UNITED STATES OF AMERICA, Appellee, v. ANGELO BRANDAO, Defendant, Appellant.
No. 07-1215
United States Court of Appeals For the First Circuit
August 21, 2008
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
Before Lynch, Chief Judge, Boudin and Lipez, Circuit Judges.
Michael A. Rotker, Attorney, U.S. Department of Justice, with whom Michael J. Sullivan, United States Attorney, and Theodore B. Heinrich, Assistant United States Attorney, were on brief for appellee.
August 21, 2008
Angelo Brandao appeals his conviction on four RICO counts and one VICAR count. The appeal requires us to consider two issues of particular note. One concerns the content of the “associated with,” “relatedness,” and “pattern of racketeering activity” elements of RICO. Brandao challenges the sufficiency of the evidence that the government presented at trial on each of these elements. The second concerns a constructive amendment of the indictment via the jury instructions and the standard of prejudice that will be applied to his unpreserved claim of error. That issue is the subject of a split among the circuits. We affirm Brandao‘s
I.
Brandao‘s numerous attacks on the sufficiency of the evidence require an extensive discussion of the facts of the case. Those facts are taken in the light most favorable to the verdict. United States v. DeCologero, 530 F.3d 36, 47 (1st Cir. 2008). We also account for defense theories in analyzing the permissible inferences from the evidence.
A. Stonehurst-Wendover Feud
In the early 1990s, Augusto “Gus” Lopes, his younger brother Nardo Lopes, and Bobby Mendes belonged to a group whose activities centered around Wendover Street in the Roxbury neighborhood of Boston. In 1995, Nardo Lopes was charged with the murder of Mendes and fled Boston. Gus Lopes, who was in prison at the time of the killing, vowed to eliminate any potential witnesses to his brother‘s crime and to exact revenge on members of the Wendover group who remained sympathetic to Mendes and who harassed Lopes‘s relatives.
After his release from prison, Gus Lopes became close to Amando “Manny” Monteiro. Monteiro is the cousin of the defendant here. In 1997, Monteiro introduced Lopes to others who had preexisting antagonisms with the Wendover group. Lopes joined this Stonehurst group, named after Stonehurst Street in the Dorchester
B. Dinho Fernandes Murder
A relatively trivial dispute between classmates at a Brockton high school on the morning of March 17, 1999 started a sequence of events which led to the death of one of the students, Dinho Fernandes. The dispute continued after school ended and a scuffle followed, involving Fernandes and Adalberto Barros at Barros‘s home. Defendant Brandao was there to support Barros. Both defendant and Barros were cousins of Manny Monteiro.
Later that day, Lopes and Monteiro were at work at a gas station in Brookline, Massachusetts when Monteiro received a page on his beeper around 4:00pm. After answering the page, Monteiro asked to borrow Lopes‘s car and told Lopes that a “family member” was “having problems” in Brockton. Lopes never knew who made the call. The defense theory was that the call came from Barros, not the defendant. Lopes offered to drive Monteiro to Brockton in Lopes‘s rental car, a bright red Dodge Stratus. Lopes and Monteiro stopped twice en route, first at Monteiro‘s house, then in Randolph, Massachusetts to pick up Louis Rodrigues, another member of Stonehurst. Lopes explained to Rodrigues that they were going
Shortly after the Stonehurst members arrived, a blue Honda occupied by Brandao and an unidentified male pulled up behind the Dodge. Although Brandao was Monteiro‘s cousin, this was the first time Monteiro‘s friend Lopes ever saw Brandao. The Dodge followed the Honda to nearby Hunt Street, where Brandao pointed out the window of the Honda toward three teenagers standing on the corner who appeared to be of Cape Verdean descent. In the Dodge, Lopes directed Monteiro and Rodrigues to “blaze them.” At the time, none of the three Stonehurst members were armed so they needed to get a weapon.
Both cars returned to Brandao‘s home, which Monteiro entered briefly before returning to the Dodge. There was no evidence on whether Brandao entered the house as well. The Dodge then followed the Honda back toward Hunt Street. Before they arrived, Rodrigues motioned for the Honda to pull over, and both cars stopped by the side of the road. Brandao got out of the Honda, and handed Monteiro, in the Dodge, a 9mm handgun. Brandao returned to the Honda, and the cars again drove toward Hunt Street.
When Lopes spotted the teenagers Brandao had identified, Monteiro fired at them from the back window of the Dodge, emptying
After the shooting, Lopes, Monteiro, and Rodrigues returned to Brandao‘s house. Monteiro went into the house with the shooting weapon and came out unarmed. The weapon, a 9mm handgun, had been used in earlier Stonehurst shootings before Brandao handed it to Monteiro.
