United States v. Monteiro , 447 F.3d 39 ( 2008 )

United States Court of Appeals
For the First Circuit
No. 07-1215
UNITED STATES OF AMERICA,
Appellee,
v.
ANGELO BRANDAO,
Defendant, Appellant.
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.
Gordon W. Spencer with whom Carol Mallory was on brief for
appellant.
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
LYNCH, Chief Judge. A decade ago there were a series of
shootings and murders involving two warring Cape Verdean youth
gangs, Stonehurst and Wendover, in Boston and in Brockton, a
neighboring community. Federal prosecutions ensued under the
Racketeer Influenced and Corrupt Organizations statute ("RICO"), 18
U.S.C. §§ 1961-68, and the Violent Crimes in Aid of Racketeering
statute ("VICAR"), 18 U.S.C. § 1959. See United States v.
Nascimento, 491 F.3d 25 (1st Cir. 2007) (affirming RICO, VICAR, and
firearms violations convictions of three Stonehurst members). This
case, against Angelo Brandao, was one of those prosecutions. The
indictment charged Brandao, who was eighteen at the time, with
conspiracy to commit the 1999 murder of a high school student,
Dinho Fernandes, and the shootings of Alcides Depina and Antonio
Dias.
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
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conviction and sentence, acknowledging the able advocacy by defense
counsel.
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
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neighborhood. Lopes and Monteiro became leaders of the Stonehurst
group and led Stonehurst members on numerous "missions" to hunt
down and shoot members of Wendover. Wendover members did the same
as to Stonehurst. The Stonehurst-Wendover shootings reached their
apex in the period from June 1998 to July 2000.
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
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to Brockton "to check out Manny's cousin." The trio then drove to
Brandao's home in Brockton. There was no evidence about the prior
relationship between Brandao and his cousin Manny Monteiro.
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
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his clip. Two of the teenagers were seriously wounded, and
another, Dinho Fernandes, died on the scene.
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.
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D. Alcides Depina Shooting
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
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Dias shooting, and another shooting in which two Stonehurst members
attacked a Wendover member.
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
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that time. Even if I tell you what happened, I'm still looking at
time."
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
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other people with whom members and associates of the Enterprise
were engaged in violent or drug-related disputes."1
The indictment named Brandao individually in eight
counts. The first two counts were for racketeering, see 18 U.S.C.
§ 1962(c), and racketeering conspiracy, see id. § 1962(d), both in
violation of RICO. The indictment named Brandao in four specific
acts as predicates to the racketeering charge: (1) conspiracy to
murder members of Wendover (racketeering Act One); (2) assault with
intent to murder Antonio Dias (racketeering Act Ten); (3) assault
with intent to murder Alcides Depina (racketeering Act Eleven); and
(4) conspiracy to murder Dinho Fernandes (racketeering Act Twenty).
The indictment also charged Brandao under VICAR, see id.
§ 1959(a), for committing each of these four violent criminal acts
in aid of racketeering. The indictment characterized the Dinho
Fernandes shooting differently for purposes of the RICO and VICAR
charges. While the indictment treated the shooting as "Murder in
Aid of Racketeering" (emphasis added) for the VICAR charge, the
same activity was described as "conspir[acy] to murder Dinho
Fernandes" (emphasis added) for purposes of establishing a
predicate act under RICO. Finally, Brandao was charged under 18
U.S.C. § 924(c) for use of a firearm during the Dias and Depina
shootings.
1
The indictment also alleged that Stonehurst's activities
encompassed the sale of crack and marijuana, but the government
abandoned those charges before Brandao's trial.
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The district court divided the thirteen Stonehurst
defendants into groups for trial. The connections of the first
group of defendants are described in Nascimento, 491 F.3d at 30.
Brandao was tried later with one co-defendant, Brima Wurie, who was
acquitted. On February 9, 2006, following a fourteen-day trial, a
jury convicted Brandao on the substantive RICO and RICO conspiracy
charges. The jury also convicted Brandao on the VICAR charge of
assault in aid of racketeering based on the Depina shooting and the
associated firearms charge.
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
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VICAR convictions, to be followed by 120 months' imprisonment for
the firearms violation. Brandao timely appealed.
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
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racketeering activity. Nascimento, 491 F.3d at 31; United States
v. Marino, 277 F.3d 11, 33 (1st Cir. 2002).
