UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-8011

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BLANCA ESTELLA MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texa

(September 25, 1992)

Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Blanca Estella Martinez appeals her conviction for possession

with intent to distribute and importation of marihuana, contending

that the failure of the trial court to hear closing arguments

vio lated her sixth amendment right to effective counsel.

Concluding that the defense waived the ri ght of summation, we

affirm.

Background2

Martinez took her auto to a Del Rio, Texas service station for

repairs and was given a Pontiac Grand Pr ix sedan as a "loaner."

She promptly drove into Mexico and within an hour and a half sought

to reenter the United States. An agent of the Customs Service who

knew Martinez became suspicious because of her demeanor and asked

for the keys to the trunk. The odor of marihuana was apparent and

upon opening the trunk the agent found two bags containing over 54

pounds of the contraband.

Martinez was indi cted on four counts, conspiracy to possess

with intent to distribute marihuana, conspiracy to import

marihuana, an d the two substantive counts of importation and

possession with intent to distribute. Martinez waived a jury

trial, opting for a bench trial. At close of the evidence the

court took a brief recess. Upon returning to the courtroom the

trial judge informed counsel that he was prepared to rule and that

he did not consider arguments necessary. Defense counsel neither

requested an opportunity to present closing argument nor objected

to the court's suggestion.

The court proceeded to make findings of fact and rendered its

decision, finding Martinez not guilty of the two conspiracy counts

but guilty of the two substan tive counts. The defense made no

post-trial motions; Martinez timely appealed.

Analysis

At the threshold we recognize that the sixth amendment secures1 Herri ng v. New York

, 422 U.S. 853, 95 S.Ct. 2550, 45

L.Ed.2d 5 93 (1975). Federal Rule of Criminal Procedure 29.l,

governing closing arg uments, states that "[a]fter the closing of

the evidence prosecution shall open the argument. The defense

shall be permitted to reply in rebuttal." (Emphasis added.)

2 See Fed.R.Crim.P. 52(b).

3 Fed.R.Evid. 103(a)(1); See

, e.g.

, United States v.

Spears

, 671 F.2d 991 (7th Cir. 1982) (applying the plain-error rule

to the failure to raise the right to present closing arguments).

4 United States v. Breque

, 964 F.2d 381, 388 (5th Cir.

June 15, 1992) (quoting U nited States v. Lopez

, 923 F.2d 47, 50

(5th Cir.), cert

. denied , 111 S.Ct. 2032 (1991)); see also United

States v. Yaman , 868 F.2d 130, 132 (5th Cir. 1988), cert

. denied

, 492 U.S. 924 (1989).

5 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).

3 for a criminal defendant the right to present closing arg ument. 1

This right, like other constitutional rights, may be waived. A

defendant may not remain mute during a trial and later complain of

errors which might have been corrected by the trial court. 2 Absent

timely objection, only plain e rror will warrant reversal on

appeal. 3 We have defined plain error as "error which, when

examined in t he context of the entire case, is so obvious and

substantial that failure to notice and correct it would affect the

fairness, integrity or public reputation of judicial proceedings." 4

In Herring v. New Yor k 5 the Supreme Court found that the

denial of the defendant's right to present a closing argument, in

a trial before a judge or jury, constituted reversibl e error

without proof of prejudice. In H erring the defendant requested the6 Id. at 860, 95 S.Ct. at 2554, 45 L.Ed.2d at 599 (quoting

Yopps v. State , 178 A.2d 879, 881 (Md. 1962)) (emphasis added).

7 An affirmative waiver on the record is not required. See

People v. Dougherty , 162 Cal.Rptr. 277, 282 (Cal.App. 1980).

8 Johnson v. Zerbst

, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed. 1461, 1466 (1938).

4 opportunity to present a closing argument. The trial court refused

that request. This scenario sufficed for a reversal of the

conviction. The Court made clear, however, that the right to

present closing arguments may be waived.

The Constitutional right of a defendant to be heard

through counsel necessarily includes his righ t to have

his counsel make a proper argument on the evidence and

the applicable law in his favor, however simple, clear,

unimpeached and conclusive the evidence may seem, unless

he has waived his right to such argument , or unless the

argument is not within the issues in the case, and the

trial court has no di scretion to deny the accused such

right. 6

Given the fundamental nature of the right to present a closing

argument, it is manifest that the failure to allow a closing

argum ent constitutes plain error in the absence of a waiver. We

observe that courts have encountered difficulty, however, devising

a precise standard for identifying waivers of the right to present

closing arguments. 7 The issue is res nova for this court.

