Amicus Curiae Brief — Colin Montague, Petitioner v. United States

Supreme Court briefApr 3, 2024

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No. 23-959

IN THE

Supreme Court of the United States

COLIN MONTAGUE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF THE NEW YORK STATE

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

LAW OFFICE OF

STEPHEN N. PREZIOSI P.C.

Chairman of the Amicus

Committee of the New York

State Association of Criminal

Defense Lawyers

48 Wall Street, 11th Floor

New York, NY 10005

212.960.8267

info@appealslawfirm.com

Amer S. Ahmed

Counsel of Record

Seth M. Rokosky

David Herman

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

212.351.2427

AAhmed@gibsondunn.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 7

The Second Circuit’s Rule Violates the Fifth

Amendment’s Vital Protections for Defendants

Charged Under One of the Most Serious

Criminal Statutes. ................................................7

A. Indictment by an Independent and

Informed Grand Jury Safeguards the

Integrity of the Criminal Process. .................7

B. These Protections Are Particularly

Important for Those Charged with

Violating the CCE Statute. ..........................11

C. The Second Circuit’s Rule Contravenes

These Critical Protections. ..........................18

II. This Case Presents an Appropriate Vehicle

for Resolving This Important Issue. ..................20

CONCLUSION ......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

Almendarez-Torres v. United States,

523 U.S. 224 (1998) .................................... 3, 11, 16

Apprendi v. New Jersey,

530 U.S. 466 (2000) .............................................. 15

Brady v. United States,

397 U.S. 742 (1970) .............................................. 10

Branzburg v. Hayes,

408 U.S. 665 (1972) ................................................ 8

Chapman v. United States,

500 U.S. 453 (1991) .............................................. 12

Garrett v. United States,

471 U.S. 773 (1985) ......................... 9, 12-14, 16-17

Hamling v. United States,

418 U.S. 87 (1974) ................... 3-4, 6-7, 9-11, 18-19

Kaley v. United States,

571 U.S. 320 (2014) ................................... 5, 8-9, 15

Lafler v. Cooper,

566 U.S. 156 (2012) .............................................. 10

Richardson v. United States,

526 U.S. 813 (1999) ................ 4-6, 12-14, 16-18, 20

RJR Nabisco, Inc. v. European Cmty.,

579 U.S. 325 (2016) .............................................. 22

Russell v. United States,

369 U.S. 749 (1962) ........................... 3, 9-10, 19-20

iii

Scheidler v. Nat’l Org. for Women, Inc.,

537 U.S. 393 (2003) .............................................. 22

United States v. Bansal,

663 F.3d 634 (3d Cir. 2011) ........................... 16, 21

United States v. Calandra,

414 U.S. 338 (1974) .........................................2, 7-8

United States v. Cianci,

378 F.3d 71 (1st Cir. 2004) .................................. 22

United States v. Edmonds,

80 F.3d 810 (3d Cir. 1996) ................................... 21

United States v. Gonzalez,

921 F.2d 1530 (11th Cir. 1991) ............................ 21

United States v. Mandujano,

425 U.S. 564 (1976) .........................................3, 7-8

United States v. Martinez,

991 F.3d 347 (2d Cir. 2021) ................................. 22

United States v. Ogando,

968 F.2d 146 (2d Cir. 1992) ................................. 21

United States v. Pirro,

212 F.3d 86 (2d Cir. 2000) ................................... 11

United States v. Sells Eng’g, Inc.,

463 U.S. 418 (1983) ................................................ 7

United States v. Thomas,

274 F.3d 655 (2d Cir. 2001) ................................. 11

Wood v. Georgia,

370 U.S. 375 (1962) ............................................ 3, 8

Statutes

18 U.S.C. § 225 .......................................................... 22

18 U.S.C. § 1962 ........................................................ 22

21 U.S.C. § 848(b) ...................................................... 15

21 U.S.C. § 853(a) ...................................................... 15

Other Authorities

Am. Bar Ass’n, Criminal Justice Section,

2023 Plea Bargain Task Force Report

(2023) .................................................................9-10

Brian M. Morris, Something Upon Which We

Can All Agree: Requiring a Unanimous

Jury Verdict in Criminal Cases,

62 Mont. L. Rev. 1 (2001) ..................................... 13

Eric S. Miller, Note, Compound-Complex

Criminal Statutes & the Constitution:

Demanding Unanimity as to Predicate

Acts, 104 Yale L. J. 2277 (1995) ........... 4, 13-14, 22

Gary Cartwright, The Black Striker Gets Hit,

Texas Monthly (Dec. 1981) .................................. 15

H.R. Rep. No. 91-1444 (1970).................................... 12

Paul Marcus, Criminal Conspiracy Law:

Time to Turn Back from an Ever

Expanding, Ever More Troubling Area,

1 Wm. & Mary Bill Rts. J. 1 (1992) ............... 16, 22

Robert G. Morvillo & Bary A.

Bohrer, Checking the Balance:

Prosecutorial Power in an Age of

Expansive Legislation,

32 Am. Crim. L. Rev. 137 (1995) ... 5, 11, 13, 16, 23

Roger A. Fairfax, Jr., Should the American

Grand Jury Survive Ferguson?