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.
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Third, Brandao argues that the evidence does not support
the conclusion that the Dinho Fernandes and Alcides Depina
shootings constituted a "pattern of racketeering activity."
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
2
There is no claim the jury was not properly instructed.
The jury instruction here was:
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.
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(quoting United States v. Elliott, 571 F.2d 880, 903 (5th Cir.
1978)) (internal quotation marks omitted). "The RICO statute seeks
to encompass those people who are 'merely associated with' the
enterprise." Id. (quoting Elliott, 571 F.2d at 903). As we held
in Marino, "[t]he defendant need only be 'aware of at least the
general existence of the enterprise named in the indictment,'" id.(quoting United States v. Console, 13 F.3d 641, 653 (3d Cir.
1993)), "and know about its related activities," id. (quoting
United States v. Martino, 648 F.2d 367, 394 (5th Cir. 1981).
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
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prosecution, 'a reasonable jury must necessarily entertain a
reasonable doubt.'" (quoting United States v. Flores-Rivera, 56
F.3d 319, 323 (1st Cir. 1995)) (internal quotation marks omitted)).
We conclude a rational jury could find beyond a reasonable doubt
that Brandao had the requisite knowledge, and that the inferences
were far from equally balanced. Nascimento, 491 F.3d at 47.
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
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Monteiro's trip, and the purpose of the trip was to murder
Fernandes.
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
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knowledge of the two gangs and who was a member of which. The
victim was a member of the Cape Verdean community, as was Brandao.
That makes it unlikely Brandao did not know of Stonehurst or
Monteiro's association with it.
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.
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The jury could reasonably infer that this network of
personal and family ties and the possession of a gang gun would put
Brandao on notice of Stonehurst's "general existence" and "related
activities."
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." 18 U.S.C. § 1962(c). The statute's use of
the word "through" implies "a nexus between these racketeering acts
and the enterprise." Nascimento, 491 F.3d at 45. "A sufficient
nexus or relationship exists between the racketeering acts and the
enterprise if the defendant was able to commit the predicate acts
by means of, by consequence of, by reason of, by the agency of, or
by the instrumentality of his association with the enterprise."
Marino, 277 F.3d at 27.
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
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Fernandes "by the agency of" and "by the instrumentality of his
association with" three members of Stonehurst.
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 18 U.S.C. § 1962(c) "depends on showing that the
defendants conducted or participated in the conduct of the
'enterprise's affairs,' not just their own affairs." Id. at 185.
Brandao interprets this language as foreclosing RICO liability for
predicate acts undertaken for personal motivations.
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
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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
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him about his new acquaintance, Angelo Brandao. Lopes told
Rodrigues that "they both did favors for each other," with Lopes
operating in Boston and Brandao reciprocating in Brockton. That
testimony was consistent with Lopes's assertion that Brandao
"became part of Stonehurst" on the occasion of the Fernandes
shooting.
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 18 U.S.C. § 1961(5). More than numbers
are required to establish a "pattern" of racketeering acts. "It is
not the number of predicates but the relationship that they bear to
each other or to some external organizing principle that renders
them" a pattern. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238
(1989). Thus, two or more racketeering predicates constitute a
"pattern" if they are (1) "related" and (2) "amount to or pose a
threat of continued criminal activity." Id. at 239.
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
3
There must have been at least two predicate acts in order
to make out a pattern under RICO. See H.J. Inc. v. Nw. Bell Tel.
Co., 492 U.S. 229, 237 (1989); United States v. Cianci, 378 F.3d
71, 88 (1st Cir. 2004).
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interrelated by distinguishing characteristics and are not isolated
events." Id. at 240 (quoting 18 U.S.C. § 3575(e) (repealed 1987))
(internal quotation marks omitted). The standard is intentionally
flexible, id. at 238, and will take into account the nature of the
enterprise. "[A] criminal enterprise is more, not less, dangerous
if it is versatile, flexible, diverse in its objectives and
capabilities. Versatility, flexibility, and diversity are not
inconsistent with pattern." United States v. Masters, 924 F.2d
1362, 1367 (7th Cir. 1991).
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.
