U.S. v. Brandao

448 F.Supp.2d 311

UNITED STATES v. Angelo BRANDAO, Defendant.

Criminal No. 03-10329-PBS.

United States District Court, D. Massachusetts.

September 8, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald J. Snyder, Perkins, Smith & Cohen, LLP, Boston, MA, for Angelo Brandao.

Glenn A. Mackinlay, Donald L. Cabell, Boston, MA, for United States.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

Defendant Angelo Brandao moves on several grounds for acquittal, or alternatively for a new trial, following his convictions of racketeering, racketeering conspiracy, assault in aid of racketeering, and use of a firearm in relation to a crime of violence. After hearing and review of the briefs, the motions are DENIED.

II. BACKGROUND

A. Indictment

Defendant Angelo Brandao ("Brandao") was indicted, along with twelve others, for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et. seq., related to his alleged membership in a violent street gang known as Stonehurst that operated out of several areas of Massachusetts and Rhode Island. The government alleged that Stonehurst constituted a RICO enterprise and that its members shared several common purposes, namely to shoot and kill associates of a rival gang known as Wendover, to shoot and kill members of a rival gang known as Hunt Street, and "to protect and defend its members and associates from acts and threats of violence and to shoot and kill other people, with whom members and associates of the enterprise were engaged in violent or drug related disputes."¹ (Superseding indictment at 3.)

More specifically, defendant Brandao was indicted for racketeering ("substantive RICO") under 18 U.S.C. § 1962(c), racketeering conspiracy under 18 U.S.C. § 1962(d), numerous counts of violent crime in aid of racketeering ("VICAR") under 18 U.S.C. § 1959(a) and use of a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). Brandao was tried with another alleged Stonehurst member, Brima Wurie, who was charged with similar offenses, but was later acquitted of all charges because the jury found he was not a member of the enterprise.

Count One of the indictment charged Defendants with conducting a racketeering enterprise through a pattern of racketeering, in violation of 18 U.S.C. § 1962(c). Among the racketeering acts charged were Racketeering Acts 15 and 20. The superseding indictment reads as follows:

Racketeering Act Fifteen—the Murder of Luis Carvalho

21. On or about February 17, 2000, 2. BRIMA A. WURIE, a/k/a/ "BJ," the defendant herein, willfully, knowingly, and with deliberately premeditated malice aforethought, did shoot with a firearm Luis Carvalho with the intent to murder him, and by such shooting did kill and murder said Luis Carvalho, in violation of Massachusetts General Laws, Chapter 265, Sections 1 and 2, and Chapter 274, Section 2.

Racketeering Act Twenty—the Murder of Dinho Fernandes

26. On or about March 17, 1999, 1. Amando B. MONTEIRO, a/k/a "Manny" or "Suega," 5. ANGELO BRANDAO, and 8. LOUIS RODRIGUES, the defendants herein, willfully and knowingly did conspire to murder Dinho Fernandes, in violation of Massachusetts General Laws, Chapter 265, Sections 1 and 2, and Chapter 274, Section 7.

(Superseding Indictment at 11, 13-14.) Although Racketeering Act 20 is captioned "the Murder of Dinho Fernandes," the actual act charged is conspiracy to murder Dinho Fernandes.

In connection with Count One, Defendant was charged with three other racketeering acts: Racketeering Act 1, conspiracy to murder members of a rival gang known as Wendover; Racketeering Act 10, assault with intent to murder Antonio Dias; and Racketeering Act 11, assault with intent to murder Alcides Depina. Defendant was also charged with Count Two, racketeering conspiracy; Count Three, conspiracy to murder members of a rival gang known as Wendover; and Counts Fifteen through Eighteen and Thirty-three, various counts of committing violent crimes in aid of racketeering (VIAR) linked to the specific racketeering acts alleged.

B. Factual Background

When all reasonable inferences are drawn in the light most favorable to the verdict, as they must be on a motion for acquittal, the jury could reasonably have found the following facts based on the evidence introduced at trial. United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006) (standard for motion for acquittal). Stonehurst was a street gang in Dorchester, Massachusetts engaged in numerous shootings and at least one murder, aimed primarily at a rival gang called Wendover. The gangs consisted largely of the members of Cape Verdean community. Augusto Lopes, the government's cooperating witness, was the leader. Amando Monteiro was Lopes's best friend and a key member of Stonehurst. Louis Rodrigues was another member of Stonehurst. Lopes was with Monteiro at a gas station where they were working when Monteiro received a call from his cousin Brandao indicating that he had problems in Brockton. (Trial Tr. 3:64-65.) While not clear what the spat was, it involved a fight at a local high school which had nothing to do with the Stonehurst/Wendover rivalry. Brandao was not a member of Stonehurst at the time of the call.

