dissenting, with whom MCKAY and SEYMOUR, Circuit Judges, join:
The appellants’ continuing criminal enterprise (“CCE”) convictions should, in my opinion, be reversed because the indictment in this case violated the appellants’ constitutional right to be tried only upon charges that have been passed upon by a grand jury. My fundamental disagreement with the majority’s opinion is that it focuses only upon notice concerns and does not adequately address the Fifth Amendment requirement 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.”
We granted en banc review on the following question:
Whether a continuing criminal enterprise indictment which tracks the language of the statute and contains three violations underlying the series in another count of the indictment is sufficient to charge a continuing criminal enterprise offense under 21 U.S.C. § 848, consistent with the requirements for an indictment under the fifth and sixth amendments of the Constitution.
That question necessarily involves two issues: (1) whether it is constitutionally sufficient for a CCE count in an indictment merely to track the language of the CCE statute without alleging the predicate acts that constitute the criminal enterprise, and (2) if tracking the language of the statute is not sufficient, whether the constitutional *1537infirmity can be remedied by looking to allegations in other counts that have not been specifically incorporated into the CCE count.
The majority does not decide the first question because this court is evenly divided on that issue. See United States v. Rivera, 874 F.2d 754 (10th Cir.1989). Instead, the majority addresses the second issue and concludes that a CCE count that merely tracks the statutory language is sufficient if the three qualifying drug offenses are alleged in another count of the indictment, even though the CCE count does not expressly incorporate the allegations of the other count.
I believe that Counts II and III of the indictment, standing alone, are constitutionally infirm because they do not protect the appellants’ Fifth Amendment right to be tried only for charges returned by a grand jury. Further, the infirmity of those counts is not cured by the allegations of specific drug offenses found in Count I because the allegations of Count I are not expressly incorporated into Counts II and III. Accordingly, I respectfully dissent.
I.
INCORPORATING ALLEGATIONS FROM OTHER COUNTS NOT PERMITTED IN THE ABSENCE OF EXPRESS INCORPORATION
The majority opinion holds that deficiencies in one count of a multi-count indictment can be cured by looking to allegations found in other counts of the same indictment, even though such allegations are not expressly incorporated into the deficient count. I believe that the majority is mistaken for at least four reasons.
A. Precedent Solidly Precludes Incorporation Except by Express Reference
The majority’s holding conflicts with cases from nine other circuits that have held that allegations in one count cannot supply missing allegations in another count in the absence of express incorporation by reference. United States v. Fulcher, 626 F.2d 985, 988 (D.C.Cir.) (“Each count in an indictment is regarded as if it was a separate indictment. Each count must stand on its own, and cannot depend for its validity on the allegations of any other count not specifically incorporated.”), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980); United States v. Winter, 663 F.2d 1120, 1138 (1st Cir.1981) (same), cert. denied sub nom. Goldenberg v. United States, 460 U.S. 1011, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983); United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983) (court refused to imply incorporation because “nothing shall be added to an indictment without the concurrence of the grand jury”); United States v. Hooker, 841 F.2d 1225, 1231 (4th Cir.1988) (en banc) (“court must read each count of indictment independently of all other counts”); United States v. Hajecate, 683 F.2d 894, 901 (5th Cir.1982) (“[A]n implicit reference [to other counts in an indictment] does not satisfy the requirements of due process.... [WJhile the specificity required in an indictment can be achieved by incorporation of another count, this incorporation must be express, not implicit.”), cert. denied sub nom. Eisenberg v. United States, 461 U.S. 927, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983); United States v. Gray, 790 F.2d 1290, 1298 (6th Cir.1986) (“Although Federal Rule of Criminal Procedure 7(c) permits the government to incorporate in one count allegations made in another count, the incorporation must be express, not implicit.”), rev’d on other grounds sub nom. McNally v. United States, United States v. McNally, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); United States v. Gordon, 253 F.2d 177, 180 (7th Cir.1958) (allegation of value of stolen goods from other counts could not be read into a different count in the absence of express incorporation); United States v. Miller, 774 F.2d 883, 885 (8th Cir.1985) (“It is well-settled, however, that each count of an indictment ‘must stand on its own, and cannot depend for its validity on the allegations of any other count not specifically incorporated.’ ”); Walker v. United States, 176 F.2d 796, 798 (9th Cir.1949) (“[E]ach count in an indictment is regarded as if it were a separate indictment and must be sufficient in itself. Therefore, it must stand or fall on its own allegations without reference to other *1538counts not expressly incorporated by reference.”)-
