United States v. Manuel Reynoso

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2020 Decided July 1, 2022

No. 19-3045

UNITED STATES OF AMERICA,

APPELLEE

v.

MANUEL D. REYNOSO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cr-00253-1)

Nathan S. Mammen, appointed by the court, argued the

cause for appellant. With him on the briefs was Stephen C.

DeSalvo, appointed by the court. William H. Burgess,

appointed by the court, entered an appearance.

David B. Goodhand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Elizabeth

Trosman and John P. Mannarino, Assistant U.S. Attorneys.

Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,

and SENTELLE, Senior Circuit Judge.

2

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: A jury convicted Manuel

Reynoso on a gun-possession charge and two drug charges. On

appeal, Reynoso challenges his convictions on several grounds.

His most substantial claim concerns the gun-possession

charge. Federal law bars certain categories of people,

including those previously convicted of a felony (i.e., a crime

punishable by more than one year of imprisonment), from

possessing a firearm. Under the prevailing interpretation of the

felon-in-possession statute at the time of Reynoso’s trial, the

government had to prove that he knowingly possessed a gun

and that he had a prior conviction carrying the requisite

maximum sentence, but not that he knew his prior conviction

allowed for that sentence. The jury in Reynoso’s case thus had

no reason to consider whether he was aware that his prior

convictions were punishable by more than a year in prison.

On the same day the district court sentenced Reynoso,

however, the Supreme Court decided Rehaif v. United States,

139 S. Ct. 2191 (2019). Rehaif established that the felon-in-

possession statute requires the government to show not only

that the defendant knew he possessed a gun but also that he

knew he had previously been convicted of a crime punishable

by more than a year of imprisonment. Reynoso now contends

that his felon-in-possession conviction must be overturned due

to the government’s failure to make the additional showing

Rehaif requires. Because Reynoso did not raise that argument

in the district court, we review his claim for only plain error.

After we heard oral argument in this case, the Supreme

Court granted review in another case to consider when a person

may be entitled to plain-error relief on appeal in a case

involving a Rehaif error. See Greer v. United States, 141 S. Ct.

3

2090 (2021). Because the Supreme Court’s decision in Greer

would dictate the proper handling of appeals like this one, we

held this case in abeyance pending the Court’s decision. After

the Court decided Greer, we asked the parties to submit

supplemental briefs addressing Greer’s implications for our

disposition of this case.

Greer held that Rehaif errors at trial normally will not

qualify as plain errors of a kind warranting relief in appeals

from felon-in-possession convictions. The Court reasoned that

“[i]f a person is a felon, he ordinarily knows he is a felon,” such

that requiring proof that he knew of his felon status usually

would not have affected the outcome of his trial. Id. at 2097.

In accordance with Greer, we conclude that the district court’s

Rehaif error in this case did not amount to plain error. We also

reject Reynoso’s other challenges to his convictions, and we

thus affirm the judgment of the district court.

I.

Before discussing Reynoso’s possession of contraband,

we begin with his possession of a BMW. Although Reynoso’s

girlfriend owned the car, he was its primary driver and thought

of it as his own. In early May 2018, Reynoso drove the BMW

from the District of Columbia to West Virginia, where a rapper

he represented as a music promoter was filming a video. Valle

Rodriguez, an associate of another artist in the video, drove

Reynoso’s car between the sites where they filmed the video.

When they finished shooting the final scene, Reynoso retrieved

the keys and drove his car back to D.C.

In a later interview with law-enforcement agents,

Rodriguez would explain that, while he was in the BMW, he

placed a Glock .40-caliber semi-automatic pistol under the

driver’s seat and an extended magazine under the front

4

passenger’s seat. According to Rodriguez, he left the gun in

the car without telling Reynoso.

Approximately one week later, a little after 1:00 a.m. on

May 16, 2018, a Secret Service officer pulled over the BMW

on Seventeenth Street NW near Constitution Avenue in the

District of Columbia. Reynoso had been driving with his

headlights off. When the officer approached the car, he

smelled marijuana. He saw Reynoso in the driver’s seat, with

one passenger in the front and one in the back. The officer

asked about the smell. Reynoso denied that anyone in the car

had been smoking but immediately showed the officer a rolled

dollar bill containing a marijuana bud. He indicated that was

the only marijuana in the car.

