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.
2

Before: JACOBS, BIANCO, and MENASHI, Circuit Judges.

Defendant-Appellant Colin Montague appeals from a jury 

verdict finding him guilty of nine narcotics and money-laundering 

offenses, including operating a continuing criminal enterprise 

(“CCE”) in violation of 21 U.S.C. § 848. Montague challenges his 

conviction primarily on two grounds. First, he argues that his 

indictment insufficiently stated the CCE count because it did not 

identify the conduct constituting the “continuing series of violations” 

that 21 U.S.C. § 848(c)(2) requires. Second, Montague argues that the 

district court improperly instructed the jury when it construed 

§ 848(b)(2)(A) to allow aggregation of drug amounts across the 

continuing series of violations rather than requiring that a single 

narcotics offense “involve” at least 150 kilograms of cocaine. We hold 

that the indictment was sufficient under our previous decision in 

United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002). We also hold that 

the district court plainly erred when it instructed the jury but that the 

error did not affect Montague’s substantial rights. We affirm the jury 

verdict on all counts. 

Judge Bianco concurs in a separate opinion. Judge Jacobs 

concurs in part and dissents in part in a separate opinion.

ROBERT MARANGOLA, Assistant United States Attorney 

(Tiffany H. Lee, Assistant United States Attorney, on the 

brief), for James P. Kennedy, Jr., United States Attorney 

for the Western District of New York, for Appellee.
3

MICHAEL JOSEPH WITMER, Law Office of Michael Joseph 

Witmer, Rochester, NY, for Defendant-Appellant.

MENASHI, Circuit Judge:

Defendant-Appellant Colin Montague appeals a jury verdict 

finding him guilty of engaging in a continuing criminal enterprise 

(“CCE”) in violation of 21 U.S.C. § 848, money laundering conspiracy 

in violation of 18 U.S.C. § 1956(h), and substantive money laundering 

offenses in violation of 18 U.S.C. § 1957(a). 

The CCE statute is “aimed at what Congress perceived to be a 

peculiar evil: the drug kingpin.” Richardson v. United States, 526 U.S. 

813, 828 (1999) (Kennedy, J., dissenting). Montague argues that he 

cannot be convicted under the kingpin statute primarily for two 

reasons. First, Montague says that his indictment was inadequate. The 

CCE statute requires that the defendant engaged in a “continuing 

series of violations” of the federal narcotics laws. 21 U.S.C. § 848(c)(2). 

Along with most of our sister circuits, we have interpreted this 

provision to require three predicate violations, each of which is an 

element of a CCE offense. See, e.g., Monsanto v. United States, 348 F.3d 

345, 348 (2d Cir. 2003). Montague argues that his indictment did not 

identify the three predicate violations and therefore failed to charge a 

CCE.

Second, Montague contends that the district court improperly 

interpreted 21 U.S.C. § 848(b)(2)(A) when it instructed the jury. That 

subsection provides that a minimum sentence of life in prison must 

be imposed if “the violation referred to in subsection (c)(1) involved 

at least 300 times the quantity of a substance described in subsection 

841(b)(1)(B) of this title.” 21 U.S.C. § 848(b)(2)(A). The district court 
4

instructed the jury that it could aggregate the drug amounts involved 

across the three predicate violations in order to reach the threshold

quantity. Montague argues this instruction was erroneous because 

§ 848(b)(2)(A) refers to a single violation. 

We are not persuaded by Montague’s challenge to his 

indictment because the indictment satisfies the test we announced in 

United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002). In fact, the 

indictment here is not meaningfully different from the one we 

considered in Flaharty. We agree, however, with Montague’s 

interpretation of § 848(b)(2)(A). That provision requires the threshold 

drug amount to be “involved” in a single felony violation of the drug

laws. The district court’s interpretation, which permitted aggregation, 

was erroneous. Nevertheless, we conclude that the error was 

harmless in light of the overwhelming evidence introduced against 

Montague. As a result, we affirm Montague’s conviction on all counts.

BACKGROUND

I

Montague began investing in real estate in the Rochester area 

around 2006. According to Montague, his real-estate business was 

legitimate: After purchasing properties, he would rent them out and 

use the profits to buy new properties. 

But in 2012, the authorities in Greece, New York—the 

municipality in which Montague resides—opened an investigation 

on the suspicion that he was engaged in drug trafficking. According 

to the government, Montague was the head of a vast drug ring that 

purchased cocaine as far away as the West Coast, transported it to the 

Rochester area, sold it to lower-level drug dealers, and laundered the 
5

profits through Montague’s real-estate business. In May 2013, the 

results of the investigation were presented to a state grand jury, which 

declined to indict Montague. 

The investigation into Montague continued, however. In 

January 2014, officers affiliated with the Greater Rochester Area 

Narcotics Enforcement Team (“GRANET”), which includes federal as 

well as state and local law-enforcement agencies, secured warrants to 

wiretap the telephones of Montague and his associates. On June 26, 

2014, GRANET officers executed a search warrant at Montague’s 

home and seized drug ledgers and other materials. Montague was not 

present during the search and no drugs were found. In August 2014, 

a federal grand jury indicted Montague. The grand jury returned a 

superseding indictment about a month later. On December 9, 2014, 

the grand jury filed a second superseding indictment (hereinafter “the 

indictment”). On December 11, 2014, U.S. marshals arrested 

Montague in Atlanta, Georgia. 

II

The indictment charged Montague with nine counts: One count 

of engaging in a CCE in violation of 21 U.S.C. § 848; one count of 

narcotics conspiracy in violation of 21 U.S.C. § 846; one count of 

money laundering conspiracy in violation of 18 U.S.C. § 1956(h); and 

six counts of substantive money laundering offenses in violation of 

18 U.S.C. § 1957(a). The CCE count of the indictment stated in 

relevant part that Montague “did knowingly, willfully, intentionally 

and unlawfully engage in a Continuing Criminal Enterprise in that he 

did violate Title 21, United States Code, Sections 841(a)(1) and 846, 

which violations were part of a continuing series of violations of said 

statutes.” App’x 32. Apart from Count Two—the charge for narcotics 
6

conspiracy in violation of 21 U.S.C. § 846—the indictment contained 

no details about Montague’s alleged violations of §§ 841(a)(1) and 

846. Before trial, Montague moved to dismiss the indictment as 

inadequate. That motion was denied.

Montague’s trial lasted seven weeks. The jury heard from 

dozens of witnesses and listened to scores of telephone calls collected

from wiretaps. The government submitted thirty-four pages of a drug 

ledger. Those pages reflect about six months of the enterprise, which 

according to the government ran for eighty-four months.

After closing arguments, Montague submitted a jury charge 

request. In relevant part, he asked the district court to “utilize the 

standard jury instructions as set forth in the Hon. Leonard Sand’s 

Modern Federal Jury Instructions Criminal except as modified 

herein.” App’x 5553. The modifications Montague requested are not 

related to his arguments on appeal. 

When instructing the jury, the district court stated that the jury 

could not find Montague guilty of engaging in a CCE (Count One) if 

it did not first find him guilty of narcotics conspiracy (Count Two). 

The court continued: 

[T]he Government must prove beyond a reasonable 

doubt ... that this offense was part of a continuing series 

of violations of the federal narcotics laws. A continuing 

series of violations is three or more violations of the 

federal narcotics laws committed over a definitive period 

of time. These three or more violations do not have to be 

convictions or separate counts in the indictment. They 

may even be acts not mentioned in the indictment at all. 

As long as the defendant, Colin Montague, had the intent 
7

to violate the narcotics laws when he committed these 

acts, you must ... unanimously agree on which three acts 

constitute the continuing series of violations. 

App’x 5680-81. When explaining the verdict sheet to the jury, the 

district court noted that, should the jury find Montague guilty of 

engaging in a CCE, it must determine “whether the continuing series 

of violations undertaken involved 150 kilograms or more of cocaine.” 

App’x 5720. 

The jury found Montague guilty on all nine counts. In 

particular, the jury decided it was “[p]roven” that Montague’s 

“continuing series of violations of 21, U.S.C., Section 841(a)(1) and 

846 ... involved at least 150 kilograms of cocaine.” App’x 5748, 5766.

At sentencing in June 2018, Montague moved to dismiss his 

narcotics conspiracy conviction (Count Two) on the ground that it 

was a lesser included offense of engaging in a CCE. The government 

did not oppose the motion, so the district court dismissed Montague’s 

conviction for narcotics conspiracy. Because the jury found as proven 

the facts needed to be convicted under § 848(b), the district court 

sentenced Montague to life in prison for his CCE charge. It also 

sentenced him to 240 months imprisonment for conspiracy to commit 

money laundering and 120 months imprisonment for the substantive 

money-laundering charges, all to run concurrently with his life 

sentence. Montague now appeals the verdict, arguing principally that 

he cannot be convicted of engaging in a CCE because the indictment 

was inadequate and that the district court incorrectly interpreted 21 

U.S.C. § 848(b)(2)(A) when it permitted the jury to aggregate drug 

amounts across the continuing series of violations in order to reach 

the 150-kilogram threshold.
8

STANDARD OF REVIEW

Review of a district court’s denial of a motion to dismiss an 

indictment “entails mixed questions of law and fact.” United States v. 

Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). “[M]ixed questions 

of law and fact are ... reviewed de novo.” FDIC v. Providence Coll., 115 

F.3d 136, 140 (2d Cir. 1997); see also United States v. Daley, 702 F.3d 96, 

99-100 (2d Cir. 2012) (“The question whether the district court 

properly denied [the] motion to dismiss the indictment is a mixed 

question of fact and law, subject to de novo review.”). 