The Winter case from the First Circuit is particularly relevant here. In Winter, Count I of a multi-count indictment charged several defendants with conspiring to violate 18 U.S.C. § 1962(c) (RICO) and listed several predicate acts committed by the defendants. However, Charles and James DeMetri, two of the defendants charged in Count I, were named only in connection with at most one predicate act, whereas two predicate acts are required to charge an accused with conspiracy to violate RICO. 663 F.2d at 1136. The government argued that the indictment was sufficient as against the DeMetris because Counts 5 and 32 of the same indictment properly charged them with committing two predicate offenses. The court rejected the government’s argument:
Count One, however, does not incorporate by reference either Count Five or Count Thirty-Two and neither of them refers to Count One. Only Count Two, which does not name the DeMetris as defendants, incorporates Count One by reference. The indictment as drawn does not admit of Counts Five and Thirty-Two being used as predicate acts for Count One. “Each count in an indictment is regarded as if it was a separate indictment.” ... “Each count must stand on its own, and cannot depend for its validity on allegations in another count not specifically incorporated.” ...
We find Count One legally insufficient as to Charles and James DeMetri because it fails to charge that they agreed to commit two predicate crimes. It must, therefore, be dismissed as to them, and their convictions on it reversed.
Id. at 1138 (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), and Fulcher, 626 F.2d at 988). Just as the First Circuit found the indictment invalid against the DeMetris because Count One failed to incorporate by reference the predicate acts in Counts Five and Thirty-Two, I would hold Counts II and III of the indictment here invalid because they failed to incorporate by reference the predicate acts in Count I.
Numerous commentators agree that “each count is considered as if it were a separate indictment, and must be sufficient without reference to other counts unless they are expressly incorporated by reference”. 1 Wright & Miller, Fed.Pract. & Proc. § 123; see also 9 Fed.Proc.L.Ed. § 22:489 (“each count must be considered as a separate indictment or information for purposes of ascertaining its sufficiency, at least where no other count has been specifically incorporated”). Cf. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932) (“Each count in an indictment is regarded as if it was a separate indictment.”).1
Notwithstanding the majority’s reliance on our previous case of United States v. *1539Neal, 692 F.2d 1296 (10th Cir.1982), I do not believe that case is controlling. There we explicitly held that the allegations in the first count were sufficient in themselves to charge the offense. Therefore it was not necessary to incorporate allegations from other counts in order to supply essential missing allegations; Id. at 1301. The reference to allegations in other counts of that indictment was largely in response to the defendant’s challenge that he was inadequately appraised of the content and nature of the charge against him. This court merely stated that the nature of the charge and the evidence before the grand jury were “further revealed” by other counts of the indictment. Id. at 1302. That is far from a holding that missing allegations can be supplanted from one count to another.2
B. Right to be Indicted by a Grand Jury Precludes Incorporation Except by Express Reference
The majority errs by failing adequately to address the Fifth Amendment right of an accused to be tried only upon charges returned by a grand jury. The majority reaches its conclusion that the allegations in Count I of the indictment can remedy any constitutional deficiencies in Counts II and III by framing the central issue as involving “the notice function of the indictment,” and it then concludes that the appellants received adequate notice of the charges from the allegations in Count I.
However, the rationale for treating each count in an indictment separately extends beyond a concern for notice to the defendant, although notice obviously is important. The rationale also encompasses the concern expressed in Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240 (1962), that courts will have “to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment,” which could allow “a defendant to be convicted on the basis of facts not found by, or perhaps not even presented to, the grand jury.” 369 U.S. at 770, 82 S.Ct. at 1050.
The inescapable problem in this case is that we do not know, and cannot know, whether the grand jury found probable cause to indict the appellants for CCE violations based upon the same factual allegations that were contained in Count I, or whether the grand jury determined that the organizational aspects of the CCE violation were linked instead to other predicate acts that were not included in Count I. That the evidence presented at trial conformed with the allegations in Count I does not help us because we still do not know if those allegations were what the grand jury considered when it charged the appellants with CCE. Therefore, the indictment did not conform to the constitutional standards expressed in Russell.
