F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

P A U L J O S E P H R I C H T E R , D efendant-Appellant

. No. 14-30003

D.C. No. 9:13-cr-00023-DW M-1

OPI NI ON

A ppeal from the United States District Court for the District of Montana Donald W . Molloy , Senior District J udg e , Presiding

Arg ued and Submitted F ebruary 6, 2015—Seattle, W ashing ton

F iled April 2, 2015

B e fore: Carlos T. B ea and Mary H. Murg uia, Circuit J udg es, and W illiam Orrick, District J udg e. *

Opinion by

J udg e Orrick

* T h e Ho n o rab l e W i l l iam Orrick
, U n ited S tates District J u d g e f or th e No rth ern District o f

Calif o rn i a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. R I C H T E R 2

SUMMARY * *

Crim inal Law

Affirming a co n viction for felon in possession of a f i rearm, the panel held that waiver o f the rig ht to g ive a closing a rg ument may be implicit and inferred from counsel’s conduct, so long as there was a mea ning ful opportunity to request arg ument and the trial judg e does nothing to prevent counsel from g iving a closing arg ument.

The panel held that the defendant implicitly waived his rig ht to g ive a closing arg ument in this case, and that the evidence presented at trial w as sufficien t t o s upport the conviction.

COUNSEL

Michael Donahoe, Esquire (arg ued), Assistant F ederal Public Defender, F ederal Defenders of Montana, Hel e na B ranch Office, Helena, Montana, for Defendant-Appellant.

Paulette L

. Stewart, Esquire (arg u ed), O f fice of the United States Attorney , Helena, Montana, for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. R I C H T E R 3

OP INION

ORRI CK, District J udg e :

Paul J o seph Richter appeals h i s conviction for felon in possession o f a firearm that was rendered by the district court following a bench trial. He conten d s that there was insufficient evidence that he possessed th e f irearm and that the district court erred by failing to call for closing arg uments from the parties before rendering its g uilty verdict. W e have jurisdiction pursuant to 28 U.S.C. § 1 291. B ecause there was sufficient evidence to support Richter’s conviction and since he implicitly waived his r ig ht to g ive a closing arg ument, we affirm his conviction.

F acts and P rocedural History

Richter was c harg ed with being a felo n i n p ossession o f

a firearm. The superseding information, issued on Aug ust 30, 2013, reads as follows:

That on or about and between Aug ust 15, 2012, and continuing until October 20, 2012, in Missoula and Ravalli Counties, in the State and District of Montana, the defendant, PAUL J OSEPH RI CHTER, having bee n convicted

on December 18, 2007, of a crime punishable by imprisonment for a t e r m ex ceeding o ne y ear under the laws of the State of Montana, knowing ly and unlawful ly possessed, in a nd affecting interstate commerce, a firearm, that is a Taurus .454 c aliber revolver (seri al number RC634865), in violation of 18 U.S.C. § 922(g )(1).U N I T E D S T A T E S V

. R I C H T E R 4

I n pre-trial proc e eding s, Richter waived his rig ht to a jury trial.

On the day of trial, the parties did not g ive opening
statements. The g o vernm e n t called four witnesses, two o f whom are relevant here. Richter’s father, J ack, testified that the g un at issue ha d b ee n stolen from his son several y ears earlier and that his son had r e-discovered i t a t a pawnshop. After the sheriff’s department retrieved the firearm from the pawnshop, t h e f

a ther picked up the firearm f rom the sheriff

on Aug ust 15, 2012, and broug ht it to the father’s h ome. He
test i f ied that his son came over shortly thereafter, alone,
g rabbed the firearm, and walked out of the house with it in his hand.

Richter’s probation office r t h en testified that he a nd another officer searched Richter’s house on Monday
, October 22, 2012 in response to a report of a domest i c d i s t u r bance

over the w eekend. Richter was in jail a t t h e t ime of the search. His bedroom was locked. The probation officer telephoned Richter, who told him that there was a key to the be d r o o m i n a closet nex t to the b edroom. The p robation officer located the key
, searched the room , and found the firearm underneath Richter’s bed, l o a ded and in a holster. The p robation officer testified that he met with Richter at the jail the following d ay and that Richter admitted possessing the firearm.