Additional Secret Service officers arrived and began

removing the two passengers. Reynoso stepped out of the car

without being asked. Then he fled, sprinting toward the

National Mall. Eventually, officers apprehended Reynoso near

the Tidal Basin. He was carrying $2,890 in cash, two

cellphones, a set of keys, and a small amount of

methamphetamine.

Back at the car, a technician from the Secret Service’s

crime scene unit arrived to perform a search of the vehicle.

When she looked at the floor mat under the driver’s seat, she

noticed it “was not fully flat.” Feb. 12, 2019 Trial Tr. 210:5–

6, J.A. 613. She lifted the mat, revealing a black Glock semi-

automatic pistol with an extended magazine containing twenty

rounds of .40-caliber ammunition.

The government charged Reynoso with possession of a

firearm by a person who had been convicted of a crime

punishable by imprisonment for a term exceeding one year, in

violation of 18 U.S.C. § 922(g), and with simple possession of

5

methamphetamine and marijuana, in violation of 21 U.S.C.

§ 844(a). In support of the felon-in-possession charge, the

government presented evidence of two prior convictions.

First, in 2011, Reynoso pleaded guilty in the Circuit Court

for the City of Norfolk, Virginia, to distribution or possession

with intent to distribute ecstasy and marijuana. The maximum

punishment for each count was imprisonment for ten years or

more. Reynoso was sentenced to two five-year terms, to run

consecutively, but with all but ten months suspended.

Second, in February 2018, just three months before the

events giving rise to the present prosecution, Reynoso pleaded

guilty in Maryland to possession with intent to distribute

marijuana and possession of a firearm “with a conviction of an

enumerated or a disqualifying crime.” Gov. Ex. 48, J.A. 100–

01. The facts of that case mirror those of this one. A police

officer found Reynoso in the driver’s seat of a parked BMW

and smelled the strong odor of marijuana. A search of the car

recovered 133 grams of marijuana and a loaded Glock semi-

automatic pistol.

At trial in this case, Reynoso testified that he had “no idea”

there was “any sort of firearm or ammunition” beneath the

BMW’s floor mat. Feb. 13, 2019 Trial Tr. 58:23–24, J.A. 741.

He explained that Rodriguez had hidden the gun under the seat

without his knowledge. Pursuant to a stipulation, the jury was

informed that Rodriguez told law enforcement he had placed

his gun under the driver’s seat of Reynoso’s BMW and an

extended magazine under the passenger seat. And, pursuant to

another stipulation, Reynoso acknowledged he had previously

been convicted of a crime punishable by more than one year of

incarceration.

6

At the conclusion of the five-day trial, the jury found

Reynoso guilty on each count. The district court sentenced him

to seven years and three months of imprisonment on the gun-

possession charge and one year on each of the drug-possession

charges (with all three sentences to run concurrently).

Reynoso timely appealed. Among other claims, he argues

that his gun-possession conviction should be reversed under

Rehaif because the district court failed to instruct the jury that

knowledge of felon status is an element of the crime. After we

heard argument, the Supreme Court granted certiorari in Greer

to decide when a district court’s error under Rehaif would

constitute plain error requiring reversal. We held the

proceedings in this case in abeyance pending the Supreme

Court’s decision, and then received supplemental briefing

addressing the implications of Greer for this appeal.

II.

A.

Reynoso’s first challenge relates solely to his felon-in-

possession conviction under § 922(g). He contends that the

evidence was insufficient to support the jury’s conclusion that

he possessed the gun found under the floor mat of the BMW.

Our review is highly deferential to the jury’s decision.

“When assessing the sufficiency of the evidence, we ask

‘whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.’” United States v. Boyd, 803 F.3d 690, 692 (D.C. Cir.

2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

We draw no distinctions between direct and circumstantial

evidence, and we give “full play to the right of the jury to

7

determine credibility, weigh the evidence and draw justifiable

inferences of fact.” United States v. Clark, 184 F.3d 858, 863

(D.C. Cir. 1999) (citation and quotation marks omitted).

“Criminal possession of a firearm may be either actual or

constructive.” United States v. Alexander, 331 F.3d 116, 127

(D.C. Cir. 2003). Actual possession requires “direct physical

control.” Henderson v. United States, 575 U.S. 622, 626

(2015). Because the gun in this case was found under the

driver’s floor mat, this case presents a question of constructive

possession. And for constructive possession, the government

must show that “the defendant knew of, and was in a position

to exercise dominion and control over, the contraband.” United

States v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991). “A

successful conviction, then, includes proof of a physical

element (dominion and control over the actual weapons) as

well as a mental element (knowing possession).” United States

v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002).