As a general proposition, before a waiver of the right to

present closing argument will be found the record must clearly

demonstrate its "intentional relinquishment or abandonment." 8 The

decision respe cting closing argument, like many other trial9 See United States ex rel. Spears v. Johnson

, 463 F.2d

1024, 1026 (3d Cir. 1972) (discussing waiver of the right to

present a clo sing argument); C ommonwealth v. Gambrell

, 301 A.2d

596, 597-98 (Pa. 1973) ("counsel's decision to waive summation was a matter of professional judgment").

10 United States v. Spears

, 671 F.2d 991 (7th Cir. 1982);

Dougherty

, 162 Cal.Rptr. at 278-79 & n.3; Commonwealth v. Miranda

, 490 N.E.2d 1195 (Mass.App.Ct. 1986); State v. Gilman

, 489 A.2d 1100

(Me. 1985).

1 1 United States v. King

, 650 F.2d 534 (4th Cir. 1981). See

also United States v. Walls , 443 F.2d 1220 (6th Cir. 1971).

5 decisions, is a matter of trial strategy. 9 The strategic choice

may be even more acute in a bench trial as counsel assesses the

judge's reaction to the evidence. Counsel's opting to forego

arg ument in a bench trial and to refrain from objecting to the

court's suggestion that arguments were not necessary appears to fit

quite comfortably within the general parameters of strategic trial

choices.

What does it take to demonstrate an intentional relinquishment

or abandonment? As we have noted, courts have struggled with this

question. Some courts, including our colleagues in the Seventh

Circuit, would decline to find a waiver when the decision comes

immediately upon the close of the evidence. 10 Similarly, the Fourth

Circuit refused to deem counsel's failure to present a closing

argument a waiver where the court indicated that further argument

wou ld have been futile but nonetheless offered counsel the

opportunity to argue. 11 Other courts have inferred a waiver from12 Spears , 671 F.2d at 995; L ee v. State , 369 N.E.2d 108 3

(Ind.App. 1977) (Staton, P.J., concurring); Covington v. State

, 386

A.2d 336 (Md. 1978); State v. Hale

, 472 S .W.2d 365 (Mo. 1971);

State v. Rojewski , 272 N.W.2d 920 (Neb. 1979).

1 3 Essentially the same standard has developed with respect

to the ability of the court to cure the error when an objection is

made. C ompare Commonwealth v. Cooper

, 323 A.2d 255 (Pa.Super.

1974) (finding no error where counsel was allowed to argue after

objecting and court remained objective) with M.E.F. v. State , 595

So.2d 86 (Fla.D.Ct.App. 1992) (finding error not cured by court's

receipt o f argument in writing after the court reached its

verdict).

6 counsel's silence where there was an opportunity to object. 12

A review of various decisions leads us to the conclusion that

the 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. 13 When the court announces that it will

not hear oral argument a waiver can only be inferred from counsel's

silence if, after the close of the evidence, counsel has had time

to contemplate making the argument, has an opportunity to object

and does not, and makes no post-trial effort to assert the right at

a time when the error might be cured. While we therefore share the

view that a waiver will not be implied where there is no meaningful

opportunity to object to a lack of closing argument, we do not find

that to be the factual situation in the case at bar. The court a

quo did not announce its ruling immediately after the close of the

evidence; it called for a recess at that point. During the recess,

counsel had an opportunity to gather his thoughts and, at the very

least, determine his course on closing argument. In response to7

the judge's "argument not needed" announcement upon retur ning to

the bench at the conclusion of the recess, the defendant could not

stand silent and "take her chances" yet simultaneously preserve all

rights for appeal as if she had timely objected and given the trial

court a reasonable opportunity to address any real or imagined

error. It would have been preferable if the court had called upon

both counsel to s tate for the record any objections to the court

proceeding to judgment without closing argument, or to formally

waive same on the record, and in the future we trust we shall

universally find that practice, but in the instant case, under the

facts as presented, we are persua ded that a waiver occurred. We

conclude that counsel's s ilence was the result of a conscious

decision based on what counsel perceived to be the best course of

action for his client in this bench trial. We therefore hold that

there was an intentional relinquishment of the si xth amendment

right to summation.

The convictions are AFFIRMED.