C. Rule 7(c)(1) of the Federal Rules of Criminal Procedure Allows Incorporation Only by Express Reference
The majority’s holding is contrary to Rule 7(c)(1) of the Federal Rules of Criminal Procedure, which states that “[ajllega-tions made in one count may be incorporated by reference in another count.” (Emphasis added.) By expressly providing the manner in which incorporation can occur, the Rule suggests that alternative methods of incorporation are excluded under the “long-honored rule of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of others).” United States v. Cardenas, 864 F.2d 1528, 1434 (10th Cir.1989). If incorporation were automatic among each count in a multi-count indictment, then there would have been no reason for the drafters of the Rule to have added the words, “by reference,” particularly when “[t]he draftsmen of the Rules fully realized that the edifice they were erecting must rest on the sure foundation of fundamental rights.” Cummings, The Third Great Adventure, 29 A.B.A.J. 654, 655 (1943) (discussing history of Rules of Criminal Procedure).
*1540D. The Majority’s Holding Would Not Restrict the Prosecutor to the Charges Returned by the Grand Jury
Because Counts II and III do not incorporate by reference the allegations in Count I, the prosecutor presumably was not limited at trial by those allegations. Although the prosecutor here did in fact limit his CCE evidence to the transactions alleged in Count I, neither the majority’s holding nor its logic necessarily requires that he have done so. Because the prosecutor apparently was not so bound, he should not have received the benefit of the allegations in Count I to sustain any deficiencies in Counts II and III.
For these reasons, I would hold that the factual allegations in Count I cannot be used to cure any deficiencies in Counts II and III because those allegations are not specifically incorporated by reference into Counts II and III.
II.
CCE COUNT IS INSUFFICIENT WHICH MERELY TRACKS STATUTORY LANGUAGE WITHOUT ALLEGING SPECIFIC PREDICATE ACTS
Because I believe that the allegations of Counts I cannot be read into Counts II or III, I cannot avoid addressing the issue of whether Counts II and III are constitutionally sufficient independent of Count I. I would hold that Counts II and III are not constitutionally sufficient because they failed to protect the appellants’ Fifth Amendment right to be tried only upon charges specifically returned by a grand jury.
A. The Protective Function of the Grand Jury
In my view, this case is controlled by Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In Russell, the Supreme Court held that a defendant cannot be convicted on the basis of facts that may not have been specifically presented to, and found by, the grand jury:
To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.
Id. at 770, 82 S.Ct. at 1050 (emphasis added).
Russell involved defendants who were charged with refusing to answer certain questions when summoned to testify before a congressional subcommittee. For each defendant, the indictment failed to identify the subject that was under subcommittee inquiry at the time the witness was interrogated. Rather, the indictment stated only the conclusory allegation that the questions to which answers were refused “were pertinent to the question under inquiry.” Id. at 752, 82 S.Ct. at 1041.
The Court there held that the indictments were deficient because they failed to satisfy the Fifth and Sixth Amendments. The Court emphasized that the constitutional import of charging an accused with specificity lies not only with providing notice to the accused to allow him to prepare his defense, but also with ensuring that the accused is not convicted of any offense not charged by the grand jury, as evidenced by the indictment. Id. at 770, 82 S.Ct. at 1050. Indeed, “[t]he very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Id. at 771, 82 S.Ct. at 1051 (quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960)).
The principles enunciated in Russell are deeply entrenched in our legal heritage:
The constitutional provision that a trial may be held in a serious federal criminal case only if a grand jury has first intervened reflects centuries of antecedent development of common law, going back to the Assize of Clarendon in 1166. “The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution *1541by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.”
Russell, 369 U.S. at 761, 82 S.Ct. at 1045 (quoting Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956)).
Over 100 years ago, in Ex Parte Bain, 121 U.S. 1, 12, 7 S.Ct. 781, 787, 30 L.Ed. 849 (1887), the Supreme Court explained the importance of the protective aspects of the grand jury system:
It has been said that, since there is no danger to the citizen from the oppressions of a monarch, or of any form of executive power, there is no longer need of a grand jury. But, whatever force may be given to this argument, it remains true that the grand jury is as valuable as ever in securing, in the language of Chief Justice Shaw in the case of Jones v. Robbins, 8 Gray, 329, “individual citizens” “from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury;” and “in ease of high offenc-es” it “is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions.”
