Date: 02-07-2018

Case Style:

Case Number: 16-3112

Judge: Rovner

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Benjamin W Proctor, Joseph R Wall, Kelly Brown Watzka

Defendant's Attorney: Chris Donovan

Description: On September 23, 2014, a grand jury
returned a five-count indictment against Deangelo Anderson,
charging him in counts one and two with armed robbery of a
bank and brandishing a firearm in furtherance of a crime of
violence (i.e. the bank robbery), and in counts three, four and
2 No. 16-3112
five with unlawful possession of a firearm as a felon, possession
of crack cocaine with intent to distribute, and possession
of a firearm in furtherance of a drug trafficking offense. He was
tried before a jury on April 4 and 5, 2016, and on April 5 the
jury returned a verdict acquitting him of counts one and two,
and convicting him of counts three, four and five. The district
court sentenced him to 96 months’ imprisonment, comprised
of 36 months on counts three and four, to be served concurrently,
and sixty months on count five, to be served consecutively
to the sentence on counts three and four.
Anderson now appeals that conviction and sentence to this
court. He argues that he is entitled to a new trial because he
was denied his Sixth Amendment right to a public trial when
the proceedings continued beyond the hours when the
courthouse was open. In addition, he contests his sentence,
asserting that the district court based his sentence on an
erroneous understanding of the law.
The facts underlying Anderson’s conviction are largely
irrelevant to the disposition of his claims in this appeal, and
therefore we limit our discussion to a brief recap. On August
12, 2014, three masked individuals robbed a bank at gunpoint
in Milwaukee, Wisconsin, and fled with $4,737 in a white
Honda Civic with license plates 480-TNG. The next day,
Milwaukee police officers stopped that vehicle, of which
Deangelo Anderson was the driver and sole occupant. When
the officer approached the vehicle, Anderson fled in the car
and was pursued at high speed until he crashed into another
vehicle. He was eventually taken into custody, and a search of
the Civic revealed a bag containing 39 individually-wrapped
baggies of crack cocaine and a loaded 9mm pistol, as well as
No. 16-3112 3
red dye stains consistent with a dye pack planted with the
stolen money to explode.
The trial began on April 4, 2016, and concluded with a jury
verdict on April 5. After the verdict, Anderson filed a motion
for a new trial based on a claim that the trial court violated his
Sixth Amendment right to a public trial by allowing the trial to
proceed on both days beyond the time at which the courthouse
was locked for the night. The court denied the motion, and
Anderson appealed.
The first day of trial included jury selection, opening
statements, and the testimony of thirteen witnesses. Specifically,
the government solicited the testimony of: two employees
from the bank that was robbed; a citizen witness who
discovered dye-stained money on the street; a detective who
investigated the robbery; four police officers involved in the
chase, stop, and arrest of Anderson and the seizure of evidence
from his vehicle; a detective who interviewed Anderson after
his arrest; a forensic investigator who took photographs and
recovered dye samples from Anderson’s vehicle; a detective
involved in the recovery of dye-stained money who also
directed the forensic examiner’s work as to Anderson’s vehicle;
a forensic scientist who tested the dye evidence; and a forensic
investigator who processed the fingerprints and DNA as to the
firearm and plastic bag seized from Anderson’s car. The
testimony of the last three witnesses extended beyond the 5:00
p.m. time at which the doors to the courthouse—but not to the
courtroom—were locked. The detective’s testimony, which
regarded chain-of-custody matters, began at 4:58 p.m. and
ended at 5:21 p.m. He was followed by a forensic scientist, who
testified from 5:22 p.m. to 5:34 p.m. confirming that dye stains
4 No. 16-3112
in the Honda Civic contained chemicals commonly associated
with bank dye packs. Finally, the forensic investigator who
concluded the testimony for the day, testified on direct and
cross-examination from 5:38 p.m. to 6:18 p.m. regarding his
unsuccessful efforts to locate fingerprints and obtain DNA
from the firearm, ammunition and crack cocaine baggies
recovered from Anderson’s vehicle. Prior to the testimony of
each of the last two witnesses, the trial court held side-bar
conferences, but no objection to the testimony was raised at
those times.