58 Howard L.J. 825 (2015) .................................8-9

Stephanos Bibas, Pleas’ Progress,

102 Mich. L. Rev. 1024 (2004) ............................. 10

Susan W. Brenner, RICO, CCE, and

Other Complex Crimes: the

Transformation of American

Criminal Law?,

2 Wm. & Mary Bill Rts. J. 239

(1993) ................................................... 12-13, 16, 22

Susan W. Brenner, The Voice of the

Community: a Case for Grand Jury

Independence,

3 Va. J. Soc. Pol’y & L. 67 (1995) ........................... 8

W. Corcoran, M. Carlson & T. Tucker,

Narcotic & Dangerous Drug Section

Monograph: Criminal Prosecution Under

the Continuing Criminal Enterprise

Statute: Section 848 of Title 21 United

States Code

(Dep't of Justice Monograph, 1982) ..................... 12

William Jue, Comment, The Continuing

Financial Crimes Enterprise & Its

Predicate Offenses: A Prosecutor’s Two

Bites at the Apple,

27 Pac. L. J. 1289 (1996) .................................22-23

IN THE

Supreme Court of the United States

No. 23-959

COLIN MONTAGUE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF THE NEW YORK STATE

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE*

The New York State Association of Criminal Defense Lawyers (NYSACDL) is a not-for-profit corporation founded in 1986 with a subscribed membership of

* No counsel for a party authored this brief in whole or in part,

and no entity or person other than NYSACDL, its members, and

its counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Counsel of record for the

parties received timely notice of NYSACDL’s intent to file this

brief.

more than 1,000 defense attorneys, including private

practitioners, public defenders, and law professors.

NYSACDL works to ensure that criminal defendants

receive all the protections to which state and federal

law entitle them, and it has an active legislative committee that advocates for important changes impacting criminal defendants. NYSACDL also puts out the

magazine Atticus, which addresses current issues confronting the criminal-defense community, and its amicus committee presents appellate arguments in both

state and federal courts, addressing important issues

that impact criminal defendants.

Consistent with its values and experience,

NYSACDL maintains that the Fifth Amendment, including the right to indictment by an informed and independent grand jury, must be preserved as a safeguard of individual liberty. NYSACDL offers this

brief to urge this Court to grant review on the issue of

whether an indictment charging a federal Continuing

Criminal Enterprise (“CCE”) offense must set forth

facts and circumstances that establish the elements of

at least three prior controlled-substance offenses, and

to reaffirm the importance of constitutionally sufficient indictments for prosecutions under that statute.

SUMMARY OF ARGUMENT

I. The right to an indictment by a grand jury is a

critical protection for criminal defendants.

A. The Founders provided in the Fifth Amendment that federal prosecution for serious crimes “can

only be instituted by ‘a presentment or indictment of

a Grand Jury.’” United States v. Calandra, 414 U.S.

338, 343 (1974). That requirement is met only where

the indictment sufficiently apprises the defendant of

the offense charged. See Hamling v. United States,

418 U.S. 87, 117 (1974).

1. The “considered judgment” of the grand jury is

“a basic guarantee” that helps ensure the fairness of

criminal prosecutions. United States v. Mandujano,

425 U.S. 564, 571 (1976). It serves the “invaluable

function” of “standing between the accuser and the accused . . . to determine whether a charge is founded

upon reason,” preventing baseless charges and protecting against unwarranted harms arising at the outset of a case. Wood v. Georgia, 370 U.S. 375, 390

(1962). An indictment also makes it possible to prepare a defense and fairly negotiate a guilty plea,

where appropriate, and shields the defendant from

unfair surprises by preventing the prosecution from

“shift[ing] its theory of criminality” in the case. Russell v. United States, 369 U.S. 749, 766, 768 (1962).

2. To fulfill these purposes, the indictment must

fairly inform the defendant and the court of the

charges so they can properly define the issues and prepare for trial. It is unfair to put an individual on trial

while leaving him guessing at the Government’s theory until it gets worked out at the jury charge. If the

defendant can be convicted only upon a finding of certain elements by a petit jury beyond a reasonable

doubt, those elements must first be set forth upon a

finding of probable cause by the grand jury in the indictment.

Accordingly, at minimum, the indictment must

“set forth each element of the crime” (AlmendarezTorres v. United States, 523 U.S. 224, 228 (1998)),

fairly inform the defendant of the charges (Hamling,

418 U.S. at 117), and permit him to seek dismissal,

where appropriate, based on prior prosecutions (ibid.).

It is not enough to include mere “references to

statutory citations.” Rather, “[i]t is generally sufficient that an indictment set forth the offense in the

words of the statute itself, as long as those words of

themselves fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements

necessary to constitute the offence.” Ibid. (emphases

added) (quotation marks omitted). Moreover, the indictment “must be accompanied with such a statement of the facts and circumstances as will inform the

accused of the specific offence.” Ibid.