-23-
Brandao argues, in essence, that the Fernandes and Depina
shootings cannot form a "pattern" because they were not directly
related to each other. This argument misses the mark. Whether
Brandao's motivations for conspiring to kill Dinho Fernandes and
assisting in the assault on Alcides Depina were the same, whether
identical Stonehurst members accompanied Brandao on both outings,
and whether the same gun or car were used in each attack are not
dispositive. Rather, the attacks' relatedness to Stonehurst, its
purposes, its members, and its methods provides the "external
organizing principle" behind both acts.
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
-24-
the Dias shooting, acts for which Brandao's only motivation was his
relationship with Stonehurst. Once Brandao associated with the
enterprise, his violent activity would continue as long as that
association continued.
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." 18 U.S.C. § 1959(a).
This circuit has defined the motive requirement in VICAR as a
general one, satisfied by proof either that the crime was committed
in furtherance of defendant's membership in the enterprise or
because it was expected of him by reason of his membership. United
States v. Tse, 135 F.3d 200, 206 (1st Cir. 1998); accord
Nascimento, 491 F.3d at 47. In light of the congressional purpose
-25-
in VICAR of curtailing violent activity associated with
racketeering enterprises, we rejected a reading that the government
must prove this was the sole purpose. Tse, 135 F.3d at 206.
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,
-26-
Brandao was out with other gang members shooting at Depina, using
a gun and a car previously used in gang shootings. A jury could
easily conclude that Brandao did so to impress and further
ingratiate himself with the gang leader.
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
4
This problem was created by the poor drafting of the
indictment. Racketeering Act Twenty was titled "Murder of Dinho
Fernandes," even though it charged that Brandao and others
"willfully and knowingly did conspire to murder" Fernandes. See
Brandao, 448 F. Supp. 2d at 316-17.
-27-
post-trial motion, which the district court denied.5 Id. at 317,
326.
As an unpreserved objection, Brandao's constructive
amendment claim is subject to plain error review. Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 722, 731 (1993); see also
United States v. Johnson, 520 U.S. 462, 466 (1997) (Rule 52(b)'s
plain error review applies to all direct appeals from federal
convictions, even as to structural errors). That test has four
prongs: there must be (1) an error (2) that is plain and (3) that
has affected the defendant's substantial rights; and if the first
three prongs are satisfied, then a court may exercise discretion to
correct a forfeited error if (4) the error "seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings."
Olano, 507 U.S. at 732 (alteration in original) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)) (internal quotation marks
omitted).
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
5
We do not get into the debate between the parties about
whether the district court erred in itself utilizing plain error
review.
-28-
prosecution or court after the grand jury has last passed upon
them." United States v. Pierre, 484 F.3d 75, 81 (1st Cir. 2007)
(quoting United States v. Fisher, 3 F.3d 456, 462 (1st Cir. 1993))
(internal quotation marks omitted). In Stirone v. United States,
361 U.S. 212 (1960), the Supreme Court emphasized the rule that "a
court cannot permit a defendant to be tried on charges that are not
made in the indictment against him." Id. at 217. The prohibition
on constructive amendment exists to preserve the defendant's Fifth
Amendment right to indictment by grand jury, to prevent re-
prosecution for the same offense in violation of the Sixth
Amendment, and to protect the defendant's Sixth Amendment right to
be informed of the charges against him. Pierre, 484 F.3d at 81
(citing United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir.
1993)). The parties and the district court agreed the first two
prongs of plain error review were met: there was error and it was
plain.
This brings us to the third prong of the Olano plain
error analysis and the heart of the issue in this case. Rule 52(b)
requires the plain error to "affect substantial rights," which "in
most cases . . . means that the error must have been prejudicial:
It must have affected the outcome of the district court
proceedings." Olano, 507 U.S. at 734. It is the defendant who
bears the burden of demonstrating a reasonable probability that,
but for the error, the result of the proceeding would have been
-29-
different. United States v. Dominguez Benitez, 542 U.S. 74, 81-82
(2004); United States v. Borrero-Acevedo, No. 06-2655, ___ F.3d
___, 2008 WL 2687355, at *3 (1st Cir. July 10, 2008); United States
v. Padilla, 415 F.3d 211, 220-21 (1st Cir. 2005) (en banc).
