148 (9th Cir. 2022)
(Bress, J., dissenting) (“That the disposition was non-precedential confirms
that [the] argument was readily resolved based on established law … In our
unpublished dispositions, there should be no new legal holdings, just
applications of established law to facts.”) (internal quotation marks
omitted); Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574,
578 (7th Cir. 2017) (“Two other circuits agree and deem this so
straightforward that they have issued nonprecedential decisions.”).
23
marks omitted). Accordingly, our court has said that an error is plain
when it violates “the plain language of the statute.” United States v.
Polouizzi, 564 F.3d 142, 156 (2d Cir. 2009); see United States v. Whab, 355
F.3d 155, 158 (2d Cir. 2004) (“[W]e can notice plain error that does not
contravene clearly established precedent where such error is …
obvious.”) (internal quotation marks, alteration, and citation
omitted). 5
In this case, “the government’s proffered interpretation of the
statute is inconsistent with its plain words.” United States v. Murphy,
942 F.3d 73, 86 (2d Cir. 2019). The statute requires that “the violation
referred to in subsection (c)(1)” must “involve at least” 150 kilograms
of cocaine. 21 U.S.C. § 848(b)(2)(A). That provision does not bear the
interpretation that the quantity may be aggregated across more than
one violation.
The concurrence claims that the error cannot be plain because
§ 848(b)(2)(A) is part of a “complex statutory regime.” Post at 6. 6 But
5 See also Polouizzi, 564 F.3d at 156 (“Although our Circuit has not
previously held, as we now do, that simultaneous possession of multiple
matters containing images of child pornography constitutes a single
violation of 18 U.S.C. § 2252(a)(4)(B), that conclusion is demanded by the
plain language of the statute and is entirely consistent with Supreme Court
and Circuit precedent addressing similar statutes. Therefore, the error in
this case is plain.”).
6 We note that the Supreme Court has cautioned that “a court cannot wave
the ambiguity flag just because it found the regulation impenetrable on first
read,” given that “hard interpretive conundrums, even relating to complex
rules, can often be solved.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). There
is a difference between cases in which “the relevant language, carefully
considered, can yield more than one reasonable interpretation,” on the one
hand, and those in which “discerning the only possible interpretation
24
the legal error in this case does not implicate any complexities. The
issue is simple: whether the statute could be referring to several
violations when it specifies “the violation referred to in subsection
(c)(1).” 21 U.S.C. § 848(b)(2)(A). Because the word “violation” is
singular—and because subsection (c)(1) also describes a single
violation—the answer is not complicated. It is “clear or obvious,
rather than subject to reasonable dispute.” Marcus, 560 U.S. at 262(quoting Puckett, 556 U.S. at 135). 7 For that reason, the district court
requires a taxing inquiry,” on the other. Pauley v. BethEnergy Mines, Inc., 501
U.S. 680, 707 (1991) (Scalia, J., dissenting). A statute’s placement in a
complex scheme does not render it ambiguous. The concurrence,
meanwhile, does not identify any other reasonable interpretation that the
words of § 848(b)(2)(A) can bear.
7 The concurrence suggests that other circuits have interpreted
§ 848(b)(2)(A) differently. But that is incorrect. In Atencio, the parties both
argued that § 848(b)(2)(A) allowed for aggregation, albeit to differing
degrees. 435 F.3d at 1230. The Tenth Circuit recognized that both
interpretations “may well have been error” and “may well be erroneous”
because “[s]ubsection (c)(1) describes a single, specific violation.” Id. We
agree. In United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992), the D.C.
Circuit did not address the issue before us but simply summarized § 848(b)
in passing and in general terms that do not adopt any particular
interpretation of the statute. Id. at 252. The other authorities on which the
concurrence relies merely describe jury instructions or the findings of a
jury. See id. at 257 (“Palmer’s life sentence was based on his leading a CCE
involving ‘at least 300 times the quantity of a substance described in
subsection 841(b)(1)(B).’”); United States v. Miller, 890 F.3d 317, 356 (D.C. Cir.
2018) (stating that the jury found the CCE involved a certain amount of
drugs); United States v. Wilson, 605 F.3d 985, 1036 (D.C. Cir. 2010) (same);
United States v. Edmond, 52 F.3d 1080, 1106 (D.C. Cir. 1995) (same); United
States v. Avila Vargas, 570 F.3d 1004, 1007-08 (8th Cir. 2009) (same). The fact
that an appeals court described a district court’s jury instructions or the
jury’s findings—without addressing the legal validity of those instructions
25
not only erred when it instructed the jury on the permissibility of
aggregation; the error was plain. 8
D
That error, however, did not affect Montague’s “substantial
rights.” Puckett, 556 U.S. at 135. “An error affects a defendant’s
substantial rights if it is prejudicial and it affected the outcome of the
case.” United States v. Lombardozzi, 491 F.3d 61, 74 (2d Cir. 2007)
or findings—does not establish a body of extra-circuit precedent on the
question before us. The concurrence identifies no circuit decision holding
that § 848(b)(2)(A) permits aggregation of drug quantities across more than
one drug violation. And even if it could identify such a decision, that would
not make a difference here. While “a division of authority on a given point
may provide cause to question the plainness of an error,” it does so only “in
cases lacking the kind of clear statutory language at issue here.” In re Sealed
Case, 573 F.3d at 851-52. The Supreme Court has recognized that a statute is
not rendered ambiguous “merely because there is a division of judicial
authority over its proper construction.” Reno v. Koray, 515 U.S. 50, 65 (1995)
(internal quotation marks omitted).
8 The concurrence claims that we have “stretched to reach this issue” and
should instead have exercised “judicial restraint.” Post at 12. But even the
concurrence agrees that we must review the jury instructions for plain
error, and deciding whether an error was plain is an important part of that
analysis. In other words, it is not a stretch—when engaging in plain error
review—to decide whether an error was plain. “There is a difference
between judicial restraint and judicial abdication,” Citizens United v. FEC,
558 U.S. 310, 375 (2010) (Roberts, C.J., concurring), and it would be
abdication rather than restraint to ignore a question squarely presented in
this appeal. Cf. Oliveira v. New Prime, Inc., 857 F.3d 7, 16 n.13 (1st Cir. 2017)
(“[W]e will not adopt an approach that assumes away one of the live issues
on appeal simply because the issue is a difficult one.”). As we have
previously explained, we must “avoid restraint becoming lethargy and
efficiency mere avoidance.” Browning-Ferris Indus. of S. Jersey, Inc. v.