C. Antonio Dias Shooting
Within days of the Fernandes murder, Brandao began commuting between Brockton and Boston to meet with Lopes and help him hunt down Wendover members. Among Lopes‘s targets were Jimmy Gomes and Antonio Dias. Lopes went on about half a dozen missions to Brockton to look for Gomes and Dias between 1998 and 2000. Although Gomes and Dias were not members of Wendover, they had taken the side of a Wendover member in a dispute between him and John and Mario DeSoto. The DeSotos were friends of Lopes as well as Brandao‘s cousins.
On April 27, 1999, Lopes, Brandao, and Stonehurst member Valdir Fernandes spotted Dias in Brockton during one of their missions. Lopes and Brandao lay in wait for Dias outside of a house. When Dias emerged, Lopes and Brandao fired repeatedly at Dias. The bullets damaged Dias‘s car, but Dias escaped unharmed.
On the night of May 14, 1999, Jimmy Gomes‘s brother Alcides Depina was walking towards Gomes‘s home in Brockton when he noticed an Acura driving slowly towards him with its lights off. A man in a blue jogging suit emerged from the passenger side of the car and ran towards Depina. As Depina ran away, he saw a red beam shining over his shoulder and heard multiple gunshots. Depina managed to reach Gomes‘s house safely, and the shooter ran back towards the car.
Within minutes, the police responded to calls about the shooting and detained a black Acura at a nearby gas station. Police officers took Depina to the gas station to make a field identification. There, Depina confirmed that the police had detained the black Acura and the man in the blue track suit that had earlier chased him. The man in the track suit turned out to be Stonehurst member Manuel “J” Lopes. Depina also identified the driver of the vehicle as Angelo Brandao, whom he knew because their mothers were acquainted.
Police arrested Brandao and Manuel Lopes and impounded the Acura. A police officer conducting an inventory search of the car at the station house discovered a 9mm Ruger with an attached laser sight concealed behind a panel in the glove compartment. The gun was loaded and the safety was off. Three ballisticians later determined that the gun had been used in the Depina shooting, the
E. Station House Interview
Police took Brandao, after his arrest, to the Brockton police station for questioning in the early morning hours of May 15, 1999, directly following the Depina shooting. Once at the station house, Brandao asked for Massachusetts State Trooper John Duggan by name. Duggan had previously met with and questioned Brandao during the course of his investigation of the Fernandes murder. Brandao signed a waiver of his Miranda rights, and Duggan and Detective Mark Reardon of the Brockton Police Department began interrogating Brandao at 3:15am.
Brandao appeared calm at first, but when Duggan told Brandao that the police had located the car used in the Fernandes shooting and had a witness who identified the people in the car, Brandao became visibly agitated. Brandao‘s eyes welled up and he put his head on the table. Brandao asked Duggan, “Is that the car that was in the paper?” Early media accounts of the Fernandes murder had reported that the shooters drove a red Honda. When the police later learned that the car was in fact a red Dodge, they withheld that information from the press to test suspects’ knowledge. When Duggan answered Brandao that it was not the car in the papers, Brandao again put his head on the table. Brandao asked Duggan, “What am I looking at, twenty-five to life? I can‘t do
When Duggan mentioned Gus Lopes in connection with the Fernandes shooting, Brandao replied, “I guess there‘s nothing left for me to do.” He then said that he would tell Duggan the details of the whole story at some point, although he never did.
In July 2000, after years of orchestrating gang warfare, Gus Lopes was arrested when he attempted to buy guns from an undercover police officer. Lopes agreed to cooperate in the government‘s prosecution of fellow Stonehurst members in exchange for a reduced sentence on the firearms charge.
II.
On September 30, 2004, a federal grand jury delivered a superseding indictment charging Brandao and twelve others with multiple counts of RICO, VICAR, and firearms violations. The indictment alleged that Stonehurst was a RICO enterprise, the activities of which affected interstate commerce. The indictment imputed multiple purposes to the Stonehurst enterprise, including “to shoot and kill members, associates, and perceived supporters of Wendover” and “to protect and defend its members and associates from acts and threats of violence and to shoot and kill
The indictment named Brandao individually in eight counts. The first two counts were for racketeering, see
The indictment also charged Brandao under VICAR, see
With respect to the substantive RICO charge, the jury returned special findings that the prosecution had proven beyond a reasonable doubt that Brandao had assaulted Alcides Depina with intent to murder him (racketeering Act Eleven) and conspired to murder Dinho Fernandes (racketeering Act Twenty). The jury found that the prosecution had not proven beyond a reasonable doubt that Brandao either conspired to murder Wendover members (racketeering Act One) or assaulted Antonio Dias with intent to murder him (racketeering Act Ten).
