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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-4028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAMARCUS SHAQUAN ELLIS, a/k/a Mark B.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:21-cr-00273-FL-1)
Argued: March 17, 2026 Decided: July 20, 2026
Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee
joined. Judge Richardson wrote a dissenting opinion.
ARGUED: Joseph Edward Zeszotarski, Jr., GAMMON & ZESZOTARSKI, PLLC,
Raleigh, North Carolina, for Appellant. Lucy Partain Brown, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: W. Ellis
Boyle, United States Attorney, David A. Bragdon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 25-4028 Doc: 52 Filed: 07/20/2026 Pg: 2 of 32
NIEMEYER, Circuit Judge:
During Tamarcus Ellis’ four-day criminal trial on charges of drug trafficking, the
district court partially closed the courtroom for a portion of one witness’s testimony,
believing that the witness was being intimidated by a person or persons in the gallery. Ellis
objected and now contends on appeal that his conviction must be vacated due to a violation
of his rights under the Public Trial Clause of the Sixth Amendment, which, he argues, is a
structural error requiring a new trial.
We conclude that the closure was not trivial, as the government contends, and
therefore that the partial closure indeed implicated the Sixth Amendment’s Public Trial
Clause. We also agree with Ellis that a violation of the Public Trial Clause is a structural
error that would automatically require a new trial. But we conclude that in the
circumstances of this case, where the closure was partial as to persons excluded and
temporally limited, we apply a more relaxed test than that for a total closure of the
courtroom. Applying this test, we conclude that the district court properly found a
“substantial reason” for the partial closure, that the partial closure was no broader than
necessary, and that there were no reasonable alternatives. Accordingly, we affirm.
I
The applicable principles are now well established. The Sixth Amendment
guarantees that an accused in a criminal prosecution “shall enjoy the right to a . . . public
trial.” U.S. Const. amend. VI. This is a fundamental right that was prompted by the
“traditional Anglo-American distrust for secret trials,” which was informed by the abuse
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of such practices during the Spanish Inquisition and in England’s Star Chamber. In re
Oliver, 333 U.S. 257, 268–69 (1948). The right “embodies a view of human nature, true
as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective
functions more responsibly in an open court than in secret proceedings.” Estes v. Texas,
381 U.S. 532, 588 (1965) (Harlan, J., concurring). Indeed, “a presumption of openness
inheres in the very nature of a criminal trial under our system of justice.” Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It serves
particularly to promote values of having a fair trial, reminding prosecutors and judges of
their responsibility to the accused, encouraging witnesses to come forward, and
discouraging perjury. See Waller v. Georgia, 467 U.S. 39, 46 (1984). And thus the public
trial right is understood to protect “the rights of the public at large, and the press, as well
as the rights of the accused.” Weaver v. Massachusetts, 582 U.S. 286, 299 (2017).
Reflecting the fundamental value of open courts, the Supreme Court has considered
violations of the public trial right to be structural error, see United States v. GonzalezLopez, 548 U.S. 140, 149 (2006), as such an error “infect[s] the entire trial process,” Brecht
v. Abrahamson, 507 U.S. 619, 630 (1993). Any structural error belongs to a “very limited
class” of errors, Johnson v. United States, 520 U.S. 461, 468 (1997), that “necessarily
render[s] a trial fundamentally unfair” and thereby automatically requires a new trial, Rose
v. Clark, 478 U.S. 570, 577 (1986).
Nonetheless, the right to a public trial “is not absolute,” and “trial judges
have discretion to impose reasonable limitations on access to a trial when overriding
interests . . . are likely to go unprotected if closure is not employed.” Bell v. Jarvis,
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236 F.3d 149, 165 (4th Cir. 2000) (en banc) (emphasis added) (citing Waller, 467 U.S. at
45). Before “the right to a public trial may give way” to the total closure of a courtroom,
the Supreme Court requires that (1) the party seeking to close the hearing advance an
overriding interest that is likely to be prejudiced, (2) the closure be no broader than
necessary to protect that interest, (3) reasonable alternatives to closing the proceeding be
considered by the trial court, and (4) findings adequate to support the closure be made by
the trial court. Id. at 166 (citing Waller, 467 U.S. at 48); see also United States v.
Barronette, 46 F.4th 177, 193 (4th Cir. 2022).
While the Waller test addresses the total closure of a courtroom — the exclusion of
all persons except for the parties, lawyers, witnesses, and court personnel for the entire
hearing — a less demanding test applies to partial closures, where not all members of the
public are excluded or where an exclusion is temporally limited to a portion of the hearing
or both. This reflects the obvious fact that the values protected by a public trial are partially
served by the partially open courtroom. But a partial closure, nonetheless, may still
undermine the values served by the public trial guarantee, as it is not difficult to imagine a
situation in which excluding certain persons or closing a trial temporarily could still result
in a compromise of the values of an open courtroom.
Recognizing that partial closures implicate a defendant’s Sixth Amendment right,
albeit to a lesser extent than does a total closure, we have joined nearly every other court
of appeals in applying a modified, less stringent version of the Waller test to partial
closures. See United States v. Smith, 117 F.4th 584, 597 (4th Cir. 2024), cert. denied,
146 S. Ct. 92 (2025); see also Bucci v. United States, 662 F.3d 18, 23 (1st Cir. 2011);
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Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); United States v. Girard, __ F.4th __
, 2026 WL 1466305, at *3 (3d Cir. 2026); United States v. Osborne, 68 F.3d 94, 99 (5th
Cir. 1995); United States v. Simmons, 797 F.3d 409, 414 (6th Cir. 2015); United States v.
Farmer, 32 F.3d 369, 371–72 (8th Cir. 1994); United States v. Sherlock, 962 F.2d 1349,
1357 (9th Cir. 1989); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989); Douglas v.
Wainwright, 739 F.2d 531, 533 (11th Cir. 1984).