Typically, “[t]his court reviews a district court’s statutory 

interpretation de novo.” United States v. Kozeny, 541 F.3d 166, 171 (2d 

Cir. 2008) (citing United States v. Rood, 281 F.3d 353, 355 (2d Cir. 2002)). 

However, Montague did not object to the district court’s 

interpretation of § 848(b)(2)(A) when it instructed the jury. When a 

party “failed to raise th[e] statutory challenge below,” we “review the 

district court’s interpretation ... for plain error.” United States v. 

Rosario, 7 F.4th 65, 69 (2d Cir. 2021). 

“The defendant has ‘the burden of establishing entitlement to 

relief for plain error.’” Greer v. United States, 141 S. Ct. 2090, 2097 

(2021) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 

(2004)). The Supreme Court has identified four prongs of plain error 

analysis: (1) there must be an error; (2) the error must be plain, 

meaning it must be “clear or obvious, rather than subject to 

reasonable dispute”; (3) the error must have “affected the appellant’s 

substantial rights” in that it affected the outcome of the proceedings; 

and (4) if these other “three prongs are satisfied, the court of appeals 

has the discretion to remedy the error ... if the error seriously affects 

the fairness, integrity or public reputation of judicial proceedings.” 
9

Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation 

marks, alteration, and emphasis omitted); see also Fed. R. Crim. P. 

52(b).

DISCUSSION

Congress has mandated a minimum sentence of twenty years 

for anyone convicted of engaging in a “continuing criminal 

enterprise.” 21 U.S.C. § 848(a). A continuing criminal enterprise 

consists of five elements. See generally United States v. Aiello, 864 F.2d 

257, 263-64 (2d Cir. 1988). First, the defendant must commit a felony 

violation of 21 U.S.C. Chapter 13. 21 U.S.C. § 848(c)(1). Second, that 

felony must be a “part of a continuing series of violations” of 21 U.S.C. 

Chapter 13. Id. § 848(c)(2). Third, those violations must be undertaken 

with five or more persons. Id. § 848(c)(2)(A). Fourth, the defendant

must act in a “position of management” with respect to those five 

persons. Id. Fifth, the defendant must “obtain[] substantial income or 

resources” from the continuing series of violations. Id. § 848(c)(2)(B). 

Montague’s challenge to the indictment centers on the second 

element. See infra Part I.

A life sentence is required if the government proves that the 

defendant acted not simply in a position of management but as “the 

principal administrator, organizer, or leader of the enterprise” or one 

of such leaders. 21 U.S.C. § 848(b)(1). As applicable to Montague’s 

case, the government must also prove that “the violation referred to 

in subsection (c)(1) involved at least 300 times the quantity of a 

substance described in subsection 841(b)(1)(B).” Id. § 848(b)(2)(A). 

The parties do not dispute that 150 kilograms of cocaine is the correct 

amount needed to satisfy this provision. Montague’s challenge to the 
10

jury instructions concerns which violations may be considered in 

arriving at the 150-kilogram threshold. See infra Part II.

I

Montague contends that the district court erred by failing to 

dismiss his indictment, which he argues did not adequately charge 

him with engaging in a CCE. Montague’s argument proceeds in four

steps. First, as stated above, the second element of a CCE offense 

requires that there be a “continuing series of violations” of the 

narcotics laws. 21 U.S.C. § 848(c)(2). We have held that the phrase

“continuing series of violations” means three violations. United States 

v. Losada, 674 F.2d 167, 174 (2d Cir. 1982); United States v. Young, 745 

F.2d 733, 747 (2d Cir. 1984); Aiello, 864 F.2d at 264; Monsanto, 348 F.3d 

at 348.

Second, the Supreme Court has explained that each violation 

composing the continuing series “amounts to a separate element” of 

the CCE offense, so a jury must “agree unanimously about which 

specific violations make up the ‘continuing series of violations.’” 

Richardson, 526 U.S. at 815, 819. 

Third, because each of the three violations composing the 

continuing series of violations is an element of the CCE offense, each 

element must appear in the indictment. See Hamling v. United States, 

418 U.S. 87, 117 (1974) (“[A]n indictment is sufficient if it ... contains 

the elements of the offense charged and fairly informs a defendant of 

the charge against which he must defend.”).

Fourth, Montague argues that the indictment here failed to 

describe three violations constituting a continuing series of violations. 

He acknowledges that Count Two—which charged narcotics 
11

conspiracy in violation of 21 U.S.C. § 846—sufficiently alleges one 

violation. But he says that the indictment does not sufficiently 

describe two other violations. Count One—which charged the CCE

offense—stated only that Montague “engage[d] in a Continuing 

Criminal Enterprise in that he did violate ... Sections 841(a)(1) and 

846, which violations were part of a continuing series of violations of 

said statutes undertaken by the defendant.” App’x 32. Citing United 

States v. Bansal, 663 F.3d 634 (3d Cir. 2011), Montague claims that this 

recitation of statutory provisions did not put him on notice of the 

conduct alleged to have constituted the other two violations. On these 

grounds, Montague contends that three violations do not appear in 

his indictment and it was accordingly defective.

It is undisputed that the violations composing a continuing 

series are elements of the CCE offense and must appear in the 

indictment. The question is the level of detail with which the 

violations must appear. Montague essentially urges us to adopt a 

facts-and-circumstances test. That is, he claims that an adequate CCE 

charge must include sufficient factual detail to put the defendant on 

notice of precisely which three acts the government will seek to prove

at trial that constitute the continuing series of violations.

We confronted this very question in United States v. Flaharty, 

295 F.3d 182 (2d Cir. 2002), and declined to adopt a facts-andcircumstances 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 
12

indictment thereby failed to allege an offense. In order to 

state an offense, “[a]n indictment need only track the 

language of the statute and, if necessary to apprise the 

defendant ‘of the nature of the accusation against 

him,’ ... state time and place in approximate terms.” 

Count three here closely tracked the language of § 848(c), 

and it alleged that the continuing series of felonies were 

violations of §§ 841(a)(1) and 846, and that the enterprise 

was conducted “[i]n or about and between 1992 and 

April 1998 ... within the Eastern District of New York 

and elsewhere.” We thus conclude that count three did 

not fail to charge an offense.

Flaharty, 295 F.3d at 198 (citations omitted). 

The Flaharty test has two requirements. First, the indictment 

must track the language of the statute. Second, and only if necessary, 

the indictment must state the approximate time and place of the 

offense. Nowhere in Flaharty did we say that the violations composing 

the continuing series must be alleged in separate counts or that the 

facts and circumstances amounting to a violation must be mentioned

elsewhere in the indictment. On the contrary, we held that an 

indictment referring “only to ‘felony violations of ... Sections

841(a)(1) and 846’” sufficiently tracks the language of § 848(c) and 

does not “fail to charge” a CCE offense. Id.

Montague’s indictment clearly passes this test. Count One of 

the indictment “closely tracked the language of § 848(c),” it “alleged 

that the continuing series of felonies were violations of §§ 841(a)(1) 

and 846,” and it stated the time frame and location at which the 
13

enterprise was conducted. Id. Thus, it sufficiently alleged the 

violations that compose the continuing series of violations.

The indictment in this case is not meaningfully different from 

the one we considered in Flaharty. The defendant in Flaharty was 

charged with three relevant counts: one count of engaging in a CCE 

and two counts of narcotics conspiracy in violation of § 846. Flaharty, 

295 F.3d at 198. Montague was charged with two relevant counts: one 

count of engaging in a CCE and one count of narcotics conspiracy in 

violation of § 846. The only notable difference between the two

indictments is that Montague was charged with one fewer count of 

narcotics conspiracy. But the Flaharty opinion did not say that the

extra narcotics conspiracy count was at all relevant in evaluating 

whether the indictment “track[s] the language of the statute.” Id. And 

it could not have made such an argument: Three violations are needed 

to constitute a “continuing series” of violations under § 848(c)(2). See 

Aiello, 864 F.2d at 264. The Flaharty indictment described only two.1

1 The dissent claims that “there was indeed a series of three offenses alleged 

in Flaharty.” Post at 7 n.4. The dissent arrives at the number three by 

counting the two narcotics conspiracy counts as well as “a felony drug 

violation in the CCE count.” Id. But that is mistaken; there was no felony 

drug violation mentioned in the CCE count in the Flaharty indictment. The 

CCE count considered in Flaharty read as follows: 

[T]he defendants ... did knowingly and intentionally engage 

in a continuing criminal enterprise, in that they committed 

felony violations of Title 21, United States Code, Sections 

841(a)(1) and 846, which violations were part of a continuing 

series of violations of those statutes undertaken by the abovereferenced defendants in concert with five or more persons 

with respect to whom the above-referenced defendants 

occupied positions of organizer, supervisor and manager, and 
14

Under a facts-and-circumstances test, an indictment that includes 

facts and circumstances for only one or two violations would be 

defective. But Flaharty pointedly did not hold that the indictment was 

defective for failing to allege facts and circumstances that would 

amount to three violations. Instead, we held that the Flaharty 

indictment adequately charged a CCE offense, and there is no 

meaningful distinction between the Flaharty indictment and the 

indictment before us now.