In assessing constructive possession, we have emphasized

that “mere proximity,” while indicative of physical capacity to

exercise control, is insufficiently probative of the mental

element. See, e.g., United States v. Moore, 104 F.3d 377, 381

(D.C. Cir. 1997). Finding constructive possession based on

proximity alone might permit “unwitting roommates or

housemates” to be convicted of a serious crime. United States

v. Harris, 515 F.3d 1307, 1310 (D.C. Cir. 2008). We thus must

ask “whether there is ‘some action, some word, or some

conduct that links the individual to the [contraband] and

indicates that he had some stake in [it], some power over [it].’”

Byfield, 928 F.2d at 1166 (quoting United States v. Pardo, 636

F.2d 535, 549 (D.C. Cir. 1980)).

The evidence here readily sufficed for a reasonable juror

to conclude that Reynoso constructively possessed the gun.

8

First, the location of the gun satisfied the physical element of

constructive possession. Officers discovered the weapon under

the driver’s floor mat of the BMW. Reynoso was the car’s

primary driver and considered himself to be its owner

(although his girlfriend technically held the title). At the time

of the traffic stop, Reynoso sat in the driver’s seat, with the gun

inches from his feet. We have held the driver of a car to “a

higher level of accountability for the vehicle’s contents.”

United States v. Walker, 545 F.3d 1081, 1088 (D.C. Cir. 2008)

(quoting United States v. Gibbs, 904 F.2d 52, 57 (D.C. Cir.

1990)) (brackets omitted). And a presumption of control is

especially warranted when the contraband is found under the

driver’s own seat.

Reynoso contests the mental element of constructive

possession by pointing the finger at Rodriguez. But even

accepting that Rodriguez initially stashed the gun in the BMW

without telling Reynoso, the jury still heard evidence indicating

Reynoso knew about the gun at the time of the traffic stop.

After returning from West Virginia, Reynoso had been driving

the BMW for a week with the gun under his feet. And the jury

heard testimony that the gun created a “bulge” beneath the floor

mat. Feb. 12, 2019 Trial Tr. 274:21–23, J.A. 677. A pistol

with an extended magazine is hard, angular, and large. It

strains credulity to suggest that Reynoso could have stepped in

and out of the car, or operated the pedals, without feeling the

gun beneath his shoes.

What’s more, Rodriguez said in his interview that he put

the gun under the driver’s seat and the extended magazine

under the passenger’s seat. But the responding officers found

the gun loaded. The natural inference is that Reynoso found

the gun and the magazine, loaded the magazine into the gun,

and returned the assembled weapon to its hiding place for

future use. Given that circumstantial evidence of control, our

9

case differs from ones Reynoso cites that involved contraband

found in shared spaces—under the passenger seat of a car the

defendant was driving or in a bedroom the defendant split with

roommates. See United States v. Hishaw, 235 F.3d 565, 571–

73 (10th Cir. 2000); United States v. Taylor, 113 F.3d 1136,

1145–46 (10th Cir. 1997). For those reasons, the evidence at

trial was sufficient to show that Reynoso possessed the gun.

B.

Reynoso’s next two challenges stem from the Supreme

Court’s decision in Rehaif. At the time of trial, the prevailing

interpretation of § 922(g) required the government to prove

that the defendant knew he possessed a gun but not that he

knew about the circumstances making his gun possession

unlawful. The district court thus did not instruct the jury that

it needed to find Reynoso knew he had been convicted of an

offense punishable by more than one year in prison, and the

jury accordingly made no such finding. But in Rehaif, the

Court held that the government must prove “that the defendant

knew he possessed a firearm and also that he knew he had the

relevant status when he possessed it.” 139 S. Ct. at 2194.

Reynoso first contends that the jury lacked sufficient

evidence to convict him on the omitted knowledge-of-status

element. He further claims that the district court’s erroneous

jury instructions leaving out that element constituted plain error

requiring reversal. We conclude that the first kind of claim is

unavailable in the circumstances of this case: if the jury,

consistent with then-prevailing law, is never asked to find the

existence of something later established to be an offense

element, there is no freestanding insufficiency-of-the-evidence

claim as to that element. The sole question here, then, is

whether Reynoso has shown that the failure to instruct the jury

requires a retrial. As to that issue, we determine that Reynoso,

10

who made no objection to the improper jury instruction in the

district court, has failed to show plain error warranting reversal.

