FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL JOSEPH RICHTER,

Defendant-Appellant.

No. 14-30003

D.C. No.

9:13-cr-00023-DWM-1

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Senior District Judge, Presiding

Argued and Submitted

February 6, 2015—Seattle, Washington

Filed April 2, 2015

Before: Carlos T. Bea and Mary H. Murguia, Circuit

Judges, and William Orrick, District Judge.*

Opinion by Judge Orrick

* The Honorable William Orrick, United States District Judge for the

Northern District of California, sitting by designation.
2 UNITED STATES V. RICHTER

SUMMARY**

Criminal Law

Affirming a conviction for felon in possession of a

firearm, the panel held that waiver of the right to give a

closing argument may be implicit and inferred from counsel’s

conduct, so long as there was a meaningful opportunity to

request argument and the trial judge does nothing to prevent

counsel from giving a closing argument.

The panel held that the defendant implicitly waived his

right to give a closing argument in this case, and that the

evidence presented at trial was sufficient to support the

conviction.

COUNSEL

Michael Donahoe, Esquire (argued), Assistant Federal Public

Defender, Federal Defenders of Montana, Helena Branch

Office, Helena, Montana, for Defendant-Appellant.

Paulette L. Stewart, Esquire (argued), Office of the United

States Attorney, Helena, Montana, for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. RICHTER 3

OPINION

ORRICK, District Judge:

Paul Joseph Richter appeals his conviction for felon in

possession of a firearm that was rendered by the district court

following a bench trial. He contends that there was

insufficient evidence that he possessed the firearm and that

the district court erred by failing to call for closing arguments

from the parties before rendering its guilty verdict. We have

jurisdiction pursuant to 28 U.S.C. § 1291. Because there was

sufficient evidence to support Richter’s conviction and since

he implicitly waived his right to give a closing argument, we

affirm his conviction.

Facts and Procedural History

Richter was charged with being a felon in possession of

a firearm. The superseding information, issued on August 30,

2013, reads as follows:

That on or about and between August 15,

2012, and continuing until October 20, 2012,

in Missoula and Ravalli Counties, in the State

and District of Montana, the defendant, PAUL

JOSEPH RICHTER, having been convicted

on December 18, 2007, of a crime punishable

by imprisonment for a term exceeding one

year under the laws of the State of Montana,

knowingly and unlawfully possessed, in and

affecting interstate commerce, a firearm, that

is a Taurus .454 caliber revolver (serial

number RC634865), in violation of 18 U.S.C.

§ 922(g)(1).
4 UNITED STATES V. RICHTER

In pre-trial proceedings, Richter waived his right to a jury

trial.

On the day of trial, the parties did not give opening

statements. The government called four witnesses, two of

whom are relevant here. Richter’s father, Jack, testified that

the gun at issue had been stolen from his son several years

earlier and that his son had re-discovered it at a pawnshop. 

After the sheriff’s department retrieved the firearm from the

pawnshop, the father picked up the firearm from the sheriff

on August 15, 2012, and brought it to the father’s home. He

testified that his son came over shortly thereafter, alone,

grabbed the firearm, and walked out of the house with it in

his hand.

Richter’s probation officer then testified that he and

another officer searched Richter’s house on Monday, October

22, 2012 in response to a report of a domestic disturbance

over the weekend. Richter was in jail at the time of the

search. His bedroom was locked. The probation officer

telephoned Richter, who told him that there was a key to the

bedroom in a closet next to the bedroom. The probation

officer located the key, searched the room, and found the

firearm underneath Richter’s bed, loaded and in a holster. 

The probation officer testified that he met with Richter at the

jail the following day and that Richter admitted possessing

the firearm.

After the government rested, Richter’s counsel moved for

a judgment of acquittal under Federal Rule of Criminal

Procedure 29 for insufficient evidence. The judge 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.
UNITED STATES V. RICHTER 5

Richter then called his only witness, Emily Kirschten, his

fiancée. She testified that she, not Richter, retrieved the

firearm from his father’s house. She said that she entered the

house and, without seeing or speaking to the father, picked up

the firearm from the table in the kitchen, took it from the

house, and placed it in the trunk of her car. She stated that

she intended to sell the firearm. Kirschten also testified that

the firearm was in her trunk at the time of the domestic

disturbance and that she placed it under Richter’s bed when

he was taken to jail following the incident.