Muszynski, 899 F.2d 151, 159 (2d Cir. 1990).
26
(alterations omitted) (quoting United States v. Dukagjini, 326 F.3d 45,
61 (2d Cir. 2003)). But if the effect of the error is “indeterminate or
only speculative, we cannot conclude that [a defendant’s] substantial
rights have been affected.” United States v. Worjloh, 546 F.3d 104, 110
(2d Cir. 2008) (quoting Lombardozzi, 491 F.3d at 74). The question is
whether, had the jury been instructed properly, it would have found
that the subsection (c)(1) offense involved 150 kilograms of cocaine.
We conclude that the answer is yes.
The subsection (c)(1) offense here was narcotics conspiracy in
violation of 21 U.S.C. § 846. When the district court instructed the
jury, it described the “[f]irst” element of the CCE offense as follows:
“[B]etween in or about 2008 and on or about July 1st, 2014 … the
defendant, Colin Montague, committed the following felony
violations of the federal narcotics laws pertaining to a conspiracy to
violate the drug laws of the United States in violation of Title 21, United
States Code, Section 846.” App’x 5684-85 (emphasis added). The district
court referred to a “series of three or more offenses” only when it
moved on to the “[s]econd” element of the CCE offense. App’x 5685.
The district court thus made it clear to the jury that the subsection
(c)(1) felony violation was narcotics conspiracy in violation of § 846.
Montague also conceded that the subsection (c)(1) violation was
narcotics conspiracy in his motion for new trial.
Was there evidence of a narcotics conspiracy “involv[ing]” 150
kilograms of cocaine? 21 U.S.C. § 848(b)(2)(A). The government
submitted extensive evidence of such a conspiracy, including thirty-
four pages of a drug ledger seized at Montague’s residence. The
ledger covered the six-month span of September 2013 to February
2014. This evidence demonstrated that the predicate narcotics
conspiracy involved more than 150 kilograms of cocaine.
27
For example, the thirty-four pages chronicle sales of over 120
kilograms to a single person—Shawn Bernard, also known as “Mark.”
Because the ledger pages cover about six months, that means Bernard
purchased about twenty kilograms per month from Montague during
this period. Bernard testified that he bought cocaine from Montague
and resold it until his arrest in July 2014. Extending that twenty-
kilogram-per-month figure until July 2014, when Bernard was
arrested, yields a total volume of 200 kilograms from September 2013
to July 2014. That figure is well above the 150-kilogram threshold set
by § 848(b)(2)(A).
In addition to the ledger, numerous witnesses testified that
Montague facilitated the shipment of cocaine across the country using
his brother’s tractor trailer. Between 2008 and 2011, Montague’s
brother would transport cocaine from southern states, and a courier
would accept the shipment in Delaware or Pennsylvania before
driving the final leg to Rochester. Bernard testified that the truck
typically smuggled fifty kilograms of cocaine at a time, but never less
than forty-five kilograms, and that it would make a trip about every
“month, [or] month and a half.” App’x 1946. Construing these figures
in Montague’s favor would yield transportation of about 360
kilograms per year, more than enough to satisfy the requirements of
§ 848(b)(2)(A).
The jury was presented with even more evidence of
Montague’s conspiracy to distribute cocaine and conspiracy to
possess with intent to distribute cocaine. Under these circumstances,
Montague has not carried his burden of showing that any error in the
jury instructions prejudiced the verdict. Because the error did not
affect Montague’s “substantial rights,” Puckett, 556 U.S. at 135, it
survives plain error review.
28
III
Montague raises several other arguments on appeal. We
conclude that each lacks merit.
First, Montague argues that the prosecutors committed gross
misconduct by introducing allegedly false testimony from Officer
Frank Lempka, Shawn Bernard, and Vidal Smith. But Montague has
not shown that any of the testimony was false. For example, Bernard
testified that Lou Perry Slaughter was a courier for Montague even
though Slaughter purportedly acknowledged that he was a courier
for Bernard. These statements are consistent and indicate neither that
Bernard’s testimony was false nor that the prosecution knew it was
false. Similarly, Montague gives no reason to think that Lempka’s or
Smith’s testimony was false or that the prosecution knew it was false.
Second, Montague claims that the prosecution improperly
vouched for a witness, Antoine Shannon, by invoking his obligation
under a cooperation agreement to tell the truth. But just prior to that
invocation Montague had attacked Shannon’s credibility on the
ground that he had signed a cooperation agreement. When defense
counsel attacks a “witness[’s] credibility, the district court [may]
rightly permit[] the government to introduce into evidence the
various cooperation agreements and to elicit testimony about each
cooperating witness’s understanding of what his agreement
required—specifically, to tell the truth.” United States v. Carr, 424 F.3d
213, 228 (2d Cir. 2005).
Third, Montague contends that the government withheld three
pieces of evidence from him in violation of Brady v. Maryland, 373 U.S.
83 (1963). The first item is the state grand jury’s failure to indict
Montague in 2013. Montague argues that he could have asserted
29
based on that evidence “the affirmative defense of collateral estoppel”
against allegations that he was involved in a narcotics conspiracy
prior to May 2013. Appellant’s Br. 42. But collateral estoppel requires
a final judgment, and a failure to indict is not a final judgment. See
Ashe v. Swenson, 397 U.S. 436, 443 (1970) (explaining that collateral
estoppel applies “when an issue of ultimate fact has once been
determined by a valid and final judgment”); United States v. Williams,
504 U.S. 36, 51 (1992) (“[T]he grand jury sits not to determine guilt or
innocence, but to assess whether there is adequate basis for bringing
a criminal charge.”). Had Montague known about the results of the
state grand jury’s proceedings, the outcome in this case would have
been the same. He therefore cannot establish prejudice, an essential
element of a Brady claim. See United States v. Paulino, 445 F.3d 211, 224
(2d Cir. 2006). With respect to the second item that Montague claims
was improperly withheld—a record of a proffer session for Lou Perry
Slaughter—Montague also fails to establish a Brady claim because he
does not show that the record was “favorable” to him because it was
“exculpatory … or … impeaching.” Id. Montague also does not show
that the third item—a letter by co-conspirator Lemuel Jones claiming
that the government pressured him to testify—was “suppressed by
the State.” Poventud v. City of New York, 750 F.3d 121, 133 (2d Cir.