After the g overnment rested, Richter’s counsel moved for

a judg ment of ac q u i t t a l u nder F ederal Rule of Criminal Procedure 29 for insufficient evidence. T he judg e denied the motion on the spot, noting the father’s testimony that Richter took the firearm and the probation officer’s testimony that the firearm was found under Richter’s bed.U N I T E D S T A T E S V

. R I C H T E R 5

Richter then called his only witness, Emily Kirschten, his fiancée. Sh e t e s t ified that she, n ot Richter, retrieved the firearm from h is father’s house. She said that she entered the house a nd, without seeing o r speaking to the father, picked up the firearm from the tabl e i n t h e kitchen, took it from the house, and placed it in the trunk o f her car. She state d t h at she intended to sell the firearm. Kirschten also testified that the fi r e arm was in her trunk at the time of the domestic disturbance a nd that she placed it under Richter’s b ed when he was taken to jail following the incident.

At the close of evidence, only a n hour and a half after the
t rial had beg un, the d istrict court judg e announced that he would take a r ecess. He asked whether either party wanted a statement o f finding s o f fact before the finding of g u ilty o r not g uilty
, as authoriz ed b y F e d e r al Rule of Criminal Procedure 23. B oth sides d eclined. F oll o w i n g a 3 1-minute
recess, the judg e returned to the ben c h and announced his judg ment, f

i n ding Richter g uilty of being a felon in possession.

I. Suf f iciency of

the Evidence

Richter arg ues that there was insufficient e vidence that he possessed the firearm. W e disag ree.

A. Standard of

Review

W e employ a two-step inquiry to determine whether there

was sufficient e v i d e nce to support a conviction. United States v. Nevils , 598 F

. 3d 1158, 1164 ( 9th Cir. 2010) (citing Jackson v. V

irginia
, 4 43 U.S. 307 (1979)). F irst, we review
t h e e v idence presented at trial in the lig ht most f avorable t o the prosecution. “This means that a court of appeals may notU N I T E D S T A T E S V

. R I C H T E R 6

u s u rp the role of the finder o f fact by considering how i t

w o u l d have resolved the conflicts, made the inferences, o r considered the evidence at tria l.” Id. (citation omitted).

“ Rather, when faced with a r ecord of historical facts t h at supports conflicting inferences a reviewing court must presume-even if it does not a ffi r m a t i vely a ppear in the record-that the trier of f

act resolved any such c o n f l i cts in favor of t h e prosecution, and must defer to that resolution.” Id . (internal quotation marks omitted).

Second, “after viewing the evidence in the lig ht most favorable to the p rosecution, the r eviewing court must determine whether this evidence, so viewed, i s a d e q uate to all o w any rational trier of fact to find the essential elements of the c rime bey ond a reasonable doubt.” Id. (citing J ackson
, 443 U .S. at 31 9 )

. T h e question is whether any rational trier of fact could h ave made that finding
, not whether we believe that the evidence presented at trial established g uilt bey ond a reasonable doubt. Id

.

B. Discussion

Viewed in the lig ht most favorable to the g overnment, the evidence presented at trial showed that Richter took possession o f the firear

m f rom his father’s house on Aug ust 15, 2012 and left the h ouse with the firearm in his hand. The probation officer found the firearm on Monday
, October 22, 2012 under Richter’s b ed in R i chter’s locked bedroom. Richter subsequently admitted to the probation officer that he possessed the firearm. That evidence is sufficient to sustain the verdict.

Richter a p p ears to arg ue that there was insufficient

e v i d ence because Kirschten provided an innocent ex p lanat i o nU N I T E D S T A T E S V

. R I C H T E R 7

for the firearm. B u t even a n “ equally plausible innocent

ex p lanation” is n ot sufficient to overturn a verdict. Nevils
, 598 F .3d at 1169 ( “At this step of Jackson
, we do not

co n strue the evidence in the lig ht most favorable to innocence, and therefore do n ot consider Nevils’s argu m e nt that there is an equally plausible innocent ex planation for the loaded firearms ly ing on and near his body

. ”). A n d
, suffice it to say , Kirschten’s testimony was not equally

plausible. 1

II. Closing Argum e nt

Richter asserts that the distri ct court judg e erroneously failed to a fford him the o pportu n i t y t o present a closing

a r gu ment and that this was structural error requiring a n e w trial. The g overnment arg ues that the district court judg e did
not err because Richter waived his rig ht t o g i v e a closing
arg ument. W e hold that, u nder the circumstances of this c ase, Richter implicitly waived his r ig ht to g ive a closing
arg ument.

