United States of America v. Deangelo Anderson

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

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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

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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.

AFFIRMED in part and REMANDED.