The Supreme Court recently has reaffirmed Bain’s holding that a defendant cannot be convicted of an offense different from that which was stated in the indictment:
If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says “no person shall be held to answer,” may be frittered away until its value is almost destroyed.
United States v. Miller, 471 U.S. 130, 142-43, 105 S.Ct. 1811, 1818, 85 L.Ed.2d 99 (1985) (quoting Bain, 121 U.S. at 10, 7 S.Ct. at 786). The Court also reiterated the rule that “nothing can be added to an indictment without the concurrence of the grand jury by which the bill was found.” Id. at 143, 105 S.Ct. at 1818 (emphasis added; quoting United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 425, 74 L.Ed. 1076 (1930)).3
This court has similarly emphasized the importance of the grand jury and its protective function:
The function of the grand jury “was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.” We are mindful of the oft-quoted words of Judge Learned Hand that “[s]ave for torture, it would be hard to find a more effective tool of tyranny than the power of unlimited and unchecked ex parte examination.”
United States v. Kilpatrick, 821 F.2d 1456, 1465 (10th Cir.1987) (quoting Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372, 50 L.Ed. 652 (1906), and United States v. Remington, 208 F.2d 567, 573 (2d Cir.1953) (L. Hand, J., dissenting)), aff'd sub nom. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).
This history makes clear that a grand jury indictment is more than just a means of notifying the defendant of the charges against him. The Constitution’s requirement that citizens decide whether there is probable cause to try an accused for a serious crime serves as a check on the discretion of overzealous prosecutors.
*1542B. Counts II and III are Constitutionally Infirm Under the Indictment Clause of the Fifth Amendment
In light of the importance the Supreme Court has consistently placed on an accused’s right to tried only on charges passed upon by a grand jury, I would hold that Counts II and III, viewed independently from Count I, violated the appellants’ Fifth Amendment right to a grand jury indictment. The bare statutory language contained in Counts II and III gave no assurances whatsoever that the grand jury found, or even considered, the incidents or transactions for which the appellants ultimately were tried and convicted.
Because Counts II and III did not identify any specific predicate acts, the prosecutor could circumvent the grand jury by relying on predicate acts at trial other than those that were passed upon by the grand jury. Russell flatly rejected that result:
[I]f it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.
369 U.S. at 771, 82 S.Ct. at 1051 (quoting Bain, 121 U.S. at 10, 7 S.Ct. at 786).
A grand jury indictment is not an instrument that deals simply in abstract legal theory. Rather, it is an instrument of practical function — to ensure that there are sufficient facts constituting a crime alleged against a defendant to warrant a trial:
It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, “includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species — it must descend to the particulars^”] ... For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances.
United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875) (emphasis added; citation omitted), quoted in part in Russell, 369 U.S. at 765, 82 S.Ct. at 1047. “Undoubtedly the language of a statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974) (quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1888)). See also United States v. Curtis, 506 F.2d 985, 990 (10th Cir.1974) (an indictment must contain specific factual allegations of “the nature or character of any scheme or artifice to defraud,” and “it is not sufficient in this regard to merely plead the statutory language”).
The rule that material facts and circumstances must be pleaded in the indictment has been codified in Fed.R.Crim.P. 7(c)(1), which provides: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” (Emphasis added). If we were to abandon that standard and allow the grand jury to indict only in the general language of a statute, it would then be left to the prosecutor to decide which transaction or criminal conduct he wanted to bring within the general language of the indictment. The great importance that the Constitution assigns to the grand jury as gatekeeper would “be frittered away until its value is almost destroyed.” Russell, 369 U.S. at 771, 82 S.Ct. at 1051.