A. Standard of

Review

Richter arg

ues that the district court had an oblig ation to

sua sponte c all for closing a r g ument. W e review this claim for “plain error” because Richter did n ot raise the issue before the d i s t rict court. F ed. R. Crim. P. 5 2(b); U nited States v

.

1 T h e district co u rt m ay h av e co n clu d ed th at K irsch ten ’ s cred ib ility w as

su sp ect f or v ario u s reaso n s, in clu d in g h er testim o n y th at th e f irearm w as in a h o l ster w

h en sh e retriev ed it f

ro m Rich ter’ s f

ath er’ s h o u se, w

h ich w as

co n trary to t

h e f ath er’ s testim on y ; h er testim o n y th at sh e h ad n o t so ld th e f irearm in th e t

w o m o n th s sin ce sh e ha d reco v ered it b ecau se sh e w as t r y in g t o f

in d w h o w o u ld p ay th e m o st f

o r i t; an d h er testim on y t

h at s h e h ad placed th e f

irearm u n d er R i c h ter’ s b ed ev en th o u g h sh e to ld th e p ro b atio n o f f icer th at th ere w ere n o f

irearm s in th e h o u se.U N I T E D S T A T E S V

. R I C H T E R 8

Prince
, 772 F .3d 1173, 1175 (9th Cir. 2014). “Under the plain

error standa r d of review, the appellant must show that: (1) there was error; (2) the error committed was p lain; (3) the

error affect e d s u b stantial rig hts; and (4) the error seriously affected the fairness, integ rity
, or public r eputation of judicial proceeding s.” United States v. Gonzalez-Aparicio
, 663 F .3d 419, 428 (9th Cir. 2011) (citations omitted).

B. Discussion

“The c onstitutional rig ht to assistance of counsel includes the rig h t for defense counsel to ‘make a closing summation to the jury .’” Unit e d S t ates v. Bell
, 770 F .3d 1 253, 1257 (9th Cir. 2014) (quoting Herring v. New Y ork
, 422 U.S. 853, 858 (1975)). However, a defendant can w aive the rig ht to present a closing arg ument. I n Bell , we held that a pro se defendant

ex p licitly waived the rig ht to present closing arg ument when he stated that he did “not consent to these proceeding s” a fter the distric t c o u r t told the parties before recess that it would hear closing arg uments when proceeding s re s u m ed, a nd the defendant then remained silent after the g o v e r n m e nt delivered its closing arg ument. B ell , 770 F .3d at 1256. W e ex p lained that:

Nothing in Herring or our precedents g ives a self-represented defendant a righ t to be affirmatively a

n d individually advised that he

or she h as a rig ht t o present a closing
arg ument. Rather, these cases held that a court may n ot prev e n t a litig ant from making a closing arg ument. B ell’s Six th AmendmentU N I T E D S T A T E S V

. R I C H T E R 9

rig ht was not violated because he was not precluded from making h is c losing ar gu ment and simply

chose to remain silent.

Id. at 1257.

Bell involved ex plicit waiver of the r i g ht to present a closing arg ument. This court has never squarely a d d r e s sed whether a p a r t y can implicitly waive the rig ht to g ive a closing arg ument. Several of o ur sister circuits have reached this questi o n a n d held that a waiver of the rig h t to p resent a closing arg ument may b e implicit and inferred from counsel’s silence so long as there w as a meaning ful opportunity for counsel to request arg

ument, considering the circumstances. S ee, e.g. , United States v. I gbinosun
, 528 F .3d 3 87, 3 9 1

– 9 2 (5th Cir. 2008); United States v

. S tenzel
, 4 9 F .3d 6 5 8, 661–62 (10th Cir. 1995); United States v. Spears
, 671 F .2d 991, 995 (7th Cir. 1982).