Brandao submitted a motion for acquittal or for a new trial, which the district court denied in a published opinion on September 8, 2006. United States v. Brandao, 448 F. Supp. 2d 311 (D. Mass. 2006). On December 13, 2006, the district court sentenced Brandao to 213 months’ imprisonment for the RICO and
III.
A. Sufficiency of the Evidence as to RICO and VICAR Convictions
Brandao disputes the sufficiency of the evidence presented at trial to support each charge of conviction. We review the record de novo and affirm the jury‘s conclusions if we conclude, after looking at all the evidence in the light most favorable to the prosecution, and taking all reasonable inferences in its favor, that a rational fact finder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime. United States v. Connolly, 341 F.3d 16, 22 (1st Cir. 2003); see also United States v. Boulerice, 325 F.3d 75, 79 (1st Cir. 2003). Our inquiry pays “considerable deference to a jury‘s assessment of the evidence,” and “we will reverse only if the verdict is irrational.” Connolly, 341 F.3d at 22.
1. Substantive RICO
For a defendant to be convicted of a substantive RICO violation, the government must prove the following elements beyond a reasonable doubt: (1) the existence of an enterprise (2) that affected interstate commerce; and (3) that the defendant was associated with the enterprise; (4) and conducted or participated in the conduct of the enterprise; (5) through a pattern of
The first two elements are not contested. Indeed, in an earlier appeal, this court affirmed jury verdicts that Stonehurst constituted an enterprise and was one that affected interstate commerce. See Nascimento, 491 F.3d at 45; see also United States v. Patrick, 248 F.3d 11, 19 (1st Cir. 2001) (youth street gang in Boston was RICO enterprise).
Brandao‘s appeal from RICO convictions focuses on the details of his involvement with Stonehurst in three respects. First, he argues that the government presented insufficient evidence that he was “associated with” Stonehurst at any time before the Dinho Fernandes murder. Specifically, there was insufficient evidence Brandao had sufficient knowledge there was a Stonehurst gang or that his cousin, Monteiro, was a member of the gang, in order for him to have been associated with Stonehurst at the time of Fernandes‘s murder. He concedes the evidence supports an inference that Brandao knew his cousin had a propensity to commit violent crimes, but not that Monteiro‘s criminality was part of his gang affiliation with Stonehurst.
Second, he argues the evidence did not support the jury‘s finding that the Fernandes murder was a purpose or affair of the Stonehurst gang, as opposed to a purely personal dispute.
a. Association2 -- In order to establish a substantive RICO violation, the prosecution had to prove that Brandao was “associated with” Stonehurst at the time that he committed the predicate racketeering acts. The murder of Fernandes is the predicate act which concerns us. The government does not contend that Brandao was associated with Stonehurst before March 17, 1999, but that he became associated with it by his actions that day. The evidence of defendant‘s association with Stonehurst after Fernandes was killed for the remaining shootings which are predicate acts cannot be seriously questioned.
Some knowledge of the enterprise is necessary as part of the requirement of showing association with the enterprise. “The RICO net is woven tightly to trap even the smallest fish, those peripherally involved with the enterprise.” Marino, 277 F.3d at 33
As the Fifth Circuit noted some time ago, the point of making the government show that the defendants have some knowledge of the nature of the enterprises is to avoid an unjust association of the defendant with the crimes of others. United States v. Manzella, 782 F.2d 533, 538 (5th Cir. 1986); see also Elliott, 571 F.2d at 903.
In essence, Brandao‘s claim is that the prosecution failed to introduce any direct evidence that Brandao knew his cousin Monteiro was a member of Stonehurst or even what Stonehurst was. Absent such direct evidence, Brandao argues, the inferences of knowledge from the other evidence are equally balanced and cannot constitute proof beyond a reasonable doubt. See United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (“[W]here an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the
Brandao makes much of the fact that no direct testimony at trial explicitly named Brandao as the party who paged Monteiro at the gas station on the afternoon of the Fernandes murder. The argument is not a strong one. Even if some individual other than Brandao actually spoke with Monteiro on the phone, it is uncontested that as a result of that conversation, Monteiro went to Brockton to help a cousin of his, and that they went to the home of Brandao, a cousin of Monteiro‘s. They did not go to the home of Barros, whom defendant argues paged Monteiro.