At oral argument, Montague suggested that this understanding 

of Flaharty conflicts with our opinion in United States v. Joyner, which 

considered an indictment in which there was “nothing ... identifying 

which three violations served as the predicate for the CCE charge.” 

313 F.3d 40, 48 (2d Cir. 2002). However, Flaharty and Joyner are 

distinguishable. In Joyner, we characterized the indictment as saying 

“nothing” about the predicate violations, while in Flaharty we noted 

that the indictment specified that the underlying violations were 

violations of §§ 841(a)(1) and 846. 2 These two cases stand for the 

from which continuing series of violations the abovereferenced defendants obtained substantial income and 

resources.

Superseding Indictment at 3, United States v. Johnson, No. 1:98-CR-420

(E.D.N.Y. Mar. 8, 1999), ECF No. 73. This language does not describe the 

facts and circumstances of a predicate felony drug violation—unless the 

dissent believes that the reference to “felony violations” of 21 U.S.C. 

§§ 841(a)(1) and 846 is sufficient to describe such a violation. If so, then the 

language of the indictment in this case must also be sufficient.

2 Rather than examining our opinions in Joyner and Flaharty, the dissent 

looks behind those decisions to the underlying indictments. See post at 5. 

But our opinions in those cases control our decision here. “It is usually a 

judicial decision’s reasoning—its ratio decidendi—that allows it to have life 
15

proposition that when a CCE count says nothing about the three 

underlying violations it is defective (Joyner), but when it alleges 

predicate violations by reference to the violated statutory provisions

it sufficiently charges a CCE offense (Flaharty). The indictment before 

us is not legally distinguishable from the Flaharty indictment, and we 

conclude it sufficiently charges the CCE offense.3

and effect in the disposition of future cases.” Ramos v. Louisiana, 140 S. Ct. 

1390, 1404 (2020). We examine the reasoning that our prior “opinions 

turned on”; we do not apply prior judgments “stripped from any 

reasoning” articulated in those cases. Id. Our reasoning in Joyner was 

compatible with our reasoning in Flaharty: When the indictment says 

“nothing” about the predicate violations, the indictment is insufficient; 

when the indictment specifies the underlying violations by reference to 

statutory sections, the indictment is sufficient. The dissent suggests that we 

should sidestep the reasoning articulated in our prior opinions because the 

underlying indictments in Joyner and Flaharty were not meaningfully 

different. See post at 8-9 (“[T]he indictment in Joyner did discuss predicate 

offenses—and did so in the same way as the Flaharty and Montague

indictments.”). That may be. But we cannot relitigate Joyner and Flaharty 

here. We must accept the reasoning of those cases to decide the one before 

us.

3 The dissent claims that our decision creates a circuit split with the Third 

Circuit’s decision in Bansal. Post at 11. Our decision, however, rests on a 

straightforward application of Flaharty. If there is a split between our 

circuits, it emerged when the Third Circuit adopted a facts-andcircumstances test in Bansal after our court declined to adopt one in Flaharty. 

The dissent also claims that our understanding of Flaharty creates “serious 

tension” with cases from the First, Seventh, Eighth, and Tenth Circuits. Id. 

That is incorrect. Those cases each described a sufficient condition for an 

indictment charging a CCE offense to be adequate: When another count (or 

counts) in the indictment describes three violations of the narcotics laws, 

the count charging a CCE offense is sufficient. See United States v. SotoBeniquez, 356 F.3d 1, 26 (1st Cir. 2003) (holding that, “at least where the CCE
16

An alternative pleading rule would not necessarily provide 

more information to the defendant. Courts that have adopted factsand-circumstances tests acknowledge that separate counts of 

narcotics violations satisfy that test. See, e.g., Bansal, 663 F.3d at 647-

48. When all three predicate violations are narcotics conspiracies and 

are charged as separate counts in the indictment, not much additional 

information will be provided. An indictment charging narcotics 

conspiracy need only allege “the existence of a narcotics conspiracy, 

a relevant time frame, and the statute alleged to be violated.” United 

States v. Macklin, 927 F.2d 1272, 1276 (2d Cir. 1991). Such allegations 

are similarly subject to the criticism that a defendant might need more 

notice of the charges. The proper way to address such concerns is 

through a bill of particulars. “An indictment that fulfills the 

requirements of Federal Rule of Criminal Procedure 7(c)(1) but is 

nonetheless insufficient to permit the preparation of an adequate 

defense may be supplemented with a bill of particulars.” United States 

v. Rigas, 490 F.3d 208, 237 (2d Cir. 2007) (internal quotation marks 

count incorporates by reference predicate offenses charged elsewhere in the 

indictment,” the indictment sufficiently charges a CCE offense despite its 

failure to identify the predicate offenses in the CCE count); United States v. 

Moya-Gomez, 860 F.2d 706, 752 (7th Cir. 1988) (holding that six separate 

narcotics charges gave “actual notice of the predicate acts” for the CCE 

charge); United States v. Becton, 751 F.2d 250, 256 (8th Cir. 1984) (“[O]ther 

counts of the indictment gave Becton notice of the underlying felonies.”); 

United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir. 1989) (en banc) (“[A] 

CCE indictment is sufficient where, as here, the CCE counts charge 

appellants in the language of the statute, and the indictment additionally 

alleges at least three violations in another count or counts.”). We agree that 

charging separate narcotics counts suffices to allege the predicate acts that 

constitute the continuing series of violations. But these cases announced a 

sufficient rather than a necessary condition and therefore do not conflict 

with our decision today.
17

omitted). Although a bill of particulars “cannot save an invalid 

indictment,” Russell v. United States, 369 U.S. 749, 770 (1962), “the bill’s 

purpose is to ‘advise the defendant of the specific acts of which he is 

accused,’” Rigas, 490 F.3d at 237 (quoting United States v. Walsh, 194 

F.3d 37, 47 (2d Cir. 1999)). While Montague sought a bill of particulars

and requested information about the violations constituting the 

continuing series, he did not appeal the district court’s denial of that 

request, so it is not before us.

For the reasons stated, the indictment was sufficient. The 

district court did not err when it failed to dismiss it.

II

Montague also argues that there was insufficient evidence to 

convict him of engaging in a CCE under 21 U.S.C. § 848(b). He 

contends that the district court misinterpreted § 848(b)(2)(A) when it 

instructed the jury. Because Montague did not raise this question of 

statutory interpretation before the district court, we review it for plain 

error. Rosario, 7 F.4th at 69. Although we agree with Montague that 

the district court’s interpretation was erroneous and that the error

was plain, Montague’s substantial rights were not affected. The jury 

was presented with overwhelming evidence such that, had the 

district court properly instructed the jury, the jury would have 

returned a guilty verdict. For that reason, we affirm.

A

“Any person who engages in a continuing criminal enterprise 

shall be sentenced to a term of imprisonment which may not be less 

than 20 years.” 21 U.S.C. § 848(a). Subsection (c) defines “continuing 

criminal enterprise” and identifies the five elements we described 
18

above. Id. § 848(c). Importantly, the first element is stated in 

subsection (c)(1): A person is engaged in a continuing criminal 

enterprise only if he “violates any provision of this subchapter or 

subchapter II the punishment for which is a felony.” 21 U.S.C. 

§ 848(c)(1). Subsection (c)(2) then explains that the felony violation 

described in subsection (c)(1) must be “a part of a continuing series of 

violations” of the narcotics laws. Id. § 848(c)(2). Subsection (c)(2) does 

not require that the other violations in the series be felonies. Id.

Subsection (b) of § 848 provides for mandatory life 

imprisonment for engaging in a CCE under certain circumstances. Id.

§ 848(b); see United States v. Torres, 901 F.2d 205, 246 (2d Cir. 1990). To 

obtain a conviction under § 848(b), the government must prove two 

additional elements. First, it must show that the defendant was “the 

principal administrator, organizer, or leader of the enterprise or is one 

of several such principal administrators, organizers, or leaders.” 21 

U.S.C. § 848(b)(1). Second, the government must show either that “the 

violation referred to in subsection (c)(1) involved at least 300 times the 

quantity of a substance described in subsection 841(b)(1)(B) of this 

title,” id. § 848(b)(2)(A), or that “the enterprise ... received $10 million 

dollars in gross receipts during any twelve-month period of its 

existence,” id. § 848(b)(2)(B). The jury was not instructed on this last 

possibility—that Montague’s enterprise received $10 million dollars 

in gross receipts during a twelve-month period. Consequently, he 

was properly convicted under § 848(b) only if “the violation referred 

to in subsection (c)(1) involved at least 300 times the quantity of a 

substance described in subsection 841(b)(1)(B).” Id. § 848(b)(2)(A). 

Neither party disputes that 150 kilograms of cocaine is the quantity 

needed to satisfy that requirement.
19

After instructing the jury on the five elements of the CCE 

offense listed in subsection (c)—which Montague does not 

challenge—the court addressed the requirements of subsection (b). It 

stated: “[I]n the event you determine the defendant, Colin Montague, 

to be guilty of engaging in a criminally continuing criminal enterprise 

as charged in Count 1, you must determine ... whether the continuing 

series of violations undertaken involved 150 kilograms or more of 

cocaine.” App’x 5719-20 (emphasis added). The verdict sheet 

described this requirement as follows: “We the jury find the allegation 

that the continuing series of violations of 21 USC §§ 841(a)(1) and 846 

undertaken by the Defendant Colin Montague involved at least 150 

kilograms of cocaine.” App’x 5766 (emphasis added). The foreman

marked this element as “Proven.” Id.