Under this less demanding version of the Waller test, “when a trial judge orders a
partial, as opposed to a total, closure of a court proceeding at the request of one party, a
‘substantial reason’ rather than Waller’s ‘overriding interest’ will justify the closure,
because a partial closure does not implicate the same secrecy and fairness concerns that a
total closure does.” Barronette, 46 F.4th at 191–92 (emphasis added) (cleaned up) (quoting
Farmer, 32 F.3d at 371); see also Smith, 117 F.4th at 597. “Those narrower exclusions
place a smaller burden on the interests protected by the public-trial right” than total
closures. Girard, ___ F.4th at ___, 2026 WL 1466305, at 3 & n.2 (collecting cases).
Nonetheless, when a partial closure is supported by a “substantial reason,” we still apply
the remaining three factors from the Waller test, determining whether “the closure [was]
no broader than necessary to protect [the] interest,” whether the trial court “consider[ed]
reasonable alternatives to closing the proceeding,” and whether it “ma[de] findings
adequate to support the closure.” Smith, 117 F.4th at 596–97 (quoting Waller, 467 U.S. at
48); see also Simmons, 797 F.3d at 414 (“All federal courts of appeals that have
distinguished between partial closures and total closures modify the Waller test so that the
‘overriding interest’ requirement is replaced by requiring a showing of a ‘substantial
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reason’ for a partial closure, but the other three factors remain the same” (emphasis
added)).
II
During the period from January through May 2021, Tamarcus Ellis was engaged in
the trafficking of substantial amounts of methamphetamine in the Greensboro, North
Carolina area. He was also allegedly involved in the murder, dismemberment , and burning
of a woman who had been working as a confidential informant for the government by
purchasing drugs from Ellis and others during the government’s investigation. The drugtrafficking conduct was prosecuted in this case, and the murder is being prosecuted in state
court.
After a four-day trial, Ellis was convicted of conspiracy to traffic in
methamphetamine and in actual trafficking of the drug. During the trial, the government
presented the testimony of seven witnesses, and Ellis presented six.
On the first day of trial, August 26, 2024, the government called Malcolm Russell
as its second witness. Russell had also cooperated with the government during its
investigation of Ellis by making controlled buys from Ellis and recording a telephone
conversation, and Russell knew Ellis and his operations. On direct examination, the
government asked Russell to explain his own involvement in drug dealing, his plea
agreement requiring his cooperation, and his dealings with Ellis. After Russell testified for
less than an hour, the court recessed for the day. At the conclusion of that day’s testimony,
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the district court told Russell’s counsel that it “hope[d] [that Russell] will speak up a little
bit tomorrow, project himself a little bit.”
When court reconvened the next morning, at 9:00 a.m. on August 27, the district
court advised counsel that the U.S. Marshals Service had reported a possible problem in
the courtroom the previous day:
THE COURT: So I received an early morning phone call from a member of
the Marshals Service relaying to me that certain court attendees yesterday
had perceived that visitors, ostensibly on behalf of the defendant — and it’s
great that you have visitors; I’m not discouraging that at all. But one or more
of that group of individuals, while the witness that will be returning to the
stand was testifying, clicked their teeth excessively in ways that could be
perceived as signaling disagreement with the testimony being elicited. So
we certainly don’t want that to affect or anything to affect the testimony of
any witness in this courtroom.
The district court then made inquiries, first asking government’s counsel if he had noticed
the issue. Counsel responded that he had “noticed that [Russell] was scared, and that his
testimony was very different than when he was prepped two weeks ago.” Counsel
explained further that he “was having to drag stuff out of him” and that he (counsel) “didn’t
understand what was going on until after we rested for the day [when] it came to [his]
attention there were some issues with regard to potential intimidation.” Russell’s counsel
then stated that he had noticed similarly that Russell had “seemed a little off up there.”
Further, Russell’s counsel also explained that, when, before the morning session, he asked
Russell “point blank” if he was “scared or anything,” Russell “didn’t really want to talk
about it” and was “very quiet.”
The district court then invited the Marshal to share what information he had
received, and the Marshal explained:
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I was alerted to my colleague . . . who was the one actually sitting behind the
defendant. He made me aware that while he was sitting there and the inmate
who was in custody was testifying, he kept hearing noises like clicking teeth,
kind of acting as if what he was saying was lying. Every time the guy would
say something, he would kind of pop his teeth, and he would rock back and
forth in the pew behind him. And he was unclear if the gentleman who was
testifying could see him or not. But it was enough to where he said he turned
to the side and had to look at the gentleman who was in the gallery to make
sure he knew he could hear him, and he was wanting him to stop doing that.
He’s been working for about ten years. He knows kind of what this guy was
probably trying to do, was at least letting him know he thought he was lying.
I didn’t get the indication he was trying to intimidate him, but he was
certainly trying to get his attention while he was testifying.
The court then announced, “Well, what I am inclined to do is simply to go forward
and finish this witness’s testimony without anybody in the courtroom. And then we can
open up the courtroom.”
When the court asked Ellis’ counsel if she had any objection, counsel responded
that she had not heard the “clicking” of teeth and that to conclude the clicking was an “overt
threat” was highly speculative. She then stated a “preference” for an open courtroom,
arguing that Ellis is “constitutionally allowed to have that.” Ellis’ counsel then took
particular issue with the exclusion of Ellis’ family, stating “[t]he exclusion of his wife and
daughter when they have not . . . been accused of doing anything inappropriate, we think
would not be appropriate, to seal the courtroom completely for this witness to testify.” The
court accommodated Ellis’ request and invited Ellis’ wife and daughter into the courtroom
to watch the proceedings. When the court asked counsel who else was waiting outside,
Ellis’ co-counsel replied, “[a]lso the stepfather.” The court then said, “Let’s keep
everybody else out. It’s kind of hard to cure the perception here. But when this witness is
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done, I’ll open up the courtroom and invite everybody else in, if there is an everybody else
that wants to come in.” Nonetheless, on the request of Ellis’ counsel, the court also allowed
counsel’s parents in the courtroom.
Thus, when Russell’s testimony resumed, the persons in the courtroom included
Ellis’ family members, defense counsel’s parents, government and defense counsel, the
court’s administrative staff, courtroom security, and the members of the jury.