B. These protections are particularly important

for those charged with violating the CCE statute. Recognizing the statute’s immense scope, and the serious

penalties it carries, Congress and this Court have required prosecutors to sufficiently prove to jurors that

the defendant committed at least three predicate acts

underlying the alleged CCE offense.

1. The CCE statute is the strongest statutory

weapon in the arsenal of the federal drug prosecutor.

It vests prosecutors with great latitude to exercise discretion in bringing charges and, if left unchecked,

would empower prosecutors to bring broad-ranging

indictments of great complexity, tying together matters unrelated in conduct and time, without affording

defendants the ability to prepare a defense.

a. For example, the statute permits prosecutors

to charge numerous prior crimes to demonstrate a “series of violations” of federal drug laws. And predicate

“violations” cover “many different kinds of behavior of

varying degrees of seriousness.” Richardson v. United

States, 526 U.S. 813, 819 (1999). Prosecutors thus

regularly “engage in a scattershot approach to prosecuting [a CCE], presenting evidence of as many predicate acts as possible.”

Eric S. Miller, Note,

Compound-Complex Criminal Statutes & the Constitution: Demanding Unanimity as to Predicate Acts,

104 Yale L. J. 2277, 2283 (1995). Unless jurors are

made to focus on the details, this “increases the likelihood” of hidden “disagreement among the jurors about

just what the defendant did, or did not, do,” and “significantly aggravates the risk” that jurors will fail to

focus on the facts underlying the alleged series,

“simply concluding from testimony, say, of bad reputation, that where there is smoke there must be fire.”

Richardson, 526 U.S. at 819.

The CCE statute’s complexity requires such detail

in an indictment to guide the grand jury in considering the evidence and determining probable cause. The

grand jury must state with clarity the conduct involved and how it all fits together to constitute a CCE

offense. Otherwise, the defendant cannot adequately

prepare his defense, and the Court cannot properly

determine what is in or out as evidence.

b. The CCE statute also vests prosecutors with

immense coercive power because its penalties are severe. Even before trial, the defendant faces the

stigma of being branded a “kingpin,” and a prosecutor

may impose great harm by seeking a restraining order

to “freeze [the] indicted defendant’s assets,” even

those that may be necessary to obtain counsel. See

Kaley v. United States, 571 U.S. 320, 322-23 (2014).

Such power can allow prosecutors to “virtually compel

plea bargaining, force cooperation, and in essence determine the length of sentences” under the statute.

Robert G. Morvillo & Bary A. Bohrer, Checking the

Balance: Prosecutorial Power in an Age of Expansive

Legislation, 32 Am. Crim. L. Rev. 137, 137 (1995).

2. Because the CCE statute vests prosecutors

with great power, Congress drafted textual

limitations to ensure that it is wielded fairly and constitutionally. To permit criminal defendants to contest alleged predicate acts before a jury, Congress

made a CCE a separate crime with separate penalties,

requiring the government to plead and prove each alleged predicate act as an element of a CCE offense.

Recognizing that intent, and “serious unfairness” that

would result from permitting jurors to disagree about

the means for the alleged CCE offense, this Court in

Richardson held that the statute requires juror unanimity as to which predicates will constitute the “continuing series” for the offense. 526 U.S. at 820, 824.

C. The Second Circuit’s rule contravenes these

critical protections. The court concluded that a CCE

indictment need not state the facts and circumstances

of predicate offenses; instead, it need only include “references to statutory citations” for those predicates.

But that is a far cry from setting forth each element

and thus “fairly inform[ing] a defendant of the

charge.” Hamling, 418 U.S. at 117. In holding otherwise, the Second Circuit ignored the fundamental role

that the grand jury plays in safeguarding a defendant’s rights, especially in the unique CCE context.

II. This Court should grant certiorari because the

case presents a clean vehicle to review the question

presented, and the Second Circuit’s reasoning threatens deleterious effects on other prosecutions. “There

can be no doubt of the circuit split here: the panel majority twice reject[ed] [Third Circuit precedent] by

name,” and the indictment was bereft of any facts and

circumstances regarding the alleged predicate acts.

63a. Moreover, the decision has dangerous implications “outside of the CCE context,” such as RICO and

the financial “kingpin” statute. 61a.

ARGUMENT

THE SECOND CIRCUIT’S RULE VIOLATES THE

FIFTH AMENDMENT’S VITAL PROTECTIONS FOR

DEFENDANTS CHARGED UNDER ONE OF THE

MOST SERIOUS CRIMINAL STATUTES.

The Fifth Amendment protects the right of every

criminal defendant charged with a serious offense to

presentment or indictment by a grand jury. That critical right serves a number of fundamental purposes

that safeguard the fairness of the criminal process.

That is particularly true in the context of the CCE

statute. The Second Circuit’s ruling ignores and undermines these critical protections.