At the close of evidence, only an hour and a half after the

trial had begun, the district court judge announced that he

would take a recess. He asked whether either party wanted a

statement of findings of fact before the finding of guilty or

not guilty, as authorized by Federal Rule of Criminal

Procedure 23. Both sides declined. Following a 31-minute

recess, the judge returned to the bench and announced his

judgment, finding Richter guilty of being a felon in

possession.

I. Sufficiency of the Evidence

Richter argues that there was insufficient evidence that he

possessed the firearm. We disagree.

A. Standard of Review

We employ a two-step inquiry to determine whether there

was sufficient evidence to support a conviction. United

States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (citing

Jackson v. Virginia, 443 U.S. 307 (1979)). First, we review

the evidence presented at trial in the light most favorable to

the prosecution. “This means that a court of appeals may not
6 UNITED STATES V. RICHTER

usurp the role of the finder of fact by considering how it

would have resolved the conflicts, made the inferences, or

considered the evidence at trial.” Id. (citation omitted). 

“Rather, when faced with a record of historical facts that

supports conflicting inferences a reviewing court must

presume-even if it does not affirmatively appear in the

record-that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution.” 

Id. (internal quotation marks omitted).

Second, “after viewing the evidence in the light most

favorable to the prosecution, the reviewing court must

determine whether this evidence, so viewed, is adequate to

allow any rational trier of fact to find the essential elements

of the crime beyond a reasonable doubt.” Id. (citing Jackson,

443 U.S. at 319). The question is whether any rational trier

of fact could have made that finding, not whether we believe

that the evidence presented at trial established guilt beyond a

reasonable doubt. Id.

B. Discussion

Viewed in the light most favorable to the government, the

evidence presented at trial showed that Richter took

possession of the firearm from his father’s house on August

15, 2012 and left the house with the firearm in his hand. The

probation officer found the firearm on Monday, October 22,

2012 under Richter’s bed in Richter’s locked bedroom. 

Richter subsequently admitted to the probation officer that he

possessed the firearm. That evidence is sufficient to sustain

the verdict.

Richter appears to argue that there was insufficient

evidence because Kirschten provided an innocent explanation
UNITED STATES V. RICHTER 7

for the firearm. But even an “equally plausible innocent

explanation” is not sufficient to overturn a verdict. Nevils,

598 F.3d at 1169 (“At this step of Jackson, we do not

construe the evidence in the light most favorable to

innocence, and therefore do not consider Nevils’s argument

that there is an equally plausible innocent explanation for the

loaded firearms lying on and near his body.”). And, suffice

it to say, Kirschten’s testimony was not equally plausible.1

II. Closing Argument

Richter asserts that the district court judge erroneously

failed to afford him the opportunity to present a closing

argument and that this was structural error requiring a new

trial. The government argues that the district court judge did

not err because Richter waived his right to give a closing

argument. We hold that, under the circumstances of this case,

Richter implicitly waived his right to give a closing

argument.

A. Standard of Review

Richter argues that the district court had an obligation to

sua sponte call for closing argument. We review this claim

for “plain error” because Richter did not raise the issue before

the district court. Fed. R. Crim. P. 52(b); United States v.

1 The district court may have concluded that Kirschten’s credibility was

suspect for various reasons, including her testimony that the firearm was

in a holster when she retrieved it from Richter’sfather’s house, which was

contrary to the father’s testimony; her testimony that she had not sold the

firearm in the two months since she had recovered it because she was

trying to find who would pay the most for it; and her testimony that she

had placed the firearm under Richter’s bed even though she told the

probation officer that there were no firearms in the house.
8 UNITED STATES V. RICHTER

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

error standard of review, the appellant must show that:

(1) there was error; (2) the error committed was plain; (3) the

error affected substantial rights; and (4) the error seriously

affected the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Aparicio, 663 F.3d

419, 428 (9th Cir. 2011) (citations omitted).

B. Discussion

“The constitutional right to assistance of counsel includes

the right for defense counsel to ‘make a closing summation to

the jury.’” United States v. Bell, 770 F.3d 1253, 1257 (9th

Cir. 2014) (quoting Herring v. New York, 422 U.S. 853, 858

(1975)). However, a defendant can waive the right to present

a closing argument. In Bell, we held that a pro se defendant

explicitly waived the right to present closing argument when

he stated that he did “not consent to these proceedings” after

the district court told the parties before recess that it would

hear closing arguments when proceedings resumed, and the

defendant then remained silent after the government delivered

its closing argument. Bell, 770 F.3d at 1256. We explained

that:

Nothing in Herring or our precedents gives a

self-represented defendant a right to be

affirmatively and individually advised that he

or she has a right to present a closing

argument. Rather, these cases held that a court

may not prevent a litigant from making a

closing argument. Bell’s Sixth Amendment
UNITED STATES V. RICHTER 9

right was not violated because he was not

precluded from making his closing argument

and simply chose to remain silent.

