United States of America v. Montague, No. 18-2975 (2d Cir. 2023)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 9, 2023.
Download PDF
18-2975 United States of America v. Montague UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of October, two thousand twenty-three. Present: DEBRA ANN LIVINGSTON, Chief Judge, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, WILLIAM J. NARDINI, STEVEN J. MENASHI, EUNICE C. LEE, BETH ROBINSON, MYRNA PÉREZ, ALISON J. NATHAN, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 18-2975 COLIN MONTAGUE, Defendant-Appellant, CHARLTON OSBORNE, ANTOINE SHANNON, COLLIN THOMAS, CLIVE 1 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. _____________________________________ For Appellee: 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 Defendant-Appellant: Michael Joseph Witmer, Law Office of Michael Joseph Witmer, Rochester, NY. Following disposition of this appeal on May 9, 2023, Defendant-Appellant filed a petition for rehearing en banc. A member of the panel thereafter requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, the petition for rehearing en banc is hereby DENIED. Myrna Pérez, Circuit Judge, joined by Eunice C. Lee, Beth Robinson, Alison J. Nathan, and Sarah A. L. Merriam, Circuit Judges, dissenting by opinion in the denial of rehearing en banc. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 2 Myrna Pérez, Circuit Judge, joined by Eunice C. Lee, Beth Robinson, Alison J. Nathan, and Sarah A. L. Merriam, Circuit Judges, dissenting from the denial of rehearing en banc. Colin Montague was charged with and convicted of operating a “continuing criminal enterprise” (“CCE”), in violation of 21 U.S.C. § 848. Conviction for a CCE requires, among other things, proof of a felony drug o ense committed as “part of a continuing series” of drug o enses. See 21 U.S.C. § 848(c)(2). Each o ense comprising that continuing series—each, a “predicate o ense”—is a necessary element of the CCE o ense. See Richardson v. United States, 526 U.S. 813, 817–20 (1999); United States v. Montague, 67 F.4th 520, 528–29 (2d Cir. 2023). The panel majority held that “the facts and circumstances amounting to” a CCE’s predicate o enses need not appear in an indictment at all, so long as that indictment cites statutory sections. Montague, 67 F.4th at 529–30. Because this case “involves a question of exceptional importance” that was answered in a manner creating and exacerbating “[dis]uniformity of the court’s decisions,” either or both of Federal Rule of Appellate Procedure 35(a)’s alternative 1 bases militate in favor of rehearing en banc. Fed. R. App. P. 35(a)(1)–(2). We respectfully dissent from the denial of rehearing en banc. * * * This case involves a question of exceptional importance: does an indictment for a crime with predicate o enses as necessary elements require any factual detail regarding those predicate o enses? The answer, in our view, should be an easy “yes.” There is no dispute that each predicate o ense making up a CCE’s “continuing series” is an element of the CCE o ense. Accordingly, each predicate o ense and its elements must be set forth in the indictment. E.g., Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998); Hamling v. United States, 418 U.S. 87, 117–18 (1974); United States v. Dupree, 870 F.3d 62, 70–71 (2d Cir. 2017). This is black-letter law. Here, the elements and factual details of Montague’s predicate o enses were replaced by opaque references to statutory citations. The indictment alleged only that Montague had committed an indeterminate number of crimes, with no statement of their elements and no explanation of what Montague did or why it was illegal. All the grand jury found was probable cause 2 to believe that Montague “undert[ook]” unspeci ed “violations of” statutes with unspeci ed elements—that’s it. 1 Permitting such perfunctory allegations all but voids a key function of the indictment, impairing the rights guaranteed by the Fifth Amendment’s Grand Jury Clause. “[T]he very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to o enses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” United States v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (en banc) (emphasis omitted) (quoting Stirone v. United States, 361 U.S. 212, 218 (1960)). To serve that function, the grand jury must know and agree to the charge the prosecutor puts before it, and the indictment is what “gives the necessary assurance” that the grand jury did so. United States v. Gonzalez, 686 F.3d 122, 132 (2d Cir. 2012). The panel majority here did not even suggest that the grand jury could have discerned from the indictment the elements of any predicate o ense that it needed to nd probable cause to believe Montague had committed. Grand juries think Specifically, the indictment alleged that Montague “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. 