Monteiro and Lopes picked up fellow Stonehurst associate Louis Rodrigues, and drove to Brandao's house in Brockton to help his cousin with his Stonehurst posse. (Id. at 67-68.) Brandao then led the others to Hunt Street and pointed out the target, after which he took them back to his house and gave Monteiro a gun. (Id. at 71, 75-79.) Monteiro, Lopes, and Rodrigues drove back to Hunt Street and gunned down the prey, Fernandes, and two others, and then returned to Brandao's house where Monteiro went inside and left the gun. (Id. at 78-79.) Fernandes died as a result of the shooting.

Lopes later saw the gun Monteiro used to shoot Fernandes at fellow Stonehurst member Jackson Nascimento's house. Lopes indicated his concern about the gun's possible linkage to several shootings. Nascimento removed the barrel from the gun, and Lopes threw the gun into a sewer. (Id. at 80-82.) The barrel of the gun was later found in Nascimento's apartment, and the rest of the gun was found in the sewer where Lopes had told agents he dropped it. Ballistician Sgt. Douglas Weddleton reconstructed the gun and test-fired it. He testified that, to a reasonable degree of ballistic certainty, the shell casings recovered from the scene of the Fernandes shooting "matched" the gun pulled from the sewer. (Trial Tr. 11:32-46.) Captain John Busa independently examined the shell casings and verified Sgt. Weddleton's conclusion. (Id. at 86.)

Brandao's role in the shooting was further corroborated by the testimony of State Trooper John Duggan and Boston Detective Mark Reardon. Duggan and Reardon interviewed Brandao after he was arrested for the shooting of Alcides Depina, for which Brandao was also charged in this 'indictment. Brandao allegedly was driving a car with Stonehurst member Manny Lopes. Lopes spotted Depina and exited the car and shot at him, but never connected. The car was later stopped, and the gun was found in a hide behind the glove compartment. Brandao was arrested. State Trooper Duggan began questioning Brandao about the Fernandes homicide. After first offering an alibi which Duggan knew was untrue, Brandao began to weep. When Duggan asked Brandao to describe his version of the events surrounding the Fernandes murder. Brandao responded, "What am I looking at, 25 to life? I can't do that time. Even if I tell you what happened I'm still looking at time." (Trial Tr. 5:138.) After Duggan told Brandao he knew of Gus Lopes's involvement, Brandao said, "I guess there's nothing left for me to do" and told Duggan someday he would tell him the whole story. (Id. at 140.) Although Brandao did not explicitly confess to the crime, these incriminating statements, along with the ballistics evidence, corroborate Lopes's testimony regarding the murder.

Summing up the connection between the Fernandes murder and Brandao's association with Stonehurst, the prosecutor stated in his closing argument:

What happened here, though? Angelo Brandao called his cousin, and who came down? Manny Monteiro, Augusto Lopes, and Louis Rodrigues, three members of Stonehurst, to whom Angelo Brandao gave a gun. He was enlisting their services. He was becoming a member. And after that, he went up to Boston and rode around looking for Wendover people with Augusto Lopes and did shootings against enemies of Augusto Lopes and Stonehurst. That's why this is a racketeering case.

(Trial Tr. 11:118.)

C. The Instructions and Convictions

The Court instructed the jury on February 7, 2006. The parties were provided with a draft of the instructions over a week before the case went to the jury, and the Court held two charge conferences to discuss the instructions, during which the parties lodged multiple objections. The jury was provided a redacted copy of the indictment for their deliberations and was required to answer questions on a special verdict form.

The jury instructions with respect to Racketeering Acts 15 and 20, involving the Luis Carvalho and Dinho Fernandes killings, described the charges as "murder on behalf of the enterprise." (Jury Instr. No. 30.) At no time before the jury was charged was the instruction on these racketeering acts objected to by any party.² As such, the Court instructed the jury on the crime of substantive murder under Massachusetts law, the elements of which are that the defendant committed an unlawful killing, with malice and deliberate premeditation. The jury was also read an instruction on aiding and abetting stating that a person "may also be guilty of committing a crime if that person aided and abetted in the commission of the crime." (Jury Instr. No. 31.) The instruction added that "the government must prove that the defendant consciously shared the other person's knowledge of the underlying criminal act and...