2014). Jones sent the letter to the district court, and it was recorded on
the docket.
Fourth, Montague maintains that there was insufficient
evidence to convict him of narcotics conspiracy, money-laundering
conspiracy, or the substantive money-laundering charges. As stated
above, the prosecution introduced more than enough evidence that
Montague was involved in a narcotics conspiracy. On the other
charges, five witnesses testified that Montague directly or indirectly
30
instructed them to send money under false pretenses. A government
financial analyst determined that during the duration of the criminal
enterprise, nearly $2.4 million in deposits to Montague-affiliated bank
accounts came from uncertain sources. “[A]fter viewing the evidence
in the light most favorable to the prosecution,” as we must when
evaluating an insufficiency-of-the-evidence claim, we conclude that a
“rational trier of fact could have found the essential elements of
the[se] crime[s] beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979).
Fifth, Montague claims that he was entitled to a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to challenge the
validity of wiretap warrants. But Montague offers nothing more than
conclusory assertions as to why the statements made to secure the
warrants were “deliberate falsehood[s] or statement[s] made with
reckless disregard for the truth,” so this claim fails. United States v.
Falso, 544 F.3d 110, 125 (2d Cir. 2008).
Sixth, Montague argues that the district court committed
several evidentiary errors. But Montague does not explain how any
of the district court’s evidentiary decisions constituted an abuse of
discretion. See United States v. Persico, 645 F.3d 85, 99 (2d Cir. 2011).
Seventh, Montague maintains that his conviction in federal
court following the state grand jury’s failure to indict him in 2013
violates the Double Jeopardy Clause of the Constitution. Montague’s
argument fails for two independent reasons. First, “[t]he Double
Jeopardy Clause of the Fifth Amendment does not bar a grand jury
from returning an indictment when a prior grand jury has refused to
do so.” Williams, 504 U.S. at 49. Consequently, a subsequent grand
jury—state or federal—could indict Montague without raising an
31
issue of double jeopardy. Second, even if the state prosecution raised
the issue of double jeopardy, Montague’s double jeopardy claim still
would be barred by the dual-sovereignty doctrine. See Gamble v.
United States, 139 S. Ct. 1960, 1964 (2019) (“Under this ‘dual-
sovereignty’ doctrine, a State may prosecute a defendant under state
law even if the Federal Government has prosecuted him for the same
conduct under a federal statute.”). Montague concedes that New York
and the federal government are separate sovereigns, but he argues
that the state and federal prosecutions were so “intertwined” as to fall
under the exception to the dual-sovereignty doctrine established by
Bartkus v. Illinois, 359 U.S. 121 (1959). United States v. Coonan, 938 F.2d
1553, 1563 (2d Cir. 1991). However, Montague has asserted no facts
that this is an “extraordinary circumstance[],” such as one in which
“one sovereign has essentially manipulated another sovereign into
prosecution.” United States v. All Assets of G.P.S. Auto. Corp., 66 F.3d
483, 494-95 (2d Cir. 1995). This case therefore does not fall under the
Bartkus exception. Montague’s prosecution did not offend the Double
Jeopardy Clause.
Eighth, Montague asserts that because the initial venire
included only two African Americans and one Hispanic, the venire
violated the Sixth Amendment as well as 28 U.S.C. § 1861. But
Montague alleges nothing to show that these figures were caused by
the “systematic exclusion of [a] group in the jury-selection process,”
as would be required to show a violation of the Sixth Amendment.
Duren v. Missouri, 439 U.S. 357, 364 (1979). Moreover, § 1861 does not
require “precise proportional representation” on petit juries. United
States v. Jenkins, 496 F.2d 57, 65 (2d Cir. 1974). Instead, a district court’s
process for summoning jurors must begin with voter registries and,
“where necessary,” “prescribe some other source or sources of names
32
in addition to voter lists … to foster the policy and protect the rights
secured by section[] 1861.” 28 U.S.C. § 1863(b)(2). The Western
District of New York draws not only from voter registration lists, but
from DMV records, records from the Department of Taxation, records
from the Department of Labor, and records from the Department of
Social Services. Montague fails to show that the venire was deficient
under either the Sixth Amendment or § 1861.
Ninth, Montague claims ineffective assistance of counsel. We
have routinely refrained from considering an ineffective assistance
claim on direct appeal. See United States v. Tarbell, 728 F.3d 122, 128-29
(2d Cir. 2013); United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003).
Because there has been no “opportunity [to] fully … develop the
factual predicate” for the ineffective assistance of counsel claim, the
appellate court on direct appeal is not “best suited to assess those
facts.” Massaro v. United States, 538 U.S. 500, 504 (2003). “[A] motion
brought under § 2255 is preferable to direct appeal for deciding claims
of ineffective assistance” because it allows for a decision on a
developed record. Id. Accordingly, we decline to consider this claim
on direct appeal.
Tenth, Montague contends that this prosecution resulted from
selective enforcement or malicious prosecution. But he identifies no
facts indicating that similarly situated individuals have not been
prosecuted or that the government otherwise has operated in bad
faith. See United States v. White, 972 F.2d 16, 19-20 (2d Cir. 1992).
CONCLUSION
For the reasons set forth above, we affirm the judgment of the
district court.
