United States v. Monteiro

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).

-22-
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

7
The 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-

-48-
 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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