Constitutional law - First Circuit rules constructive amendment of indictment not a structural error - United States v. Brandao.

• Author: Patwardhan, Kimberly L.

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. (25) In United States v. Olano, (26) the Supreme Court explained that to correct an unpreserved error under plain-error analysis, the defendant bears the burden of proving three factors: there was an error, the error was plain, and the error affected her substantial rights. (27) Then, under the fourth prong of Olano, a court may correct the error if it affects the "fairness, integrity, or public reputation of judicial proceedings." (28)

The Supreme Court has neither explicitly held constructively amended indictments are structural errors, nor decided if any structural error automatically affects substantial rights under plain-error analysis. (29) The circuit courts are split on the proper treatment of constructive amendment on appeal. (30) Relying on Stirone, both the Second and Fourth Circuits treat a constructive amendment as per se prejudicial error that will always affect substantial rights. (31) The Third Circuit presumes a constructive amendment is prejudicial, subject to rebuttal by the prosecution that the error did not prejudice the defendant. (32) Conversely, the Fifth, Seventh, Ninth, and District of Columbia Circuits have applied ordinary plain-error analysis to the constructive amendment of an indictment without discussing structural error. (33) The First Circuit had repeatedly quoted dicta from its decision in United States v. Dunn, (34) where it described constructive amendments as "prejudicial per se" and grounds for reversal of a conviction. (35)

In United States v. Brandao, however, the First Circuit broke with this longstanding tradition and declined to recognize a constructively amended indictment as a structural error. (36) First, after analyzing the split among the circuits, the court noted the Supreme Court is "wary of recognizing new structural errors or ... establishing per se outcomes under plain error review." (37) Second, the court pointed out that a constructive amendment is a broad term that can cover many different types of errors that may not always be prejudicial. (38) Third, the court distinguished Stirone because there the defendant made a timely objection to the amended indictment, which fell under the purview of harmless-error review. (39) As the Supreme Court had not expanded structural errors to include constructive amendments when presented with the issue, the First Circuit declined to do so. (40)

The First Circuit's analysis of Supreme Court precedent on structural errors was correct. (41) The Supreme Court has never included constructive amendments when listing recognized structural errors and has expressly declined the opportunity to do so. (42) While Stirone utilizes language that would indicate a constructive amendment is indeed a structural error, the case predates the Court's decision in Arizona v. Fulminante. (43) Fulminante redefined structural error, and today's Court would more likely...