33
JOSEPH F. BIANCO, Circuit Judge, concurring:
I concur with the majority opinion’s determination that Montague’s legal
challenges to his convictions are without merit and that the conviction should be
affirmed in its entirety. I write separately only to explain my disagreement with
the plain error analysis in Part II(C) of the majority opinion regarding the district
court’s defective drug quantity jury instruction on the continuing criminal
enterprise (“CCE”) count.
With respect to the drug quantity requirement for a CCE charge, I agree with
the majority opinion that the best reading of 21 U.S.C. § 848(b)(2)(A) requires that
the Section 848(c)(1) offense involve 150 kilograms of cocaine in a single felony
violation described in subsection (c)(1), and that, as such, the district court erred
in instructing the jury that it could aggregate smaller drug quantities across three
violations to satisfy the “continuing series of violations” requirement of the
statute. Id. at § 848(c)(2). As to our review of that error, however, I respectfully
disagree with the majority opinion’s determination that this error was “plain,”
meaning that it was “clear or obvious, rather than subject to reasonable dispute.”
Ante at 22 (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)). Here, that
determination does not lead to a reversal of the conviction because the majority
1
opinion ultimately (and correctly) concludes that the error did not affect
Montague’s substantial rights under the plain error test. See United States v. Balde,
943 F.3d 73, 96 (2d Cir. 2019) (“Under the plain error standard, an appellant must
demonstrate that (1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant's substantial
rights; and (4) the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” (internal quotation marks and citation omitted)).
Nevertheless, my concern is that the flawed reasoning that resulted in the
majority opinion’s finding that the error was plain could (1) provide an
unwarranted windfall to other defendants, and (2) lead to incorrect findings of
plain error in other cases involving statutory interpretation where (like here) there
is a complete absence of binding precedent from the Supreme Court or this Court
and other federal courts have interpreted the statutory language in the same
manner as the district court.
The legal framework for determining whether an error is “plain” is well-
settled in this circuit:
For an error to be plain, it must, at a minimum, be clear under
current law. We typically will not find such error where the
operative legal question is unsettled, including where there is no
binding precedent from the Supreme Court or this Court.
2
...
It may be appropriate for this Court to find an error “plain,” even
in the absence of binding precedent from the Supreme Court or
this Circuit, where other circuits have uniformly taken a position
on an issue that has never been squarely presented to this Court.
We emphasize, however, that such cases are bound to be
exceedingly rare.
United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks
and citations omitted).
We have applied this standard in numerous other cases in determining that
the legal error was not plain. See, e.g., United States v. Ragonese, 47 F.4th 106, 113
(2d Cir. 2022) (“However, [the defendant] does not point to any binding authority
. . . , nor are we aware of any. For that reason alone, we find no plain error.”);
United States v. Napout, 963 F.3d 163, 184 (2d Cir. 2020) (“Thus, because it is not
clear under current law, that [the statute] is unconstitutionally vague . . . , the
district court did not commit plain error in concluding that it is not.” (internal
quotation marks and citation omitted)); United States v. Bastian, 770 F.3d 212, 223
(2d Cir. 2014) (“Because the operative legal question is unsettled, we cannot
conclude that [the defendant’s] conviction . . . plainly violated [the Constitution].”
(internal quotation marks and citation omitted)).
3
In this case, there was no binding precedent from the Supreme Court or this
Court with respect to the interpretation of the drug quantity provision under
Section 848(b)(2)(A). Nor was there any other circuit court that had held that the
drug quantity requirement for a CCE count cannot be satisfied by aggregating the
drug quantities for the predicate offenses. The only case authority the majority
relies on in support of its position that the error was plain is the non-precedential
summary order in United States v. Goodwin, No. 96-1199, 1997 WL 767408 (2d Cir.
Dec. 12, 1997), where we held that “[t]he district court improperly instructed the
jury that it could aggregate several predicate offenses to reach this quantity
requirement,” id. at *4. Although we addressed this quantity issue briefly in that
summary order, we have nonetheless made clear that the “plain error” standard
generally applies only when there is binding precedent that controls the outcome.
See, e.g., Whab, 355 F.3d at 158; see also United States v. Ruzicka, 988 F.3d 997, 1009
(8th Cir. 2021) (“Nonbinding authority alone is insufficient to make a legal
proposition clear or obvious under current law.”).
We should not depart from that well-settled general rule to find plain error
here because the district court did not follow a holding that we articulated only in
a non-binding summary order. The troubling nature of such an extension of the
4
plain error rule to a district court’s failure to consider a prior summary order is
illustrated in this particular case where the majority opinion suggests that the
district court should have been aware of a non-binding summary order from over
20 years ago, even though it was not cited by either party in the district court or in
the briefing on appeal, and contained no analysis of the statutory language or legal
issue in its one-sentence holding. Indeed, no other court has ever cited that
summary order in connection with the drug quantity holding. Notwithstanding
the obscure and non-binding nature of that summary order, the majority opinion
relies upon it to find that the district court’s error was plain. I respectfully disagree
and conclude, consistent with our prior precedent, that we should not hold the
district court responsible for its lack of awareness of this non-binding summary
order in assessing plain error on appeal.
I similarly disagree with the majority opinion’s determination that the
statutory language of Section 848(b)(2)(A) is so clear that the district court’s ruling
constitutes plain error. To be sure, even in the absence of binding precedent or
authority from other courts, an error can be clear or obvious when it violates “the
plain language of the statute . . . .” United States v. Polouizzi, 564 F.3d 142, 156 (2d
Cir. 2009); see also United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (“[T]he
5
absence of circuit precedent does not prevent the clearly erroneous application of
statutory law from being plain error.” (alterations adopted) (internal quotation
marks and citation omitted)). However, as set forth below, that is certainly not the
case here given the complex statutory regime and the fact that reasonable jurists
have interpreted the drug quantity provision consistent with the district court’s
instruction.