Brandao and Monteiro acted together. Brandao joined his cousin Monteiro at Brandao‘s home in a Honda, and then led Monteiro‘s car to the intended victims, where Brandao pointed out the victims. The two cars returned to Brandao‘s home, then back toward where the victims were. Before reaching the victims, the two cars stopped, and Brandao got out and handed the murder weapon to his cousin Monteiro. Brandao returned to his home. After the shooting, Monteiro returned to Brandao‘s home and left the home unarmed. This is very strong evidence that Brandao instigated
As Brandao concedes, the jury had ample cause to find that Brandao knew that Monteiro was prone to commit violent crimes. Brandao did not object or pose any questions when Monteiro brought two other men along to assist in the shooting. The very lack of a need for communication between Brandao and his three fellow gang members is strong evidence of familiarity and common purposes. That evidence alone, however, might not be sufficient itself to show beyond a reasonable doubt that Brandao knew that his cousin was a member of Stonehurst, and that by enlisting Monteiro, Brandao was enlisting Stonehurst, the RICO enterprise.
On all of the evidence, a jury could infer beyond a reasonable doubt that Brandao knew that Monteiro, Lopes, and Rodrigues belonged to the Stonehurst group, and that their group regularly engaged in shootings of rival gang members. Monteiro and Lopes were gang leaders; leaders are frequently known by name. The murder of Bobby Mendes and the ensuing conflict between Stonehurst and Wendover affected many members of Boston‘s Cape Verdean community. Further, Brandao was a cousin to the DeSoto brothers, who were embroiled in a separate dispute with a prominent member of Wendover. Ironically, another of Brandao‘s cousins, Gelson Brandao, was known to associate with Wendover and was targeted by Stonehurst members, further supporting the inference of Brandao‘s
Brandao argues he lived in Brockton and not in the geographic center of the Stonehurst and Wendover groups, which was in the Dorchester and Roxbury neighborhoods of Boston. But the jury heard evidence that Gus Lopes and other Stonehurst members repeatedly traveled to Brockton on missions in search of rivals to shoot.
The evidence of knowledge goes well beyond the fact that Brandao may have known of Monteiro‘s relationship with Stonehurst merely because they were cousins. It is unlikely that when commissioning a shooting by his cousin, Brandao was unaware Monteiro‘s expertise in shooting people came from his being a Stonehurst member.
The jury could also reach its conclusion based on the fact that the gun used to kill Fernandes was a gun which had been used in earlier Stonehurst shootings, and that Brandao had the gun. At trial, Gus Lopes testified that he recognized the gun when Brandao handed it to Monteiro. In fact, Lopes knew the gun to be one that had been used in at least two previous Stonehurst shootings. Police later found the same gun during a search incident to the arrest of Stonehurst member Jackson Nascimento.
b. Relationship of Fernandes Shooting to Stonehurst -- Brandao argues that the prosecution failed to produce sufficient evidence of relatedness between the Fernandes murder and Stonehurst‘s purposes or affairs to be “through” a pattern of racketeering activities. The prosecution must prove Brandao participated in Stonehurst‘s affairs “through a pattern of racketeering activity.”
The jury could reasonably find that the evidence in this case fulfills the test. Brandao did not himself fire the shots which killed Fernandes. Instead, he sought the assistance of three members of Stonehurst who were well-rehearsed in the techniques of drive-by shootings. Brandao quite literally conspired to kill
If that were not enough, the “nexus or relationship” test may be met by proof that “the resources, property, or facilities of the enterprise are used by the defendant to commit the predicate acts.” Id. at 28. The gun used to kill Fernandes was such a resource. The gun that killed Fernandes passed from the ownership and control of Stonehurst members to Brandao and back again. Evidence that a gun shared amongst Stonehurst members killed Fernandes could permit a rational jury to find a relationship between the shooting and Stonehurst itself.
Brandao mounts a similar attack based on the third element of RICO culpability requiring that a defendant participate in the conduct of the enterprise‘s affairs. Brandao cites Reves v. Ernst & Young, 507 U.S. 170 (1993), for the proposition that liability under
The argument takes Reves out of context. At issue in Reves was the liability of an outside accounting firm with a mere contractual relationship with the corrupt enterprise. See id. at 186. Cases involving “outsiders” to the enterprise as defendants
are different from those involving “insiders” as defendants. United States v. Houlihan, 92 F.3d 1271, 1298-99 (1st Cir. 1996). Insiders -- those “who are integral to carrying out the enterprise‘s racketeering activities” -- by definition participate in the conduct of the enterprise. Id. at 1299.The jury in this case heard evidence that the Fernandes shooting was related to Stonehurst‘s affairs. The criminal enterprise here had particularly malleable purposes. The indictment defined that purpose in part as being “to shoot and kill other people with whom members and associates of [Stonehurst] were engaged in violent or drug-related disputes.” The jury rationally could have concluded that the purpose of the murder of Fernandes was to kill someone with whom an associate of Stonehurst had a violent dispute.