Moreover, if we did not require “essential” facts to be set forth in the indictment, we also would incapacitate reviewing courts from determining what the grand jury did. Those courts would be required to “guess as to what was in the minds of the grand jury,” again diluting to an impermissible degree the defendant’s right to answer only for specific offenses that were *1543returned by the grand jury. 82 S.Ct. at 1050. See id. at 770,
There is no dispute that it is “essential to the crime of CCE that the defendant engage in three or more qualifying drug transactions. See United States v. Apodaca, 843 F.2d 421, 427 (10th Cir.), cert. denied, — U.S. -, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988). The crime of CCE is engaging in three or more qualifying drug transactions undertaken in concert with others over whom the defendant acts in a supervisory capacity. Unless the three component drug transactions are alleged with specificity in the indictment, the accused and the court cannot know what activity the grand jury found to constitute a continuing criminal enterprise. Where the essential factual components of CCE are not alleged with particularity, the indictment fails to “descend to the particulars”; it fails to set forth “with reasonable particularity the time, place, and circumstances”; it fails to contain “a statement of the facts and circumstances as will inform the accused of the specific offence”; and it fails to contain a “definite written statement of the essential facts constituting the offense charged.”4
I have no doubt that the majority would strike down an indictment that charged only, in the words of 18 U.S.C. § 2113, that the defendant took or attempted to take something of value from a “bank, credit union, or any savings and loan association” located somewhere within the Eastern District of Oklahoma within the time period of November 1985 to August 1987. Such an indictment, although stating the statutory prohibition that was violated, would fail to identify the particular offense or transaction for which the defendant is being prosecuted. Counts II and III of the indictment here, in my opinion, have the same infirmity.
This court has frequently sustained the dismissal of civil actions for failure to plead sufficient facts, notwithstanding the absence of Fifth Amendment grand jury concerns and Sixth Amendment notice concerns, the liberal pleading practices permitted by Rule 8 of the Federal Rules of Civil Procedure, and the availability of broad discovery in civil cases. E.g., Hammond v. Bales, 843 F.2d 1320, 1323 (10th Cir.1988) (“[Wjhere a plaintiff in a § 1983 action attempts to assert the necessary state action by implicating a state official in a conspiracy with a private defendant, the pleadings must specifically present facts showing agreement and concerted action. Conclusory allegations without supporting facts are insufficient.”) (citing Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); Mountain View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1387 (10th Cir.1980) (complaint that did “little more .than recite the relevant anti-trust laws” without providing underlying facts was properly subject to dismissal). More*1544over, this court has on several occasions dismissed pro se complaints, which are to be liberally construed, for failure to plead sufficient facts. E.g., Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989) (prisoner’s conspiracy action was properly dismissed where the complaint failed to allege specific facts showing an agreement and concerted action); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986) (prisoner’s complaint was properly dismissed where allegations were conclusory and unsupported by underlying facts). A fortiori, a criminal indictment, which carries greater constitutional proscriptions than do civil complaints, should be required to plead specific transactions or events that constitute the alleged offense.5
Because the bare statutory language of Counts II and III provides none of the protections guaranteed by the Fifth Amendment right to a grand jury indictment, I would hold that those counts are not sufficient to charge the appellants with CCE.6
C. Counts II and III do not Provide Adequate Notice Under the Right to be Informed Clause of the Sixth Amendment
A second issue that gives me concern is whether Counts II and III, which cite little more than the statutory language of CCE and which do not incorporate the allegations found in Count I, violated the appellants’ Sixth Amendment right to be informed of the “nature and cause of the accusation” against them. Because I would hold that Counts II and III are constitutionally infirm under the grand jury clause of the Fifth Amendment, I do not dwell on the notice function of the indictment under the Sixth Amendment except to point out that, in my opinion, the appellants also received constitutionally inadequate notice of the charges against them when Counts II and III of the indictment charged only in the naked language of the statute.
To satisfy Sixth Amendment notice requirements, an indictment must be “accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence.” Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2908, 41 L.Ed.2d 590 (1974) (emphasis added; quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1887)). Here, Counts II and III lacked such a statement. Those counts merely charged the appellants, in the statutory language, with violating § 848 by “repeatedly violating Title 21 United States Code, Section 841(a)(1) and other provisions of Title 21, regarding amphetamine,” within a two year period “within the Eastern District of Oklahoma, and elsewhere.” This language could merely be charging defendants with three incidents of distributing amphetamines in a suburb of Muskogee, Oklahoma, or it could be charging *1545defendants with controlling an amphetamine manufacturing operation that operated nationwide over the entire two-year period, or it could be charging anything in between. Counts II and III of the indictment tell defendants what statutes they allegedly violated, but it does not tell them what acts they did that will form the essential basis of the charge against them.
