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Appellate Law

: Appellate Law and Practice

CA1: extensive discussion of RICO and structural characteristics of constructive amendment

By S. COTUS

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US v. Brandao, No. 07-1215 (8/21/08). This case has the phrase ?acknowledging the able advocacy by defense counsel.? We all know what this means. The client is going down. To jail. Well, he was poor, and there was a split in the circuits. Anyway, because I am on my way home from China, I don't have the time to give a good analysis of this, so whoever wrote this opinion gets a pass.

Anyway, this case hits on two of the difficult issues in criminal law. The First, resolves them in favor of the government.

Of general interest is the issue of whether the government can avoid a constructive indictment argument via notice found in the jury instructions. Alas, this is on plain error review. This is unpreserved, so the First says that it is not a structural defect (the Fourth, which never takes these things seriously, holds that it is is structural). The First says it isn't structural, because, well, the Supreme Court (in the First's mind) doesn't want to create new structural defects. So, whatever.

In a RICO indictment, there is (or should be) a "relatedness," and "pattern of racketeering activity" element(s). So, at some level when the government goes after the small fish, they have to prove that they have some knowledge of what is really going on. Anyway, the First says that the government proved its case. But, in looking at the facts it seems rather thin. Anyway, anyone that defends these cases is going to have to parse through the facts here, as the opinion reads more like something from a trial court. But, whatever, it as a gang case. The court distinguishes Reves v. Ernst & Young, 507 U.S. 170 (1993), which it says deals with ?outsiders? (i.e. the kind of people that have written contracts) as opposed to ?insiders.?

As usual, the First gives a green light to the prosecutor's closing arguments. Same deal with Brady material.

Full post as published by Appellate Law and Practice on August 24, 2008 (boomark / email).