As a threshold matter, the requirement that the government needs to prove
at least three predicate violations to constitute “a continuing series” of felony drug
violations under the CCE statute is not even based on the statutory language itself,
but rather was established in judicial decisions. See, e.g., United States v. Losada,
674 F.2d 167, 174 n.4 (2d Cir. 1982) (noting that “[a]lthough the statute does not
define ‘continuing series of violations,’ courts have required that there be a
minimum of three” (collecting cases)). Thus, given the absence of any language
regarding the requisite number of predicate violations in the statute and the
overall complexity of this statutory structure, it is extremely difficult to discern
how the district court’s instruction allowing aggregation of the quantities from the
various drug violations under the CCE statute could be so contrary to the statutory
language to warrant a finding of plain error. See, e.g., United States v. Rosario, 7
6
F.4th 65, 77 (2d Cir. 2021) (Rakoff, J., concurring) (finding, although the district
court erred, no plain error because “[t]here is no question that the operative legal
question in this case remained unsettled, since neither this Court nor the Supreme
Court had yet construed the scope of the district court’s inquiry for [the statutory]
exception.”); United States v. Ramon, 958 F.3d 919, 923 (10th Cir. 2020) (holding no
plain error because “[b]efore we could conclude that the district court erred, we
had to delve into the language and inner workings of [the statute]”).1
In addition, the limited number of decisions in other circuits addressing this
legal issue flatly contradict the majority opinion’s conclusion that the statutory
language is so clear that a district court could not reasonably interpret the statute
differently. In particular, in the only published circuit decision to have directly
considered this issue, the Tenth Circuit concluded that “[t]hree interpretations of
[the relationship between the drug quantities in Section 848(b)(2)(A) and the
underlying CCE violations] appear plausible,” including the interpretation
1 Although the majority opinion relies upon our decision in Polouizzi to support its
position, the circumstances in that case are clearly distinguishable. In Polouizzi, we
found that the error was plain in light of the “plain language of the statute [that was]
entirely consistent with Supreme Court and Circuit precedent addressing similar
statutes.” 564 F.3d at 156. In contrast here, no such “similar statute” exists that could
have helped guide the district court’s interpretation of Section 848(b)(2)(A).
7
adopted by the district court here. United States v. Atencio, 435 F.3d 1222, 1229
(10th Cir. 2006) (emphasis added). Without deciding the issue, that court held
that reversal was unwarranted because, “[e]ven if the district court’s construction
of the statute amounted to error that is plain, . . . the error did not affect [the
defendant’s] substantial rights. . . .” Id. at 1231. Furthermore, although not directly
addressing this issue, the D.C. Circuit’s decision in United States v. Harris seemed
to agree with the government’s aggregate interpretation of the statute (utilized by
the district court here) by upholding a CCE conviction based upon the jury
“attribut[ing] to [the defendant’s] enterprise over 1500 grams of crack, more than
300 times the five-gram amount set out in section 841(b)(1)(B)(iii).” 959 F.2d 246,
257 (D.C. Cir. 1992) (per curiam) (emphasis added), abrogated on other grounds by
United States v. Stewart, 246 F.3d 728 (D.C. Cir. 2001); see also United States v. Miller,
890 F.3d 317, 356 (D.C. Cir. 2018) (noting that “[t]he jury also found that the
criminal enterprise was involved in the distribution of 30 kilograms or more of
heroin and 15 kilograms or more of cocaine”); United States v. Wilson, 605 F.3d 985,
1036 (D.C. Cir. 2010) (“Pursuant to 21 U.S.C. § 848(b), the instructions regarding
the continuing criminal enterprise charge . . . required the jury to find that the CCE
involved distributing at least 30 kilograms of PCP, and the jury so found.”); United
8
States v. Edmond, 52 F.3d 1080, 1106 (D.C. Cir. 1995) (noting that the jury was
instructed that the government must prove “that the enterprise involved at least
1,500 grams . . . of cocaine base or crack or, in the alternative, at least . . . 150
kilograms of cocaine” (alterations in original) (citation omitted)); see also United
States v. Avila Vargas, 570 F.3d 1004, 1007–08 (8th Cir. 2009) (noting that the special
jury verdict determined that the criminal enterprise “involve[ed] at least 15,000
grams of methamphetamine” and rejecting an insufficient evidence claim based
on double-counting of drug quantity evidence at trial on the ground that “[t]he
total drug quantity range [was] . . . 16,329.3 to 19,050.9 grams of
methamphetamine”). 2
In addition, at least one other district court, citing Harris, adopted the same
interpretation of Section 848(b)(2)(A) that the district court applied in this case.
See, e.g., United States v. Singleton, 177 F. Supp. 2d 31, 40–41 (D.D.C. 2001) (“[T]he
plain meaning and intent of the statute are to the effect that the drug quantity is
2 The majority opinion misconstrues the purpose of this string of citations to various
circuit court decisions. Ante at 25 n.7. The purpose of these citations is not to suggest
that each of these circuit court decisions reached the statutory question at issue here,
but rather to demonstrate that the district judges in those cases (and seemingly the D.C.
Circuit in Harris) interpreted the statute consistent with the district court in this case,
further demonstrating that numerous reasonable jurists have not found the statutory
language as unambiguous and plain as the majority suggests.
9
defined by the quantities aggregated throughout the life of the enterprise and not
by any one single transaction or predicate act.”).
Not only do these published decisions strongly support a conclusion that
the district court’s error was far from plain, but a brief survey of district court cases
reveals that other courts have similarly allowed a jury to consider the aggregate
drug quantity. See, e.g., United States v. Williams, No. 91-559-6, 2021 WL 5206206,
at *5 (D.D.C. Nov. 9, 2021) (“At trial, the jury was instructed that the government
had to prove beyond a reasonable doubt that ‘the enterprise was involved in
distribution’ of 150 kilograms or more of cocaine ‘and/or’ 30 kilograms of PCP
‘and/or’ 1.5 kilograms or more of crack.” (citation omitted)); 3 Jury Verdict at 3,
United States v. Aguirre, No. 15-cr-00143 (W.D.N.Y. Dec. 20, 2018), ECF No. 913
(verdict sheet asking jurors: “Did the continuing criminal enterprise involve at
least 30 kilograms of heroin and 150 kilograms of cocaine?”); Special Verdict Form
at 80, United States v. Kwok Ching Yu, No. 90-cr-47 (S.D.N.Y. Dec. 15, 1992), ECF No.