Montague contends that the plain language of § 848(b)(2)(A) 

requires that the 150 kilograms of cocaine must be “involved” in “the 

violation referred to in subsection (c)(1).” 21 U.S.C. § 848(b)(2)(A). 

That is, 150 kilograms of cocaine must be involved in the single felony 

violation described in subsection (c)(1), rather than involved in the 

“continuing series of violations” of the narcotics laws described in 

subsection (c)(2). The district court erred, he says, because it 

instructed the jury that it must determine “whether the continuing 

series of violations undertaken involved 150 kilograms or more of 

cocaine.” App’x 5720. 

B

We agree that the district court’s interpretation of 

§ 848(b)(2)(A) was erroneous. “In statutory interpretation disputes, a 

court’s proper starting point lies in a careful examination of the 

ordinary meaning and structure of the law itself.” Food Mktg. Inst. v. 
20

Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). According to the 

government, § 848(b)(2)(A) permits the aggregation of smaller drug 

quantities across the three violations composing the continuing series 

of violations. This is the interpretation the district court adopted when 

it instructed the jury. Montague argues that this interpretation is 

erroneous because the statute requires that the single felony violation, 

which is a part of the continuing series of violations, involve the 

required drug quantity.

We agree with Montague that the government’s interpretation 

is erroneous because it conflicts with the text. Subsection (b)(2)(A) 

refers to “the violation” in the singular. 21 U.S.C. § 848(b)(2)(A). But 

the government’s interpretation maintains that drug amounts may be 

aggregated across multiple violations. See Aiello, 864 F.2d at 264 

(noting that three violations are needed for a continuing series of 

violations). 

Moreover, the text of subsection (b)(2)(A) explicitly refers to 

this single violation as the “violation referred to in subsection (c)(1).” 

21 U.S.C. § 848(b)(2)(A). Subsection (c)(1), in turn, describes the first 

element of the CCE offense: that the defendant “violates any 

provision of this subchapter or subchapter II the punishment of which 

is a felony.” Id. § 848(c)(1). In other words, subsection (c)(1) refers to 

the single predicate felony violation, not the entire series of violations. 

The government’s erroneous interpretation, however, would allow 

drug amounts involved in other violations to be aggregated, even 

though these violations need not be felonies. See id. § 848(c)(2) (stating 

that the violations constituting the continuing series need only be 

“violations of this subchapter or subchapter II”). The government’s 

interpretation errs by incorporating the concept of a “continuing 

series of violations,” which is not found in subsection (c)(1). Rather, 
21

that concept appears in subsection (c)(2), which is not referenced at 

all in subsection (b)(2)(A). 

Montague’s proposed interpretation avoids these problems. 

Under his interpretation, 150 kilograms of cocaine must be involved 

in a single violation of subchapter I or subchapter II and that violation 

must be a felony. It does not allow for multiple violations when the 

statutory text uses the singular, and it relies on the mandate of 

subsection (c)(1) that the violation be a felony.

Had Congress wanted to authorize aggregation, it easily could 

have done so. The subsections immediately before and after

subsection (b)(2)(A) both describe elements that depend on “the 

enterprise.” 21 U.S.C. §§ 848(b)(1), 848(b)(2)(B). Congress could have 

written that the drug quantity applies to “the continuing series of 

violations referred to in subsection (c)(2).” But it did not. Congress

provided that the quantity applies to “the violation referred to in 

subsection (c)(1).” When an examination of the ordinary meaning and 

structure of the law “yields a clear answer, judges must stop.” Food 

Mktg. Inst., 139 S. Ct. at 2364. We have a clear answer here.

The government does not have a response to this argument. It 

simply invokes United States v. Atencio, 435 F.3d 1222 (10th Cir. 2006), 

in which the Tenth Circuit also considered § 848(b)(2)(A). The 

government’s reliance on Atencio is misplaced. Atencio did not 

conclude that the interpretation the government advances here was 

correct. The Tenth Circuit said that this interpretation, which allows 

for aggregation across the three violations constituting the continuing 

series, “may well be erroneous.” Id. at 1230. In fact, the Atencio court 

indicated that Montague’s interpretation is the correct one. The court 

observed that “§ 848(b)(2)(A) requires that ‘the violation referred to in 
22

subsection (c)(1) of this section involved’ at least ... 150 kilograms of 

cocaine” and that “[s]ubsection (c)(1) describes a single, specific 

violation ... on which the jury must unanimously agree.” Id. Because 

neither party in Atencio proposed Montague’s interpretation, the 

Tenth Circuit merely “acknowledge[d] some doubt as to the 

correctness of the jury instructions” in that case, id., and resolved the 

issue on the ground that any possible error “did not affect the 

Atencios’ substantial rights,” id. at 1231. Atencio thus does not support 

the government’s position that aggregation is permissible under 

§ 848(b)(2)(A). 

We hold that a conviction under 21 U.S.C. § 848(b)(2)(A) 

requires that “300 times the quantity of a substance described in 

subsection 841(b)(1)(B)” be involved in the violation described in 

§ 848(c)(1): a single violation that is a felony. 21 U.S.C. § 848(b)(2)(A). 

C

For an error to be plain it must be “clear or obvious, rather than 

subject to reasonable dispute.” United States v. Marcus, 560 U.S. 258, 

262 (2010) (quoting Puckett, 556 U.S. at 135). We do not think the 

interpretation of the statute here is subject to reasonable dispute. 

Twenty-five years ago, we considered similar jury instructions and 

concluded that the district court “improperly instructed the jury that 

it could aggregate several predicate offenses to reach this quantity 

requirement” under 21 U.S.C. § 848(b)(2)(A). United States v. Goodwin, 
23

No. 96-1199, 1997 WL 767408, at *4 (2d Cir. Dec. 12, 1997). We adhere 

to that longstanding judgment.4

Whether an error is plain “can depend on well-settled legal 

principles as much as well-settled legal precedents.” United States v. 

Brown, 352 F.3d 654, 664 (2d Cir. 2003). Thus, “[e]ven absent binding 

case law ... an error can be plain if it violates an absolutely clear legal 

norm, for example, because of the clarity of a statutory provision.” In 

re Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (internal quotation 

4 “Although we decided [Goodwin] by nonprecedential summary order, 

rather than by opinion, our ‘[d]enying summary orders precedential effect 

does not mean that the court considers itself free to rule differently in 

similar cases.’” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting 

2d Cir. Order of June 26, 2007, adopting 2d Cir. Local R. 32.1, at 3). Goodwin

presented exactly the same statutory interpretation question we consider 

here. Because “nonprecedential decisions should be used only when the 

legal issue is clear enough that all reasonable judges will come out the same 

way,” Swanson v. Bank of Am., N.A., 563 F.3d 634, 635 (7th Cir. 2009), the 

Goodwin panel necessarily decided that the question was not subject to 

reasonable dispute. See 2d Cir. Order of June 26, 2007, at 3 (“Summary 

orders are issued in cases in which a precedential opinion would serve no 

jurisprudential purpose because the result is dictated by pre-existing 

precedent.”). In other words, the Goodwin panel decided that its 

interpretation of § 848(b)(2)(A) was so “clear or obvious, rather than subject 

to reasonable dispute,” that an opinion addressing the issue would serve 

no jurisprudential purpose. Marcus, 560 U.S. at 262 (quoting Puckett, 556 

U.S. at 135); see United States v. Kirilyuk, 29 F.4th 1128, 1148 (9th Cir. 2022)

(Bress, J., dissenting) (“That the disposition was non-precedential confirms 

that [the] argument was readily resolved based on established law ... In our 

unpublished dispositions, there should be no new legal holdings, just 

applications of established law to facts.”) (internal quotation marks 

omitted); Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574, 

578 (7th Cir. 2017) (“Two other circuits agree and deem this so 

straightforward that they have issued nonprecedential decisions.”).
24

marks omitted). Accordingly, our court has said that an error is plain

when it violates “the plain language of the statute.” United States v. 

Polouizzi, 564 F.3d 142, 156 (2d Cir. 2009); see United States v. Whab, 355 

F.3d 155, 158 (2d Cir. 2004) (“[W]e can notice plain error that does not 

contravene clearly established precedent where such error is ... 

obvious.”) (internal quotation marks, alteration, and citation 

omitted).5

In this case, “the government’s proffered interpretation of the 

statute is inconsistent with its plain words.” United States v. Murphy, 

942 F.3d 73, 86 (2d Cir. 2019). The statute requires that “the violation 

referred to in subsection (c)(1)” must “involve at least” 150 kilograms 

of cocaine. 21 U.S.C. § 848(b)(2)(A). That provision does not bear the 

interpretation that the quantity may be aggregated across more than 

one violation.

The concurrence claims that the error cannot be plain because 

§ 848(b)(2)(A) is part of a “complex statutory regime.” Post at 6.6 But 

5 See also Polouizzi, 564 F.3d at 156 (“Although our Circuit has not 

previously held, as we now do, that simultaneous possession of multiple 

matters containing images of child pornography constitutes a single 

violation of 18 U.S.C. § 2252(a)(4)(B), that conclusion is demanded by the 

plain language of the statute and is entirely consistent with Supreme Court 

and Circuit precedent addressing similar statutes. Therefore, the error in 

this case is plain.”).

