Appeal from the United States District Court for the Western District of Texas. D.C. DOCKET NUMBER P92-CR-015. JUDGE Lucius D. Bunton, III
Before Politz, Chief Judge, Reavley, and Barksdale, Circuit Judges.
BARKSDALE, Circuit Judge:
Contending primarily that he was denied closing argument in violation of his Sixth Amendment right to counsel, Tylor Leon Davis appeals his conviction for possession with intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). Because the record clearly reflects that his counsel opted to forego argument, Davis' right to it was waived. We AFFIRM.
During a routine immigration check at the Sierra Blanca checkpoint in Texas, a border patrol agent boarded a bus on which Davis was a passenger and questioned passengers about their citizenship. After completing his immigration inquiries, the agent began to inspect items in the overhead luggage bins. On squeezing a tweed suitcase situated directly across the aisle from Davis, he detected hard, brick-like objects. The luggage tag was blank; none of the passengers claimed the bag.
Accordingly, the agent removed the bag from the bus and searched it, discovering eight brick-shaped packages containing over two kilograms of crack cocaine. Some of the packages were concealed in trousers bearing the name "Tylor Davis"; likewise, an airline ticket bearing the same name was found in an outside pocket of the suitcase. The suitcase also contained clothing bearing the name "Gerald" and "G. Bow".
The agents reboarded the bus and asked each passenger for identification. As the agents approached, Davis appeared apprehensive; he was arrested upon providing his driver's license. After a very brief bench trial, the district court found Davis guilty of possession with intent to distribute more than 50 grams of cocaine base. He was sentenced, inter alia, to 210 months imprisonment.
Davis contends that he was denied the opportunity to present closing argument, and that the evidence was insufficient to support his conviction.
The Sixth Amendment guarantees a defendant in a criminal trial, whether before a jury or the bench, the right to present closing argument, regardless of the complexity or the strength of the case. Herring v. New York , 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550 (1975); see also Fed. R. Crim. P. 29.1. The Herring Court reasoned that "a total denial of the opportunity for final argument in a ... criminal trial is a denial of the basic right of the accused to make his defense .... Closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt". Id. at 859, 862. Given the difficulty of determining the prejudicial impact of the failure to afford summation, the denial of a request for it is reversible error per se. Id. at 864. Likewise, absent waiver, "the failure to allow a closing argument constitutes plain error". United States v. Martinez , 974 F.2d 589, 591 (5th Cir. 1992).
A precise standard for identifying waivers of closing argument remained undefined in this circuit until our recent decision in Martinez . There we adopted the standard set forth in Johnson v. Zerbst , 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), and held that "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'". Martinez , 974 F.2d at 591 (quoting Johnson , 304 U.S. at 464). We emphasized that "an affirmative waiver on the record is not required"; rather, waiver may be inferred from a review of the entire record. Id. at 591 n.7.
It is fundamental that there is a presumption against waiver of a constitutional right, Johnson , 304 U.S. at 464; however, "some rights are more likely to be foregone as a matter of strategy than others". United States v. Spears , 671 F.2d 991, 993 (7th Cir. 1982). Where a defendant is represented by counsel, the decision to waive summation is a matter of trial strategy within the discretion of counsel. Martinez , 974 F.2d at 591. If the evidence is strong, counsel may conclude that a summation would damage the client's interests, especially when considering the likely response of the prosecutor. See United States ex rel. Spears v. Johnson , 463 F.2d 1024, 1026 (3d Cir. 1972). As we noted in Martinez , "the strategic choice may be even more acute in a bench trial as ...