A. Indictment by an Independent and Informed Grand Jury Safeguards the Integrity of the Criminal Process.

“The grand jury has always occupied a high place

as an instrument of justice in our system of criminal

law.” United States v. Sells Eng’g, Inc., 463 U.S. 418,

423 (1983). “[T]he Founders thought the grand jury

so essential to basic liberties that they provided in the

Fifth Amendment that federal prosecution for serious

crimes can only be instituted by ‘a presentment or indictment of a Grand Jury.’” Calandra, 414 U.S. at

343. That requirement is met only where the indictment is sufficiently detailed to apprise the defendant

of the offense charged. Hamling, 418 U.S. at 117.

1. The “considered judgment” of the grand jury is

“a basic guarantee” that helps ensure the fairness of

the criminal process. Mandujano, 425 U.S. at 571.

The grand jury is the primary security against

“hasty, malicious and oppressive persecution”; it

“serves the invaluable function” of “standing between

the accuser and the accused . . . to determine whether

a charge is founded upon reason.” Wood, 370 at 390.

The grand jury protects defendants from “arbitrary”

government action (Mandujano, 425 U.S. at 571), and

“unfounded criminal prosecutions” (Branzburg v.

Hayes, 408 U.S. 665, 686-87 (1972)).

“For the most part, a prosecutor would be unlikely

to request an indictment where a conviction could not

be obtained.” Calandra, 414 U.S. at 351. And the

grand jury ensures that prosecutors are able to bring

charges only upon a finding of probable cause and

with the approval of their peers. See, e.g., Susan W.

Brenner, The Voice of the Community: a Case for

Grand Jury Independence, 3 Va. J. Soc. Pol’y & L. 67,

70 (1995) (“In several famous instances, American

grand juries refused to return charges sought by British authorities.”); Roger A. Fairfax, Jr., Should the

American Grand Jury Survive Ferguson? 58 Howard

L.J. 825, 826 (2015) (noting a grand jury’s refusal to

indict police officer Darren Wilson).

The grand jury also protects against unwarranted

infringements upon liberty that an indictment alone

can bring at the very outset of the case, “with all the

economic, reputational, and personal harm that entails.” Kaley, 571 U.S. at 329. “If the person charged

is not yet in custody, an indictment triggers issuance

of an arrest warrant.” Ibid. (quotation marks omitted). Alternatively, it eliminates his “right to a

prompt judicial assessment of probable cause.” Ibid.

And the Government may immediately seek to freeze

assets that “would be subject to forfeiture upon conviction.” Id. at 322. These “grave consequences” are

permitted only because the grand jury “gets to say . . .

whether probable cause exists to think that a person

committed a crime.” Id. at 328-30.

The Fifth Amendment’s protections also make it

possible for the defendant to prepare to meet the

charges at trial. A proper indictment “fairly informs”

him so he can assess their sufficiency (Hamling, 418

U.S. at 117), and, when warranted, plead a prior acquittal or conviction as a defense under the doctrines

of collateral estoppel or double jeopardy (Russell, 369

U.S. at 764; see Garrett v. United States, 471 U.S. 773,

798-99 (1985) (O’Connor, J., concurring)).

As the case progresses, the indictment protects

against unfair surprises, preventing the prosecution

from “fill[ing] in the gaps of proof” with conjecture or

“shift[ing] its theory of criminality.” Russell, 369 U.S.

at 766, 768. “To allow the prosecutor . . . to make a

subsequent guess as to what was in the minds of the

grand jury . . . would deprive the defendant of a basic

protection which the guaranty of the intervention of a

grand jury was designed to secure.” Id. at 770.

Similarly, proper indictments facilitate informed

judicial decisionmaking as the case moves forward.

The indictment “inform[s] the trial judge what the

case involves, so that, as he presides and is called

upon to make rulings of all sorts,” including as to

whether the facts alleged are legally sufficient to withstand dismissal, “he may be able to do so intelligently”

and fairly. Id. at 768-69 (quotation marks omitted).

Finally, the grand jury helps ensure that guilty

pleas occur where there is, at minimum, probable

cause. See Fairfax, Jr., supra, at 828 & n.16. In modern practice, “[p]lea bargaining has become the primary way to resolve criminal cases.” See Am. Bar

Ass’n, Criminal Justice Section, 2023 Plea Bargain

Task Force Report, at 6 n.2 (2023), https://www.americanbar.org/content/dam/aba/publications/criminaljustice/plea-bargain-tf-report.pdf; see Lafler v.

Cooper, 566 U.S. 156, 170 (2012) (noting the “reality

that criminal justice today is for the most part a system of pleas, not a system of trials”).

Because of their vast discretion, prosecutors often

“overcharge” to gain bargaining “leverage” and raise

the threat of harsh sentences. Stephanos Bibas,

Pleas’ Progress, 102 Mich. L. Rev. 1024, 1039 (2004).

And defendants plead guilty in “the hope or assurance

of a lesser penalty.” Brady v. United States, 397 U.S.

742, 752 (1970). The probable cause requirement

helps ensure that such bargaining is appropriately

calibrated and more likely to lead to just and fair outcomes. See Am. Bar Assoc., supra, at 18.