When asked why he participated in the Fernandes shooting, Gus Lopes testified, “Because Manny was my boy, and that‘s his cousin, and I‘m going to help Manny with whatever problem he‘s got.” The jury could have interpreted this statement as a simple expression of personal loyalty, but also could have concluded otherwise. The other evidence supported an inference that Lopes was motivated by a desire for a quid pro quo that would benefit Stonehurst‘s interests and further the campaign against Wendover. Marcelino Rodrigues, a Stonehurst member who was incarcerated in mid-1999, testified that Gus Lopes visited him in prison and told
c. Pattern of Racketeering Activity
Brandao next argues that the prosecution presented insufficient evidence of a “pattern” of racketeering activity on his part. A RICO conviction requires proof of “at least two acts of racketeering activity” over a period of ten years.3
The “relatedness” prong may be satisfied by proof that the predicate acts “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are
Stonehurst was a criminal enterprise with purposes broad enough to include shooting antagonists of the Stonehurst members as a preferred method of resolving conflict. The jury could have reasonably concluded that Brandao and Manuel Lopes targeted Alcides Depina for his perceived loyalties, however attenuated, to members of Wendover.
In addition, both the Fernandes and Depina shootings shared distinguishing characteristics common to Stonehurst. Three prominent members of the gang assisted Brandao in killing Fernandes, while another member accompanied Brandao on the attack against Depina. Each of those shootings involved guns shared by Stonehurst members and implicated in multiple gang-related shootings. Both incidents involved drive-by shootings characteristic of Stonehurst‘s “missions” to hunt and kill Wendover rivals.
Likewise, there was sufficient evidence for a finding that Brandao‘s participation with Stonehurst posed a “threat of continued criminal activity.”
[T]he threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity‘s regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.
H.J. Inc., 492 U.S. at 242-43.
Here, Stonehurst engaged in a long-term campaign of violence aimed at killing members of Wendover and other enemies of Stonehurst members. Once Brandao joined the group, he met with Stonehurst members several times a week with the aim of “helping [them] with shootings.” The jury found that Brandao participated in the Depina shooting and heard evidence that he participated in
2. RICO Conspiracy
Brandao argues that there was insufficient evidence to support the RICO conspiracy conviction for all of the reasons given above that the substantive RICO conviction must be vacated. Those arguments fail, as does the argument that there was no agreement to join the RICO conspiracy, as we have just held.
3. Second VICAR Count
Brandao alleges there was insufficient evidence to show, under the second VICAR count, that his shooting of Alcides Depina, on May 14, 1999, was motivated by a purpose of maintaining or increasing his position in Stonehurst.
VICAR prohibits “assault with a dangerous weapon” for “the purpose of . . . maintaining or increasing position in an enterprise engaged in racketeering activity.”
The government argues there was a basis in the evidence for the jury to find either that the crime was committed in furtherance of Brandao‘s membership or that it was expected by him by reason of his membership. The defendant argues that his motive was personal, and not gang affiliated. He says Depina was not an enemy of Stonehurst, and Depina was shot as a result of Brandao‘s relationship with DeSoto, which led to Brandao‘s dispute with Gomes, which led to the shooting. Brandao cites to two cases holding there can be no VICAR liability for purely personal matters. United States v. Bruno, 383 F.3d 65, 85 (2nd Cir. 2004); United States v. Thai, 29 F.3d 785, 818 (2nd Cir. 1994). But those cases are inapposite, involving vastly different facts.
This question of motive under VICAR was for the jury to resolve. The jury had sufficient evidence to support a conclusion that a general motive was that Brandao did what he did, in large part or even solely, to improve his standing or because it was expected of him in Stonehurst or both. By the time of the Depina shooting in May of 1999, Brandao had, a jury could find, been a member of Stonehurst for just two months and, anxious to earn his spurs, he had been helping with shootings. Soon after Lopes, the gang leader, told Brandao about problems with Gomes and Dias,
B. Constructive Amendment
Brandao argues that the indictment was constructively amended. The error here was that the jury instruction as to racketeering Act Twenty charged the substantive crime of murder (the murder of Dinho Fernandes), even though the grand jury‘s indictment had only charged conspiracy to murder.4 Conspiracy requires the element of agreement, which murder does not. The jury verdict form also described the count as murder rather than conspiracy to murder. The jury found this racketeering act was proven beyond a reasonable doubt as to Brandao.