The record indicates he must have known his prior convictions

were punishable by more than one year in prison.

1.

Reynoso attempts to cast the district court’s instructional

error under Rehaif as an insufficiency-of-the-evidence error,

but that type of claim is unavailable here. In a sufficiency

challenge, the defendant typically asserts that, despite the

jury’s finding of guilt, the government failed to present enough

evidence to prove the elements of the crime beyond a

reasonable doubt. In other words, the government failed to

meet its burden of proof. A successful sufficiency challenge

results in outright acquittal, not retrial, because “[t]he Double

Jeopardy Clause forbids a second trial for the purpose of

affording the prosecution another opportunity to supply

evidence which it failed to muster in the first proceeding.”

Burks v. United States, 437 U.S. 1, 11 (1978).

But a defendant cannot make out a sufficiency challenge

as to offense elements that the government had no requirement

to prove at trial under then-prevailing law. No participant in

Reynoso’s trial—neither the trial judge, the prosecution, the

jury, nor Reynoso himself—recognized knowledge of felon

status as an element the government needed to prove. In that

situation, a sufficiency claim is a non sequitur.

As the Ninth Circuit has explained, “[w]e do not examine

the sufficiency of evidence of an element that the Government

was not required to prove under the law of our circuit at the

time of trial because the Government had no reason to

introduce such evidence in the first place.” United States v.

Kim, 65 F.3d 123, 126–27 (9th Cir. 1995). In those

11

circumstances, insufficiency of the evidence is not “the correct

way to conceive of” the error. United States v. Johnson, 979

F.3d 632, 636 (9th Cir. 2020). Rather, the challenge is

“properly understood as a claim of trial error” in failing to

instruct the jury on the omitted element. Id. at 637; see also

United States v. Gonzalez, 93 F.3d 311, 323 (7th Cir. 1996).

To be sure, some courts have considered similar claims

nominally under the sufficiency-of-the-evidence banner, but

those courts do not apply the bar against retrial normally

associated with a successful sufficiency challenge. See, e.g.,

United States v. Wacker, 72 F.3d 1453, 1462–65 (10th Cir.

1995), modified (Mar. 11, 1996). By holding that the Double

Jeopardy Clause permits reprosecution when “a conviction is

reversed solely for failure to produce evidence that was not

theretofore generally understood to be essential to prove the

crime,” id. at 1465 (citation omitted), those courts recognize

that such claims are not standard challenges to the sufficiency

of the evidence. In substance, then, those courts review the

claims as though they were procedural challenges to the jury

instructions, not challenges to the sufficiency of the evidence.

We join the Ninth Circuit in holding that sufficiency

challenges are unavailable in this context. Rather, the relevant

trial error in this case was the omission of an element of the

crime from the jury instructions. We turn to that error now.

2.

Unlike his sufficiency challenge, Reynoso’s challenge to

the jury instructions is conceptually sound. On the merits,

however, he is not entitled to relief on that claim.

At trial, Reynoso made no objection to the district court’s

failure to instruct the jury on the knowledge-of-status element

12

of the felon-in-possession offense. But we may correct a “plain

error that affects substantial rights . . . even though it was not

brought to the [district] court’s attention.” Fed. R. Crim. P.

52(b). To qualify for relief on plain-error grounds, the

defendant must meet three threshold requirements. United

States v. Olano, 507 U.S. 725, 732 (1993). First, the defendant

must identify an error “that has not been intentionally

relinquished or abandoned.” Rosales-Mireles v. United States,

138 S. Ct. 1897, 1904 (2018) (citation omitted). Second, the

error must be plain, which means “clear or obvious.” Id.

(citation omitted). And third, the error must affect the

defendant’s “substantial rights,” which generally means the

court must find “a reasonable probability that, but for the error,

the outcome of the proceeding would have been different.” Id.

at 1904–05 (citation and quotation marks omitted).

