Whether an indictment charging a Continuing Criminal Enterprise (CCE) offense must specify the predicate violations with sufficient factual detail to satisfy the Fifth Amendment's grand jury requirement

No question identified. : 2 lower courts uniformly have interpreted the word “series” to require three or more 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). And it is settled that, “to convict a defendant of violating § 848, a jury must not only unanimously find that the defendant committed a continuing series of violations, but must also unanimously agree on which specific violations make up the series.” Monsanto v. United States, 348 F.3d 345, 348 (2d Cir. 2003) (citing Richardson v. United States, 526 U.S. 813, 815 (1999)). This Court has said that “[a]n indictment must set forth each element of the crime that it charges.” Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). In this case, the indictment charged that Montague “engage[d] 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.” 1 C.A. App. 32. But the it did not identify any specific predicate violations that, taken together, would amount to a “series” of past offenses. It found only that Montague “did violate Title 21, United States Code, Sections 841(a)(1) and 846.” Ibid. Montague was convicted of violating Section 848. He challenged the sufficiency of the indictment on appeal, arguing that it had not adequately found three or more predicate violations needed to support a CCE charge. The Second Circuit affirmed the conviction in a divided opinion. The court acknowledged that “the violations composing a continuing series are elements of the CCE offense and must appear in the indictment.” Slip op. 11. But it concluded that, to meet that requirement, an indictment need only “track the language of the statute” and need not identify any specific offenses or even their “approximate time[s] and place[s].” Slip op. 12. It is not true, according to the Second Circuit majority, that “violations composing the continuing 3 series must be alleged in separate counts or that the facts and circumstances amounting to a violation must be mentioned elsewhere in the indictment.” Ibid. Finding that the indictment here “clearly passes this test,” the court affirmed. Ibid. Judge Jacobs dissented. Montague in turn petitioned for rehearing en banc, which the court of appeals denied over the dissent of five judges. 2. The decision below is wrong, and the petition will show that it warrants the Court’s attention. An indictment that does not find probable cause for each of the facts necessary for conviction is facially insufficient to satisfy the Fifth Amendment’s grandjury requirement. See Panel Dissent 10; Rehearing Dissent 4-5. And an error of this nature is certain to beget additional constitutional problems. Given the barebones nature of the indictment here, the district court was required to instruct the petit jury that the CCE predicate offenses could include “acts not mentioned in the indictment.” 19 C.A. App. 5681. That instruction is unavoidable, because if the grand jury’s indictment omits the facts of any of the defendants’ predicate offenses and instead cites only vaguely to a criminal statute, then the petit jury necessarily will have to convict, if at all, based on conduct not alleged in the indictment. But of course, a conviction cannot be premised on accusations entirely absent from the indictment. See Panel Dissent 10-11; Rehearing Dissent 4-5. The Second Circuit’s contrary decision below “openly splits with the Third Circuit regarding how a CCE indictment must set forth each predicate violation.” Panel Dissent 11. That circuit “has adopted a sensible rule” by which “an indictment must include the facts and circumstances comprising at least three offenses,” albeit without “need[ing to] identify with exacting specificity which three will ultimately prove the CCE charge.” Rehearing Dissent 7-8 (cleaned up) (quoting United State