The district court distributed its draft jury instructions to counsel more than a week before the jury was charged and held two conferences on the instructions in the interim, yet Brandao did not object to the instruction or verdict form as to racketeering Act Twenty. Brandao, 448 F. Supp. 2d at 317. Brandao first raised the constructive amendment issue in a
As an unpreserved objection, Brandao‘s constructive amendment claim is subject to plain error review.
We do not explore the question of whether this was in fact a constructive amendment. In this case, the parties and the district court have agreed that the jury instruction for racketeering Act Twenty was a constructive amendment. “A constructive amendment occurs when the charging terms of an indictment are altered, either literally or in effect, by
This brings us to the third prong of the Olano plain error analysis and the heart of the issue in this case.
The Supreme Court in Olano reserved the question of whether there might be some errors for which specific prejudice need not be shown. Olano, 507 U.S. at 735. In this context, the Court referred to structural errors -- constitutional errors that deprive the defendant of a fundamentally fair trial and thus may not be found harmless under
Brandao argues that constructive amendment falls into this limited category, whether it is labeled structural error or per se prejudicial, and thus that the third prong of the plain
The Fourth Circuit has held that the constructive amendment of an indictment is a structural error. United States v. Floresca, 38 F.3d 706, 713 (4th Cir. 1994) (en banc). The Second Circuit has held that it is per se prejudicial. United States v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (en banc); see also United States v. Ford, 435 F.3d 204, 216 (2d Cir. 2006). Both circuits thus presume that a constructive amendment will always satisfy the third prong of Olano.
The Fifth, Seventh, Ninth, and District of Columbia Circuits adhere to the usual plain error formulation when considering constructive amendments, requiring the defendant to bear the burden of showing specific prejudice. United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004) (finding that a constructive amendment error did not violate defendant‘s substantial rights under prong three without discussion of per se prejudice or structural error); United States v. Fletcher, 121 F.3d 187, 192-93 (5th Cir. 1997), abrogated on other grounds as recognized by United States v. Robinson, 367 F.3d 278, 286 n.11 (5th Cir. 2004); United States v. Remsza, 77 F.3d 1039, 1044 (7th Cir. 1996); United States v. Lawton, 995 F.2d 290, 294 (D.C. Cir. 1993) (finding that a constructive amendment error was prejudicial under prong three without discussion of per se prejudice or structural error). Both the Fifth and the Ninth Circuits have recognized that their pre-Olano jurisprudence required automatic reversal for constructive amendments even on plain error review, but that more recent Supreme Court case law had raised serious doubts that such a per se approach was still appropriate. United States v. Dipentino, 242 F.3d 1090, 1095 (9th Cir. 2001); Fletcher, 121 F.3d at 192-93; see also United States v. Daniels, 252 F.3d 411, 414 n.8 (5th Cir. 2001) (describing Fletcher as replacing automatic reversal rule in constructive amendment cases with standard plain error review in order to align with Olano).7
Finally, the Third Circuit alone has departed from the usual plain error protocol and fashioned a rebuttable presumption of prejudice for unpreserved claims of constructive amendment on plain error review. United States v. Syme, 276 F.3d 131, 154 (3d Cir. 2002) (en banc); see also United States v. McKee, 506 F.3d
This circuit‘s cases have often described constructive amendments as “prejudicial per se,” but always in dicta. This “per se” language seems to have begun with dicta in United States v. Dunn, 758 F.2d 30, 35 (1st Cir. 1985), and has carried through in many a circuit case since, most recently in United States v. Bucci, 525 F.3d 116, 131 (1st Cir. 2008). In almost every one of these cases, the court found no constructive amendment and thus no error, whether or not the objection had been preserved in the district court.9
As for United States v. Santa-Manzano, 842 F.2d 1 (1st Cir. 1988), the court spoke there in terms of variance, not constructive amendment; it predated Olano; it did not use the language of prejudice per se; and it described the variance in terms of prejudice, namely that the defendant did not have adequate
Thus we are confronted squarely with this question for the first time. We agree with those circuits that apply the standard prejudice evaluation to constructive amendment claims on plain error review and do not presume prejudice. We do so for several reasons.