6 We note that the Supreme Court has cautioned that “a court cannot wave 

the ambiguity flag just because it found the regulation impenetrable on first 

read,” given that “hard interpretive conundrums, even relating to complex 

rules, can often be solved.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). There 

is a difference between cases in which “the relevant language, carefully 

considered, can yield more than one reasonable interpretation,” on the one 

hand, and those in which “discerning the only possible interpretation 
25

the legal error in this case does not implicate any complexities. The 

issue is simple: whether the statute could be referring to several 

violations when it specifies “the violation referred to in subsection 

(c)(1).” 21 U.S.C. § 848(b)(2)(A). Because the word “violation” is 

singular—and because subsection (c)(1) also describes a single 

violation—the answer is not complicated. It is “clear or obvious, 

rather than subject to reasonable dispute.” Marcus, 560 U.S. at 262 

(quoting Puckett, 556 U.S. at 135).7 For that reason, the district court 

requires a taxing inquiry,” on the other. Pauley v. BethEnergy Mines, Inc., 501 

U.S. 680, 707 (1991) (Scalia, J., dissenting). A statute’s placement in a 

complex scheme does not render it ambiguous. The concurrence, 

meanwhile, does not identify any other reasonable interpretation that the 

words of § 848(b)(2)(A) can bear.

7 The concurrence suggests that other circuits have interpreted 

§ 848(b)(2)(A) differently. But that is incorrect. In Atencio, the parties both

argued that § 848(b)(2)(A) allowed for aggregation, albeit to differing 

degrees. 435 F.3d at 1230. The Tenth Circuit recognized that both 

interpretations “may well have been error” and “may well be erroneous”

because “[s]ubsection (c)(1) describes a single, specific violation.” Id. We 

agree. In United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992), the D.C. 

Circuit did not address the issue before us but simply summarized § 848(b)

in passing and in general terms that do not adopt any particular 

interpretation of the statute. Id. at 252. The other authorities on which the 

concurrence relies merely describe jury instructions or the findings of a 

jury. See id. at 257 (“Palmer’s life sentence was based on his leading a CCE 

involving ‘at least 300 times the quantity of a substance described in 

subsection 841(b)(1)(B).’”); United States v. Miller, 890 F.3d 317, 356 (D.C. Cir. 

2018) (stating that the jury found the CCE involved a certain amount of 

drugs); United States v. Wilson, 605 F.3d 985, 1036 (D.C. Cir. 2010) (same); 

United States v. Edmond, 52 F.3d 1080, 1106 (D.C. Cir. 1995) (same); United 

States v. Avila Vargas, 570 F.3d 1004, 1007-08 (8th Cir. 2009) (same). The fact 

that an appeals court described a district court’s jury instructions or the 

jury’s findings—without addressing the legal validity of those instructions 
26

not only erred when it instructed the jury on the permissibility of 

aggregation; the error was plain.8

D

That error, however, did not affect Montague’s “substantial 

rights.” Puckett, 556 U.S. at 135. “An error affects a defendant’s 

substantial rights if it is prejudicial and it affected the outcome of the 

case.” United States v. Lombardozzi, 491 F.3d 61, 74 (2d Cir. 2007) 

or findings—does not establish a body of extra-circuit precedent on the 

question before us. The concurrence identifies no circuit decision holding 

that § 848(b)(2)(A) permits aggregation of drug quantities across more than 

one drug violation. And even if it could identify such a decision, that would 

not make a difference here. While “a division of authority on a given point 

may provide cause to question the plainness of an error,” it does so only “in 

cases lacking the kind of clear statutory language at issue here.” In re Sealed 

Case, 573 F.3d at 851-52. The Supreme Court has recognized that a statute is 

not rendered ambiguous “merely because there is a division of judicial 

authority over its proper construction.” Reno v. Koray, 515 U.S. 50, 65 (1995) 

(internal quotation marks omitted).

8 The concurrence claims that we have “stretched to reach this issue” and 

should instead have exercised “judicial restraint.” Post at 12. But even the 

concurrence agrees that we must review the jury instructions for plain 

error, and deciding whether an error was plain is an important part of that 

analysis. In other words, it is not a stretch—when engaging in plain error 

review—to decide whether an error was plain. “There is a difference 

between judicial restraint and judicial abdication,” Citizens United v. FEC, 

558 U.S. 310, 375 (2010) (Roberts, C.J., concurring), and it would be 

abdication rather than restraint to ignore a question squarely presented in 

this appeal. Cf. Oliveira v. New Prime, Inc., 857 F.3d 7, 16 n.13 (1st Cir. 2017)

(“[W]e will not adopt an approach that assumes away one of the live issues 

on appeal simply because the issue is a difficult one.”). As we have 

previously explained, we must “avoid restraint becoming lethargy and 

efficiency mere avoidance.” Browning-Ferris Indus. of S. Jersey, Inc. v. 

Muszynski, 899 F.2d 151, 159 (2d Cir. 1990).
27

(alterations omitted) (quoting United States v. Dukagjini, 326 F.3d 45, 

61 (2d Cir. 2003)). But if the effect of the error is “indeterminate or 

only speculative, we cannot conclude that [a defendant’s] substantial 

rights have been affected.” United States v. Worjloh, 546 F.3d 104, 110 

(2d Cir. 2008) (quoting Lombardozzi, 491 F.3d at 74). The question is

whether, had the jury been instructed properly, it would have found 

that the subsection (c)(1) offense involved 150 kilograms of cocaine.

We conclude that the answer is yes.

The subsection (c)(1) offense here was narcotics conspiracy in 

violation of 21 U.S.C. § 846. When the district court instructed the 

jury, it described the “[f]irst” element of the CCE offense as follows: 

“[B]etween in or about 2008 and on or about July 1st, 2014 ... the 

defendant, Colin Montague, committed the following felony 

violations of the federal narcotics laws pertaining to a conspiracy to 

violate the drug laws of the United States in violation of Title 21, United 

States Code, Section 846.” App’x 5684-85 (emphasis added). The district 

court referred to a “series of three or more offenses” only when it 

moved on to the “[s]econd” element of the CCE offense. App’x 5685. 

The district court thus made it clear to the jury that the subsection 

(c)(1) felony violation was narcotics conspiracy in violation of § 846. 

Montague also conceded that the subsection (c)(1) violation was 

narcotics conspiracy in his motion for new trial. 

Was there evidence of a narcotics conspiracy “involv[ing]” 150 

kilograms of cocaine? 21 U.S.C. § 848(b)(2)(A). The government 

submitted extensive evidence of such a conspiracy, including thirtyfour pages of a drug ledger seized at Montague’s residence. The

ledger covered the six-month span of September 2013 to February 

2014. This evidence demonstrated that the predicate narcotics 

conspiracy involved more than 150 kilograms of cocaine.
28

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 twentykilogram-per-month figure until July 2014, when Bernard was 

arrested, yields a total volume of 200 kilograms from September 2013 

to July 2014. That figure is well above the 150-kilogram threshold set 

by § 848(b)(2)(A).

In addition to the ledger, numerous witnesses testified that 

Montague facilitated the shipment of cocaine across the country using 

his brother’s tractor trailer. Between 2008 and 2011, Montague’s 

brother would transport cocaine from southern states, and a courier 

would accept the shipment in Delaware or Pennsylvania before 

driving the final leg to Rochester. Bernard testified that the truck 

typically smuggled fifty kilograms of cocaine at a time, but never less 

than forty-five kilograms, and that it would make a trip about every 

“month, [or] month and a half.” App’x 1946. Construing these figures 

in Montague’s favor would yield transportation of about 360 

kilograms per year, more than enough to satisfy the requirements of 

§ 848(b)(2)(A).

The jury was presented with even more evidence of 

Montague’s conspiracy to distribute cocaine and conspiracy to 

possess with intent to distribute cocaine. Under these circumstances, 

Montague has not carried his burden of showing that any error in the 

jury instructions prejudiced the verdict. Because the error did not 

affect Montague’s “substantial rights,” Puckett, 556 U.S. at 135, it 

survives plain error review.
29

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 
30

based on that evidence “the affirmative defense of collateral estoppel” 

against allegations that he was involved in a narcotics conspiracy 

prior to May 2013. Appellant’s Br. 42. But collateral estoppel requires

a final judgment, and a failure to indict is not a final judgment. See

Ashe v. Swenson, 397 U.S. 436, 443 (1970) (explaining that collateral 

estoppel applies “when an issue of ultimate fact has once been 

determined by a valid and final judgment”); United States v. Williams, 

504 U.S. 36, 51 (1992) (“[T]he grand jury sits not to determine guilt or 

innocence, but to assess whether there is adequate basis for bringing 

a criminal charge.”). Had Montague known about the results of the 

state grand jury’s proceedings, the outcome in this case would have 

been the same. He therefore cannot establish prejudice, an essential 

element of a Brady claim. See United States v. Paulino, 445 F.3d 211, 224 

(2d Cir. 2006). With respect to the second item that Montague claims 

was improperly withheld—a record of a proffer session for Lou Perry 

Slaughter—Montague also fails to establish a Brady claim because he 

does not show that the record was “favorable” to him because it was 

“exculpatory ... or ... impeaching.” Id. Montague also does not show 

that the third item—a letter by co-conspirator Lemuel Jones claiming 

that the government pressured him to testify—was “suppressed by 

the State.” Poventud v. City of New York, 750 F.3d 121, 133 (2d Cir. 

2014). Jones sent the letter to the district court, and it was recorded on 

the docket.