As Russell took the stand to finish his testimony, the court stated that “for the
purposes of your testimony, I’ve limited the attendees to the courtroom. And so if you
perceived any issues when you testified, any expressions coming back from the gallery, I
don’t think you’ll see those people in here this morning.” Russell then completed his
testimony, which lasted about another hour.
At the conclusion of Russell’s testimony, the district court asked the courtroom
security officer, “I limited inclusion in the courtroom, and I just would like to note for the
record, did that end up being disagreed with by any visitors on behalf of the defendant?
Did anybody show up?” The officer replied, “No, not that I can say.” At that point, the
district court opened the doors of the courtroom for the remainder of the trial, stating,
“Anybody can come in who wants to.” The partial closure ended at 10:20 a.m.
After the jury convicted Ellis of conspiracy to traffic in drugs and drug trafficking,
the district court sentenced him to 480 months’ imprisonment.
From the district court’s judgment dated January 18, 2025, Ellis filed this appeal,
contending only that the district court’s partial closure of the courtroom violated his Sixth
Amendment right to a public trial, thus automatically requiring a new trial.
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III
The closure in this case was partial as to the persons excluded and limited temporally
to approximately one hour during the four-day trial. * The government thus contends that
the closure was so trivial that we need not analyze it as a Sixth Amendment violation. It
argues that trivial closures do not implicate the underlying purposes of the Sixth
Amendment’s public trial right guarantee and therefore do not require application of the
Waller factors. See Zornes v. Bolin, 37 F.4th 1411, 1417 (8th Cir. 2022) (collecting cases).
To be sure, courts have ruled that partial closures that were brief and inadvertent are
“trivial” and therefore do not implicate the Sixth Amendment. See, e.g., Peterson v.
Williams, 85 F.3d 39, 42–43 (2d Cir. 1996). They have also applied a “triviality” standard
to trials where the courts excluded members of the public for administerial reasons such as
seating capacity. See, e.g., United States v. Patton, 502 F. App’x 139, 141–43 (3d Cir.
2012) (concluding alleged courtroom closure was trivial where trial court excluded the
defendants’ family members during voir dire due to seating capacity).
In Peterson, which the government argues is persuasive here, the Second Circuit
explained that such a “triviality standard” looked to “whether the actions of the court and
the effect that they had on the conduct of the trial deprived the defendant — whether
*
The transcript shows that the court began on August 27, 2024 at 8:58 a.m., Tr.
168, and recessed at 10:20 a.m., Tr. 215 — an 82-minute morning session covering 47
transcript pages. During that morning session, Russell began testifying with the courtroom
partially closed at transcript page 181 and completed his testimony at transcript page 215,
at which time the court recessed and then reopened the courtroom. Thus, of the 47 pages
of transcript constituting the morning session, 34 pages were devoted to Russell’s
testimony, constituting 72 percent of the 47-page morning session and therefore
representing 59 minutes of the total 82-minute session — slightly less than one hour.
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otherwise innocent or guilty — of the protections conferred by the Sixth Amendment.”
85 F.3d at 42. And to make that assessment, the court considered “the values furthered by
the public trial guarantee,” including “(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.” Id. at 43 (citing
Waller, 467 U.S. at 46–47). Assessing the closure against those values, the court held that
an inadvertent continuation of a proper courtroom closing, which lasted approximately 20
minutes, which none of the participants in the trial noticed at the time, and which was
followed by a “helpful summation” of the closed testimony, was “too trivial” to amount to
a violation of the Sixth Amendment. Id. at 44; see also United States v. Perry, 479 F.3d
885, 890–91 & 91n.5 (D.C. Cir. 2007) (applying Peterson to conclude that the exclusion
of the defendant’s eight-year-old son did not implicate the values served by the Sixth
Amendment). Thus, “triviality” has been found when a closure was both “brief” and
“inadvertent,” thereby having a de minimis impact on the public trial values.
The closure here might have been sufficiently brief to fit the triviality model, but it
was certainly not inadvertent, as was the case in Peterson. But more importantly, we
cannot conclude that a deliberate, hour-long partial closure would categorically fail to
implicate, to some meaningful extent, the values that are protected by the Sixth
Amendment, as Peterson recognized. Moreover, the district court here did not perceive its
closure that way. Indeed, the court undertook to justify its closure based on the given
circumstances. And in addition, Ellis claimed at the time that his Sixth Amendment rights
were being violated. These circumstances hardly satisfy the triviality standard.
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Thus, we will treat the closure here as a partial closure, subject to the test generally
recognized for such closures. See Smith, 117 F.4th at 596–97.
IV
Under the Waller test as modified for partial closures, a court may partially close a
courtroom if (1) the party seeking to close the courtroom advances a substantial reason
justifying the closure; (2) the closure is no broader than necessary; (3) reasonable
alternatives to the closure were considered by the trial court; and (4) the court made
adequate findings to support the closure. See, e.g., Smith, 117 F.4th at 596–97.
As to the first factor, we must determine whether the closure was justified by a
“substantial reason.” The record here shows that the district court partially closed the
courtroom to both maintain order and protect a testifying witness from potential
intimidation. As the court explained, it had received a report from the U.S. Marshals
Service that one or more visitors in the gallery were “clicking” their teeth excessively and
were “rock[ing] back and forth in the pew” such that the conduct could be perceived as
“signaling disagreement” with the testimony, and the court expressed concern that the
behavior could “affect the testimony” of the witness. Indeed, when the witness took the
stand after the signaling had allegedly occurred and the court had partially closed the
courtroom, the court explained its concern to the witness, stating, “If you perceived any
issues when you testified [yesterday], any expressions coming back from the gallery, I
don’t think you’ll see those people in here this morning.”