First, the Supreme Court‘s jurisprudence is increasingly wary of recognizing new structural errors or otherwise establishing per se outcomes under plain error review. When listing structural errors in recent cases, the Court has not included constructive amendments. See Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 2551 n.2 (2006); Neder v. United States, 527 U.S. 1, 8 (1999); Johnson, 520 U.S. at 468-69. The Court has also expressed unwillingness to expand that list of structural errors any further, recognizing that “most constitutional errors can be harmless.” Neder, 527 U.S. at 8 (quoting Arizona v. Fulminante, 499 U.S. 277, 306 (1991)) (internal quotation marks omitted). Indeed, the Court has said “if the defendant had counsel and was tried by an
Second, there are good reasons not to extend the list of structural errors to include constructive amendments. Constructive amendments come in many varieties: some constructive amendments broaden indictments; some effectively narrow indictments. In many cases, constructive amendments will not be the sort of error that will “deprive defendants of ‘basic protections’ without which a ‘criminal trial cannot reliably serve its function as a vehicle for
Third, Stirone does not, as defendant argues, compel a contrary conclusion. In Stirone, a union official was charged with violating the Hobbs Act,
Significantly, Stirone did not involve the issue which confronts us here: in Stirone, the objection to the constructive amendment was preserved; the case did not involve plain error review at all.11 361 U.S. at 214. Under modern Supreme Court jurisprudence, the difference between harmless error and plain error review is a meaningful one. See, e.g., Johnson, 520 U.S. at 469-70 (even structural errors are subject to plain error review‘s fourth prong).
We also note that the Supreme Court has never specifically resolved “the more sophisticated question of whether a structural error necessarily affects substantial rights, thereby automatically satisfying the third element of the plain error test.” Padilla, 415 F.3d at 220 n.1. Some courts have concluded that errors that cannot be harmless must also be per se prejudicial
Further, the Court has not extended Stirone‘s per se reversal approach to closely related situations. See Neder, 527 U.S. at 8 (omission of element of offense in jury charge not a structural error); Johnson, 520 U.S. at 469-70 (refusing to exercise discretion under Olano‘s fourth prong where trial court failed to submit element of offense to jury); United States v. Miller, 471 U.S. 130, 145 (1985) (finding no violation of grand jury right where charges in indictment were broader than proof presented at trial). The facts of this case make it likewise distinguishable from Stirone, as discussed below.
We hold that the defendant must make the required showing of prejudice under Olano and its progeny. Defendant here cannot meet his burden. Defendant views the error as involving primarily his Fifth Amendment rights to a grand jury indictment; the district court viewed the error as involving primarily defendant‘s Sixth Amendment rights. However considered, this constructive amendment did not seriously jeopardize defendant‘s rights and did not present a reasonable probability of affecting the outcome of the district court proceedings.
As the district court astutely pointed out, here, “unlike Stirone, Defendant was not charged with an act not alleged at all
The district court also cogently explained why the error could not have affected the trial‘s outcome: given the evidence at trial, the jury could not have found Brandao guilty of murder (the amended charge) if it had not also found he had colluded with
Indeed, as the district court and the government have noted, this case resembles those cases in which the court erroneously omits an element of an offense when instructing the jury (here the element of agreement). See id. at 324. Given the evidence at trial and the jury‘s actual verdict, the record could not “rationally lead to a contrary finding with respect to the omitted element,” the prejudice analysis applied in Neder. 527 U.S. at 19.
This case does not raise concerns of adequate notice, of whether the grand jury would have indicted on the amended charge, or of material unfairness to the defendant. There was no prejudice. We add, but do not rely on, our view that Brandao‘s claim would fail in any event under the fourth prong of the plain error test.
Brandao argues that the prosecutor made improper comments in closing, and those remarks so offended defendant‘s due process rights as to deny him a fair trial. The usual test is whether the prosecutor‘s misconduct “‘so poisoned the well’ that the trial‘s outcome was likely affected.” United States v. Azubike, 504 F.3d 30, 39 (1st Cir. 2007) (quoting United States v. Joyner, 191 F.3d 47, 54 (1st Cir. 1999)) (internal quotation marks omitted). But here there was no objection, so review is for plain error.
The claim is that there were two types of impropriety in the closing: that certain arguments had no basis in the evidence and that one remark impermissibly broadened the indictment. We disagree. See United States v. Duval, 496 F.3d 64, 78 (1st Cir. 2007).
Brandao objects to the prosecution‘s statements that his actions before and after the Fernandes shooting demonstrated Brandao was “enlisting [Stonehurst‘s] services.” The statement was relevant to the element of the nexus between the shooting and the enterprise. The prosecution did nothing wrong in asking the jury to draw this permissible inference from the evidence. United States v. Hernández, 218 F.3d 58, 68-69 (1st Cir. 2000).
