Federal Defenders of New York Second Circuit Blog

indictment

Supreme Court Summarily Vacates Second Circuit’s Opinion In United States v. Montague, Which Upheld A Barebones CCE Indictment Alleging No Specific Predicate Violations.

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In United States v. Montague, 67 F.4th 520 (2d Cir. 2023), a divided panel of the Second Circuit affirmed a barebones CCE indictment alleging only that the defendant “did knowingly, willfully 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 … Read more

Circuit upholds conviction based on a plea to an indictment mistakenly alleging that the crime occurred on a date four months earlier than the actual date.

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In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although … Read more

Five Second Circuit Judges Dissent From Denial Of Rehearing En Banc On Whether RICO Predicate Offenses Must Be Factually Set Forth In The Indictment.

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In United States v. Montague, __ F.4th __, 2023 WL 6852846 (2d Cir. Oct. 18, 2023), Judge Perez, joined by Judges Lee, Robinson, Nathan, and Merriam, dissented from the Circuit’s denial of rehearing en banc. The dissent posed the question (and answer) of “exceptional importance”: “does an indictment for a crime with predicated offenses as … Read more

A Divided Panel Of The Second Circuit Upholds A Barebones CCE Indictment That Identifies No Predicate Acts

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In United States v. Colin Montague, 19-2975 (2d Cir. May 9, 2023), a divided panel of the Second Circuit affirmed a CCE conviction and life sentence based on an indictment that identified no predicate offenses but alleged only that the defendant “did knowingly, willfully and unlawfully engage in a Continuing Criminal Enterprise in that he … Read more

Grand Slam

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United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ) Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with “mixtures and substances containing a detectable amount of cocaine.” The indictment did not allege a drug quantity, and cited 21 U.S.C. §§ … Read more

Remorse Code

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United States v. Aleynikov, No. 11-1126 (2d Cir. April 11, 2012) (Jacobs, Calabresi, Pooler, CJJ) Sergey Aleynikov, a former Goldman Sachs computer programmer, stole a portion of Goldman’s proprietary high frequency trading (“HFT”) computer code, apparently in preparation for taking a related, but higher paying, job at a startup company.  A jury convicted him of … Read more

IF THE CRIME DOESN’T FIT THEY CAN’T FORFEIT

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United States v. Capoccia, No. 06-0669-cr (2d Cir. September 19, 2007) (Sotomayer, Katzmann, CJJ, Gertner, DJ) In this case, the district court erred in ordering forfeiture of the proceeds of conduct that occurred prior to the date of the conduct with which the defendant was charged. The decision turned on a very narrow reading of … Read more