On the following day, the government presented the
testimony of seven additional witnesses, and the court also
entertained closing arguments, followed by the jury instructions,
deliberations, and verdict. All of the witnesses testified
before 5:00 p.m. Closing arguments by the government began
at 4:01 p.m. and concluded at 4:38 p.m. The defense commenced
its closing arguments at 4:39 p.m., finishing at 5:21
p.m. The government rebuttal occurred from 5:22 p.m. until
5:38 p.m., and the court instructed the jury immediately
afterward. The jury retired to deliberate at 6:09 p.m., but the
court briefly went on record at 6:40 p.m. and again at 7:56 p.m.
to address notes from the jury. The jury reported a verdict at
9:16 p.m., and was discharged at 9:20 p.m.
The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” U.S. Const.
Amend. VI. Public trials are viewed as preserving the integrity
of the justice system, by deterring the use of the courts as a
means of persecution, encouraging unknown witnesses to
come forward, preventing perjury, and imbuing the proceedNo.
16-3112 5
ings with the gravitas and sense of responsibility that facilitates
a just process. See Walton v. Briley, 361 F.3d 431, 432 (7th Cir.
2004). A violation of the right to a public trial is a structural
error, and therefore if objected to at trial, can be reversed
without any need to show prejudice. Weaver v. Massachusetts,
137 S. Ct. 1899, 1907 (2017).
Anderson did not object at trial to the continuation of
proceedings beyond 5:00 p.m. Although the government
argues that Anderson thereby waived the argument, the
district court made no findings as to whether Anderson or his
counsel was aware that the courthouse would be locked at 5:00
p.m. At least as to the first day of trial, that awareness is not
obvious from the record, and therefore the issue is not waived.
By the second day of trial, however, Anderson’s counsel would
have been aware that the courthouse was locked. The security
guard had to unlock the door to allow the jury and defense
counsel to leave at the close of proceedings at 6:18 p.m. on the
first day of trial, and when defense counsel had to leave the
courthouse to fulfill his civic obligation to vote on the second
night, the guard had to let him out of the building and back
into it. Nevertheless, no objection was made during the trial.
Anderson alleges on appeal that, despite the failure to object,
automatic reversal is required because the error is structural
and was raised in the trial court in a post-trial motion.
We agree with the government that the plain error standard
set forth in Federal Rule of Criminal Procedure 52(b) applies in
this case. Under the plain error standard, “an appellate court
may, in its discretion, correct an error not raised at trial only
where the appellant demonstrates that (1) there is an error;
(2) the error is clear or obvious, rather than subject to reason6
No. 16-3112
able dispute; (3) the error affected the appellant's substantial
rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error
seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262
(2010) (internal quotation marks omitted).
The Supreme Court in Johnson v. United States, 520 U.S. 461,
466 (1997), held that the plain error standard applied to errors
for which no objection was made at trial, including structural
errors. Numerous other courts have applied the plain error
standard to unpreserved claims that the defendant was denied
the right to a public trial. See United States v. Negron-Sostre, 790
F.3d 295, 301 (1st Cir. 2015); United States v. Cazares, 788 F.3d
956, 966 (9th Cir. 2015); United States v. Gomez, 705 F.3d 68,
74–75 (2d Cir. 2013). That determination is consistent with the
plain language of Rule 52(b), and prevents the subversion of
the trial process that would result if an unpreserved structural
error were interpreted as guaranteeing an automatic reversal.
In such a scenario, defense counsel would have an incentive to
ignore the error and allow the trial to proceed to conclusion,
with the knowledge that the defendant has a free pass to a new
trial if the outcome is not favorable. As the Supreme Court
recognized, “the contemporaneous-objection rule prevents a
litigant from ‘sandbagging’ the court—remaining silent about
his objection and belatedly raising the error only if the case
does not conclude in his favor.” Puckett v. United States, 556
U.S. 129, 134 (2009). In addition, a court not apprised of a
potential error during trial is deprived of the opportunity to
correct its mistake and provide a trial that conforms with the
Constitution. Id. Rule 52(b) eliminates those dangers by
No. 16-3112 7
requiring the defendant to demonstrate plain error to obtain
relief on unpreserved errors, and it applies to structural errors
as well.
That said, there is a question as to whether the third prong
of the plain error test is met automatically in cases of structural
error. That prong requires that “the error affected the appellant's
substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings,” and
therefore is analogous to the harmless error standard which is
inapplicable to preserved claims of structural errors. Structural
errors are the type of errors that can be corrected on appeal
regardless of their effect on the outcome. United States v. Cotton,
535 U.S. 625, 632 (2002). The Supreme Court repeatedly has
reserved the question as to whether structural errors affect
substantial rights under that test regardless of any actual
impact on the trial. See Marcus, 560 U.S. at 263; Puckett, 556 U.S.
at 140; Cotton, 535 U.S. at 632. We need not decide that question
here, because even assuming that the third prong is met,
Anderson cannot demonstrate plain error because he fails
under the first two prongs of the test, in that he cannot establish
a clear and obvious error that violates the Sixth Amendment.