Igbinosun is factually similar to this case. After a bench trial, the a

ppellant was c onvicted of importing a controlled substance. Igbinosun
, 528 F .3d at 389. Neither side g ave an opening statement. I

d

. at 3 90. The trial judg e took a recess at the close of e vidence and then reconvened to announce the decision. Id

. The judg e did n ot a sk whethe r e i t h e r side wanted to make a closing statement, and neither party asked
to do so. Id

. The F ifth Circuit inferred the appellant’s w aiver of the rig ht to present c losing arg ument from t h e record,

ex p laining that “[ t] he critical fac t o r in deciding whether the silence o f c ounsel constitutes a waiver is whether t h er e w a s

a meaning ful opportunity f or counsel to request arg ument o r to object, considering all the attendant circumstances.” Id. at 391. As the court ex p lained:U N I T E D S T A T E S V

. R I C H T E R 10

B e cause there was a recess at the close of the evidence and prior to the verdict being rendered, defense counsel i n this case h ad time to collect his th o u gh ts, consult with his client, and decide whether a closing arg ument mig ht b e helpful. Ther e i s n o indication that the district c o u rt judg e was overbearing o r likely to cut counsel off if he asked to present arg ument when the judg e beg an to render her decision.

Id

. at 392. The court concluded that “ [ u ] nder these circumstances, the district court’s failure to permit I g binosun to make a closing arg ument was not plain error.” Id

.

W e now join our sister circuits and recog niz e that w aiver of the rig ht to g ive a closing a rg ument may be i mplicit a nd inferred from counsel’s c onduct, so l o n g as there was a meaning ful opportunity

for counsel to request arg ument and the trial judg e does nothing to prevent counsel from g iving a closing arg ument.

The backg round f

acts provide c ontex t for the waiver h ere. Richter w as represented by a n ex perienced criminal defense attorney , a Senio r L i t i gator with the F ederal Defender. The trial was quick, lasting less than two hours. Neither side g ave

an opening stateme n t. The evidence a n d leg al issues in the trial were straig

htforward.

At the c lose of evidence, the judg e announced that he would take a recess. H e asked whether either party wished to invoke Rule 23(c), under which, as the judg e ex plained to the parties, “if a party requests, before the f inding of g uilty or not g uilty
, th e C o urt must state its specific finding s of fact inU N I T E D S T A T E S V

. R I C H T E R 11

open court o r in a written decision or opinion.” Neither side invoked Rule 23(c). There was then a 31-minute recess before the judg e returned and announced his decision.

During the 3 1 -minute r ecess that followed, Richter’s counsel had the opportunity to collect h is thoug hts, c o n s ult with Richter, a

nd decide whether a closing arg ument mig ht be helpful. W hen the judg e returned, Richter’s counsel still did
not request a closing arg ument. Nor did Richter’s counsel object when the judg e beg a n to render the decision, move to strike the decision after it was rendered so that he could g ive his closing arg ument, or otherwise inform the judg e after the decision that he h ad intended to present a closing arg ument. After r ender i ng the decision and ex plaining sentencing procedures to Richter, the judg e asked if e i ther party h ad
any thing further to say . Richter’s counsel declined.

Richter’s counsel never asked to g ive a closing arg ument. I n lig ht of the short and uncomplicated t rial, foreg oing closing arg ument was a r easonable strateg y (the g overnment likewise d id not g ive a c losing arg u ment). The defe nse already had made and arg ued an u nsuccessful Rule 29 motion at the end of the g overnment’s case.

Richter’s counsel had meaning f ul opportuniti e s to request

a closing arg ument. G i v e n the judg e’s offer to provide his finding s of fact “ before the finding of g uilty or not g uilty
, ” the defense should have under s t o o d that the judg e was p r e p a ring to r ender his decision. Yet Richter’s counsel d i d
not state that he intended to g ive a c l o sing arg ument at that time, even a s he declined the judg e’s invitation for finding s of fact. There is no indi c a t i o n that the judg e would have prevented Richter from g iving one had he said that he wanted to do so.U N I T E D S T A T E S V

. R I C H T E R 12

I t may be preferable for a trial judg e affirmatively to ask whether the parties wish to g ive clo s i n g arg uments a nd
t h ereby avoid ambig uity as to whether waiver has occurr ed

. B ut there is no oblig ation to do so. W e conclude that Richter implicitly waived his rig ht to g ive a closing arg ument.

Conclusion

F or the foreg oing rea s o ns, w e AF F I RM Richter’s conviction for felon in possession of a firearm.

AF F IRMED

.