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The court’s justification for the partial closure thus fell within the heartland of what
constitutes a “substantial reason” for the closure. Indeed, in Barronette, we recognized
that “maintaining order” and “preventing witness intimidation” were “overriding interests”
justifying even a total closure of the courtroom, which was a more demanding standard
than the “substantial reason” standard. 46 F.4th at 193. Moreover, “numerous [other]
courts . . . have upheld closure to protect testifying witnesses” from intimidation. United
States v. Addison, 708 F.3d 1181, 1187–88 (10th Cir. 2013) (collecting cases and noting
that “protecting the participants in a trial is an integral part of protecting the integrity of the
trial itself”).
Thus, we conclude that the partial closure was appropriately justified by a
substantial reason, as required to satisfy the first factor of the test with respect to partial
closures.
As to the second factor, we must determine whether the partial closure was no
broader than necessary. In this case, the district court excluded members of the public
potentially responsible for the intimidation but not those as to whom the court could be
assured were not so involved. The court thus allowed family members of the defendant
and family members of the defendant’s counsel to remain, but closed the courtroom as to
others. Moreover, the closure was limited temporally, lasting only an hour for the
completion of a particular witness’s testimony — the testimony that could have been
subject to intimidation. The information that the court received was that “court attendees”
“on behalf of the defendant” — “one or more of a group of individuals” — appeared to
have been “signaling disagreement with the testimony being elicited.” It would have been
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impractical and perhaps impossible the next day to identify those specific persons, as they
were unidentified members of the public. Moreover, the Marshal who had supplied the
information was not in the courtroom the next day to identify anyone. Thus, the court
reasonably observed:
Let’s keep everybody else out. It’s kind of hard to cure the perception here.
But when this witness is done, I’ll open up the courtroom and invite
everybody else in, if there is any everybody else that wants to come in.
In Barronette, we held that the partial reduction in the capacity of a courtroom was
no broader than necessary and “tailored to serve the interest of security and preventing
witness intimidation” where “many members of the public were still able to attend,” and
the jury, court personnel, attorneys and court reporter also remained in the courtroom.
46 F.4th at 194 (cleaned up). Similarly, here the district court’s limitation on access was
tailored to serve the interests of preventing witness intimidation, as the court permitted
members of the public who were certainly not involved in the intimidation to remain in the
courtroom. Moreover, in this case, there is no evidence that any member of the public was
actually excluded from the courtroom. When the court security officer was asked by the
court, “Did anybody show up?”, the officer replied, “No, not that I can say.”
In short, we conclude that the partial closure here was no broader than necessary to
protect against potential disruption and witness intimidation in the circumstances.
As to the third factor, we must determine whether reasonable alternatives to closing
the proceeding were available. When the district court was first confronted with the report
of potential witness intimidation and disruption, it considered a total closure, explaining
that it was “inclined to . . . finish this witness’s testimony without anybody in the
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courtroom.” After hearing from both parties, however, as well as the Marshal on duty that
day, the court accommodated Ellis’ request to admit both his family and his counsel’s
family. The court thus considered both a total closure and then the alternative of a more
selective closure. In doing so, the court also addressed the specific concern that “an
accused [be] at the very least entitled to have his friends, relatives and counsel present, no
matter with what offense they may be charged.” In re Oliver, 333 U.S. at 271–72 (footnote
omitted). In short, we conclude that the district court sufficiently satisfied this third factor.
Finally, as to the fourth factor, we must determine whether the district court made
adequate findings. This factor is designed to ensure that we can, on review, “determine
whether the closure order was properly entered.” Waller, 467 U.S. at 45 (quoting PressEnter. Co. v. Superior Ct. of Cal., 464 US. 501, 510 (1984)).
To be sure, the district court did not in a single iteration or in a formal manner make
findings of fact regarding potential witness intimidation and the limited closure.
Nonetheless, we conclude that the court expressed the basis of its conclusions during the
course of the process sufficiently to inform us of its reasoning and enable us to review its
decision.
After receiving specific information from the U.S. Marshals Service that persons in
the gallery were apparently signaling disagreement with the witness’s testimony, the court
made inquiries of both parties. During those inquiries, the government confirmed to the
court that the witness had seemed “scared” and that “his testimony was very different than
when he was prepped two weeks ago.” And Ellis’ own counsel stated, “I’m not doubting
something was observed,” but she asserted that she did not hear any “clicking.” The
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witness’s counsel, however, confirmed the government’s observation. He confirmed more
particularly that the witness had seemed “a little off up there” and stated that when he had
spoken with the witness before court that morning, the witness was very quiet, prompting
counsel to ask the witness “point blank,” “Are you scared or anything?” The witness
simply did not want to talk about it. And when the court made a further inquiry to the
Marshal who had relayed his colleague’s observations from the previous day, the Marshal
went into further detail, describing how the person or persons “clicked” their teeth or
“popped his teeth . . . and rolled back and forth in the pew.” In response to these facts —
statements from the Marshal, government’s counsel, defense counsel, and the witness’s
counsel, which the court accepted — the court announced:
Okay. Well what I am inclined to do is simply to go forward and finish this
witness’s testimony without anybody in the courtroom. And then we can
open up the courtroom.
In sum, prior to closing the courtroom, the district court sought the views of all
persons involved having information, and by hearing and accepting the multiple
perspectives, the court supported its decision with findings sufficient to allow us to
determine whether the closure was appropriate.
Moreover, the record shows that both the district court and the parties at the time of
the closure were aware of allegations that Ellis, during the course of his drug trafficking
activities, had been involved in the murder of another government informant to silence her.
Although the court did not reference that fact, it highlights the appropriateness of the
court’s concern.
* * *
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At bottom, we conclude that the district court’s partial closure for an hour during
this four-day trial was justified under the modified Waller framework for partial courtroom
closures. Accordingly, we hold that the closure did not violate Ellis’ Sixth Amendment
right to a public trial.
AFFIRMED
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RICHARDSON, Circuit Judge, dissenting:
The district court closed its courtroom to the public during the testimony of the
government’s cooperating witness. It found no fact. It never found intimidation likely
absent closure. And it never considered a single measure short of closure. Instead, acting
on a secondhand report that a single unidentified spectator had clicked his teeth during the
cooperator’s earlier testimony, the court barred the public from the rest of the witness’s
direct examination and the whole of his cross-examination. The Sixth Amendment’s
public-trial guarantee does not permit that shortcut.