The Sixth Amendment right to a public trial is not an
absolute one that forbids any exclusion of spectators regardless
of context. In fact, courts have upheld the closure of the
courtroom in a number of circumstances, such as where
security or safety concerns require it. Peterson v. Williams, 85
F.3d 39, 42 (2d Circuit 1996); Presley v. George, 558 U.S. 209,
213–15 (2010). Moreover, we have recognized that some
exclusions of spectators from a trial simply do not rise to the
8 No. 16-3112
level of a violation of the right to public trial. Braun v. Powell,
227 F.3d 908, 918 (7th Cir. 2000). As we noted in Braun (adopting
the approach of Peterson), this triviality standard differs
from a harmless error assessment:
A triviality standard, properly understood, does
not dismiss a defendant’s claim on the grounds
that the defendant was guilty anyway or that he
did not suffer “prejudice” or “specific injury.” It
is, in other words, very different from a harmless
error inquiry. It looks, rather, to whether the
actions of the court and the effect that they had
on the conduct of the trial deprived the defendant—
whether otherwise innocent or guilty—of
the protections conferred by the Sixth Amendment.
Braun, 227 F.3d at 918, quoting Peterson, 85 F.3d at 42. In
assessing whether a closure rises to the level of a Sixth Amendment
violation, we consider the extent to which the closure
implicates the values underlying the public trial right: “(1) to
ensure a fair trial; (2) to remind the prosecutor and judge of
their responsibility to the accused and the importance of their
functions; (3) to encourage witnesses to come forward; and
(4) to discourage perjury.” Peterson, 85 F.3d at 43, citing Waller
v. Georgia, 467 U.S. 39, 46–47 (1984); Braun, 227 F.3d at 918. A
trivial violation that does not run afoul of those values will not
present a Sixth Amendment violation.
Anderson acknowledges those principles, but argues that
his case is governed by our decision in Walton, in which we
found a violation of the right to a public trial, and he urges the
No. 16-3112 9
same result here. 361 F.3d 431. In Walton, the trial court
conducted the first two sessions of the trial, encompassing the
entirety of the prosecutor’s case, after the courthouse had been
closed and locked for the night. Id. at 432. The proceedings
may have lasted until after 10:30 p.m. Id. at 433. There was no
question as to whether that action resulted in the exclusion of
spectators from the trial. Walton’s fiancée twice attempted to
attend his trial and was prevented from doing so, and a
confidential informant involved in the case was similarly
unable to attend the trial as a result of the locked courthouse.
Id. at 432. The district court found that the lateness of the hour
foreclosed the attendance of the public for the first two sessions
and that the entirety of the prosecutor’s evidence was thereby
closed to the public. Id. at 433. We held that those factual
findings were not clearly erroneous, and were sufficient to
demonstrate a violation of Walton’s right to a public trial. Id.
That case is starkly different than the one before us. The
district court in that case found that the entire presentation of
evidence by the prosecution occurred at a time in which the
public was not allowed to access the courtroom, and that
individuals who sought to attend were excluded. A trivial
exclusion is one that is limited in duration and scope, and the
exclusion in Walton was neither.
The Walton court explicitly recognized that the result might
be different in a situation such as is presented here. The Walton
court addressed United States v. Al-Smadi, 15 F.3d 153, 154 (10th
Cir. 1994), in which “the court was closed to the public simply
because the trial, which started when the courthouse was still
open, ran late,” and held that “we make no finding as to
10 No. 16-3112
whether or not the facts in Al-Smadi would constitute a Sixth
Amendment violation in this Circuit.” Walton, 361 F.3d at 433
n.1. That issue was therefore reserved in Walton, not preordained
by it.
In contrast to the facts in Walton, here there was no total
exclusion of spectators from the court, nor did the locking of
the courthouse impact a significant portion of the case. The
doors of the courthouse were locked at 5:00 p.m. as part of the
security measures for the courthouse. The doors to the courtroom
itself remained open, and any persons who were in the
building prior to 5:00 p.m. could attend the trial in its entirety.