192 at 56 (verdict sheet asking jurors: whether defendant was “leader of the
enterprise . . . and the violation involved at least 30 kilograms of heroin.”).
3I note that each of the six above-referenced citations to the cases within the D.C.
Circuit utilizing this “aggregate” instruction was given by a different district judge.
10
In short, the majority opinion appears to conclude that because it finds the
statutory language clear, the issue should have been equally clear to every other
court, even in the absence of binding precedent. The majority reaches that plain
error conclusion even though court decisions over the past two decades
demonstrate that the statutory language’s degree of clarity was “subject to
reasonable dispute,” such that the district court’s error was not plain. Puckett v.
United States, 556 U.S. 129, 135 (2009).
Although the majority opinion’s flawed “plain error” analysis fortunately
will not impact this case (because the defendant’s substantial rights were not
affected given the overwhelming evidence that would have supported his
conviction even under the correct jury instruction), there could be other cases in
which a defendant was convicted of a CCE count (which are pending sentencing
or appeal, or being challenged on collateral review) where this “plain error”
holding could jeopardize the CCE conviction, or at the very least, result in
unnecessary litigation. Moreover, if a similar mode of legal analysis is used by
courts to determine plain error in other statutory contexts, there could be
convictions under other statutes that could be improperly disturbed on appeal or
in collateral litigation.
11
These consequences could have been avoided if, at a minimum, the majority
opinion simply did not reach this issue in light of the lack of an impact on
Montague’s substantial rights, which is a separate requirement to find reversal
based on plain error. See Morse v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J.,
concurring) (“And the ‘cardinal principle of judicial restraint’ is that ‘if it is not
necessary to decide more, it is necessary not to decide more.’” (quoting PDK Labs.,
Inc. v. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring
in part and concurring in judgment)). In other words, as the Tenth Circuit did in
Atencio, the majority opinion could have simply assumed arguendo that the error
was plain and found no basis for reversal due to the failure to satisfy all four
requisite prongs of the plain error framework. See 435 F.3d at 1230–31; see also Jones
v. United States, 527 U.S. 373, 394 (1999) (“Even assuming, arguendo, that an error
occurred (and that it was plain), petitioner cannot show it affected his substantial
rights.”); United States v. Feliciano, 223 F.3d 102, 125 (2d Cir. 2000) (assuming
arguendo that the error was plain and finding that it did not “seriously affect[] the
fairness, integrity or public reputation of the judicial proceedings” (alteration in
original) (internal quotation marks and citation omitted)). Yet, instead of
exercising judicial restraint, the majority opinion stretched to reach this issue and
12
may unnecessarily create uncertainty in CCE convictions already obtained in other
cases, as well as an ambiguity in our plain error jurisprudence. 4
For these reasons, I respectfully disagree only with that portion of the
majority opinion’s plain error analysis in Part II(C), but otherwise concur in the
remainder of the majority opinion in its affirmance of the judgement of the district
court.
4 Although the majority opinion suggests that avoiding this issue would be judicial
abdication, ante at 26 n.8, it is difficult to discern how an appellate court would
somehow abdicate its judicial duties by deciding that the plain error test is not satisfied
based on a narrow ground confined to the facts of this case, as opposed to a much
broader ground under the same standard.
13
DENNIS JACOBS, Circuit Judge, dissenting:
I respectfully dissent. Colin Montague was convicted in 2018 of operating
a “continuing criminal enterprise” (“CCE”), a federal crime requiring proof that
the defendant committed a felony drug offense as “part of a continuing series” of
drug offenses. See 21 U.S.C. § 848(c). The evidence showed that Montague
trafficked a whole lot of narcotics over thousands of individual transactions.
Notwithstanding this glut of source material, the indictment against him was
barebones. It failed to describe any offense comprising the continuing series,
instead alleging no more than that Montague “did violate [21 U.S.C. §§ 841(a)(1)
and 846], which violations were part of a continuing series of violations of said
statutes undertaken by the defendant.” App’x at 32.
This is not just bad practice—it is unconstitutional. Each “predicate
offense” making up the continuing series is itself an element of the broader CCE
charge. Richardson v. United States, 526 U.S. 813, 817–20 (1999). Each predicate
offense must therefore be set forth in the indictment. Since no such “setting
forth” occurred here, the indictment was fatally deficient, and Montague’s CCE
1
conviction must be vacated. My colleagues’ ingenuity notwithstanding, I cannot
join them in salvaging this indictment. 1
I
The Fifth Amendment guarantees that “[n]o person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury.” U.S. Const. amend. V. That indictment “must set forth each
element of the crime that it charges.” Almendarez-Torres v. United States, 523
U.S. 224, 228 (1998); accord United States v. Dupree, 870 F.3d 62, 70 (2d Cir.
2017). This is no fussy rule of pleading or bureaucratic speed bump: a minimally
specific indictment provides notice of the charges to the defendant and “gives
the necessary assurance that the grand jurors knew and agreed to charge that
which the text describes.” United States v. Gonzalez, 686 F.3d 122, 132 (2d Cir.
2012).
I dissent as to the sufficiency of the indictment’s CCE count; I join the remainder of
1
Judge Menashi’s opinion, including its conclusion that the district court’s instruction with
respect to § 848(b)(2)(A)’s drug quantity element was plain error but did not affect Montague’s
substantial rights. See Maj. Op. at 15–24. As Judge Menashi explains, applying a rule in
derogation of clear statutory text is plain error. Section 848(b)(2)(A) is sufficiently clear; thus
disregarding it was plain error even though this Court had not yet interpreted the provision in a
precedential opinion. A district court need not consult the Federal Reporter when the answer is
already in the U.S. Code.
