                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    No. 14-30003
           Plaintiff-Appellee,
                                                D.C. No.
                 v.                      9:13-cr-00023-DWM-1

 PAUL JOSEPH RICHTER,
         Defendant-Appellant.                   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’s father’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 opportunities to 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.