Id. at 1257.

Bell involved explicit waiver of the right to present a

closing argument. This court has never squarely addressed

whether a party can implicitly waive the right to give a

closing argument. Several of our sister circuits have reached

this question and held that a waiver of the right to present a

closing argument may be implicit and inferred from counsel’s

silence so long as there was a meaningful opportunity for

counsel to request argument, considering the circumstances. 

See, e.g., United States v. Igbinosun, 528 F.3d 387, 391–92

(5th Cir. 2008); United States v. Stenzel, 49 F.3d 658, 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 appellant was convicted of importing a controlled

substance. Igbinosun, 528 F.3d at 389. Neither side gave an

opening statement. Id. at 390. The trial judge took a recess

at the close of evidence and then reconvened to announce the

decision. Id. The judge did not ask whether either side

wanted to make a closing statement, and neither party asked

to do so. Id. The Fifth Circuit inferred the appellant’s waiver

of the right to present closing argument from the record,

explaining that “[t]he critical factor in deciding whether the

silence of counsel constitutes a waiver is whether there was

a meaningful opportunity for counsel to request argument or

to object, considering all the attendant circumstances.” Id. at

391. As the court explained:
10 UNITED STATES V. RICHTER

Because there was a recess at the close of the

evidence and prior to the verdict being

rendered, defense counsel in this case had

time to collect his thoughts, consult with his

client, and decide whether a closing argument

might be helpful. There is no indication that

the district court judge was overbearing or

likely to cut counsel off if he asked to present

argument when the judge began to render her

decision.

Id. at 392. The court concluded that “[u]nder these

circumstances, the district court’s failure to permit Igbinosun

to make a closing argument was not plain error.” Id.

We now join our sister circuits and recognize that waiver

of the right to give a closing argument may be implicit and

inferred from counsel’s conduct, so long as there was a

meaningful opportunity for counsel to request argument and

the trial judge does nothing to prevent counsel from giving a

closing argument.

The background facts provide context for the waiver here. 

Richter was represented by an experienced criminal defense

attorney, a Senior Litigator with the Federal Defender. The

trial was quick, lasting less than two hours. Neither side gave

an opening statement. The evidence and legal issues in the

trial were straightforward.

At the close of evidence, the judge announced that he

would take a recess. He asked whether either party wished to

invoke Rule 23(c), under which, as the judge explained to the

parties, “if a party requests, before the finding of guilty or not

guilty, the Court must state its specific findings of fact in
UNITED STATES V. RICHTER 11

open court or in a written decision or opinion.” Neither side

invoked Rule 23(c). There was then a 31-minute recess

before the judge returned and announced his decision.

During the 31-minute recess that followed, Richter’s

counsel had the opportunity to collect his thoughts, consult

with Richter, and decide whether a closing argument might be

helpful. When the judge returned, Richter’s counsel still did

not request a closing argument. Nor did Richter’s counsel

object when the judge began to render the decision, move to

strike the decision after it was rendered so that he could give

his closing argument, or otherwise inform the judge after the

decision that he had intended to present a closing argument. 

After rendering the decision and explaining sentencing

procedures to Richter, the judge asked if either party had

anything further to say. Richter’s counsel declined.

Richter’s counsel never asked to give a closing argument. 

In light of the short and uncomplicated trial, foregoing

closing argument was a reasonable strategy (the government

likewise did not give a closing argument). The defense

already had made and argued an unsuccessful Rule 29 motion

at the end of the government’s case.

Richter’s counsel had meaningful opportunitiesto request

a closing argument. Given the judge’s offer to provide his

findings of fact “before the finding of guilty or not guilty,”

the defense should have understood that the judge was

preparing to render his decision. Yet Richter’s counsel did

not state that he intended to give a closing argument at that

time, even as he declined the judge’s invitation for findings

of fact. There is no indication that the judge would have

prevented Richter from giving one had he said that he wanted

to do so.
12 UNITED STATES V. RICHTER

It may be preferable for a trial judge affirmatively to ask

whether the parties wish to give closing arguments and

thereby avoid ambiguity as to whether waiver has occurred. 

But there is no obligation to do so. We conclude that Richter

implicitly waived his right to give a closing argument.

Conclusion

For the foregoing reasons, we AFFIRM Richter’s

conviction for felon in possession of a firearm.

AFFIRMED.