Constitutional Law - First Circuit Rules Constructive Amendment of Indictment Not a Structural Error - United States V. Brandao

By Patwardhan, Kimberly L. | Suffolk University Law Review, Spring 2009 | Go to article overview

Constitutional Law - First Circuit Rules Constructive Amendment of Indictment Not a Structural Error - United States V. Brandao


Patwardhan, Kimberly L., Suffolk University Law Review


Courts employ plain-error analysis when reviewing unpreserved errors in a criminal trial, but apply harmless-error analysis for errors preserved through objection. (1) Although most constitutional errors are subject to harmless-error analysis, certain so-called structural errors are reversible per se. (2) In United States v. Brandao, (3) the United States Court of Appeals for the First Circuit considered whether the unpreserved error of a constructively amended indictment was per se reversible error or subject to plain error analysis. (4) Already the issue of a circuit split, the court joined with those circuits applying plain-error analysis, declined to recognize a constructive amendment as a structural error, and affirmed the conviction. (5)

On March 17, 1999, Angelo Brandao arranged for the murder of Dinho Fernandes by pointing out the victim and providing the weapon to Manny Monteiro, the leader of the Stonehurst gang. (6) Five years later, a federal grand jury indicted Brandao on multiple counts of RICO, VICAR, and firearms violations based on his involvement with Stonehurst and the murder of Fernandes. (7) Count One of the indictment charged Brandao with conspiracy to murder Dinho Fernandes, and Count Thirty-Three of the indictment charged Brandao with the murder of Fernandes in order to increase or maintain his position within Stonehurst. (8) Although the indictment for Count One was for conspiracy to murder Fernandes, the jury convicted Brandao on the charge of substantive murder because the judge improperly instructed the jury. (9) Brandao first raised the issue of the constructively amended indictment in a post-conviction motion for acquittal. (10)

Relying on the First Circuit's consistent language on the issue, Brandao argued the constructive amendment was a structural error that mandated reversal of his conviction despite failing to preserve the issue through objection. (11) After reviewing the split position among the circuits, the trial court sided with those holding a constructive amendment does not mandate per se reversal and applied plain-error analysis. (12) The court held Brandao could not make the requisite showing of prejudice because the grand jury had actually indicted him for murder in Count Thirty-Three. (13) Thus, the error did not affect the integrity of the proceedings and did not mandate reversal. (14) The First Circuit affirmed, joining the circuits applying error analysis to constructive amendments and not presuming prejudice because Supreme Court precedent did not warrant recognizing a new structural error. (15)

A constructive amendment occurs when the prosecutor or judge effectively alters the terms of an indictment after the grand jury has passed on them. (16) The prohibition on constructive amendments protects the defendant's Sixth Amendment right to be informed of the charges against her and the Fifth Amendment right to be tried only on offenses charged by the grand jury. (17) In Stirone v. United States, (18) the Supreme Court reversed the defendant's conviction when the indictment was constructively amended because he was "tried on charges that [were] not made in the indictment against him," violating his "substantial right" to the grand jury's independent judgment. (19) Echoing the language of structural errors, the Court stated that the "deprivation of such a basic right was too serious to be ... dismissed as harmless error." (20)

A structural error, as set forth by the Supreme Court in Arizona v. Fulminante, (21) is a constitutional deprivation affecting the entire framework of a criminal trial. (22) A trial error occurs during the presentation of the case to the jury. (23) Regardless of the type of error, Rule 52 of the Federal Rules of Criminal Procedure governs the standard of review on appeal, turning on whether or not trial counsel properly preserved the issue through objection. (24) When an error is preserved, courts apply harmless-error analysis and must correct the error if it may have contributed to the outcome of the proceedings, thereby affecting substantial rights. …

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