But does that violation matter? The evidence supporting Tamarcus Ellis’s federal
drug-trafficking conviction was overwhelming. And Ellis is a bad man: A state-court jury
later convicted him of murdering and dismembering the body of a woman who served as
an informant for law enforcement. But neither the strength of the evidence nor Ellis’s
character can make this preserved error harmless. The denial of a public trial is structural
error. So even a defendant like Ellis receives a new trial when that right is violated. I
would vacate his conviction.
Despite our ultimate disagreement, I agree with much of my friend’s opinion for the
Court. We cannot ignore the closure on the theory that it was trivial, and the Majority
rightly says so. 1 And the Majority agrees that a violation of the public-trial right is
1
I need not resolve whether some de minimis exception to the Sixth Amendment’s
public-trial right exists—but cf. Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211, 240,
244–51 (4th Cir. 2024) (en banc) (Richardson, J., dissenting)—or whether the so-called
triviality doctrine instead marks the class of routine courtroom-decorum measures that
never implicate the right in the first place. See Bell v. Evatt, 72 F.3d 421, 433 (4th Cir.
(Continued)
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structural, demanding reversal when the error is preserved on direct review. I also take no
issue here with the Majority’s description of the Supreme Court’s test from Waller v.
Georgia, 467 U.S. 39, 48 (1984): Closing a courtroom demands that a sufficient interest
be shown to be genuinely at risk, that the closure be no broader than necessary, that the
district court consider reasonable alternatives to closing the proceeding, and that it make
findings adequate to support the closure. Our disagreement is narrow. It is whether the
court’s closure here survived that test. It did not.
I. BACKGROUND
Tamarcus Ellis stood trial on federal drug-distribution and conspiracy charges
arising partly from the sale of methamphetamine to a confidential informant, Heather
Stewart. [J.A. 1433] Before trial, the government informed the district court that Stewart
had been murdered—her burned, dismembered torso was left outside a Goldsboro, North
Carolina home—and that the State had charged Ellis with that killing. [J.A. 1172, 1434,
1441; S.A. 18–19; J.A. 504–06] After his federal drug-trafficking case, Ellis was convicted
in state court of murder and concealment of murder.
On the first afternoon of Ellis’s trial, the government called Malcolm Russell, a
cooperating defendant who testified that he had bought a kilogram of methamphetamine
from Ellis and interpreted a recorded call between the two as drug-related. [J.A. 132, 138–
1995) (“[A] defendant’s right to a public trial is not implicated by temporary limitation of
ingress and egress to the courtroom to prevent disturbance of the proceedings.”); see also
Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir. 1975) (holding that a bailiff’s temporary
refusal to allow people in or out of the courtroom “was entirely too trivial to amount to a
constitutional deprivation”).
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59] Russell was soft-spoken on the stand. But no one that day attributed his demeanor to
intimidation. When court recessed, the district court remarked only that it “hope[d]
[Russell] will speak up a little bit tomorrow, project himself a little bit.” J.A. 161. No
one—not the court, the government, Russell’s own attorney, nor the Marshals—said a word
about intimidation.
The next morning, in a closed courtroom, the district court reported “an early
morning phone call from a member of the Marshal’s Service relaying” that “certain court
attendees yesterday had perceived that visitors, ostensibly on behalf of the defendant,” had
“clicked their teeth excessively in ways that could be perceived as [signaling] disagreement
with the testimony being elicited.” J.A. 198.
The court then heard from three sources, none of whom had firsthand knowledge of
intimidation. The prosecutor said Russell “was scared, and his testimony was very
different than when he was prepped two weeks ago,” but conceded that he “didn’t
understand what was going on until after we rested for the day,” when “it came to [his]
attention there were some issues with regard to potential intimidation.” J.A. 198–99.
Russell’s attorney said his client “seemed a little off up there,” that he had asked Russell
“point blank: Are you scared or anything?” and that Russell “just didn’t really want to talk
about it or get into it.” J.A. 199–200. Deputy Marshal Ryan relayed what his colleague,
Deputy Goodwin—who did not address the court—had observed: A man in the gallery
would “pop his teeth” and “rock back and forth in the pew” when Russell testified, though
Goodwin “was unclear if the gentleman who was testifying could see him or not.” J.A.
200–01. Deputy Ryan then volunteered his own assessment: “I didn’t get the indication
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he was trying to intimidate him, but he was certainly trying to get his attention while he
was testifying.” J.A. 201. The district court itself acknowledged that it “really
couldn’t . . . hear what was going on.” J.A. 200.
Even so, the district court announced that it was “inclined . . . simply to go forward
and finish this witness’s testimony without anybody in the courtroom.” J.A. 201. Defense
counsel objected. She noted that counsel table, seated “right in front” of the gallery, “did
not hear any clicking”; that nothing makes teeth-clicking “an overt threat or known to be a
way to intimidate people”; that the court’s inclination to close the courtroom baked in “a
lot of speculation”; and that “[the] preference in trials is always for an open courtroom for
the defendant.” J.A. 201–02. She specifically objected to excluding Ellis’s wife and
daughter, and offered an innocent explanation for Russell’s demeanor: “[A]ny difference
in his testimony is because he’s under oath now.” J.A. 203.
The district court sent co-counsel to retrieve the wife and daughter from the hallway.
When co-counsel returned with them and reported that Ellis’s stepfather was also present,
the court ordered: “Let’s keep everybody else out. It’s kind of hard to cure the perception
here. But when this witness is done, I’ll open up the courtroom and invite everybody else
in, if there is an everybody else that wants to come in.” J.A. 203. Whether the order
permitted or excluded Ellis’s stepfather is genuinely unclear from the record, and the
parties dispute it. Compare Response Br. 19–20, with Reply Br. 12–14. What is clear is
that the order swept out at least two identifiable members of the public: defense counsel’s
parents, who had entered the courtroom that morning, were removed, and were readmitted
later, only after counsel asked to have them readmitted at a sidebar. As the court put it,
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“Apparently I kicked out the parents of our esteemed lawyer. Would you kindly invite
them back in?” J.A. 206.
