U.S. v. Brandao

Citation539 F.3d 44
Decision Date21 August 2008
Docket NumberNo. 07-1215.,07-1215.
PartiesUNITED STATES of America, Appellee, v. Angelo BRANDAO, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

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.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

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 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 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 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 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.

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 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...

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