United States v. Montague, No. 18-2975 (2d Cir. 2023)
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Defendant appealed a jury verdict finding him guilty of nine narcotics and money-laundering offenses, including operating a continuing criminal enterprise (“CCE”). Defendant challenged his conviction primarily on two grounds. First, he argued 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. Section 848(c)(2) requires. Second, Defendant argued that the district court improperly instructed the jury when it construed Section 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.
The Second Circuit affirmed. The court held that the indictment was sufficient under the court’s previous decision in United States v. Flaharty, 295 F.3d 182 (2d Cir. 2002). The court wrote it was not persuaded by Defendant’s challenge to his indictment because the indictment satisfies the test the court 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 the court considered in Flaharty. The court agreed, however, with Defendant’s interpretation of Section 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, the court concluded that the error was harmless in light of the overwhelming evidence introduced against Defendant. As a result, the court affirmed Defendant’s conviction on all counts.
The court issued a subsequent related opinion or order on October 18, 2023.
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