It is sometimes suggested that a defendant can rely on a bill of particulars to fill in details about an offense. But a bill of particulars cannot fill in “essential” facts that constitute the very offense charged, for “it is a settled rule that a bill of particulars can not save an invalid indictment.” Russell, 369 U.S. at 770, 82 S.Ct. at 1050.7
III.
HARMLESS ERROR ANALYSIS INAPPROPRIATE
The government argues that any deficiencies in Counts II and III were rendered “harmless” by the petit jury’s guilty verdict. See United States v. Mechanik, 475 U.S. 66, 73, 106 S.Ct. 938, 943, 89 L.Ed.2d 50 (1986) (“the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation”). The government misconstrues the import of Mechanik. There, the alleged error in the grand jury proceeding was not called to the district court’s attention until the second week of trial, and the motion was not ultimately ruled upon until after trial. The Supreme Court, in holding that the relatively technical violation of procedures before the grand jury was harmless error in that context, specifically stated that it was expressing “no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.” Id. at 72, 106 S.Ct. at 942.
Here, the error was called to the attention of the district court before the trial, and the error does not involve the procedural matters addressed by Rule 6(d) of the Federal Rules of Criminal Procedure, but rather goes to the very essence of the grand jury’s function. Accordingly, I believe that this issue is controlled by the rule articulated in United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), that the right to be tried only on charges presented in an indictment returned by a grand jury is not governed by the harmless error standard: “Deprivation of such a basic right [to indictment by a grand jury] is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.” Id. at 140, 105 S.Ct. at 1817 (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). See also Russell, 369 U.S. at 763, 82 S.Ct. at 1046 (“the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules”) (construing Rule 7(c); quoting Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959)); cf. United States v. Smith, 553 F.2d 1239, 1242 (10th Cir.1977) (“the absence of prejudice to the defendant does not cure what is necessarily a substantial, jurisdictional defect in the indictment”).
In this regard, I agree with the Fourth Circuit’s decision in United States v. Hooker, 841 F.2d 1225, 1233 (4th Cir.1988) (en banc), where the court dismissed a count that failed to allege interstate commerce even though other counts in the indictment alleged acts involving interstate commerce. Citing the Tenth Circuit decision in Smith, 553 F.2d at 1242, the court held that the error in the defective count could not be harmless under Mechanik even though the defendant was subsequently convicted by a petit jury under that count:
The absence of prejudice to the defendant in a traditional sense does not cure a substantive, jurisdictional defect in an *1546indictment. Unlike the situation in Me-chanik, the defect of a completely missing essential element cannot be cured by a later jury instruction because there is nothing for a petit jury to ratify.... A petit jury verdict can do no more than show that the grand jury could have given the defendant adequate notice had it chosen to do so. This cannot undo the harm of failing to give that notice timely, nor can it confer jurisdiction on the court where none existed. Neither instructions nor a petit jury verdict can satisfy after the fact the Fifth Amendment right to be tried upon charges found by a grand jury.
Id. at 1232.
Because the indictment here failed to conform to minimal constitutional standards, the harmless error standard does not apply. Therefore, the appellants’ convictions on the CCE charges should be reversed.
IV.
CONCLUSION
I am persuaded that merely tracking the statutory language is not sufficient in this case, and that each count of an indictment must be viewed as a separate indictment without reference to other counts in the absence of an express incorporation by reference. Because the majority opinion has split from almost every other circuit and is, in my opinion, contrary to controlling Supreme Court precedent, I must respectfully dissent.
. The majority cites three cases, two from the Seventh Circuit and one from the Eighth Circuit, to support its conclusion that the allegations in Count I can be considered to determine the sufficiency of Counts II and III: United States v. Esposito, 771 F.2d 283, 288-89 (7th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1187, 89 L.Ed.2d 302 (1986); United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988); and United States v. Becton, 751 F.2d 250, 256-57 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985). See also United States v. Zavala, 839 F.2d 523, 526 (9th Cir.), cert. denied, — U.S. -, 109 S.Ct. 86, 102 L.Ed.2d 62 (1988). I do not find these cases persuasive for several reasons. First, in Esposi-to, Becton, and Zavala, the defendants did not challenge the sufficiency of the indictment before the district court. Because “judicial efficiency requires that tardily-challenged indictments be construed liberally in favor of validity," United States v. Freeman, 813 F.2d 303, 304 (10th Cir.1987), I do not think those cases are determinative of our case, where the appellants challenged the indictment before trial. Second, Becton was decided prior to Miller, 774 F.2d at 885, where the Eighth Circuit held that each count must be read as a separate indictment, and thus Miller represents current Eighth Circuit law. Third, none of those cases focused on the Fifth Amendment right to a grand jury indictment. Esposito, Moya-Gomez, and Becton dealt only with the notice requirements and concluded that, because the defendant had actual notice of the predicate offense, the notice requirement was satisfied. Finally, Esposito, Moya-Gomez, and Zavala did not discuss the reasons for departing from prior precedent from the same circuit holding that each count of an indictment must be read as a separate indictment.