2
The grand jury is “a substantial safeguard against oppressive and arbitrary
proceedings.” Id. at 127 (quoting Smith v. United States, 360 U.S. 1, 9 (1959)). It
serves as a “referee between the Government and the people” by making an
independent assessment of the evidence. United States v. Thomas, 274 F.3d 655,
670 (2d Cir. 2001) (in banc) (quoting United States v. Williams, 504 U.S. 36, 47
(1992)). The requirement that each element be set out ensures that the
“indictment reflects the judgment of a grand jury rather than only that of the
prosecutor.” Id. at 133. Otherwise, a court must “speculate as to whether a
grand jury might have returned an indictment in conformity with the available
evidence,” which risks “the harm the Grand Jury Clause is intended to prevent—
a federal prosecution begun by arms of the Government without the consent of
fellow citizens.” 2 Thomas, 274 F.3d at 670.
These principles apply cleanly to indictments charging a CCE. Each
predicate offense comprising the requisite “continuing series” of drug offenses is
a separate and essential element of the CCE offense. Richardson v. United States,
2 The majority focuses only on notice, arguing that the rule I advocate would not have
served Montague better in that department. Maj. Op. at 14–15. But that response ignores the
other purpose of an indictment: to ensure that the grand jury found probable cause as to each
element of the charged offense. See Gonzalez, 686 F.3d at 127 (distinguishing between these
two purposes).
3
526 U.S. 813, 817–20 (1999). Thus, a CCE conviction effectively doubles as a
conviction for each predicate offense; and by the same token, a CCE indictment
doubles as an indictment of each predicate offense. The grand jury cannot find
probable cause as to a CCE unless it finds probable cause that the defendant
committed each predicate.
The result: a CCE indictment is subject to the same pleading rules as any
other indictment—what must be included does not depend on whether the
offense is a predicate for a CCE or a standalone basis for criminal liability.
Enough information about each offense must be included to support an inference
that the grand jury found probable cause that the defendant did it. The Third
Circuit agrees: in United States v. Bansal, 663 F.3d 634, 647 (3d Cir. 2011), the
court held that a CCE indictment “must include the facts and circumstances
comprising at least three [violations].” The indictment need not designate the
three predicates; but it must include (somewhere) the offenses (of whatever
number) from which the petit jury can unanimously select those that support a
conviction. 3
3 This requirement can be satisfied by separate counts charging qualifying drug offenses,
or a list of allegations within the CCE count, or a description of sufficient facts in an
introductory section. See Bansal, 663 F.3d at 647 (“[T]he CCE count itself need not identify with
exacting specificity which three will ultimately prove the CCE charge. Incorporation by
4
With that in mind, consider the operative indictment in this case, which
reads in relevant part:
From in or about 2008 . . . through and including on or about July 1,
2014, in the Western District of New York, and elsewhere, the
defendant . . . did knowingly, willfully, intentionally 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
undertaken by the defendant . . . .”
App’x at 32 (emphasis added). The only thing that charge says about the
predicate offenses is that Montague “undert[ook]” “violations of” two statutes
referenced by number. And the indictment charges Montague with only a single
other drug offense: a conspiracy charge which overlaps with the CCE—and was
ultimately dismissed as a lesser-included.
The indictment does not even allege discrete predicate violations: it merely
gestures at some unknown number of prior crimes. The grand jury here likely
did not even know what the predicate violations were, let alone find probable
cause that Montague committed them. Grand jurors would not know one
numbered offense from another. See Gonzalez, 686 F.3d at 132 (“We have no
reference is sufficient.”). The Constitution is not concerned with formatting, but it does require
that each element—here, at least three drug offenses—appear in the indictment and be
approved by the grand jury.
5
reason to believe that members of a grand jury . . . think in terms of statutory
subsections rather than in terms of facts.”). If instead of 21 U.S.C. §§ 841(a)(1)
and 846, the indictment had cited 18 U.S.C. §§ 47(b) and 1082, the grand jury
would have indicted Montague for polluting a watering hole and operating a
gambling ship upon the high seas.
Joyner v. United States, 313 F.3d 40 (2d Cir. 2002), confirms what common
sense tells us. There, the indictment charged a CCE and a lesser-included
conspiracy with only statutory citations to “describe” the predicate violations.
That is a match for the Montague indictment, and Joyner deemed it “deficient
under Richardson” because it included “nothing . . . identifying which three
violations served as the predicate for the CCE charge.” 313 F.3d at 47–48. If the
indictment in Joyner was “deficient,” so is its analogue here.
II
The majority opinion rests on a misreading of United States v. Flaharty,
295 F.3d 182 (2d Cir. 2002); it contradicts subsequent decisions of this and other
circuits; and it leads to absurd results.
The defendant in Flaharty argued that the CCE count in that indictment
“was deficient because it failed to specify the violations that constituted the
6
‘series’ necessary for a conviction.” 295 F.3d at 197. The issue was whether an
indictment must identify which of the alleged violations comprise the continuing
series—not (as here) whether the violations need to appear anywhere in the
indictment at all. Flaharty relied on Santana–Madera v. United States, 260 F.3d
133 (2d Cir. 2001), which (the Flaharty Court explained) had held that “an
indictment that does not identify which of many alleged felonies constituted the
series is not thereby defective.” Flaharty, 295 F.3d at 197 (emphasis added).
Flaharty applied the same principle: when “many alleged felonies” appear in the
indictment, failing to specify which ones make up the continuing series is not
fatal. An indictment that describes the predicate offenses with statutory citations
may therefore suffice so long as it also alleges (at least) two other qualifying drug
offenses. 4
4 The majority disputes my reading of Flaharty because “three violations are needed to
constitute a ‘continuing series’” and the Flaharty indictment included only two predicate
offenses. Maj. Op. at 13. But there was indeed a series of three offenses alleged in Flaharty. A
CCE consists of a felony drug offense committed as “part of a continuing series of violations”—
in order to be “part of” the series, the felony offense must be one of the (three) violations
making it up. So, an indictment that alleges a felony drug violation in the CCE count and then
two other violations—whether in the same or other counts—has adequately alleged a “series”
of three. That was the case in Flaharty, but it is not the case here.
