United States v. Montague
18-2975-cr
United States Court of Appeals, Second Circuit
May 9, 2023
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
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.
MICHAEL JOSEPH WITMER, Law Office of Michael Joseph Witmer, Rochester, NY, for
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
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.
Second, Montague contends that the district court improperly interpreted
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
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
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
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
conspiracy in violation of
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.
[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 havе 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
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
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
Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks, alteration, and emphasis omitted); see also
DISCUSSION
Congress has mandated a minimum sentence of twenty years for anyone convicted of engaging in a “continuing criminal enterprise.”
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.
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.
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.
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
conspiracy in violation of
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
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 circumstаnces 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
Montague’s indictment clearly passes this test. Count One of the indictment “closely tracked the language of
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
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 indiсtment 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, 313 F.3d 40, 48 (2d Cir. 2002), which considered an indictment in which there was “nothing … identifying which three violations served as the predicate for the CCE charge.” 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
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
These two cases stand for the 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.
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
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 separatе 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.
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
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.”
above.
Subsection (b) of
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
B
We agree that the district court’s interpretation of
Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). According to the government,
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.
Moreover, the text of subsection (b)(2)(A) explicitly refers to this single violation as the “violation referred to in subsection (c)(1).”
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
We hold that a conviction under
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
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 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 violаtion referred to in subsection (c)(1)” must “involve at least” 150 kilograms of cocaine.
The concurrence claims that the error cannot be plain because
But 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).”
For that reason, the district court not only erred when it instructed the jury on the permissibility of aggregation; the error was plain.8
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) (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
Was there evidence of a narcotics conspiracy “involv[ing]” 150 kilograms of cocaine?
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
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,
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.
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 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 оutcome 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
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 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 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
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
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
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.
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
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.
. . .
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)).
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
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 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
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
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
In addition, at least one other district court, citing Harris, adopted the same interpretation of
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.”).
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
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
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.
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
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
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.”
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, 526 U.S. 813.
(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
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.
reason to believe that members of a grand jury . . . think in terms of statutory subsections rather than in terms of facts.”). If instead of
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
‘series’ necessary
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
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,
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 . . . .”
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
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
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 сriminal 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.”)