Before Russell resumed his testimony, the district court told him: “[F]or purposes
of your testimony, I’ve limited the attendees to the courtroom. And so if you perceived
any issues when you testified, any expressions coming back from the gallery, I don’t think
you’ll see those people in here this morning.” J.A. 204. The court did not know who
“those people” might have been; it made no effort to identify the spectator that Deputy
Goodwin had described, to determine whether he was present that morning, or to caution
the gallery. Nor did it ever ask Russell—the only person who could say—whether he had
perceived anything at all.
With the public excluded, Russell completed his direct examination and his entire
cross-examination. The closure spanned roughly an hour of the trial day. See Majority
Op. at 10 n.*.
When Russell stepped down, the district court asked the courtroom security officer,
“[D]id [the limitation] end up being disagreed with by any visitors on behalf of the
defendant? Did anybody show up?” The officer answered, “No, not that I can say,” and
the doors were reopened for the rest of trial. J.A. 246.
The jury convicted Ellis of the drug counts but acquitted him of a related firearm
count. [J.A. 1090] The court later imposed a 480-month sentence. [J.A. 1378]
II. DISCUSSION
Start with what the government did not argue: It never argued that the closure
satisfied Waller—the test the Majority applies today. On appeal, it pressed one theory
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alone: that the closure was too trivial to implicate the Sixth Amendment. I don’t doubt
that we may affirm on any ground the record supports, and whether the closure satisfied
Waller was squarely raised, albeit by Ellis’s opening brief. But the government’s failure
to even address a straightforward argument raised by the appellant based directly on a
binding Supreme Court test is telling. 2
As the Majority and I agree that the government’s lone argument fails, I part ways
with my good friends on only one question: whether this closure survived Waller. It did
not. The right to an open courtroom “may give way in certain cases to other rights or
interests,” but “[s]uch circumstances will be rare . . . and the balance of interests must be
struck with special care.” Waller, 467 U.S. at 45. Waller thus requires four things: (1)
“the party seeking to close the hearing must advance an overriding interest that is likely to
be prejudiced,” (2) “the closure must be no broader than necessary to protect that interest,”
(3) “the trial court must consider reasonable alternatives to closing the proceeding,” and
(4) “it must make findings adequate to support the closure.” Id. at 48. 3
2
As the appellee, the government was free to defend the judgment on any ground
that the record supports. United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924);
Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982). But its choice to go all-in on triviality and
not brief Waller does not limit our ability to decide this case under Waller. See Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). At the same time, the government’s
silence is not a confession of error—we must be convinced that the closure violated Ellis’s
public-trial right. Cf. Sibron v. New York, 392 U.S. 40, 58 (1968) (even an express
confession of error does not “relieve this Court of the performance of the judicial function”)
(quoting Young v. United States, 315 U.S. 257, 258 (1942)); Fed. R. App. P. 31(c) (an
appellee who fails to brief loses argument rights, not the judgment).
3
When a closure is “partial” rather than total, we have relaxed the first
requirement—a “substantial reason” will do in place of an “overriding interest”—but the
(Continued)
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A.
Here, the first prong is unsatisfied. To be sure, preventing witness intimidation and
maintaining order are, in the abstract, interests that can justify limiting courtroom access.
See Barronette, 46 F.4th at 193. But Waller does not ask merely whether the trial court
could have invoked a valid category of interest; it asks whether that interest was shown to
be “likely to be prejudiced” in the case at hand. 467 U.S. at 48. It requires specificity and
substantiation. The concern must be “concrete,” and “the particular interest, and threat to
that interest, must ‘be articulated along with findings specific enough that a reviewing court
can determine whether the closure order was properly entered.’” Presley v. Georgia, 558
U.S. 209, 215 (2010) (per curiam) (quoting Press-Enterprise Co. v. Superior Court, 464
U.S. 501, 510 (1984)). 4 A “conclusory assertion” will not do. Id. at 216 (quoting PressEnterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986)).
relaxation ends there. United States v. Barronette, 46 F.4th 177, 191–93 (4th Cir. 2022);
United States v. Smith, 117 F.4th 584, 596–600 & n.12 (4th Cir. 2024) (evaluating the “trial
court’s implementation of the COVID-19 Protocol—which involved closing the trial
courtroom to the public and streaming a video feed of the trial proceedings into the public
viewing courtroom”—as a partial closing). Whether the district court’s closure should be
analyzed under a relaxed first-prong standard at all is a serious question. But I need not
address it, because this closure fails even the more forgiving test. So I will assume, as the
Court holds, that the presence of a “substantial reason” here would satisfy Waller’s first
prong.
4
In a sense, the Supreme Court here combines the first and fourth prongs. The first
demands a particular “interest that is likely to be prejudiced” while the fourth requires the
district court to “articulate” that interest along with “findings specific enough” for review.
Presley, 558 U.S. at 214–15 (cleaned up); see also Waller, 467 U.S. at 48 (noting that
generically stated interests can “result” in district court findings that are too “broad and
general” to justify closure).
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Measured against that standard, the record here does not establish that witness
intimidation was a real and present threat. A “generic risk . . . unsubstantiated by any
specific threat or incident” is not enough. Presley, 558 U.S. at 215. If anything, the record
establishes that everyone in the courtroom was unsure about whether Russell was
intimidated. The only account of the spectator’s conduct came secondhand via Deputy
Marshal Ryan, who relayed what Deputy Goodwin had told him. According to Deputy
Ryan, Deputy Goodwin himself “was unclear if [Russell] could see [the spectator] or not.”
J.A. 200–01. And Deputy Ryan’s own bottom line disclaimed the very premise on which
the closure rested: “I didn’t get the indication he was trying to intimidate him.” J.A. 201.
No one at counsel table, seated directly in front of the gallery, heard anything. J.A. 201.
