          United States Court of Appeals
                      For the First Circuit

No. 09-1889

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         LENARD CHRISTI,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before

                    Torruella, Circuit Judge,
                   Souter, Associate Justice,*
                   and Boudin, Circuit Judge.


     David A.F. Lewis for appellant.
     Randall E. Kromm, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                          June 19, 2012




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
              SOUTER,   Associate      Justice.        In    this    appeal    from

convictions for bank fraud, wire fraud (as well as conspiracy to

commit these offenses), and money laundering, Lenard Christi claims

insufficiency of the evidence to show anything more than his mere

(innocent)     presence    at   some    events    in   the    sequence    of    the

transactions charged, and abridgement of his Sixth Amendment right

to jury trial when the trial judge closed the courtroom doors

during jury instructions.        We affirm.

              In the course of a year and a half in 2000-2002, Christi

and a co-defendant, Robert Felleman, were associated in five

instances of depositing large checks (one for $15,000,000) in three

different bank accounts (the one involved here being in the name of

a   defunct    corporation),    and    then   writing       checks   against   the

resulting, ostensible account balances or requesting substantial

wire transfers from them.       In none of the five was the check good.

In this instance, one for about $320,000 from an entity called

Allied Building Products was deposited by mail in the corporate

account, seemingly endorsed over to the moribund entity by Christi,

the apparent payee.       Four days later, Christi and Felleman visited

a branch of the bank to arrange for a transfer to an account in

Taiwan of $220,000 from the balance stated after the deposit.

Felleman began a series of other withdrawals against the funds that

day, and on the next he and Christi went to the bank to withdraw a

further $20,000; four wire transfers were made from the supposed


                                       -2-
funds to payees in Nigeria, two of them arranged by Christi.

Subsequently the Allied Products check was dishonored as having

been altered and was returned unpaid; it had been written in the

amount of $268.96 and was not payable to Christi.              Felleman and

Christi   gave   disparate    accounts    of   the   transaction    and    were

subsequently indicted for conspiracy to commit bank and wire fraud,

18 U.S.C. § 371, bank fraud, 18 U.S.C. § 1344, wire fraud, 18

U.S.C. § 1343, and money laundering, 18 U.S.C. § 1957, Christi

being charged both as a principal and as aiding and abetting

Felleman’s activities.        Felleman negotiated guilty pleas, and

Christi was convicted.

             The scope of the issue of evidentiary insufficiency,

raised by claiming entitlement to acquittal that could have been

requested under Federal Rule of Criminal Procedure 29 on the bank

and   wire   fraud   and   laundering    charges,    is   subject   to    three

limitations, the first stemming from Christi’s failure to raise the

claim at trial.      At the close of the Government’s evidence his

counsel did make a Rule 29 motion, but on the ground that the

description of the wire fraud was not sufficiently distinct from

the laundering charge to satisfy the requirement that the source of

laundered money be a separate criminal activity known to the

defendant.     See United States v. Seward, 272 F.3d 831 (7th Cir.

2001). Here, however, he says nothing about this issue, but argues

instead that the evidence and its plausible implications fall short


                                   -3-
of supporting rational inferences of guilt beyond a reasonable

doubt. See United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009).

As a consequence, we review only for plain error, considering

whether submission of the three charges to the jury was erroneous,

plainly so, prejudicial, and compromising to the fairness and

integrity of the judicial proceeding. See United States v. Rivera-

Rivera, 555 F.3d 277, 285-86 (1st Cir. 2009).

           The appeal is limited and simplified, secondly, by the

fact that Christi does not contest the commission of the offenses

by Felleman.    It is therefore a given that the evidence shows that

he, at least, committed the two varieties of fraud and engaged in

the money laundering.

           Finally, Christi is forced to show that the evidence

failed to support a finding that he committed the offenses even by

aiding and abetting Felleman in his crimes, for Christi was charged

as an accessory as well as a principal with respect to each of the

substantive offenses.       That is, he must demonstrate that the

evidence   would   not   support   so    much   as    an   inference   that   he

“associated    with   [Felleman’s]      venture,     participated   in   it   as

something he wished to bring about, and sought by his actions to

make it succeed.”     See United States v. Colón-Muñoz, 192 F.3d 210,

223 (1st Cir. 1999).     This he cannot do.

           Christi argues that his status as innocent bystander is

a reasonable possibility owing to the facts that the endorsement on


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the Allied Products check was apparently not his signature, that

Felleman did most of the talking at the meeting to arrange the

$220,000 wire transfer, and that Felleman was the signatory on the

checks for smaller amounts drawn against the illegitimate deposit.

But there is too much inculpatory evidence to allow for any

conclusion, let alone a plain one, that it was unreasonable for the

jury to infer that he was taking part in an effort to bring the

fraudulent scheme to a successful end.

          To begin with, of course, he could hardly claim with a

straight face that he just happened to be accompanying Felleman in

his bank appearances, in light of the evidence associating him with

four other efforts involving phony checks and claims from non-

existent funds.    In fact, he described himself as Felleman’s

business associate and worked out of an office of the defunct

corporation, whose listed headquarters were apparently unpopulated

save for him (and presumably Felleman).   On his visit to the bank

when Felleman dominated the discourse his own remarks contributed

to an atmosphere of good-natured affability, and his presence would

have preempted any question the bank official might have had about

the regularity of the endorsement of the Allied Products check to

the corporation.   And while it is true that Felleman signed checks

drawn against the balance of the proceeds after the wire transfer

had been ordered, Christi actively arranged for at least two




                                -5-
subsequent wires of funds from the ostensible balance in the

account.