Nor did the lateness of the hour render that unlikely. On the
first day of the trial, the testimony extended for just over an
hour past 5:00 p.m., terminating at 6:18 p.m. Although Anderson
points to the testimony of three witnesses that extended
beyond 5:00 p.m. that day, the testimony of the first witness
began prior to 5:00 p.m. and ended at 5:21 p.m. Anyone
wishing to be present for that testimony could have heard it by
arriving when that testimony began at 4:58 p.m. Potential
spectators arriving after 5:00 p.m. would have heard little of
the testimony regardless, as they would have to navigate the
normal courthouse electronic security and proceed to the
courtroom, and the testimony ended at 5:21 p.m. The only
potential impact was on the ability to attend the testimony of
the forensic witnesses who testified from 5:22 p.m. to 6:18 p.m.,
and Anderson does not even argue that their testimony
concerning the chemicals used in dye packs and the inability to
obtain fingerprint or DNA evidence was a significant part of
the trial. See Gonzalez v. Quinones, 211 F.3d 735, 739 (2d Cir.
2000) (noting that any exclusion during a chemist’s testimony
No. 16-3112 11
would be trivial because “the testimony … was brief (under 20
minutes), perfunctory, and uncontested”).
Similarly, the closing arguments in the case began well
before the courthouse doors were locked at 5:00 p.m. The
government concluded at 4:38 p.m., and defense commenced
at 4:39 p.m. As the defense concluded by 5:21 p.m., anyone
seeking to attend presumably would have entered the building
by 5:00 p.m. Only the government rebuttal, and the subsequent
jury instructions, response to questions, and announcing of the
verdict, occurred after 5:00 p.m. It is an insignificant possibility
that persons would seek to attend the trial only to witness the
government rebuttal and subsequent jury interaction.
And as the district court noted, Anderson “makes no claim
that any spectators present in the courtroom were required to
leave at 5:00 p.m., that anyone tried to attend after 5:00 p.m.
but could not get in, or that anyone was actually excluded from
the courtroom at any time.” Therefore, we are not presented
with a case in which friends or relatives of the defendant, or
anyone else for that matter, were actually excluded because the
courthouse was locked at 5:00 p.m. See In re Oliver, 333 U.S.
257, 271–72 (1948) (noting that all courts have held that a
defendant is entitled to have friends and relatives attend his
trial); Braun, 227 F.3d at 917 (same); United States v. Perry, 479
F.3d 885, 890–91 (D.C. Cir. 2007). We noted in Braun that, in
assessing the values protected by the right to a public trial, it
was “not without significance” that the exclusion did not
involve a relative or friend of the defendant. 227 F.3d at 919. In
fact, it is not even clear that there was any effective closure at
all in this case, as opposed to more stringent security measures
to navigate prior to observing the trial. Although the court12
No. 16-3112
house is locked at 5:00 p.m. as a security measure, the facts in
this case indicate that a guard was available to allow persons
access to and from the courthouse after hours. A court security
officer was present in the building, because the officer let the
jury and defense counsel out of the building at the end of the
first day after the doors were locked. And on the second day,
the security officer let defense counsel out and back in to the
courthouse after hours when defense counsel had to leave after
5:00 p.m. to vote. If a guard was indeed available to provide
access, then the requirement to go through that guard to enter
the building would not be constitutionally different than the
requirement to go through electronic security in the courthouse
during the normal operating hours prior to proceeding to the
courtroom. But we do not have any factual findings by the
district court as to the availability of that access generally, so
we do not base our decision on that.
Nevertheless, the closure in this case was a minimal one
because anyone in the building before 5:00 p.m. could attend
the trial in its totality, and there were only minimal proceedings
after 5:00 p.m. In that respect, it was critically different
than the after-hours scenario addressed by the First Circuit in
United States v. Candelario-Santana, 834 F.3d 8 (1st Cir. 2016). In
that case, the trial court faced a witness who was reluctant to
testify in open court, but who rejected both the government’s
offer to relocate the witness and the court’s offer of protection.
Id. at 21. The court held an in-chambers conference at 5:20 p.m.
to address the issue. Id. at 20. At that time, the courthouse itself
was already closed to the public because it was after 5:00 p.m.,
although the courtroom remained open. Id. at 22. The court
then devised a plan whereby the court security officers would
No. 16-3112 13
announce that the court was adjourning for the day, and
would then resume with the witness once the court was
vacated, with the witness being allowed to face away from the
defendant and to identify the defendant using a photograph.