1 3 “in terms of facts” not “in terms of statutory subsections,” so mere references to “naked number[s]” in an indictment fail to provide the necessary assurances that a grand jury knew and agreed to the charges put before it. Id. Yet, the panel majority held that a CCE indictment need only cite the statute a defendant violated in the predicate o ense: that is all the “setting forth” required. See Montague, 67 F.4th at 530–32. The problem of the Montague rule is further illustrated by its consequences. The de ciency of the indictment here compelled the trial court to instruct the jury that the predicate o enses “may even be acts not mentioned in the indictment at all.” App’x at 5681. If the indictment may omit all description so long as it speci es a statute, then of course the trial jury may—and sometimes must— convict a defendant based on conduct not alleged in the indictment. That oxymoronic statement of the law is the natural outgrowth of the panel’s decision; as Judge Jacobs observed in dissent, “[o]ne error spawns another.” Montague, 67 F.4th at 549. The proper rule is easy to derive. To convict on a CCE count, a petit jury must conclude beyond a reasonable doubt that the defendant committed each predicate o ense; by the same token, to indict on a CCE count, the grand jury must 4 nd probable cause that the defendant committed each predicate o ense. Ergo, the same rules that ordinarily govern the adequacy of indictments must also govern the pleading of CCE predicates: the indictment must contain information su cient to enable a grand jury to nd probable cause that the defendant committed each predicate o ense. It may not simply replace factual elements with statutory citations. See Dupree, 870 F.3d at 70; Gonzalez, 686 F.3d at 132. An indictment alleging only that a defendant “did violate Title 21, United States Code, Sections 841(a)(1) and 846,” App’x at 32, would be invalid to charge o enses under those statutes; a CCE indictment that does the same with respect to alleged predicate o enses must also fail. That common-sense rule now has an exception in the Second Circuit: citing a statute in an indictment cannot substitute a factual element except when charging a CCE. Because the panel majority o ers no explanation why CCE indictments are special and no principle why they should be exempt from the minimum constitutional requirements imposed on all other indictments, we worry that this exceptional—and exceptionally undemanding—standard will be applied outside of the CCE context. Stanching such application is exceptionally important. 5 En banc rehearing is also appropriate and necessary to secure the uniformity of this Court’s decisions. In addition to contravening basic constitutional principles, the panel majority’s relaxed standard is contrary to Second Circuit precedent, is inconsistent with decades of Supreme Court precedent, and creates a direct circuit split to boot. This Court has repeatedly rejected the panel majority’s holding that an indictment—generally, as well as in the CCE context—need only cite the statute a defendant allegedly violated in describing the predicate o ense: “[t]he statements of essential facts and statutory citation are separate requirements, and a de ciency in the factual allegations cannot be cured by a statutory citation in the same count.” Dupree, 870 F.3d at 70; 2 accord Gonzalez, 686 F.3d at 132 (“[C]itation to a statutory section is not, by itself, su cient to cure a defective indictment that fails to allege all the elements of an o ense.”); United States v. Joyner, 313 F.3d 40, 48 (2d Cir. 2002) ( nding indictment materially indistinguishable from Montague’s to be “ awed” Like Montague, Dupree analyzed the constitutionality of a CCE indictment. But contrarily, it deemed constitutionally inadequate an indictment that merely cited statutory sections rather than “an essential fact constituting the charged offenses” and “language alleging the factual predicate for the [CCE statute’s] penalty provision.” 