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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
violated her sixth amendment right to effective counsel.
Concluding that the defense waived the right of summation, we
affirm.
Background

Martinez took her auto to a Del Rio, Texas service station for
repairs and was given a Pontiac Grand Prix 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 indicted on four counts, conspiracy to possess
with intent to distribute marihuana, conspiracy to import
marihuana, and 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 substantive counts. The defense made no
post-trial motions; Martinez timely appealed.
Analysis
At the threshold we recognize that the sixth amendment secures
2

for a criminal defendant the right to present closing argument.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 error will warrant reversal on
appeal.3 We have defined plain error as "error which, when
examined in the 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 York5 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 reversible error
without proof of prejudice. In Herring the defendant requested the
1
Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45
L.Ed.2d 593 (1975). Federal Rule of Criminal Procedure 29.l,
governing closing arguments, 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 United 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

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 right 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 discretion 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
argument 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 respecting closing argument, like many other trial
6
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

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
argument 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
would have been futile but nonetheless offered counsel the
opportunity to argue.11 Other courts have inferred a waiver from
9
See United States ex rel. Spears v. Johnson, 463 F.2d
1024, 1026 (3d Cir. 1972) (discussing waiver of the right to
present a closing argument); Commonwealth 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).
11
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

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 to
12
Spears, 671 F.2d at 995; Lee v. State, 369 N.E.2d 1083
(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).
13
Essentially the same standard has developed with respect
to the ability of the court to cure the error when an objection is
made. Compare 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 of argument in writing after the court reached its
verdict).
6

the judge's "argument not needed" announcement upon returning 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 state 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 persuaded that a waiver occurred. We
conclude that counsel's silence 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 sixth amendment
right to summation.
The convictions are AFFIRMED.
7