2. In light of those multifaceted concerns, the defendant and the court need specifics in indictments to

define the issues that are appropriately in the case

and prepare for trial on the charges. It is unfair to put

a person on trial for a serious offense while leaving

him guessing at the Government’s theory until it gets

worked out at the jury charge. If the defendant can

be convicted only upon a finding of certain elements

by a petit jury beyond a reasonable doubt, those elements must be set forth upon a finding of probable

cause by the grand jury in the indictment.

When sufficient, an indictment apprises the defendant “with reasonable certainty[] of the nature of

the accusation” (Russell, 369 U.S. at 766 (quotation

marks omitted)); permits him to prepare a defense (see

Hamling, 418 U.S. at 117); and obviates any need to

“speculate as to whether a grand jury might have

returned an indictment in conformity” with the prosecution’s evidence. United States v. Thomas, 274 F.3d

655, 670 (2d Cir. 2001) (en banc).

An indictment therefore must “set forth each element of the crime” (Almendarez-Torres, 523 U.S. at

228), “fairly” inform the defendant of the charges

(Hamling, 418 U.S. at 117), and enable him to seek

dismissal, where appropriate, by pleading a prior “acquittal or conviction” for the same offense (ibid.).

It is not enough, as the Second Circuit concluded

in this case, merely to include “references to statutory

citations.” Rather, the words of the statute must

“themselves fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements

necessary to constitute the offence.” Hamling, 418

U.S. at 117 (emphases added) (quotation marks omitted). Moreover, the indictment “must be accompanied

with such a statement of the facts and circumstances

as will inform the accused of the specific offence.” Id.

at 117-18; see United States v. Pirro, 212 F.3d 86, 93

(2d Cir. 2000) (indictment cannot “‘charge the offence

in the same generic terms as in the definition; but it

must . . . descend to particulars.’” (quoting United

States v. Cruikshank, 92 U.S. 542, 544 (1875)).

B. These Protections Are Particularly

Important for Those Charged with

Violating the CCE Statute.

Beginning in the 1970s, Congress responded to

public pressure by arming prosecutors with “ever

more powerful weapons in the so-called War on

Crime.” Morvillo & Bohrer, supra, at 137. The CCE

statute was integral to those efforts, but Congress and

this Court have sought to safeguard the rights of criminal defendants under the statute, in part by requiring

that prosecutors demonstrate to jurors that the defendant committed at least three predicate acts.

1. In 1970, Congress revised “the entire structure

of criminal penalties” for drug offenses and created an

entirely new offense for those convicted of engaging

“in a continuing criminal enterprise,” or CCE. H.R.

Rep. No. 91-1444, at 4570, 4572, 4575 (1970). The

statute “departed significantly from common-law

models and prior drug laws.” Richardson, 526 U.S. at

821 (quotation marks omitted). Among other things,

it “made engagement in a continuing criminal enterprise a new and distinct offense with all its elements

triable in court.” Garrett, 471 U.S. at 783 (quotation

marks omitted). The law was “carefully crafted” and

“aimed at a special problem”—“designed to reach the

‘top brass’ in the drug rings, not the lieutenants and

foot soldiers.” Id. at 781; see Chapman v. United

States, 500 U.S. 453, 467 (1991) (calling the CCE law

a “drug ‘super-kingpin’ statute”).

The Department of Justice has described the CCE

as “the strongest statutory weapon in the arsenal of

the federal drug prosecutor.” W. Corcoran, M. Carlson

& T. Tucker, Narcotic & Dangerous Drug Section

Monograph: Criminal Prosecution Under the Continuing Criminal Enterprise Statute: Section 848 of Title

21 United States Code (Dep’t of Justice Monograph,

1982). The statute empowers prosecutors to exercise

“‘virtually unlimited discretion’ in bringing charges”

(Susan W. Brenner, RICO, CCE, and Other Complex

Crimes: the Transformation of American Criminal

Law?, 2 Wm. & Mary Bill Rts. J. 239, 297 & n.332

(1993)), and, if left unchecked, would permit broadranging indictments of great complexity, tying together matters unrelated in conduct and time without

affording the ability to prepare before trial. See

Morvillo & Bohrer, supra, at 138 (“[C]ourts have

largely acquiesced in the government’s charging practices and virtually ignored the prosecutors’ increased

and sometimes abusive use of the grand jury.”).

a. For example, the statute permits prosecutors

to charge defendants with, and present evidence of,

numerous prior crimes to demonstrate the required

“series of violations” of federal drug laws. See Garrett,

471 U.S. at 786. As a result, the Government in a single proceeding can now seek to prove that a suspected

“kingpin” has been involved not only in the substantive CCE offense, but also in a number of prior violations that qualify under the statute as predicate offenses. Richardson, 526 U.S. at 819; see Garrett, 471

U.S. at 785; Brenner, supra, at 256, 260.

The CCE statute is extremely broad, with predicate “violations” covering “many different kinds of behavior of varying degrees of seriousness.” Richardson, 526 U.S. at 819. “The two chapters of the Federal

Criminal Code setting forth drug crimes contain approximately 90 numbered sections, many of which

proscribe various acts that may be alleged as ‘violations’ for purposes of the series requirement.” Ibid.;

see Miller, supra, at 2284 (“[T]he variety of crimes eligible as predicates is astounding.”).