Fourth, Montague maintains that there was insufficient 

evidence to convict him of narcotics conspiracy, money-laundering 

conspiracy, or the substantive money-laundering charges. As stated 

above, the prosecution introduced more than enough evidence that 

Montague was involved in a narcotics conspiracy. On the other 

charges, five witnesses testified that Montague directly or indirectly 
31

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 
32

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 ‘dualsovereignty’ doctrine, a State may prosecute a defendant under state 

law even if the Federal Government has prosecuted him for the same 

conduct under a federal statute.”). Montague concedes that New York 

and the federal government are separate sovereigns, but he argues 

that the state and federal prosecutions were so “intertwined” as to fall 

under the exception to the dual-sovereignty doctrine established by 

Bartkus v. Illinois, 359 U.S. 121 (1959). United States v. Coonan, 938 F.2d 

1553, 1563 (2d Cir. 1991). However, Montague has asserted no facts 

that this is an “extraordinary circumstance[],” such as one in which 

“one sovereign has essentially manipulated another sovereign into 

prosecution.” United States v. All Assets of G.P.S. Auto. Corp., 66 F.3d 

483, 494-95 (2d Cir. 1995). This case therefore does not fall under the 

Bartkus exception. Montague’s prosecution did not offend the Double 

Jeopardy Clause.

Eighth, Montague asserts that because the initial venire 

included only two African Americans and one Hispanic, the venire 

violated the Sixth Amendment as well as 28 U.S.C. § 1861. But 

Montague alleges nothing to show that these figures were caused by 

the “systematic exclusion of [a] group in the jury-selection process,” 

as would be required to show a violation of the Sixth Amendment. 

Duren v. Missouri, 439 U.S. 357, 364 (1979). Moreover, § 1861 does not 

require “precise proportional representation” on petit juries. United 

States v. Jenkins, 496 F.2d 57, 65 (2d Cir. 1974). Instead, a district court’s 

process for summoning jurors must begin with voter registries and, 

“where necessary,” “prescribe some other source or sources of names 
33

in addition to voter lists ... to foster the policy and protect the rights 

secured by section[] 1861.” 28 U.S.C. § 1863(b)(2). The Western 

District of New York draws not only from voter registration lists, but 

from DMV records, records from the Department of Taxation, records 

from the Department of Labor, and records from the Department of 

Social Services. Montague fails to show that the venire was deficient 

under either the Sixth Amendment or § 1861.

Ninth, Montague claims ineffective assistance of counsel. We 

have routinely refrained from considering an ineffective assistance 

claim on direct appeal. See United States v. Tarbell, 728 F.3d 122, 128-29 

(2d Cir. 2013); United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). 

Because there has been no “opportunity [to] fully ... develop the 

factual predicate” for the ineffective assistance of counsel claim, the 

appellate court on direct appeal is not “best suited to assess those 

facts.” Massaro v. United States, 538 U.S. 500, 504 (2003). “[A] motion 

brought under § 2255 is preferable to direct appeal for deciding claims 

of ineffective assistance” because it allows for a decision on a 

developed record. Id. Accordingly, we decline to consider this claim

on direct appeal.

Tenth, Montague contends that this prosecution resulted from 

selective enforcement or malicious prosecution. But he identifies no 

facts indicating that similarly situated individuals have not been 

prosecuted or that the government otherwise has operated in bad 

faith. See United States v. White, 972 F.2d 16, 19-20 (2d Cir. 1992). 

CONCLUSION

For the reasons set forth above, we affirm the judgment of the 

district court.
1

JOSEPH F. BIANCO, Circuit Judge, concurring:

I concur with the majority opinion’s determination that Montague’s legal 

challenges to his convictions are without merit and that the conviction should be 

affirmed in its entirety. I write separately only to explain my disagreement with 

the plain error analysis in Part II(C) of the majority opinion regarding the district 

court’s defective drug quantity jury instruction on the continuing criminal 

enterprise (“CCE”) count. 

With respect to the drug quantity requirement for a CCE charge, I agree with 

the majority opinion that the best reading of 21 U.S.C. § 848(b)(2)(A) requires that 

the Section 848(c)(1) offense involve 150 kilograms of cocaine in a single felony 

violation described in subsection (c)(1), and that, as such, the district court erred 

in instructing the jury that it could aggregate smaller drug quantities across three 

violations to satisfy the “continuing series of violations” requirement of the 

statute. Id. at § 848(c)(2). As to our review of that error, however, I respectfully 

disagree with the majority opinion’s determination that this error was “plain,” 

meaning that it was “clear or obvious, rather than subject to reasonable dispute.” 

Ante at 22 (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)). Here, that 

determination does not lead to a reversal of the conviction because the majority 
2

opinion ultimately (and correctly) concludes that the error did not affect 

Montague’s substantial rights under the plain error test. See United States v. Balde, 

943 F.3d 73, 96 (2d Cir. 2019) (“Under the plain error standard, an appellant must 

demonstrate that (1) there is an error; (2) the error is clear or obvious, rather than 

subject to reasonable dispute; (3) the error affected the appellant's substantial 

rights; and (4) the error seriously affects the fairness, integrity or public reputation 

of judicial proceedings.” (internal quotation marks and citation omitted)).

Nevertheless, my concern is that the flawed reasoning that resulted in the 

majority opinion’s finding that the error was plain could (1) provide an 

unwarranted windfall to other defendants, and (2) lead to incorrect findings of 

plain error in other cases involving statutory interpretation where (like here) there 

is a complete absence of binding precedent from the Supreme Court or this Court 

and other federal courts have interpreted the statutory language in the same 

manner as the district court. 

The legal framework for determining whether an error is “plain” is wellsettled 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.
3

. . .

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)).
4

In this case, there was no binding precedent from the Supreme Court or this 

Court with respect to the interpretation of the drug quantity provision under 

Section 848(b)(2)(A). Nor was there any other circuit court that had held that the 

drug quantity requirement for a CCE count cannot be satisfied by aggregating the 

drug quantities for the predicate offenses. The only case authority the majority 

relies on in support of its position that the error was plain is the non-precedential 

summary order in United States v. Goodwin, No. 96-1199, 1997 WL 767408 (2d Cir. 

Dec. 12, 1997), where we held that “[t]he district court improperly instructed the 

jury that it could aggregate several predicate offenses to reach this quantity 

requirement,” id. at *4. Although we addressed this quantity issue briefly in that

summary order, we have nonetheless made clear that the “plain error” standard 

generally applies only when there is binding precedent that controls the outcome. 

See, e.g., Whab, 355 F.3d at 158; see also United States v. Ruzicka, 988 F.3d 997, 1009 

(8th Cir. 2021) (“Nonbinding authority alone is insufficient to make a legal 

proposition clear or obvious under current law.”). 

We should not depart from that well-settled general rule to find plain error 

here because the district court did not follow a holding that we articulated only in 

a non-binding summary order. The troubling nature of such an extension of the 
5

plain error rule to a district court’s failure to consider a prior summary order is 

illustrated in this particular case where the majority opinion suggests that the 

district court should have been aware of a non-binding summary order from over 

20 years ago, even though it was not cited by either party in the district court or in 

the briefing on appeal, and contained no analysis of the statutory language or legal 

issue in its one-sentence holding. Indeed, no other court has ever cited that 

summary order in connection with the drug quantity holding. Notwithstanding 

the obscure and non-binding nature of that summary order, the majority opinion 

relies upon it to find that the district court’s error was plain. I respectfully disagree 

and conclude, consistent with our prior precedent, that we should not hold the 

district court responsible for its lack of awareness of this non-binding summary 

order in assessing plain error on appeal.

I similarly disagree with the majority opinion’s determination that the 

statutory language of Section 848(b)(2)(A) is so clear that the district court’s ruling 

constitutes plain error. To be sure, even in the absence of binding precedent or 

authority from other courts, an error can be clear or obvious when it violates “the 

plain language of the statute . . . .” United States v. Polouizzi, 564 F.3d 142, 156 (2d 

Cir. 2009); see also United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (“[T]he 
6

absence of circuit precedent does not prevent the clearly erroneous application of 

statutory law from being plain error.” (alterations adopted) (internal quotation 

marks and citation omitted)). However, as set forth below, that is certainly not the 

case here given the complex statutory regime and the fact that reasonable jurists 

have interpreted the drug quantity provision consistent with the district court’s 

instruction. 