7
The Third Circuit understood Flaharty precisely this way in United States
v. Bansal, 663 F.3d 634 (3d Cir. 2011). Confronting the same question, the Third
Circuit turned to Flaharty and read it to hold that, “although an indictment must
contain three [violations] that could support a CCE conviction, it need not specify
which of those [violations] will ultimately be used to maintain the CCE
conviction.” 663 F.3d at 647 (emphasis added). Then, “using the Flaharty court’s
reasoning to guide [its] analysis,” the Third Circuit adopted the principle that
“an indictment must include the facts and circumstances comprising at least
three [violations],” id.—the very rule the majority rejects.
Our subsequent decision in Joyner confirms the Third Circuit’s
understanding of Flaharty—and mine. If, as the majority concludes, Flaharty
tolerates CCE indictments that give no more than the statutes violated by the
(otherwise unspecified) predicate offenses, then Joyner—which deemed just such
an indictment ”deficient”—directly contradicts Flaharty. I cannot think that
Judge F.I. Parker, who was on both panels, signed two incompatible opinions
within six months.
According to the majority opinion, Joyner disapproved only indictments
that omit all discussion of the predicate offenses. But, to repeat, the indictment in
8
Joyner did discuss predicate offenses—and did so in the same way as the Flaharty
and Montague indictments. So, either the Joyner Court failed to read the
indictment it was passing on, or Joyner meant what it said (and Flaharty is
critically narrower than the majority thinks).
By holding that a CCE indictment may allege a factual element by citing a
statute, the majority opinion contradicts another of our cases. In United States v.
Gonzalez, 686 F.3d 122 (2d Cir. 2012), we dealt with a prosecution for
distributing at least 500 grams of cocaine. The government acknowledged that
quantity was an element of the offense, but prosecutors omitted the amount from
the text of the count—instead, the government claimed it had adequately alleged
the quantity element by citing the statute that criminalized distribution of 500
grams or more. See 686 F.3d at 124–26. That is, like the majority here, the
government assumed that an indictment may plead a factual element by citing a
statute.
We rejected that argument in an opinion by Judge Kearse, who was (not
incidentally) the author of Flaharty: “Stating that an act is in violation of a cited
statutory section adds no factual information as to the act itself and instead only
declares the legal basis for claiming that the act is deserving of punishment . . . .”
9
Gonzalez, 686 F.3d at 129 (emphasis, internal quotation marks, and citation
omitted). Accordingly, “a deficiency in an indictment’s factual allegations of the
elements of an offense is not cured by the fact that the relevant count cited the
statute that the defendant is alleged to have violated.” Id. at 128 (cleaned up;
internal quotation marks and citation omitted). For many of the reasons
discussed above, Gonzalez held that substituting a citation for factual allegations
defeated the grand jury’s role in our criminal system. See id. at 132–33. So too
here. 5
Absurd results also follow from the majority’s rule. The deficiency of this
indictment compelled the trial court to instruct the jury that the predicate
violations “may even be acts not mentioned in the indictment at all.” App’x at
5681. If predicate violations are effectively omitted from the indictment, juries
will have to rely on extra-indictment acts. The majority’s logic thus leads to
The nature of the CCE offense further heightens the conflict between the majority’s
5
opinion and Gonzalez. Because the commission of a prior crime is itself an element of the CCE,
each element of the predicate offense is also an element of the CCE: the grand jury can’t find
probable cause for the CCE if it doesn’t find probable cause for each predicate violation, and it
can’t find probable cause for each predicate if it doesn’t find probable cause for every element.
So, whereas the statutory citation in Gonzalez stood in for only one element, the indictment
here substitutes a statutory citation for every element of the predicate offenses.
10
convictions premised on accusations entirely absent from the indictment. One
error spawns another.
Finally, the majority openly splits with the Third Circuit regarding how a
CCE indictment must set forth each predicate violation. See Maj. Op. at 11, 14
(citing Bansal for the approach it rejects). This may surprise the Third Circuit,
which thought it was applying the Second Circuit’s rule (from Flaharty). The
majority opinion is also in serious tension with cases from the First, Seventh,
Eighth, and Tenth Circuits. 6 Those courts have all considered whether a CCE
indictment that fails to specify predicate violations in the CCE count (like the
indictment here) provides the defendant constitutionally adequate notice. Each
circuit strongly disapproved of such perfunctory pleading, and the indictments
in those cases withstood dismissal only because they alleged qualifying predicate
offenses in other counts, as shown by the quotes in the margin. 7 That is, four
6United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir. 2003); United States v. Staggs, 881
F.2d 1527 (10th Cir. 1989) (en banc); United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988);
United States v. Becton, 751 F.2d 250 (8th Cir. 1984).
7 See Soto-Beniquez, 356 F.3d at 26 (“[A]t least where the CCE count incorporates by
reference predicate offenses charged elsewhere in the indictment, failure to list predicate
offenses in the CCE count itself is not reversible error.”); Staggs, 881 F.2d at 1531 (declining to
approve a CCE indictment that only “track[ed] the language of the statute” and instead holding
that “a CCE indictment is sufficient where . . . the indictment additionally alleges at least three
violations in another count or counts”); Moya-Gomez, 860 F.2d at 752 (“[The defendant] attacks
count 21 of the indictment . . . because it did not specifically enumerate or incorporate by
reference the predicate offenses . . . . We do not approve of the government’s method of
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circuits (in addition to the Third) have strongly implied that an indictment like
this one, which neither specifies the predicates in the CCE count nor alleges
qualifying offenses elsewhere, is constitutionally deficient.
* * *
The CCE count of this indictment failed to set forth each essential element
of the charged offense. The Constitution mandates that a CCE indictment do
more to plead predicate offenses than assert that the defendant undertook an
unknown number of violations of a given statute over a span of years. And our
decision in Flaharty does not counsel a contrary result.
charging in this case. However, here we do not think it amounts to reversible error. . . . The[]
[six other narcotics] counts gave him actual notice of the predicate acts on which the
government would rely . . . .”); Becton, 751 F.2d at 256 (“In this case, other counts of the
indictment gave Becton notice of the underlying felonies. . . . We think it would be far preferable
to list the felonies comprising the criminal enterprise in the CCE count of an indictment . . . .
However, we conclude on the facts in this case, that Becton received adequate notice of the
charges against him.”)
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