Even if those three conditions are met, Rule 52(b) remains

permissive, not mandatory. At the fourth prong of plain-error

analysis, the defendant must persuade the court that the

identified error is one that demands correction. The Supreme

Court has directed that “the court of appeals should exercise its

discretion to correct the forfeited error if the error ‘seriously

affects the fairness, integrity or public reputation of judicial

proceedings.’” Molina-Martinez v. United States, 578 U.S.

189, 194 (2016) (quoting Olano, 507 U.S. at 736).

The defendant “has the burden of establishing each of the

four requirements for plain error relief.” Greer, 141 S. Ct. at

2097. In his opening brief, Reynoso argued that the district

court had committed plain error by failing to instruct the jury

on the knowledge-of-status element. But he made no effort to

demonstrate that he lacked knowledge of his felon status. For

its part, the government in its initial brief asked us to sustain

Reynoso’s conviction at the fourth step of the plain-error

analysis but made no argument as to the first three prongs.

13

After that briefing (and after oral argument), the Supreme

Court decided Greer. The Court held that Rehaif errors in

felon-in-possession cases ordinarily will not justify plain-error

relief because proof that the defendant was a felon will usually

also suffice to show that he knew he was a felon. Greer, 141

S. Ct. at 2097. Because a person with prior felony convictions

“ordinarily knows he is a felon,” the jury “will usually find that

a defendant knew he was a felon based on the fact that he was

a felon.” Id. In short, “[f]elony status is simply not the kind of

thing that one forgets.” Id. (citation and quotation marks

omitted). A defendant thus faces an “uphill climb” to show that

a failure to instruct the jury on the knowledge-of-status element

affected his substantial rights at the third prong of plain-error

analysis. Id. So long as the defendant is a felon, it will be

“difficult” to show a “reasonable probability” that the trial

would have come out differently with proper jury instructions.

Id.

Of course, difficult is not impossible. As the Supreme

Court recognized, in certain cases a defendant might show on

appeal that he could have presented evidence at trial

demonstrating his unawareness of his felon status at the time of

his charged firearm possession. Id. But absent such a showing,

“the appellate court will have no reason to believe that the

defendant would have presented such evidence to a jury, and

thus no basis to conclude that there is a ‘reasonable probability’

that the outcome would have been different absent the Rehaif

error.” Id.

After the Supreme Court issued its decision in Greer, we

ordered supplemental briefing. Rather than simply address

Greer’s implications for their existing positions, the parties

took the opportunity to present brand new arguments. Reynoso

argues for the first time that he could have presented evidence

14

at trial showing his ignorance of his felon status when he

possessed the gun. As for the government, it now contends that

Reynoso’s claim fails at the third prong of plain-error analysis,

after previously resting its argument on the fourth prong alone.

Regardless of whether we address the parties’ arguments

raised for the first time in the supplemental briefs or instead

deem them forfeited, Greer forecloses Reynoso’s challenge to

the faulty jury instructions. At trial, Reynoso stipulated that he

had previously been convicted of offenses punishable by more

than one year in prison. His opening brief never suggests that

he could have presented evidence that he lacked knowledge of

his felon status. And under Greer, “a Rehaif error is not a basis

for plain-error relief unless the defendant first makes a

sufficient argument or representation on appeal that he would

have presented evidence at trial that he did not in fact know he

was a felon.” Id. at 2100.

Reynoso seeks to cure that deficiency by attaching various

documents associated with his prior convictions to his

supplemental brief. But even if we consider those records, they

demonstrate that he must have known he had been convicted of

offenses punishable by more than a year of imprisonment.

In 2011, Reynoso pleaded guilty to possession with intent

to distribute ecstasy and marijuana in Virginia state court. He

now submits documents showing that all but ten months of his

two five-year sentences was suspended, such that he served less

than one year in prison even if he was sentenced to more. But

the clear language of § 922(g) covers anyone convicted of “a

crime punishable by imprisonment for a term exceeding one

year.” 18 U.S.C. § 922(g)(1) (emphasis added). The relevant

inquiry is thus whether Reynoso knew that the maximum

penalty for his crimes was more than one year of imprisonment.

And the documents on which he relies show his knowledge of

15

that fact. He signed a plea agreement stating he had been

sentenced to five years on each count, and he also initialed an

“advice to defendants pleading guilty” form listing the

maximum penalties for his charges as forty years for

possession with intent to distribute ecstasy and ten years for

possession with intent to distribute marijuana. Reynoso

therefore knew that he could be—and in fact was—sentenced

to more than a year of imprisonment.