Prosecutors thus regularly “engage in a scattershot approach to prosecuting [a CCE], presenting evidence of as many predicate acts as possible with the

hope of convincing the jury that the defendant committed at least the requisite number” to constitute a

“series.” See Miller, supra, at 2277, 2283; accord

Brian M. Morris, Something Upon Which We Can All

Agree: Requiring a Unanimous Jury Verdict in Criminal Cases, 62 Mont. L. Rev. 1, 30-31 (2001).

Unless jurors are made to focus on the details of

alleged offenses, the breadth of potential predicates

“increases the likelihood” of hidden “disagreement

among the jurors about just what the defendant did,

or did not, do,” and “significantly aggravates the risk”

that jurors will fail to focus on the facts underlying the

alleged series, “simply concluding from testimony,

say, of bad reputation, that where there is smoke

there must be fire.” Richardson, 526 U.S. at 819; see

Miller, supra, at 2303, 2280, 2282-84 (warning that

the CCE statute invites “patchwork verdict[s]”). That

is as true of grand jurors as it is of petit jurors.

Lack of clarity regarding predicate offenses alleged in the indictment also could hinder defendants’

ability to plead collateral estoppel from prior acquittals. See Garrett, 471 U.S. at 798 (O’Connor, J., concurring) (“Any acquittal on a predicate offense would

of course bar the Government from later attempting

to relitigate issues in a prosecution under § 848.”).

And defendants may have a valid double jeopardy

claim if the indictment does not make clear that the

continuing series of violations occurred “after an earlier conviction for a predicate offense.” Id. at 799.

Specificity is important to ensure that the Government has chosen “three or more specific violations”

and framed its CCE prosecution around them, so it

can guide jurors in considering the evidence. Richardson, 526 U.S. at 826 (Kennedy, J., dissenting). The

grand jury must state with clarity what conduct is alleged and how it all fits together to constitute the alleged CCE. See, e.g., id. at 831 (Government must, at

the outset, isolate predicate offenses “and then relate

all the other parts of the CCE definition” to those offenses). Otherwise, the defense cannot adequately

prepare to meet the charges, and the Court cannot

properly determine what is in or out as evidence.

b. Prosecutors wield immense coercive power because the statute’s penalties are among the most severe known to modern federal law. They include a

minimum of twenty years’ incarceration, potential life

imprisonment, a large fine, and forfeiture not only of

the proceeds of drug offenses, but also any interest in

or property affording a source of control over the alleged enterprise. See 21 U.S.C. §§ 848(b), 853(a).

Even before trial, a prosecutor may seek a restraining order to “freeze [the] indicted defendant’s

assets . . . if they would be subject to forfeiture upon

conviction.” Kaley, 571 U.S. at 322. Such an order

“prevents a defendant from spending or transferring

specified property, including to pay an attorney for legal services.” Id. at 323. Meanwhile, the defendant

faces grave charges and the public opprobrium of being branded a “kingpin,” with all the “economic, reputational, and personal harm” that such allegations entail. Apprendi v. New Jersey, 530 U.S. 466, 484 (2000)

(“Prosecution subjects the criminal defendant both to

the possibility that he may lose his liberty upon conviction and . . . the certainty that he would be stigmatized by the conviction.” (quotation marks omitted));

see, e.g., Gary Cartwright, The Black Striker Gets Hit,

Texas Monthly, https://www.texasmonthly.com/truecrime/the-black-striker-gets-hit/ (Dec. 1981) (“The

months of suspicion and hostile publicity almost

wrecked Lee’s law career. . . . ‘Even after the charges

were dismissed, there was still the stigma.’”).

These powerful tools have given prosecutors great

leverage in some cases to “virtually compel plea bargaining, force cooperation, and in essence determine

the length of sentences” without a jury hearing

evidence from the defense. Morvillo & Bohrer, supra,

at 137; see Paul Marcus, Criminal Conspiracy Law:

Time to Turn Back from an Ever Expanding, Ever

More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1, 17

(1992) (“Broad and vaguely defined offenses, combined with horrendous sentencing possibilities, give

the prosecution the power to make an offer which the

defense cannot refuse.” (quotation marks omitted));

Brenner, supra, at 298 (noting that prosecutors can

use statutes like CCE to “construct charges that provide a significant incentive for plea bargaining”). It is

critical for defendants to understand the charges so

they can act appropriately in the lead-up to trial.

2. Because the CCE statute vests prosecutors

with great power, Congress included textual limitations so prosecutors will wield that club fairly and constitutionally, including by designating predicate offenses as elements that “must appear in the indictment.” United States v. Bansal, 663 F.3d 634, 647 (3d

Cir. 2011).

In the legislative debate over the CCE, Congress

considered two distinct statutory structures. The first

approach was “the imposition of longer sentences upon

those convicted first of the basic [drug] crime and then

shown” during sentencing to be “dangerous offenders.” See Garrett, 471 U.S. at 782-84 (emphasis added)

(quotation marks omitted). This would have allowed

prosecutors to omit prior drug offenses from the indictment and then address them later, if at all, at sentencing. See Almendarez-Torres, 523 at 226 (recidivism not an “element” that must be charged). This

approach drew objections that defendants should be

permitted to contest allegations regarding prior offenses at trial. See Richardson, 526 U.S. at 820.