            If   that    were    not    enough,    Christi    nailed    down   the

Government’s     case    by     lying   about     the   circumstances     of   the

transaction in his inconsistent accounts afterwards.                   See United

States v. Polanco, 634 F.3d 39, 45 (1st Cir. 2011).                     When the

bank’s investigator asked about the apparently fraudulent series of

transactions, Christi did not deny knowledge of the deposit and

claimed that the funds supposedly represented by the check had come

from someone named Danlodi, to cover taxes due in connection with

a commercial development on the Caribbean Island of St. Kitts.

When the FBI first interviewed him, the ultimate source of the

funds had become a Nigerian lawyer, who had instructed that money

be wired to Taiwan.       And when the same FBI agent interviewed him

again over three years later, the transaction that generated the

Allied check involved Keystone Oil, acting through a Dutch engineer

named Christian Eze.

            In sum, a jury could reasonably find that Christi was

associated with Felleman in an effort to get money from a bank to

be wired to a foreign country for later disposition.                   The first

step was to cash a fraudulent check, replicating a series of

schemes too many in number to allow for doubt about Christi’s

knowledge   of   their    fraudulent      character.         His   presence    and

sociability lent a note of regularity to the meeting at the bank to


                                        -6-
arrange disposition of the bulk of the Allied Products funds, which

he himself depleted further by lesser wire transfers.             He admitted

his association with Felleman in a business conducted from a lonely

office in the name of a corporation that had disappeared, leaving

nothing behind but the name on a bank account receiving the

proceeds of fraud.       When exposure came he responded with serial,

clumsy lies meant to put a coating of legitimacy on the criminal

activity.      At the least, his actions amounted to association,

participation, and action aimed at the success of the scheme, and

thus to aiding and abetting Felleman’s fraud in getting and

disposing of the funds, if not to full principal involvement.

There was no error in the inferences of Christi’s guilt.

              Christi’s second claim of error goes to limiting public

access   to    the   courtroom   during    the   better   part   of   the   jury

instructions, but we think he waived any such claim.                  The court

apparently began the charge with the courtroom doors open, but

interrupted the proceeding with a short break for some clerical

task.    Before resuming, the judge notified spectators, who he

understood were waiting for the next case, that if they stayed they

would have to remain until the instructions were over, for he was

going to lock the door.          Christi’s lawyer made no objection and

made none later when counsel were invited to raise any objection to

the charge.      At the end of the afternoon and before any verdict,

when the jurors were about to leave for the night, the prosecutor


                                     -7-
approached the judge to mention the locked courtroom door and the

structural character of a defendant’s Sixth Amendment right to

public trial.     He replied to a question from the judge by saying

the Government had not been prejudiced, and a moment later stated

twice that no one had been adversely affected by closing the door

for the balance of the instructions.         He said that in his opinion

there was “no issue whatsoever” about it, but that he just wanted

a record on the matter.      Christi’s lawyer was there throughout the

exchange but spoke not a word on the record, except to bring the

colloquy to a close by saying that she had to leave for a prior

commitment.

          Even     though    his   lawyer    stood   silent   during     the

substantive     discussion   of    the    public   trial   right   and   the

significance of stopping traffic in and out during the charge,

Christi now says his Sixth Amendment right was violated when the

doors were locked.      If he had merely failed to object and the

court’s action had not otherwise been addressed, he could invoke

plain error review, see United States v. Scott, 564 F.3d 34, 37

(1st Cir. 2009), but the circumstances of defense counsel’s failure

to speak on the matter here shows that her silence passed beyond

inadvertence or passivity to the point of waiver.             Although the

trial judge did not in so many words request an affirmative

declaration of position from defense counsel in response to the

Government’s statement for the record, the exchange between the


                                    -8-
court and the prosecutor placed the subject matter unmistakably on

the table, and the defense’s silence is reasonably understood only

as signifying agreement that there was nothing objectionable.   The

court said to the two lawyers, “the issue . . . has to be raised by

someone who is adversely affected by it.”    This statement was the

practical equivalent of an express invitation to object, cf. United

States v. Jimenez, 512 F.3d 1, 6-7 (1st Cir. 2007), and defense

counsel had to know she was on the spot to speak up or waive any

claim.

          It is of no matter to this waiver analysis that a

violation of the Sixth Amendment public trial right is structural,

as distinct from merely trial error.    See United States v. Owens,

483 F.3d 48, 63 (1st Cir. 2007).     The structural character means

only that if Christi could now raise the issue he would not need to

show any particular prejudice if otherwise entitled to relief. See

id.   While there is some question whether Article III structural

error may be waived (that is, error in assigning certain Article

III judicial functions to a magistrate judge), that question arises

only because the values protected are substantially institutional

rather than individual, see Peretz v. United States, 501 U.S. 923,

937 (1991) (citing Commodity Futures Trading Comm’n v. Schor, 478

U.S. 833, 850-51 (1986)).   Indeed, In Peretz, the Supreme Court

expressly cited Levine v. United States, 362 U.S. 610, 619 (1960)

for the proposition that a failure to object to closing a courtroom


                               -9-
waives any claim of infringement to a right of public trial.1   The

Sixth Amendment claim having been waived, there is no occasion to

consider whether closing the doors in this case was objectionable

under Scott.

          Affirmed.




     1
      It is not significant, as Christi claims, that the public
trial right in Levine was provided by the Fifth Amendment Due
Process Clause, owing to the fact that the issue arose in a
criminal contempt proceeding, which is not a Sixth Amendment
“prosecution[].” As the Court explained, the values protected are
the same in each case. Levine, 362 U.S. at 616.

                              -10-