And the one person who could have said whether he perceived a threat—Russell—was
never questioned by the court. Cf. Guzman v. Scully, 80 F.3d 772, 775–76 (2d Cir. 1996)
(finding a public-trial-right violation where the trial court never asked the witness “whether
he in fact felt intimidated” or “whether his fear, if genuinely held, was sufficiently wellfounded”).
What remains, then, is an inference of intimidation stacked on a questionable
characterization. That will not do. The prosecutor and Russell’s attorney told the court
that Russell had seemed “scared” and “a little off.” J.A. 198–99. The district court
described Russell merely as a witness who needed to “speak up a little bit tomorrow, project
himself a little bit,” J.A. 161, and the government reported only that the day had “slowed
down a little bit,” J.A. 165. The prosecutor conceded he “didn’t understand what was going
on until after [they] rested for the day,” when the intimidation theory was suggested to him.
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J.A. 198–99. Only after the Marshal’s early-morning phone call did a quiet witness become
an intimidated one. In the face of all this uncertainty, the court inferred that the
cooperator’s demeanor on the stand was a result of spectator intimidation. 5 But if we are
to make our own inferences, no prosecutor who has handled cooperating witnesses at trial
would be surprised that a previously emphatic cooperator gets squirrelly once on the
witness stand in a public trial. 6
The Majority leans on the allegation—later proved in state court—that Ellis
murdered and dismembered informant Heather Stewart, acknowledging that the district
court “did not reference that fact” but reasoning that “it highlights the appropriateness of
the court’s concern.” Majority Op. at 16. It’s true that we often infer a rationale or
supplement a district court’s stated reasons. See, e.g., United States v. Ferguson, 140 F.4th
538, 546 (4th Cir. 2025). But sometimes the law demands that the district court show its
work. An injunction must “state the reasons why it issued.” Fed. R. Civ. P. 65(d)(1)(A).
A sentence must come with an explanation adequate for review. See United States v.
5
The Sixth Circuit confronted something similar in United States v. Simmons.
There, the prosecutor told the court that a cooperating witness “might be intimidated” by
three of the defendant’s co-defendants seated in the gallery, and the court excluded them.
797 F.3d 409, 411–12 (6th Cir. 2015). The Sixth Circuit held that the district court
committed a Waller error—thus requiring a new trial—because it “asked no questions at
all” to verify the concern and never properly found that the asserted interest was actually
at risk. Id. at 414–16. The same is true here, except that here, the inquiry the court did
conduct undercut the intimidation theory. See J.A. 201 (“I didn’t get the indication he was
trying to intimidate him.”).
6
Indeed, Ellis’s counsel offered a version of this alternative explanation for
Russell’s behavior: “[A]ny difference in his testimony is because he’s under oath now.
It’s a lot bigger deal to get up there and lie.” J.A. 202–03.
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Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020). And a closure order sits in the same
category: The district court itself must articulate the interest, the threat to it, and findings
specific enough for review. Presley, 558 U.S. at 215. We ask whether the district court’s
stated reasons justified its order—not whether reasons we imagine might have. Measured
that way, the obligation went unmet. The district court articulated neither a substantial
interest likely to be prejudiced absent closure nor specific findings supporting closure.
That should end the matter. See Waller, 467 U.S. at 49 n.8 (rejecting an appellate
“post hoc assertion” that attempted to “satisfy the deficiencies in the trial court’s record”).
But beyond looking past the district court’s stated rationale, the Majority presupposes a
record supporting the district court’s unstated one. This record undercuts it: The only
marshal who spoke to the court disclaimed any indication of intimidation, and the one
person who could have confirmed the theory—Russell—was never asked. Nor does
Stewart’s murder fill the gap. The district court never mentioned it. A fact the court never
invoked cannot supply the findings it never made—still less overcome a record that points
the other way.
B.
Even indulging the premise that a substantial reason was present, articulated, and
supported by specific findings, the closure was broader than necessary and thus also fails
Waller’s second prong. Waller, 467 U.S. at 48. The reported problem was one man: a
single spectator who, by Deputy Goodwin’s account relayed secondhand through Deputy
Ryan, clicked his teeth and rocked in his pew. [J.A. 200–01] The tailored response would
have addressed that man (or explained why that could not be done). Instead, the district
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court announced a categorical rule—“Let’s keep everybody else out”—and then made
exceptions for Ellis’s wife and daughter and, later, counsel’s parents. Contrast Barronette,
where the necessary tailoring was apparent: a capacity limit set with courthouse security
and defense counsel, members of the public still in the courtroom, and a live audio feed to
an overflow room. 7 See 46 F.4th at 194. Here, the excluded public received nothing. And
as in Presley, “[n]othing in the record shows that the trial court could not have
accommodated the public.” 558 U.S. at 215.
The Majority contends that identifying the offending spectator “would have been
impractical and perhaps impossible,” because he was an unidentified member of the public
and the Marshal who supplied the information “was not in the courtroom the next day to
identify anyone.” Majority Op. at 13. But the Majority’s contention finds no support in
the district court’s remarks and nothing in the record shows that the court asked whether
Deputy Goodwin was available, or that identification was ever attempted and failed.
Nor can the Majority shore up this prong with its observation that “there is no
evidence that any member of the public was actually excluded.” Majority Op. at 14. Even
if true, 8 this fact cannot save the order. The violation lies in the unjustified order, not in
7
The tailoring is also apparent in light of the specific security concerns the district
court in Barronette cited, which “include[ed] fights in the gallery, knives being found in
the gallery, a table in the lobby of the courtroom being vandalized . . . the fact that
government witnesses in the case had been murdered, and an alleged request” from the
defendant “for people to pack the courtroom when government witnesses were testifying.”
46 F.4th at 188.
8
From the record, counsel’s parents were excluded pursuant to the order (though
allowed to return); on Ellis’s account, his stepfather was kept out as well; and the courtroom
security officer hedged his answer—“No, not that I can say,” J.A. 246—as to whether
anyone else was turned away.