Reynoso’s 2018 conviction in Maryland further confirms

his knowledge of his felon status. In that case, he pleaded

guilty to possession with intent to distribute marijuana and

possession of a firearm with a conviction of an enumerated or

a disqualifying crime. During the plea colloquy, the prosecutor

explained that he would seek a ten-year sentence, with all but

one year suspended. That indicated to Reynoso that his

conviction was for an offense punishable by a sentence of more

than a year. In addition, Reynoso’s counsel represented that he

had discussed the elements of the gun-possession offense with

his client. One of those elements was Reynoso’s felony

conviction in Virginia. The plea colloquy thus reminded

Reynoso of his felon status just a few months before the Secret

Service pulled him over with a pistol under the floor mat of his

BMW.

Reynoso’s claim of plain error, as the government

contends in its supplemental brief, fails at the third prong of the

analysis. The record plainly indicates that Reynoso knew he

was a felon at the time he was found with a gun. The trial

court’s Rehaif error therefore did not affect Reynoso’s

substantial rights. Rather, the overwhelming probability is that

his trial would have come out the same way had the jury

instructions included the knowledge-of-status element.

16

Even if we were to hold the government to its initial

argument relying solely on the fourth prong of the plain-error

test, we would still decline to grant Reynoso relief. The district

court’s Rehaif error does not undermine the “fairness, integrity

or public reputation of judicial proceedings.” Molina-

Martinez, 578 U.S. at 194 (quoting Olano, 507 U.S. at 736).

Reynoso stipulated to his felon status at trial. And, in most

cases, felon status is itself probative of knowledge of felon

status, as the Supreme Court recognized in Greer. 141 S. Ct.

at 2097–98. Reynoso gives us no reason to think that his case

is an exception. On the contrary, his own evidence suggests he

knew he was a felon. He thus cannot show that the proceedings

were fundamentally unfair.

C.

Reynoso raises several claims relating to his Sixth

Amendment right to call Valle Rodriguez as a witness at trial.

Reynoso, however, waived any such right by entering a

stipulation setting forth Rodriguez’s statements to investigators

in lieu of seeking to present his live testimony. Reynoso

therefore cannot assert error in connection with any denial of

access to Rodriguez’s live testimony.

1.

Before trial, Reynoso notified the district court that he

intended to call Rodriguez as a witness. Reynoso informed the

government that Rodriguez would testify to his ownership of

the gun and to Reynoso’s ignorance of the gun’s presence in

the BMW. Soon after, the government sent law enforcement

agents to interview Rodriguez. Based on that conversation, the

government informed Reynoso that Rodriguez might seek to

avoid testifying by asserting his Fifth Amendment privilege

against self-incrimination.

17

At Reynoso’s request, the district court appointed counsel

for Rodriguez so he could pursue immunity in connection with

his testimony. After some back and forth, the government

indicated it did not intend to grant Rodriguez limited-use

immunity for the purpose of testifying at Reynoso’s trial. The

court encouraged the government to reconsider, explaining that

a hearing might otherwise be necessary to address whether

Rodriguez had waived his privilege by talking to the

government’s agents. The court also recommended that the

parties consider a stipulation detailing Rodriguez’s account of

events for the jury, which would “resolve” the outstanding

issues about whether he had waived his Fifth Amendment

rights. Feb. 8, 2019 Status Conf. Tr. 21:7, J.A. 166.

The parties gathered before the second day of trial to

follow up on the waiver question. Reynoso’s counsel

announced that he had subpoenaed Rodriguez, who would

testify later that day. That came as news to Rodriguez’s

counsel, who asked for an opportunity to speak with Rodriguez

because she understood that he intended to assert his Fifth

Amendment privilege. The parties proceeded to debate

whether Rodriguez had waived his ability to assert the privilege

by voluntarily speaking to investigators.

Before ruling on the question of waiver, the district court

again asked whether the parties had considered a stipulation.

Reynoso’s counsel indicated he would be “glad to reach” a

stipulation if it included certain specified facts. Feb. 13, 2019

Trial Tr. 27:13, J.A. 710. After a brief recess, the parties

returned with a stipulation in principle, including the

information Reynoso’s counsel had identified. The court stated

that it was “glad to hear that that has been resolved with the

stipulation.” Id. at 35:17–18, J.A. 718. Following the parties’

agreement, Rodriguez’s counsel asked if Rodriguez could be

18

excused, and Reynoso’s counsel confirmed that would be “fine

with the defense.” Id. at 37:18, J.A. 720. Reynoso was present

during the exchange.