The second claim is that the prosecution broadened the indictment when, during rebuttal, at closing, the prosecutor said, “any problem of a member was the gang‘s problem.” The argument was
The prosecutor did overstate in its closing, in one sentence made in anticipation of a defense argument. The prosecutor said the “shootings . . . were related to the affairs of the enterprise and were to protect people in order to carry on their business, in order to recruit.” (Emphasis added.) While the statement may be true in other cases, the government, on appeal, admits there was no evidence that Stonehurst tried to recruit Brandao. But attorneys for both sides misspeak during closings, and there is no reason to think this lone comment had any effect on the jury. The transcript of the prosecutor‘s closing is thirty-seven pages. United States v. Allen, 469 F.3d 11, 16 (1st Cir. 2006). The statement did not even evoke an objection from defense counsel, and the court instructed that the closing arguments were not evidence.
We reject the claim of error.
The district court rejected Brandao‘s motion for a new trial based on his claim that the government suppressed potential impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). “Impeachment evidence must be material before its suppression justifies a new trial.” Conley v. United States, 415 F.3d 183, 188 (1st Cir. 2005). Review of the district court‘s decision to deny a defendant‘s motion for a new trial on the basis of alleged Brady violations is for manifest abuse of discretion. United States v. Morales-Rodríguez, 467 F.3d 1, 14 (1st Cir. 2006).
The court found there was no bad faith involved in the prosecution‘s failure to learn and to disclose that Lopes, its key witness, had a new state criminal conviction, after it had told the defense about the underlying state charges. Such a conviction violated his federal plea agreement and yet he was not punished. This would have given defense counsel an argument to counter the government‘s assertion that Lopes‘s plea agreement gave him every incentive to tell the truth for fear of punishment.
The court found that while there was some impeachment value to the evidence, the evidence was cumulative of a great deal of other evidence that Lopes had incentive to lie. Brandao, 448 F. Supp. 2d at 328. But the court also noted that Lopes‘s basic story about the events in this case had not changed over the four years before trial. Id. And Lopes‘s testimony was reinforced by
There was no abuse of discretion in finding this omission was not material.
E. Sentencing
The district court sentenced Brandao to a total sentence of 333 months’ imprisonment, rejecting the government‘s recommendations that would have effectively amounted to life imprisonment. To Brandao‘s benefit, the court imposed concurrent twenty-year sentences on the two RICO counts (reduced for time served) and added the mandatory consecutive ten-year sentence on the VICAR count. The court then adjusted the twenty-year sentence downward by subtracting twenty-seven months to account for the time Brandao spent in state custody on the Depina shooting. The court ordered a five-year period of supervised release and ordered restitution of $6,955 to Dinho Fernandes‘s family to pay for the funeral service.
Brandao argues that the sentence was unreasonable because it was disproportionate to his activities and criminal history and because it created an unwarranted disparity with other defendants, more culpable, he says, than he.
The district judge presided over and sentenced the defendants in both this and the Nascimento case. The court
The court addressed both Brandao‘s particular activities in the commission of the crime and his criminal history. The court took into account that Brandao did not shoot Fernandes and that Monteiro did. The judge considered the defendant‘s lack of a criminal record and could find no reason in his background to explain Brandao‘s crimes. The court also considered Brandao‘s luck that Lopes was a “lousy shot” and did not manage to kill Depina. The court also recognized that Stonehurst gunned down people for trivial gripes, leading to longstanding and senseless violence in the community.
As to the supposed disparity with the other Stonehurst defendants, the court also considered and explained the dispositions for the other players: those were largely driven by the prosecution‘s charging decisions, the strength of the evidence against the various defendants, and the fact that Monteiro pled guilty while Brandao chose to go to trial. The court‘s conclusion that the players were not similarly situated was entirely reasonable. See United States v. Cirilo-Muñoz, 504 F.3d 106, 134
Even before the Supreme Court‘s decisions in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), we would have found no fault in this sentence and we find none today.
III.
The convictions and sentence are affirmed.
-Concurring Opinion Follows-
For me, this rationale alone justifies our conclusion that the standard prejudice framework should apply to unpreserved constructive amendment claims. I specifically do not join the majority‘s analysis of the Supreme Court‘s jurisprudence related to structural errors and the compatibility of a presumption of prejudice with the Supreme Court‘s plain error jurisprudence. In my view, that analysis is not essential to our conclusion on the consequences of a constructive amendment that was not the subject of a timely objection.
Notes
A person is associated with an enterprise if he knowingly participates, directly or indirectly, in the conduct of the affairs of an enterprise. One need not have an official position in the enterprise to be associated with it. One need not formally align himself with an enterprise to associate with it. Association may be by means of an informal or a loose relationship. Mere presence, however, is not enough.
The requirement of association with the enterprise is not strict.