The second approach—which Congress enacted—

made the CCE a separate crime with separate penalties. This “increased procedural protections for defendants” by requiring the government to plead each

predicate offense as a distinct element of the new

crime and prove each of them beyond a reasonable

doubt. Richardson, 526 U.S. at 819-20; see id. at 826

(Kennedy, J., dissenting); see also, e.g., Garrett, 471

U.S. at 784 (“[I]f you are going to prove a man guilty,

you have to come into court and prove every element

of the continuing offense.” (quoting 116 Cong. Rec.

33631 (1970) (remarks of Rep. Eckhardt)).

This Court in Richardson therefore held that the

CCE statute requires juror unanimity as to which

predicate offenses constitute the continuing series for

a CCE. See 526 U.S. at 824. The Court explained that

treating each violation as a separate element “is consistent with a tradition of requiring juror unanimity

where the issue is whether a defendant has engaged

in conduct that violates the law.” Id. at 819. Moreover, the statute’s “breadth” argues against treating violations as mere means (where jurors may disagree)

instead of elements (where they may not); it would

have tested “constitutional limits” to permit a CCE

conviction where jurors disagreed about the means by

which a defendant engaged in a “series of violations,”

at least where (as here) it would risk “serious unfairness” and lack historical support. Id. at 819-20.

The dissenting opinion in Richardson confirmed

that the Court “of necessity alters the manner in

which the Government must frame its indictment and

design its trial strategy.” Id. at 826 (Kennedy, J., dissenting). Because “[t]he elements of the offenses

charged must be set forth in the indictment,” the Government in a CCE case “must choose three or more

specific violations and allege those” in the indictment.

Ibid. (emphasis added); see id. at 831 (explaining that

the Court in Richardson appeared to require “the Government at the outset to isolate just three or more violations and then relate all the other parts of the CCE

definition to just these offenses.”).

C. The Second Circuit’s Rule Contravenes

These Critical Protections.

Undermining these critical protections, the Second Circuit held that a CCE indictment need not state

any facts and circumstances regarding the predicate

offenses. Instead, the indictment need only include

“references to statutory citations” for those predicates

and then state the time and location in which the overall enterprise was conducted. 59a; see 10a.

But that is a far cry from the balance Congress

struck when drafting the CCE statute, which was to

require proof beyond a reasonable doubt of each alleged element of a CCE offense, reflecting the imperatives to “fairly inform[] a defendant of the charge

against which he must defend,” Hamling, 418 U.S. at

117, and require grand jurors to find probable cause

as to the commission of the requisite predicate acts.

The indictment in this case did not set forth any

series of alleged drug offenses, much less allege that

the defendant’s conduct satisfied their elements during the operative time period.1 59a. “All the grand

jury found was probable cause to believe that Montague ‘undert[ook]’ unspecified ‘violations of’ statutes

The indictment charged Montague with one count of narcotics conspiracy under 21 U.S.C. §846, and engaging 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.” 4a.

with unspecified elements—that’s it.” Ibid. That cannot be enough, because it permits grand jurors to refrain from determining whether the Government has

sufficiently demonstrated how a CCE was committed

and leaves that issue to be sorted out much later—

precisely the slippery slope Congress rejected when it

classified predicate offenses as elements of the crime.

The Second Circuit acknowledged the “commonsense rule” that citations to legal statutes cannot substitute a factual element in an indictment. 60-61a.

Departing from that rule, however, it reasoned that,

in a CCE case, disclosing facts and circumstances

about predicate acts “would not necessarily provide

more information to the defendant.” 14a. But that

ignores the fundamental role that indictments play,

especially in the unique CCE context.

“[T]he very purpose of the requirement that a man

be indicted by grand jury is to limit his jeopardy to

offenses charged by a group of his fellow citizens acting independently.” Russell, 369 U.S. at 771 (quotation marks omitted). “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.” 59a (quotation marks omitted). See supra at 7-9.

The decision below provides no such assurance.

Moreover, an indictment must, at the outset, be returned with such particularity that the defendant can

prepare to meet the charges and, where appropriate,

seek dismissal on the law or plead a prior acquittal or

conviction for the same offense. Hamling, 418 U.S. at

117. See supra at 9. The Second Circuit’s rule would

hinder defendants’ ability to adequately assess the

charges and take such action.2

Finally, an indictment informs the court and the

parties of what the grand jury actually considered, so

the prosecution can properly move forward without

sandbagging the defendant. Russell, 369 U.S. at 770;

see Richardson, 526 U.S. at 826 (Kennedy, J., dissenting) (treating predicate acts as elements affects “the

manner in which the Government must frame its indictment and design its trial strategy.” (emphases

added)). “To allow the prosecutor, or the court, to

make a subsequent guess as to what was in the minds

of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the . . . grand jury was designed to secure.”

