United States v. Anderson, 16-3112

Citation881 F.3d 568
Decision Date02 February 2018
Docket NumberNo. 16-3112,16-3112
Parties UNITED STATES of America, Plaintiff–Appellee, v. Deangelo ANDERSON, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Benjamin W. Proctor, Attorney, Kelly B. Watzka, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for PlaintiffAppellee.

Christopher D. Donovan, Attorney, PRUHS & DONOVAN, S.C., Milwaukee, WI, for DefendantAppellant.

Before Easterbrook, Rovner, and Hamilton, Circuit Judges.

Rovner, Circuit Judge.

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 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 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 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 proceedings 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 , ––– U.S. ––––, 137 S.Ct. 1899, 1907, 198 L.Ed.2d 420 (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 reasonable 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, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (internal quotation marks omitted).

The Supreme Court in Johnson v. United States , 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (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 requiring the defendant to demonstrate plain error to obtain relief on unpreserved errors, and it applies to...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 1, 2020
    ..., 520 U.S. at 468–69, 117 S.Ct. 1544 ; Olano , 507 U.S. at 735, 113 S.Ct. 1770. We have done the same. See United States v. Anderson , 881 F.3d 568, 573 (7th Cir. 2018) ("[T]here is a question as to whether the third prong of the plain error test is met automatically in cases of structural ......
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1 books & journal articles
  • CLOSED COURTROOMS: SIXTH AMENDMENT AND PUBLIC TRIAL RIGHT IMPLICATIONS.
    • United States
    • Journal of Appellate Practice and Process Vol. 22 No. 1, January 2022
    • January 1, 2022
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