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 Rule 52(a)'s harmless error standard --
and "those errors that should be presumed prejudicial if the
defendant cannot make a specific showing of prejudice."6 Id. If
this category of errors not requiring a showing of prejudice does
exist, the Court's conclusion that "[n]ormally, although perhaps
not in every case, the defendant must make a specific showing of
prejudice," id., suggests that it is very limited.
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
6
Some have distinguished between these two concepts
(structural error and presumed prejudice). See, e.g., United
States v. Syme, 276 F.3d 131, 153 (3d Cir. 2002); United States v.
Floresca, 38 F.3d 706, 713 n.16 (4th Cir. 1994) (en banc)
(describing "presumed prejudice" as a separate category of errors
and suggesting that the Court was referring to errors necessitating
a rebuttable presumption). Whether or not there is a distinction,
it does not affect our analysis or conclusion.
-30-
error test is automatically satisfied in this case. He points to
dicta in this circuit's case law and to the broad language of the
Supreme Court's decision in Stirone in support of his position. We
have never confronted this question directly, and our sister
circuits have reached disparate conclusions.
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
-31-
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
7The Tenth Circuit has avoided the question altogether by
instead finding Olano's fourth prong unsatisfied, similar to the
Supreme Court's approach in Johnson and United States v. Cotton,
535 U.S. 625 (2002). See United States v. Brown, 400 F.3d 1242,
1253-54 (10th Cir. 2005); United States v. Gonzalez Edeza, 359 F.3d
1246, 1250-52 (10th Cir. 2004). In Brown, however, the Tenth
Circuit noted that following Cotton, any tension in its case law
between automatic reversal and plain error review of unpreserved
claims of constructive amendment must be resolved against automatic
reversal. Brown, 400 F.3d at 1253 n.6.
-32-
225, 229 (3d Cir. 2007). On the assumption that it will normally
be difficult for a defendant to prove a constructive amendment
resulted in prejudice, that circuit presumes a defendant has met
the prejudice requirement of the third prong unless the government
meets its burden of rebuttal.8 Syme, 276 F.3d at 154.
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
8
The court in Syme noted, however, that even though it
believes that constructive amendments are presumed prejudicial, it
doubts that constructive amendments would be structural error,
given recent Supreme Court decisions. 276 F.3d at 155 n.10.
9
Bucci, 525 F.3d at 131; United States v. Hernández, 490
F.3d 81, 83-84 (1st Cir. 2007); United States v. Malpica-García,
489 F.3d 393, 398 (1st Cir. 2007); Pierre, 484 F.3d at 81-82;
United States v. Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006);
United States v. DeCicco, 439 F.3d 36, 43, 46-47 (1st Cir. 2006);
United States v. Gómez-Rosario, 418 F.3d 90, 104-05 (1st Cir.
2005); United States v. Fornia-Castillo, 408 F.3d 52, 65-66 (1st
Cir. 2005); United States v. Cianci, 378 F.3d 71, 93-94 (1st Cir.
2004); United States v. Dubón-Otero, 292 F.3d 1, 4 & n.2 (1st Cir.
2002); United States v. Portela, 167 F.3d 687, 701-02 (1st Cir.
1999); United States v. Paredes-Rodriguez, 160 F.3d 49, 55 (1st
Cir. 1998); Vavlitis, 9 F.3d at 210; United States v. Fisher, 3
F.3d 456, 462-63 (1st Cir. 1993); Dunn, 758 F.2d at 35, 38.
-33-
Only two of our cases require further discussion. In
United States v. Iacaboni, 363 F.3d 1 (1st Cir. 2004), the
defendant pled guilty to one type of money laundering, but the
district court ordered forfeiture under a different theory of money
laundering. Id. at 7. We reversed the relevant portion of the
forfeiture order because we concluded a constructive amendment had
occurred and that such an "alteration is . . . per se prejudicial."
Id. That case is distinguishable. First, we held that the
defendant had preserved his claim below, so the question of plain
error review was not implicated. Id. Second, Iacaboni considered
an error in sentencing, not an error in conviction, and the
distinction could be meaningful; in Iacaboni, for instance, the
constructive amendment led directly to a forfeiture order amounting
to $7,495, clearly a prejudicial outcome.
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
-34-
notice of the charges against him.10 Id. at 2-3. These cases do
not address or resolve the question before us today.