Russell, 369 U.S. at 770. The Second Circuit’s rule

does not account for that basic protection.

II. THIS CASE PRESENTS AN APPROPRIATE VEHICLE FOR RESOLVING THIS IMPORTANT ISSUE.

This Court should grant certiorari because this

case presents a clean vehicle to review the question

presented, and the Second Circuit’s reasoning threatens deleterious effects on other criminal prosecutions.

“There can be no doubt of the circuit split here: the

panel majority twice reject[ed] [Third Circuit precedent] by name.” 63a. In holding that a CCE

Although the Second Circuit speculated that notice concerns

could have been addressed through a bill of particulars, it

acknowledged that a request for a bill of particulars “cannot save

an invalid indictment.” 14a (quoting Russell, 369 U.S. at 770).

A bill of particulars does not serve the same Fifth Amendment

purposes as does an indictment, and a district court is not required to grant one in any event. In fact, Montague sought a bill

of particulars and requested information about predicate acts,

but the district court denied his request. Ibid.

indictment need not plead any facts and circumstances whatsoever of predicate acts underlying a

CCE offense, the Second Circuit openly split with the

Third Circuit’s holding that “an indictment must include the facts and circumstances comprising at least

three felonies.” Bansal, 663 F.3d at 647. Whether or

not federal defendants are notified of alleged facts and

circumstances comprising their alleged predicate acts

now may turn simply on whether they were charged

in, say, New Jersey, or across the Hudson River, in

New York. This case is an ideal vehicle to resolve that

split because the indictment was bereft of any facts

and circumstances regarding the alleged predicate

acts. 63a.

More fundamentally, “[t]his case involves a question of exceptional importance: does an indictment for

a crime with predicate offenses as necessary elements

require any factual detail regarding those predicate

offenses?” 58a. Because the Second Circuit did not

explain why CCEs warrant less stringent pleading

rules and offered no limiting principle to its holding,

its erroneous decision is likely to be applied “outside

of the CCE context” to other statutes that incorporate

a series of predicate acts as elements of statutory offenses that carry severe penalties. 61a.

For example, the CCE statute’s “cousin,” RICO

(United States v. Ogando, 968 F.2d 146, 148 (2d Cir.

1992)), which was enacted “at roughly the same time”

and for essentially the same purpose (United States v.

Edmonds, 80 F.3d 810, 836 (3d Cir. 1996) (Alito, J.,

concurring in part and dissenting in part)), has “very

similar” requirements and statutory structure

(United States v. Gonzalez, 921 F.2d 1530, 1537 (11th

Cir. 1991)).

Like the CCE statute, RICO seeks to prosecute

“kingpins” of enterprises by making it an offense to,

among other things, commit a series of predicate acts

(see 18 U.S.C. § 1962), the elements of which are elements of a RICO offense (see United States v. Martinez, 991 F.3d 347, 357 (2d Cir. 2021)). Like liability

under the CCE statute, RICO liability is extremely

broad, with predicate acts encompassing “dozens” of

offenses (RJR Nabisco, Inc. v. European Cmty., 579

U.S. 325, 330 (2016)), and penalties being “severe,” including lengthy sentences and potential forfeiture

(Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393,

411-12 (2003) (Ginsburg, J., concurring)).

For virtually the same reasons as the CCE statute, RICO is a “powerful weapon that can cause mischief if abused by an overzealous prosecutor” (United

States v. Cianci, 378 F.3d 71, 112 (1st Cir. 2004) (Howard, J., concurring in part and dissenting in part)),

and poses a substantial risk of harming defendants

through overbroad indictments and “patchwork verdicts” (Miller, supra, at 2282-83; see Brenner, supra,

at 297-98 (RICO gives prosecutors “virtually unlimited” discretion and adds leverage during plea bargaining); Marcus, supra, at 17 n.89 (“[T]he existence

of a RICO threat has substantially affected the way

that criminal charges are drawn, bargained over, and

tried.” (quotation marks omitted)).

So too the “Continuing Financial Crimes Enterprise statute” (CFCE), or “Financial Crime Kingpin

Statute,” 18 U.S.C. § 225, a “white-collar analogue” to

the CCE statute. William Jue, Comment, The Continuing Financial Crimes Enterprise & Its Predicate Offenses: A Prosecutor’s Two Bites at the Apple, 27 Pac.

L. J. 1289, 1290. (1996); see Brenner, supra, at 255

(“[P]ropositions that apply to RICO and CCE will also

apply to CFCE.”). That statute is a “near mirror image of its drug-related predecessor” (Morvillo & Bohrer, supra, at 149), and punishment is “severe,” with

a potential life sentence (Jue, supra, at 1294).

The Second Circuit’s ruling that an indictment

need only reference statutory provisions, rather than

the facts and circumstances surrounding predicate violations, opens the door to prosecutors in the various

circuits reprising the same barebones strategy in

RICO and CFCE cases, where the consequences would

be no less harmful. Review by this Court is critical to

safeguard defendants’ rights in prosecutions under

these and other similarly sweeping statutes.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.