Id. at 21. Over defense counsel’s objection, the plan was
implemented. The First Circuit held that “[a]lthough the doors
to the actual courtroom remained unlocked, the announcement
that the court was adjourning, the attorneys’ feint at packing
up, and the after-hours time at which the court reconvened
effected a closure … [and] [b]ecause nothing in the record
suggests that any part of the proceeding remained open or any
member of the public remained, it was a complete closure.” Id.
at 23. The closure was deliberate rather than inadvertent and
the trial court failed to consider the Waller factors in enacting
the closure including the identification of an overriding
interest, and therefore the First Circuit concluded that the
closure violated the Sixth Amendment. Id.
In contrast to Candelario-Santana, there was no effort to close
the courtroom in this case to anyone who was there at or after
5:00 p.m. or to anyone who was in the building at 5:00 p.m. or
who gained access to the building after that time. The proceedings
which occurred after 5:00 p.m. were minor in the trial as
a whole. The impact on the ability of anyone to attend the trial
was therefore limited in scope and short in duration, and at no
time did it present a total prohibition on the ability of either the
public as a whole or any individual to attend. We simply
cannot conclude that the partial closure of only the outside
doors in this case, with the trial still accessible to those in the
building and with relatively minimal proceedings after closure,
implicated the values of the Sixth Amendment such as ensur14
No. 16-3112
ing a fair trial, reminding the prosecutor and judge of their
responsibility, encouraging witnesses to come forward, and
discouraging perjury. Peterson, 85 F.3d at 43, citing Waller, 467
U.S. at 46–47; Braun, 227 F.3d at 918. In light of the law in this
area establishing that trivial violations do not run awry of the
Sixth Amendment, Anderson has failed to demonstrate an
error that is “plain” or “obvious” as required under the plain
error standard.
Certainly, district court judges seeking to continue criminal
proceedings beyond the closing hours of a courthouse should
ensure that members of the public have a means of access to
that courthouse. In some cases, such as in Walton, the failure to
do so will violate the Sixth Amendment. The closure in this
case was trivial and did not violate those Sixth Amendment
rights, but to avoid such questions in the future, the court
should ensure that some means of access to the courthouse is
available for trials that run after hours.
Anderson raises a challenge to his sentence as well, arguing
that he is entitled to a new sentencing hearing because of the
Supreme Court’s decision in Dean v. United States, 137 S. Ct.
1170 (2017). At sentencing, the defendant asked the district
court to offset the consecutive term that was statutorily
mandated by § 924(c) by reducing the term of imprisonment on
the other charges. The court stated that “the argument Defendant
makes here is in some tension with cases like … Roberson
… and … Ikegwuonu … which hold that sentencing Judges may
not reduce a prison term for an underlying crime to offset the
consecutive term that is Statutorily mandated for filing 924(c).”
Transcript of Sentencing at 27. Subsequent to sentencing,
No. 16-3112 15
however, United States v. Roberson, 474 F.3d 432 (7th Cir. 2007),
and United States v. Ikegwuonu, 826 F.3d 408 (7th Cir. 2016),
which reaffirmed Roberson, were abrogated by the Supreme
Court’s decision in Dean, which holds that sentencing courts
may consider a mandatory minimum sentence when choosing
the appropriate sentence for the predicate offenses. See United
States v. Fox, 878 F.3d 574, 579–80 (7th Cir. 2017); United States
v. Wheeler, 857 F.3d 742, 745 (7th Cir. 2017).
There is some ambiguity in the sentencing hearing as to
whether the district court nonetheless considered the mandatory
sentence in determining its sentence despite its recognition
that Roberson controlled, but we cannot be certain that the
Roberson holding did not impact the sentence. To the extent
that the district court felt bound in its sentencing by our sinceabrogated
decision in Roberson, a limited remand is appropriate
to ascertain whether the district court would be inclined to
sentence Anderson differently in light of the Supreme Court’s
decision in Dean. Cf. United States v. Paladino, 401 F.3d 471,
483–84 (7th Cir. 2005); see Wheeler, 857 F.3d at 745 (noting that
resentencing would be necessary “[i]f there were some reason
to think that the district court had felt compelled by Roberson
to set [the defendant’s] total sentence at 228 months rather than
a shorter term”).
We therefore order a limited remand so that the district
court can determine whether it would have imposed the same
sentence on Anderson, knowing that it can consider the
16 No. 16-3112
mandatory sentence in light of Dean. We shall retain jurisdiction
over this appeal pending the district court’s response to
our inquiry.

Outcome: AFFIRMED in part and REMANDED.

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