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Ellis’s ability to provide a headcount of the spectators it turned away. So a defendant who
invokes the constitutional guarantee of a public trial need not prove that anyone was
actually removed or sought admittance. See Waller, 467 U.S. at 49 n.8; Weaver v.
Massachusetts, 582 U.S. 286, 296 (2017). Even if the district court’s closure had no
effect—that is, even if it were harmless—the error remains a structural one and thus
requires retrial.
C.
The Majority’s analysis also goes awry at Waller’s third prong. Trial courts bear an
affirmative obligation “to consider alternatives to closure even when they are not offered
by the parties,” and are “obligated to take every reasonable measure to accommodate public
attendance at criminal trials.” Presley, 558 U.S. at 214–15. And, in conjunction with the
fourth prong, the district court must “articulate” the considered alternatives along with
“findings specific enough” for review. See id. at 215; Press-Enterprise Co., 464 U.S. at
513.
Here, the record reflects no consideration of any alternative to closure. Upon
hearing the Marshal’s report, the court moved in a single breath to exclusion: “Well, what
I am inclined to do is simply to go forward and finish this witness’s testimony without
anybody in the courtroom.” J.A. 201. Between report and ruling, no alternative was
weighed. None was rejected. None was even mentioned. But non-burdensome
alternatives should have been obvious. The court could have admonished the gallery that
signaling of any kind toward the witness would result in immediate removal. It could have
attempted to identify or confirm the presence of the single offending spectator. It could
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have stationed a marshal in the gallery. But the district court mentioned none of these
measures and—a fortiori—failed to adequately explain the insufficiency of any of them.
The Majority reasons that the third prong is satisfied because the district court
“considered both a total closure and then the alternative of a more selective closure.”
Majority Op. at 15. That conflates the district court’s obligation to tailor the closure with
its independent obligation to consider alternatives to closure. Waller’s third prong requires
the court to consider “reasonable alternatives to closing the proceeding,” 467 U.S. at 48
(emphasis added)—measures short of a closure, whether partial or total—not to deliberate
among gradations of closure. On the Majority’s logic, a trial court could always satisfy the
third prong by announcing a maximal closure and bargaining downward. But that method
is contrary to the Supreme Court’s commands in Waller and Presley.
The government might have responded that our own precedent excuses the district
court’s failure. In Bell v. Jarvis, we said that once a trial judge settles on a limited closure
as the alternative to a total one, Waller does not oblige him “to invent and reject alternatives
to the proposed closure.” 236 F.3d 149, 169 (4th Cir. 2000) (en banc) (endorsing Ayala v.
Speckard, 131 F.3d 62, 71 (2d Cir. 1997) (en banc)). But Jarvis cannot save the closure
here, for two reasons. First, Jarvis was a federal habeas review of a state conviction. Thus,
we held merely that the state court’s decision was not “unreasonable” under § 2254(d),
reviewing only the result, “not whether the state court decision is well reasoned.” Id. at
159 (cleaned up). That is a ceiling on relief, not a statement of what Waller demands on
the de novo direct review we conduct today. Second, and dispositively, Presley came ten
years after Jarvis, and it holds—as a command, not a courtesy—that “trial courts are
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required to consider alternatives to closure even when they are not offered by the parties.”
558 U.S. at 214. Whatever the Jarvis/Ayala gloss once suggested, Presley settles it.
Because the district court considered nothing, it failed to satisfy this prong.
D.
Finally, as I’ve detailed in discussing the first three Waller prongs, the district court
ignored Waller’s command to “make findings adequate to support the closure.” Waller,
467 U.S. at 48. The problem is not form; it is substance. The district court didn’t find that
the spectator’s conduct actually constituted intimidation. It didn’t find that Russell saw or
heard the conduct. It didn’t find that Russell’s demeanor was caused by intimidation rather
than the occasion of his testimony. It didn’t find that the closure was no broader than
necessary. And it didn’t find that any measure short of closure would fail. The closest
thing to an explanation is a single aside: “It’s kind of hard to cure the perception here.”
J.A. 203. Whatever that sentence means, it fails to justify the closure order. 9 Cf. Simmons,
797 F.3d at 411–16 (vacating conviction where court excluded three spectators during a
cooperator’s testimony due to the prosecutor’s concern that the witness “might be
9
It’s true that in Jarvis we took a pragmatic view of the findings requirement,
declining to demand a “particular format” and permitting review of “facts of record which
fully support the decision.” 236 F.3d at 172–74. But this portion of Jarvis does not help
the Majority here for two reasons. First, its posture: As mentioned earlier, Jarvis was
federal habeas review of a state conviction, in which we were “mindful of the limited nature
of our inquiry.” Id. at 166. This is de novo direct review. Second, Jarvis involved a trial
judge who held a pretrial hearing on the State’s closure motion, made “a particularized
determination that closure is appropriate,” and “articulated the basic rationale,” such that
“additional ‘findings’ would be little more [than] a statement of the obvious.” Id. at 155–
56, 172–74. Nothing was obvious here.
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intimidated,” because the court “asked no questions at all” to substantiate that concern and
made no findings that the asserted interest was actually at risk).
Any one of these failures warrants vacatur. And since the violation of the publictrial right is structural, Ellis need not show that the closure actually changed anything about
the outcome of the trial. Weaver, 582 U.S. at 294–95; United States v. Mallory, 40 F.4th
166, 175 (4th Cir. 2022). I would thus apply the remedy prescribed by the Supreme Court:
vacatur of Ellis’s conviction and remand for a new trial.
* * *
I acknowledge that retrying a case that the government won convincingly would be
a steep remedy for a single hour’s closure. And I acknowledge that the evidence does little
to suggest that Ellis is a sympathetic figure. But Robert Bolt put the answer in Sir Thomas
More’s mouth in A Man for All Seasons: More would give even the Devil the benefit of
law, for the man who cuts down every law to get at the Devil could not stand upright when
the winds turned round on him. Robert Bolt, A Man for All Seasons, Act I, p. 147 (Three
Plays, Heinemann ed. 1967). Ellis was owed a public trial no less than any other defendant.
I respectfully dissent.
32