As a threshold matter, the requirement that the government needs to prove 

at least three predicate violations to constitute “a continuing series” of felony drug 

violations under the CCE statute is not even based on the statutory language itself, 

but rather was established in judicial decisions. See, e.g., United States v. Losada,

674 F.2d 167, 174 n.4 (2d Cir. 1982) (noting that “[a]lthough the statute does not 

define ‘continuing series of violations,’ courts have required that there be a 

minimum of three” (collecting cases)). Thus, given the absence of any language 

regarding the requisite number of predicate violations in the statute and the 

overall complexity of this statutory structure, it is extremely difficult to discern 

how the district court’s instruction allowing aggregation of the quantities from the 

various drug violations under the CCE statute could be so contrary to the statutory 

language to warrant a finding of plain error. See, e.g., United States v. Rosario, 7 
7

F.4th 65, 77 (2d Cir. 2021) (Rakoff, J., concurring) (finding, although the district 

court erred, no plain error because “[t]here is no question that the operative legal 

question in this case remained unsettled, since neither this Court nor the Supreme 

Court had yet construed the scope of the district court’s inquiry for [the statutory] 

exception.”); United States v. Ramon, 958 F.3d 919, 923 (10th Cir. 2020) (holding no 

plain error because “[b]efore we could conclude that the district court erred, we 

had to delve into the language and inner workings of [the statute]”).1 

In addition, the limited number of decisions in other circuits addressing this 

legal issue flatly contradict the majority opinion’s conclusion that the statutory 

language is so clear that a district court could not reasonably interpret the statute 

differently. In particular, in the only published circuit decision to have directly 

considered this issue, the Tenth Circuit concluded that “[t]hree interpretations of 

[the relationship between the drug quantities in Section 848(b)(2)(A) and the 

underlying CCE violations] appear plausible,” including the interpretation 

1 Although the majority opinion relies upon our decision in Polouizzi to support its 

position, the circumstances in that case are clearly distinguishable. In Polouizzi, we 

found that the error was plain in light of the “plain language of the statute [that was] 

entirely consistent with Supreme Court and Circuit precedent addressing similar 

statutes.” 564 F.3d at 156. In contrast here, no such “similar statute” exists that could 

have helped guide the district court’s interpretation of Section 848(b)(2)(A). 
8

adopted by the district court here. United States v. Atencio, 435 F.3d 1222, 1229 

(10th Cir. 2006) (emphasis added). Without deciding the issue, that court held 

that reversal was unwarranted because, “[e]ven if the district court’s construction 

of the statute amounted to error that is plain, . . . the error did not affect [the 

defendant’s] substantial rights. . . .” Id. at 1231. Furthermore, although not directly 

addressing this issue, the D.C. Circuit’s decision in United States v. Harris seemed 

to agree with the government’s aggregate interpretation of the statute (utilized by 

the district court here) by upholding a CCE conviction based upon the jury 

“attribut[ing] to [the defendant’s] enterprise over 1500 grams of crack, more than 

300 times the five-gram amount set out in section 841(b)(1)(B)(iii).” 959 F.2d 246, 

257 (D.C. Cir. 1992) (per curiam) (emphasis added), abrogated on other grounds by 

United States v. Stewart, 246 F.3d 728 (D.C. Cir. 2001); see also United States v. Miller, 

890 F.3d 317, 356 (D.C. Cir. 2018) (noting that “[t]he jury also found that the 

criminal enterprise was involved in the distribution of 30 kilograms or more of 

heroin and 15 kilograms or more of cocaine”); United States v. Wilson, 605 F.3d 985, 

1036 (D.C. Cir. 2010) (“Pursuant to 21 U.S.C. § 848(b), the instructions regarding 

the continuing criminal enterprise charge . . . required the jury to find that the CCE 

involved distributing at least 30 kilograms of PCP, and the jury so found.”); United 
9

States v. Edmond, 52 F.3d 1080, 1106 (D.C. Cir. 1995) (noting that the jury was 

instructed that the government must prove “that the enterprise involved at least 

1,500 grams . . . of cocaine base or crack or, in the alternative, at least . . . 150 

kilograms of cocaine” (alterations in original) (citation omitted)); see also United 

States v. Avila Vargas, 570 F.3d 1004, 1007–08 (8th Cir. 2009) (noting that the special 

jury verdict determined that the criminal enterprise “involve[ed] at least 15,000 

grams of methamphetamine” and rejecting an insufficient evidence claim based 

on double-counting of drug quantity evidence at trial on the ground that “[t]he 

total drug quantity range [was] . . . 16,329.3 to 19,050.9 grams of 

methamphetamine”).2

In addition, at least one other district court, citing Harris, adopted the same 

interpretation of Section 848(b)(2)(A) that the district court applied in this case. 

See, e.g., United States v. Singleton, 177 F. Supp. 2d 31, 40–41 (D.D.C. 2001) (“[T]he 

plain meaning and intent of the statute are to the effect that the drug quantity is 

2 The majority opinion misconstrues the purpose of this string of citations to various 

circuit court decisions. Ante at 25 n.7. The purpose of these citations is not to suggest 

that each of these circuit court decisions reached the statutory question at issue here, 

but rather to demonstrate that the district judges in those cases (and seemingly the D.C. 

Circuit in Harris) interpreted the statute consistent with the district court in this case, 

further demonstrating that numerous reasonable jurists have not found the statutory 

language as unambiguous and plain as the majority suggests.
10

defined by the quantities aggregated throughout the life of the enterprise and not 

by any one single transaction or predicate act.”). 

Not only do these published decisions strongly support a conclusion that 

the district court’s error was far from plain, but a brief survey of district court cases 

reveals that other courts have similarly allowed a jury to consider the aggregate 

drug quantity. See, e.g., United States v. Williams, No. 91-559-6, 2021 WL 5206206, 

at *5 (D.D.C. Nov. 9, 2021) (“At trial, the jury was instructed that the government 

had to prove beyond a reasonable doubt that ‘the enterprise was involved in 

distribution’ of 150 kilograms or more of cocaine ‘and/or’ 30 kilograms of PCP 

‘and/or’ 1.5 kilograms or more of crack.” (citation omitted));3 Jury Verdict at 3, 

United States v. Aguirre, No. 15-cr-00143 (W.D.N.Y. Dec. 20, 2018), ECF No. 913

(verdict sheet asking jurors: “Did the continuing criminal enterprise involve at 

least 30 kilograms of heroin and 150 kilograms of cocaine?”); Special Verdict Form 

at 80, United States v. Kwok Ching Yu, No. 90-cr-47 (S.D.N.Y. Dec. 15, 1992), ECF No. 

192 at 56 (verdict sheet asking jurors: whether defendant was “leader of the 

enterprise . . . and the violation involved at least 30 kilograms of heroin.”).

3 I note that each of the six above-referenced citations to the cases within the D.C. 

Circuit utilizing this “aggregate” instruction was given by a different district judge. 
11

In short, the majority opinion appears to conclude that because it finds the 

statutory language clear, the issue should have been equally clear to every other 

court, even in the absence of binding precedent. The majority reaches that plain 

error conclusion even though court decisions over the past two decades 

demonstrate that the statutory language’s degree of clarity was “subject to 

reasonable dispute,” such that the district court’s error was not plain. Puckett v. 

United States, 556 U.S. 129, 135 (2009).

Although the majority opinion’s flawed “plain error” analysis fortunately 

will not impact this case (because the defendant’s substantial rights were not 

affected given the overwhelming evidence that would have supported his 

conviction even under the correct jury instruction), there could be other cases in 

which a defendant was convicted of a CCE count (which are pending sentencing 

or appeal, or being challenged on collateral review) where this “plain error” 

holding could jeopardize the CCE conviction, or at the very least, result in 

unnecessary litigation. Moreover, if a similar mode of legal analysis is used by 

courts to determine plain error in other statutory contexts, there could be 

convictions under other statutes that could be improperly disturbed on appeal or 

in collateral litigation. 
12

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 
13

may unnecessarily create uncertainty in CCE convictions already obtained in other 

cases, as well as an ambiguity in our plain error jurisprudence.4 

For these reasons, I respectfully disagree only with that portion of the 

majority opinion’s plain error analysis in Part II(C), but otherwise concur in the 

remainder of the majority opinion in its affirmance of the judgement of the district 

court.

4 Although the majority opinion suggests that avoiding this issue would be judicial 

abdication, ante at 26 n.8, it is difficult to discern how an appellate court would 

somehow abdicate its judicial duties by deciding that the plain error test is not satisfied 

based on a narrow ground confined to the facts of this case, as opposed to a much 

broader ground under the same standard.
1

DENNIS JACOBS, Circuit Judge, dissenting:

I respectfully dissent. Colin Montague was convicted in 2018 of operating 

a “continuing criminal enterprise” (“CCE”), a federal crime requiring proof that 

the defendant committed a felony drug offense as “part of a continuing series” of 

drug offenses. See 21 U.S.C. § 848(c). The evidence showed that Montague

trafficked a whole lot of narcotics over thousands of individual transactions. 

Notwithstanding this glut of source material, the indictment against him was 

barebones. It failed to describe any offense comprising the continuing series,

instead alleging no more than that Montague “did violate [21 U.S.C. §§ 841(a)(1) 

and 846], which violations were part of a continuing series of violations of said 

statutes undertaken by the defendant.” App’x at 32. 

This is not just bad practice—it is unconstitutional. Each “predicate 

offense” making up the continuing series is itself an element of the broader CCE

charge. Richardson v. United States, 526 U.S. 813, 817–20 (1999). Each predicate

offense must therefore be set forth in the indictment. Since no such “setting 

forth” occurred here, the indictment was fatally deficient, and Montague’s CCE 
2

conviction must be vacated. My colleagues’ ingenuity notwithstanding, I cannot 

join them in salvaging this indictment.1

I

The Fifth Amendment guarantees that “[n]o person shall be held to answer 

for a capital, or otherwise infamous crime, unless on a presentment or indictment 

of a Grand Jury.” U.S. Const. amend. V. That indictment “must set forth each 

element of the crime that it charges.” Almendarez-Torres v. United States, 523 

U.S. 224, 228 (1998); accord United States v. Dupree, 870 F.3d 62, 70 (2d Cir. 

2017). This is no fussy rule of pleading or bureaucratic speed bump: a minimally

specific indictment provides notice of the charges to the defendant and “gives 

the necessary assurance that the grand jurors knew and agreed to charge that 

which the text describes.” United States v. Gonzalez, 686 F.3d 122, 132 (2d Cir. 

2012).