870 F.3d at 70–72. “The . . . indictment had to do more than reference §§ 841(b)(1)(A) and 848(e)(1)(A) to allege the essential facts” of the charged CCE. Id. at 72 (citing Gonzalez, 686 F.3d at 128). 2 6 because it contained “nothing” that could “identify with speci city the three [predicate] violations necessary to form a CCE o ense”). For half a century, the Supreme Court has also directed that statutory language on its own is not usually good enough and “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the speci c o ence . . . with which he is charged.” Hamling, 418 U.S. at 117–18 (parenthetical omitted). For similar reasons, courts have long recognized “a limitation on th[e] practice” of cribbing from statutes: when “‘the de nition of an o ence . . . includes generic terms, it is not su cient that the indictment shall charge the o ence in the same generic terms as in the de nition; but it must state the species,—it must descend to particulars.’” United States v. Pirro, 212 F.3d 86, 93 (2d Cir. 2000) (quoting Russell v. United States, 369 U.S. 749, 765 (1962)). “[F]or an indictment to ful ll the function[] . . . of assuring that [the defendant] is tried on the matters considered by the grand jury, the indictment must state some fact speci c enough to describe a particular criminal act, rather than a type of crime.” Id. Weighing these same considerations, the Third Circuit has adopted a sensible rule: “an indictment must include the facts and circumstances comprising at least three [o enses], but . . . the CCE count itself need not identify with exacting 7 speci city which three will ultimately prove the CCE charge.” United States v. Bansal, 663 F.3d 634, 647 (3d Cir. 2011). The panel majority recognized as much but disagreed anyway. There can be no doubt of the circuit split here: the panel majority twice rejects Bansal by name. See Montague, 67 F.4th at 529, 531. This brings us to our irreconcilable decisions in United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002), and United States v. Joyner, 313 F.3d 40 (2d Cir. 2002). The panel majority conceded that the two cases reached opposite conclusions as to the constitutional adequacy of CCE indictments that were “not meaningfully di erent.” Montague, 67 F.4th at 531 n.2. Nonetheless, the panel majority attempted to distill a rule: “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 su ciently charges a CCE o ense (Flaharty).” Id. at 531. It then applied this rule and deemed Montague’s indictment constitutionally adequate because it referenced statutory citations (Flaharty), which was not “nothing” (Joyner). But this sidesteps what Joyner described as “nothing,” which was in all material respects identical to what 8 the panel majority deemed something. 3 If the indictment in Joyner contained “nothing . . . identifying which three violations served as the predicate for the CCE charge” and failed to adequately “identify [them] with speci city,” Joyner, 313 F.3d at 48, so too did the materially indistinguishable indictment here, see Montague, 67 F.4th at 547 (Jacobs, J., dissenting) (“If the indictment in Joyner was ‘de cient,’ so is its analogue here.”). But after the panel opinion, Flaharty, Joyner, and Montague form a knot of contradictory caselaw which will continue to ba e defendants and district courts. Perhaps the panel majority faced an impossible task of squaring two precedents (Joyner and Flaharty) that reached opposite conclusions on identical facts, but that’s where an en banc court is supposed to come in. See Fed. R. App. P. 35(a) (“[E]n banc consideration is necessary to secure or maintain uniformity of the court’s decisions . . . .”). And even if the panel majority somehow squared those precedents, it made no attempt to reconcile its distilled rule with the body of other precedent directly contradicting that rule. Compare Montague, 67 F.4th at 531, with Dupree, 870 F.3d at 70, and Gonzalez, 686 F.3d at 132. Compare Second Superseding Indictment, United States v. Joyner, No. 3:95CR-00232 (TJM) (N.D.N.Y. Jan. 11, 1996), 1996 WL 34431245, with App’x 32–33. 3 9 Intervention is needed. Clarifying inconsistent precedents and harmonizing our law is precisely the job of the en banc court. Our failure to do so invites our law to be changed from above rather than corrected from within. For these reasons, we respectfully dissent from the denial of rehearing en banc. 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