2.

Reynoso identifies a host of alleged errors in the district

court’s handling of whether to compel Rodriguez’s testimony,

all of which he contends violated his Sixth Amendment right

to “compulsory process for obtaining witnesses in his favor.”

U.S. Const. amend. VI. His claims all hit the same stumbling

block: Reynoso’s trial counsel waived Reynoso’s Sixth

Amendment right to have Rodriguez testify.

“Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the ‘intentional relinquishment or

abandonment of a known right.’” Olano, 507 U.S. at 733

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The

government contends that Reynoso’s counsel waived the

compulsory-process right when he stipulated to Rodriguez’s

written testimony. To assess that contention, we must first

examine whether the right is waivable, and, if so, whether

waiver can be accomplished by trial counsel alone, without the

defendant’s express agreement. Id.

Reynoso does not dispute that his right to call Rodriguez

as a witness was waivable. Nor could he. The compulsory-

process provision is one piece of the Sixth Amendment’s

“compact statement of the rights necessary to a full defense.”

Faretta v. California, 422 U.S. 806, 818 (1975). “[T]aken

together,” those Sixth Amendment rights “guarantee that a

criminal charge may be answered in a manner now considered

fundamental to the fair administration of American justice—

through the calling and interrogation of favorable witnesses,

19

the cross-examination of adverse witnesses, and the orderly

introduction of evidence.” Id.

Those three fair-trial rights are “supplement[ed]” by the

Sixth Amendment’s fourth guarantee: the right to assistance of

counsel. Id. at 820, 829–30. The right to counsel is central to

the Sixth Amendment’s scheme because it provides “the means

through which the other rights of the person on trial are

secured.” United States v. Cronic, 466 U.S. 648, 653 (1984).

The invocation of the right to counsel thus involves a

delegation of decision-making responsibility from the accused

to his lawyer. “[W]hen a defendant chooses to have a lawyer

manage and present his case, law and tradition may allocate to

the counsel the power to make binding decisions of trial

strategy in many areas.” Faretta, 422 U.S. at 820.

The powers delegable to trial counsel include the assertion

(or waiver) of the compulsory-process right. That conclusion

follows from the Supreme Court’s discussion of trial counsel’s

responsibility for effective use of the compulsory-process right

in Taylor v. Illinois, 484 U.S. 400 (1988). There, the Supreme

Court considered an Illinois trial court’s decision to exclude

testimony from a defense witness whom defense counsel had

failed to timely identify. Id. at 401–02. The Court found no

infringement of the defendant’s right to compulsory process.

Id. at 402.

In reaching that result, the Court distinguished between

“basic rights that the attorney cannot waive without the fully

informed and publicly acknowledged consent of the client” and

“tactical decision[s]” over which “the lawyer has—and must

have—full authority.” Id. at 417–18. The decision to refrain

from calling witnesses fell firmly into the latter category.

“Putting to one side the exceptional cases in which counsel is

ineffective, the client must accept the consequences of the

20

lawyer’s decision . . . not to put certain witnesses on the

stand[.]” Id. at 418. Because the decision to invoke the

compulsory-process right can be allocated to trial counsel, the

Court found no unfairness in holding a defendant to account for

his counsel’s failure to assert it. The compulsory-process right,

then, is waivable by trial counsel.

Even when waiver is permissible, however, courts

“indulge every reasonable presumption against waiver of

fundamental constitutional rights and do not presume

acquiescence in the loss of fundamental rights.” United

States v. David, 511 F.2d 355, 360 n.11 (D.C. Cir. 1975)

(alteration omitted) (quoting Cross v. United States, 325 F.2d

629, 631 (D.C. Cir. 1963)). But the waiver here was clear.

Reynoso’s counsel knowingly accepted the stipulation as

an alternative to the assertion of Reynoso’s Sixth Amendment

right to present Rodriguez’s live testimony. Before agreeing to

the stipulation, the parties, as explained, were at loggerheads

over whether Rodriguez could be forced to testify. “The

accused’s right to compulsory process . . . does not include the

right to compel a witness to waive his fifth amendment

privilege.” United States v. Thornton, 733 F.2d 121, 125 (D.C.

