United States v. Montague
84 F.4th 533
2d Cir.2023Background
- Colin Montague was charged and convicted under the CCE statute, 21 U.S.C. § 848, which requires proof that the defendant committed multiple predicate felony drug offenses as part of a “continuing series.”
- Each predicate offense that composes a CCE is itself an element of the CCE offense and therefore must be charged by the indictment.
- Montague’s indictment alleged only that he “did violate Title 21, United States Code, Sections 841(a)(1) and 846” as part of a continuing series—it contained no factual allegations identifying the specific predicate acts.
- A Second Circuit panel (United States v. Montague, 67 F.4th 520) held that referencing the statutory provisions alone sufficed to plead the CCE predicates; the panel said the indictment need not set out the facts and circumstances of the predicate offenses.
- A petition for rehearing en banc was denied. Judge Myrna Pérez (joined by four colleagues) dissented from that denial, arguing the panel’s rule conflicts with Supreme Court and Second Circuit precedent, undermines the grand jury’s role, and creates a circuit split.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CCE indictment must allege factual details of each predicate offense beyond statutory citations | Govt / panel majority: citation to the applicable statutes in the CCE count is sufficient to charge predicate offenses | Montague: each predicate is an element and the indictment must state facts sufficient for the grand jury to find probable cause for each predicate | Rehearing en banc denied; the panel ruling that statutory citation can suffice remains binding, despite dissent arguing constitutional and precedent-based error |
| Whether en banc review was necessary to resolve conflicting Second Circuit precedent and prevent circuit split | Govt / panel: no en banc rehearing required | Dissent: en banc review required to restore uniformity and reconcile Joyner, Flaharty, Dupree, Gonzalez, and Supreme Court authority | En banc rehearing denied; dissenters contend denial leaves irreconcilable precedents and constitutional problems uncorrected |
Key Cases Cited
- United States v. Montague, 67 F.4th 520 (2d Cir. 2023) (panel decision holding statutory citations can suffice to plead CCE predicates)
- Richardson v. United States, 526 U.S. 813 (1999) (discusses elements and necessity of alleging elements)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (elemental nature of certain allegations in indictments)
- Hamling v. United States, 418 U.S. 87 (1974) (indictment must be accompanied by facts and circumstances informing accused of specific charge)
- United States v. Dupree, 870 F.3d 62 (2d Cir. 2017) (statutory citation alone insufficient to allege essential facts of CCE predicates)
- United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012) (citation to statute does not cure failure to allege all elements)
- United States v. Joyner, 313 F.3d 40 (2d Cir. 2002) (found materially similar CCE indictment defective for failing to identify predicate violations)
- United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002) (concluded statutory citation in CCE count was sufficient—creates tension with Joyner)
- United States v. Bansal, 663 F.3d 634 (3d Cir. 2011) (indictment must include facts/circumstances for at least three offenses, though CCE count need not identify which three with exact specificity)
- United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) (indictment must descend to particulars when statutes use generic terms)
- Russell v. United States, 369 U.S. 749 (1962) (indictment must state the species/particulars of the offense)
- United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc) (discusses grand jury’s function in limiting charges)
- Stirone v. United States, 361 U.S. 212 (1960) (grand jury requirement limits prosecution to offenses presented to and found by grand jury)