Constitutional Law—First Circuit Rules Constructive Amendment of Indictment Not a Structural Error—United States v. Brandao, 539 F.3d 44 (1st Cir. 2008)

First Circuit Review 2009

Courts employ plain-error analysis when reviewing unpreserved errors in a criminal trial, but apply harmless-error analysis for errors preserved through objection.  Although most constitutional errors are subject to harmless-error analysis, certain so-called structural errors are reversible per se.  In United States v. Brandao, 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.  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. . . .