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, ___ U.S. ___, 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
10
Our opinion in United States v. Mojica-Baez, 229 F.3d 292(1st Cir. 2000), dealt with failure to submit an element of an
offense to the jury, which meant that the defendant was sentenced
for a more serious offense than that for which he was indicted and
found guilty. Id. at 306. On plain error review, we rejected
defendant's argument that the error should be considered a
structural error and required a showing of prejudice under prong
three. Id. at 307, 309-10.
-35-
impartial adjudicator, there is a strong presumption that any other
[constitutional] errors that may have occurred are subject to
harmless-error analysis" and are thus not structural errors. Id.(quoting Rose v. Clark, 478 U.S. 570, 579 (1986)) (internal
quotation marks omitted). In recent years, the Court has routinely
rejected arguments that additional specific categories of errors
should be considered structural errors. See, e.g., id. at 8
(omission of element of offense in jury instructions); Fulminante,
499 U.S. at 310-11 (collecting cases). This unwillingness is even
more pronounced in the plain error context, with the Court bluntly
stating that "[a] per se approach to plain-error review is flawed."
Young, 470 U.S. at 16 n.14. In keeping with this trend, this
court, sitting en banc in Padilla, refused to expand the category
of structural errors beyond those already recognized by the Supreme
Court, noting the category has been reserved for a very limited
class of cases involving "only the most pervasive and debilitating
errors." 415 F.3d at 219.
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
-36-
determining guilt or innocence . . . and no criminal punishment may
be regarded as fundamentally fair.'" Neder, 527 U.S. at 8-9(quoting Rose, 478 U.S. at 577-78). We believe this case
demonstrates that point. Because the term "constructive amendment"
includes a number of different types of errors, some of which will
not always be prejudicial, the term "constructive amendment" does
not create a good candidate for departing from usual plain error
review. Cf. id. at 14 (describing approach to structural errors as
traditionally categorical: "a constitutional error is either
structural or it is not"). Labels like "constructive amendment"
should rarely dictate outcomes. We also agree with the Fifth
Circuit that abandoning the usual plain error rule will create
perverse incentives which may harm the administration of the
criminal justice system. See Fletcher, 121 F.3d at 193; see also
Floresca, 38 F.3d at 727 (Russell, J., dissenting).
Third, Stirone does not, as defendant argues, compel a
contrary conclusion. In Stirone, a union official was charged with
violating the Hobbs Act, 18 U.S.C. § 1951, by interfering with
interstate commerce through extortion. 361 U.S. at 213. The
indictment charged Stirone with obstructing shipments of sand to
Pennsylvania to make concrete to build steel mills, but the judge
allowed the government to argue that Stirone's actions also
affected interstate commerce by interfering with the steel mill's
ability to ship steel from Pennsylvania. Id. at 213-14. Because
-37-
the jury was allowed to convict on either theory of interference
with interstate commerce, and because the indictment had made no
mention of the second theory, it was possible that Stirone had been
convicted on a charge not made (and not intended) by the grand
jury. Id. at 214, 218-19. The Supreme Court reversed the
conviction, holding that the trial court had impermissibly
broadened the indictment in violation of defendant's constitutional
rights. Id. at 219.
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
11
The government argues Stirone may have involved, in
today's terminology, a variance and not a constructive amendment.
We do not address the issue.
-38-
under Olano's third prong. See id. (collecting cases). But that
is not a necessary outcome. See, e.g., Syme, 276 F.3d at 152(noting that per se reversal rule for preserved errors might not
extend to plain error review); Remsza, 77 F.3d at 1044 (noting that
circuit's rule requiring prejudice analysis for all errors on plain
error review); Floresca, 38 F.3d at 722-23 (Russell, J.,
dissenting) (disagreeing with majority's presumption that errors
not subject to harmless error review will also not necessitate a
showing of prejudice under plain error review). Thus even if
Stirone does require automatic reversal of constructive amendments
for preserved claims of error on harmless error review, that would
not necessarily mean that prejudice should be presumed on plain
error review.
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.