1 I dissent as to the sufficiency of the indictment’s CCE count; I join the remainder of 

Judge Menashi’s opinion, including its conclusion that the district court’s instruction with 

respect to § 848(b)(2)(A)’s drug quantity element was plain error but did not affect Montague’s 

substantial rights. See Maj. Op. at 15–24. As Judge Menashi explains, applying a rule in 

derogation of clear statutory text is plain error. Section 848(b)(2)(A) is sufficiently clear; thus

disregarding it was plain error even though this Court had not yet interpreted the provision in a 

precedential opinion. A district court need not consult the Federal Reporter when the answer is 

already in the U.S. Code. 
3

The grand jury is “a substantial safeguard against oppressive and arbitrary 

proceedings.” Id. at 127 (quoting Smith v. United States, 360 U.S. 1, 9 (1959)). It 

serves as a “referee between the Government and the people” by making an 

independent assessment of the evidence. United States v. Thomas, 274 F.3d 655, 

670 (2d Cir. 2001) (in banc) (quoting United States v. Williams, 504 U.S. 36, 47 

(1992)). The requirement that each element be set out ensures that the 

“indictment reflects the judgment of a grand jury rather than only that of the 

prosecutor.” Id. at 133. Otherwise, a court must “speculate as to whether a 

grand jury might have returned an indictment in conformity with the available 

evidence,” which risks “the harm the Grand Jury Clause is intended to prevent—

a federal prosecution begun by arms of the Government without the consent of 

fellow citizens.”2 Thomas, 274 F.3d at 670. 

These principles apply cleanly to indictments charging a CCE. Each 

predicate offense comprising the requisite “continuing series” of drug offenses is 

a separate and essential element of the CCE offense. Richardson v. United States, 

2 The majority focuses only on notice, arguing that the rule I advocate would not have 

served Montague better in that department. Maj. Op. at 14–15. But that response ignores the 

other purpose of an indictment: to ensure that the grand jury found probable cause as to each 

element of the charged offense. See Gonzalez, 686 F.3d at 127 (distinguishing between these 

two purposes).
4

526 U.S. 813, 817–20 (1999). Thus, a CCE conviction effectively doubles as a 

conviction for each predicate offense; and by the same token, a CCE indictment

doubles as an indictment of each predicate offense. The grand jury cannot find 

probable cause as to a CCE unless it finds probable cause that the defendant 

committed each predicate. 

The result: a CCE indictment is subject to the same pleading rules as any 

other indictment—what must be included does not depend on whether the 

offense is a predicate for a CCE or a standalone basis for criminal liability. 

Enough information about each offense must be included to support an inference

that the grand jury found probable cause that the defendant did it. The Third 

Circuit agrees: in United States v. Bansal, 663 F.3d 634, 647 (3d Cir. 2011), the 

court held that a CCE indictment “must include the facts and circumstances 

comprising at least three [violations].” The indictment need not designate the 

three predicates; but it must include (somewhere) the offenses (of whatever 

number) from which the petit jury can unanimously select those that support a 

conviction.3

3 This requirement can be satisfied by separate counts charging qualifying drug offenses,

or a list of allegations within the CCE count, or a description of sufficient facts in an 

introductory section. See Bansal, 663 F.3d at 647 (“[T]he CCE count itself need not identify with 

exacting specificity which three will ultimately prove the CCE charge. Incorporation by 
5

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.
6

reason to believe that members of a grand jury . . . think in terms of statutory 

subsections rather than in terms of facts.”). If instead of 21 U.S.C. §§ 841(a)(1)

and 846, the indictment had cited 18 U.S.C. §§ 47(b) and 1082, the grand jury 

would have indicted Montague for polluting a watering hole and operating a 

gambling ship upon the high seas.

Joyner v. United States, 313 F.3d 40 (2d Cir. 2002), confirms what common 

sense tells us. There, the indictment charged a CCE and a lesser-included 

conspiracy with only statutory citations to “describe” the predicate violations. 

That is a match for the Montague indictment, and Joyner deemed it “deficient 

under Richardson” because it included “nothing . . . identifying which three 

violations served as the predicate for the CCE charge.” 313 F.3d at 47–48. If the 

indictment in Joyner was “deficient,” so is its analogue here. 

II

The majority opinion rests on a misreading of United States v. Flaharty, 

295 F.3d 182 (2d Cir. 2002); it contradicts subsequent decisions of this and other

circuits; and it leads to absurd results. 

The defendant in Flaharty argued that the CCE count in that indictment 

“was deficient because it failed to specify the violations that constituted the 
7

‘series’ necessary for a conviction.” 295 F.3d at 197. The issue was whether an

indictment must identify which of the alleged violations comprise the continuing 

series—not (as here) whether the violations need to appear anywhere in the 

indictment at all. Flaharty relied on Santana–Madera v. United States, 260 F.3d 

133 (2d Cir. 2001), which (the Flaharty Court explained) had held that “an 

indictment that does not identify which of many alleged felonies constituted the 

series is not thereby defective.” Flaharty, 295 F.3d at 197 (emphasis added). 

Flaharty applied the same principle: when “many alleged felonies” appear in the 

indictment, failing to specify which ones make up the continuing series is not 

fatal. An indictment that describes the predicate offenses with statutory citations

may therefore suffice so long as it also alleges (at least) two other qualifying drug 

offenses.4 

4 The majority disputes my reading of Flaharty because “three violations are needed to 

constitute a ‘continuing series’” and the Flaharty indictment included only two predicate 

offenses. Maj. Op. at 13. But there was indeed a series of three offenses alleged in Flaharty. A 

CCE consists of a felony drug offense committed as “part of a continuing series of violations”—

in order to be “part of” the series, the felony offense must be one of the (three) violations 

making it up. So, an indictment that alleges a felony drug violation in the CCE count and then 

two other violations—whether in the same or other counts—has adequately alleged a “series”

of three. That was the case in Flaharty, but it is not the case here. 
8

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 
9

Joyner did discuss predicate offenses—and did so in the same way as the Flaharty

and Montague indictments. So, either the Joyner Court failed to read the 

indictment it was passing on, or Joyner meant what it said (and Flaharty is

critically narrower than the majority thinks). 

By holding that a CCE indictment may allege a factual element by citing a 

statute, the majority opinion contradicts another of our cases. In United States v. 

Gonzalez, 686 F.3d 122 (2d Cir. 2012), we dealt with a prosecution for

distributing at least 500 grams of cocaine. The government acknowledged that 

quantity was an element of the offense, but prosecutors omitted the amount from

the text of the count—instead, the government claimed it had adequately alleged 

the quantity element by citing the statute that criminalized distribution of 500 

grams or more. See 686 F.3d at 124–26. That is, like the majority here, the 

government assumed that an indictment may plead a factual element by citing a 

statute. 

We rejected that argument in an opinion by Judge Kearse, who was (not 

incidentally) the author of Flaharty: “Stating that an act is in violation of a cited 

statutory section adds no factual information as to the act itself and instead only 

declares the legal basis for claiming that the act is deserving of punishment . . . .” 
10

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 

5 The nature of the CCE offense further heightens the conflict between the majority’s 

opinion and Gonzalez. Because the commission of a prior crime is itself an element of the CCE, 

each element of the predicate offense is also an element of the CCE: the grand jury can’t find 

probable cause for the CCE if it doesn’t find probable cause for each predicate violation, and it 

can’t find probable cause for each predicate if it doesn’t find probable cause for every element. 

So, whereas the statutory citation in Gonzalez stood in for only one element, the indictment 

here substitutes a statutory citation for every element of the predicate offenses.
11

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 

6 United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir. 2003); United States v. Staggs, 881 

F.2d 1527 (10th Cir. 1989) (en banc); United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988); 

United States v. Becton, 751 F.2d 250 (8th Cir. 1984).

7 See Soto-Beniquez, 356 F.3d at 26 (“[A]t least where the CCE count incorporates by 

reference predicate offenses charged elsewhere in the indictment, failure to list predicate 

offenses in the CCE count itself is not reversible error.”); Staggs, 881 F.2d at 1531 (declining to 

approve a CCE indictment that only “track[ed] the language of the statute” and instead holding 

that “a CCE indictment is sufficient where . . . the indictment additionally alleges at least three 

violations in another count or counts”); Moya-Gomez, 860 F.2d at 752 (“[The defendant] attacks 

count 21 of the indictment . . . because it did not specifically enumerate or incorporate by 

reference the predicate offenses . . . . We do not approve of the government’s method of 
12

circuits (in addition to the Third) have strongly implied that an indictment like 

this one, which neither specifies the predicates in the CCE count nor alleges 

qualifying offenses elsewhere, is constitutionally deficient. 

* * *

The CCE count of this indictment failed to set forth each essential element

of the charged offense. The Constitution mandates that a CCE indictment do 

more to plead predicate offenses than assert that the defendant undertook an 

unknown number of violations of a given statute over a span of years. And our 

decision in Flaharty does not counsel a contrary result.

charging in this case. However, here we do not think it amounts to reversible error. . . . The[]

[six other narcotics] counts gave him actual notice of the predicate acts on which the 

government would rely . . . .”); Becton, 751 F.2d at 256 (“In this case, other counts of the 

indictment gave Becton notice of the underlying felonies. . . . We think it would be far preferable 

to list the felonies comprising the criminal enterprise in the CCE count of an indictment . . . . 

However, we conclude on the facts in this case, that Becton received adequate notice of the 

charges against him.”)