. Moreover, the allegations in the challenged count against the defendant in Neal (which dealt with a charge of extortion under 18 U.S.C. § 894(a) rather than a charge of violating 21 U.S.C. § 848) contained significantly more detail and precision than was present in the challenged counts against Staggs and Teafatiller.
. In Miller, the Court rejected Bain's other holding, not here relevant, that it is constitutionally impermissible to drop unnecessary allegations from the indictment.
. The concurring opinion suggests that the failure to allege the specific transactions that constitute "a continuing series of violations” is similar to the failure to allege which eye witnesses the prosecutor intends to use to prove a bank robbery. I respectfully disagree. A defendant does not need to know the names of the witnesses who will testify against him in order for him to know precisely what acts the grand jury has charged against him. However, unless the specific transactions or acts for which he is being charged are set forth in the indictment, a defendant cannot know what "essential facts” (as opposed to conclusions of law) were found against him by the grand jury.
Moreover, the use of the semantic labels "evidence" or “elements” to determine the adequacy of an indictment is not very helpful because of the inherent ambiguity of those labels and because the decision of which label to use is outcome determinative. For example, the very definition of a continuing criminal enterprise is the commission of three transactions that violate sub-chapters I or II of Chapter 13 of Title 21. Hence, the three specific transactions charged against the defendant together constitute by definition one of the elements of a CCE crime — the element of a "continuing series of violations.” Surely a simple allegation that a defendant has violated something somewhere in sub-chapters I or II of Chapter 13 of Title 21 of the United States Code would not allege with sufficient specificity a crime upon which a defendant could be convicted. Merely adding additional allegations that the violations occurred within a two-year period within the Eastern District of Oklahoma and elsewhere and that they regarded amphetamines would not adequately allege a substantive crime under sub-chapters I or II of Chapter 13 of Title 21 of the United States Code. It is hard to see, therefore, how repeating those generalized legal conclusions three times over is somehow sufficient to allege a continuing criminal enterprise under 21 U.S.C. § 848.
. The majority would dismiss this comparison between civil and criminal pleading requirements because “[t]he underlying processes are structurally different" and ‘‘[t]he criminal proceeding is monitored from its inception by ... a grand jury.” (Majority Opinion at n. 5). However, it is precisely to ensure this critical monitoring process by the grand jury that we must insist that the grand jury find and explicitly include in the indictment all the essential facts of the crime charged in the indictment. If the grand jury can merely write a blank check and leave it to the prosecutor to fill in the blanks by deciding later which "essential facts” should form the basis of the prosecution against the defendant, then the monitoring process of the grand jury, upon which the majority appears to rely, is imperiled.
. The majority cite cases from other circuits that reached a different result. See, e.g., United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 353 (1986); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978), cert. denied under various names, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979); United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974), cert. denied under various names, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975), 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975); United States v. Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985). Those cases, and others that have held that tracking the statutory language is sufficient, or, in the alternative, that the predicate acts need not be alleged, have generally limited their analysis to notice and double jeopardy concerns, and have not focused on the Fifth Amendment right to have a grand jury issue the indictment and define the charges which the defendant must answer at trial. In any event, to the extent that those cases are inconsistent with Russell, I disagree with them.
. In any event, a bill of particulars is answered by the prosecutor, not by the grand jury. Therefore, whatever it might do to satisfy the notice requirement, a bill of particulars does nothing to protect the defendant's right to have the grand jury operate as the gatekeeper to decide which specific offenses he will be required to defend against in a criminal trial. If a prosecutor, by means of a bill of particulars, can unilaterally choose which transactions within a two-year period the defendant must respond to, then the prosecutor is usurping the grand jury's role.