-39-
We also decline to alter the usual plain error standard
to provide defendant with a presumption of prejudice that would
shift the burden to the government to show lack of prejudice. We
see no basis in Supreme Court holdings to do so.12 We will not
conclude that in all cases it will be "well-nigh impossible to
determine the amount of harm" resulting from a constructive
amendment. United States v. Mojica-Baez, 229 F.3d 292, 309 (1st
Cir. 2000). We believe that, depending on the facts of a given
case, some constructive amendments will, by their nature and from
the risks they create for defendant, be so great that a reviewing
court may find the requisite prejudice under Olano's third prong.
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
12
We acknowledge the Third and the Fourth Circuits'
argument that there is such a basis based on dicta in Olano. See
Syme, 276 F.3d at 153; Floresca, 28 F.3d at 713 n.16.
-40-
in the indictment." Brandao, 448 F. Supp. 2d at 319. Although
racketeering Act Twenty under Count Two of the indictment charged
conspiracy to murder, and not murder, the grand jury alleged in
Count Thirty-Three that Brandao murdered Fernandes when it charged
that Brandao committed the murder to maintain or increase his
position in the Stonehurst enterprise. We do not have to speculate
whether the grand jury would have indicted Brandao for the actual
murder of Fernandes; in practical terms it did. Cf. Stirone, 361
U.S. at 217 (noting that no court "can know that the grand jury
would have been willing to charge" defendant on grounds not
mentioned in indictment but presented to petit jury); Thomas, 274
F.3d at 670 (warning against speculating what a grand jury might
have charged in its indictment). We thus have no concerns that the
grand jury would have returned a conforming indictment charging
murder. For the same reason, Brandao was provided adequate notice
of the charges against him. Cf. Miller, 471 U.S. at 134-35 (noting
lack of notice concerns in finding no error where variance narrowed
indictment); Hugs, 384 F.3d at 768 (finding no prejudice where
indictment provided fair notice of evidence that would be
introduced at trial).
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
-41-
others to carry out the murder. "Because the government never
suggested that Defendant pulled the trigger, an agreement was a
necessary condition of the jury's finding Defendant guilty of the
substantive murder via an aiding and abetting theory." Brandao,
448 F. Supp. 2d at 323-24.13
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.
13
The fact that the jury acquitted Brandao on Count Thirty-
Three does not call this reasoning into doubt. As the district
court explained, the jury could have found Brandao guilty of
murdering Fernandes while not also finding that, as required for a
VICAR conviction, he committed the murder to maintain or improve
his position in Stonehurst. Brandao, 448 F. Supp. 2d at 320.
Rather, the evidence presented at trial could have allowed the jury
to find that Brandao's participation in the Fernandes murder
provided Brandao's entry into the Stonehurst enterprise. Id.-42-
C. Prosecutor's Closing Arguments
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
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made in response to a key theme in the defense's closing: that each
of the charged shootings was personal and therefore unconnected
with the RICO enterprise. It was fair for the prosecution to argue
that merely because there was some personal benefit from a shooting
did not mean the shooting was unconnected from the enterprise.
While it is not literally true in the abstract that any problem of
a member was the gang's problem, in context, there is no reason to
believe the jury took the government to be arguing that.
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.
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D. Denial of Motion for a New Trial: Claim the Government
Suppressed Impeachment Material
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
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Brandao's own statements to the police, by ballistics evidence, and
by the discovery of a firearm in the car Brandao drove for the
Depina shooting. Id.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
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thoughtfully explained its rationale for the sentence. The fact
that the court did not explicitly mention the 18 U.S.C. § 3553(a)
sentencing factors means nothing in this case, as the court
obviously considered them. See United States v. Alli, 444 F.3d 34,
41 (1st Cir. 2006) (affirming sentence where district court did not
explicitly address any of the § 3553(a) factors individually).
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
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(1st Cir. 2007) (co-defendant who pled guilty is not similarly
situated to co-defendant who was found guilty by a jury).
Even before the Supreme Court's decisions in Gall v.
United States, ___ U.S. ___, 128 S. Ct. 586 (2007), and Kimbrough
v. United States, ___ U.S. ___, 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-
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LIPEZ, Circuit Judge, concurring. I concur with the
majority's sufficiency of the evidence analysis and its conclusion
that we should apply the standard prejudice framework to
constructive amendment claims on plain error review and not presume
prejudice. However, I adopt that conclusion only because of my
agreement with the majority that many so-called constructive
amendment claims lend themselves readily to ordinary plain error
analysis. This case illustrates that point well.
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.
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