Cir. 1984). Reynoso’s access to Rodriguez’s testimony thus

turned on whether Rodriguez had already waived his privilege

by voluntarily speaking with law enforcement.

Rather than decide that thorny issue, the district court

presented the possibility of a stipulation, which would

eliminate the risk of infringing either Reynoso’s right to call

Rodriguez as a witness or Rodriguez’s right to avoid testifying.

Reynoso’s counsel said he would be “glad” to pursue a

stipulation including the key facts he sought to present to the

jury. Feb. 13, 2019 Trial Tr. 27:13, J.A. 710. And, after the

parties nailed down the specifics, Reynoso’s counsel consented

21

to Rodriguez’s departure. By signaling that the stipulation had

obviated any need for Rodriguez to testify, counsel waived

Reynoso’s Sixth Amendment right to compulsory process.

At least in theory, a defendant could stipulate to written

testimony while still preserving an objection to that approach.

(Of course, the government might refuse to enter a stipulation

if the defendant maintained an objection.) But Reynoso’s

counsel failed to indicate any such objection—either when

agreeing to the stipulation or when the stipulation was

presented to the jury. Counsel’s decision to abandon the right

through the stipulation forecloses the possibility of error. We

therefore reject Reynoso’s compulsory-process claims.

D.

Reynoso last contends that the government exercised an

unlawful, race-based peremptory strike to remove a Black juror

from the jury pool. See Batson v. Kentucky, 476 U.S. 79

(1986). We conclude that the district court properly applied

Batson’s framework and did not clearly err in finding an

absence of discriminatory intent. See United States v. Gooch,

665 F.3d 1318, 1324 (D.C. Cir. 2012).

1.

During jury selection, the government exercised

peremptory strikes against four of the five Black jurors in the

pool. The first three strikes took place without objection from

Reynoso’s counsel. After the fourth strike, however, defense

counsel objected, contending that the government lacked a

race-neutral reason for it. Without being asked, the

government then explained its race-neutral basis for striking

each of the four Black jurors. Reynoso’s counsel took no issue

with the first three strikes but reiterated his objection to the

22

fourth. On appeal, Reynoso again objects only to the

government’s fourth strike of a Black juror, identified in the

record as Juror 1633.

The government pointed to Juror 1633’s demeanor as its

reason for striking her. The prosecutor “found her to be

looking down at times,” which suggested she might be

“somewhat disinterested.” Feb. 11, 2019 Trial Tr. 219:20–22,

J.A. 386. That caused the government “concern[] about her

ability to maintain focus and to listen.” Id. at 219:23–24, J.A.

386. The government acknowledged that Juror 1633 “had

nothing marked” in response to the court’s questions

identifying potential reasons for excluding a juror. Id. at

220:10, J.A. 387. But that came as a “shock[]” to the

government, which had observed Juror 1633 “mak[ing] facial

expressions when the [district court] was reading questions.”

Id. at 222:18–21, J.A. 389. The government further observed

that, despite signs prohibiting cellphone use, Juror 1633

continued to check her phone, “put[ting] it back inside” her

“long shawl sweater” only when the judge “would start to talk.”

Id. at 228:19–23, J.A. 395. That led the government to doubt

Juror 1633’s “ability to follow instructions.” Id. at 229:7–8,

J.A. 396. Reynoso’s counsel saw things differently. He had

noticed nothing about Juror 1633’s demeanor suggesting she

was disinterested or otherwise unfit to serve.

The district court rejected the Batson challenge. The court

acknowledged it could not “corroborate” what the government

observed as to Juror 1633 because the court “didn’t see

anything wrong with her.” Id. at 223:4–6, J.A. 390. But the

court nevertheless denied the Batson challenge “given the

reasons that . . . the [prosecutor] in the case observed for the

particular juror,” which “appear[ed] to be legitimate reasons.”

Id. at 229:13–16, J.A. 396.

23

2.

“The Constitution forbids striking even a single

prospective juror for a discriminatory purpose.” Snyder v.

Louisiana, 552 U.S. 472, 478 (2008) (brackets and citation

omitted). To assess whether a discriminatory purpose

motivated a peremptory strike, courts employ the three-step

framework the Supreme Court established in Batson. “First, a

defendant must make a prima facie showing that a peremptory

challenge has been exercised on the basis of race.” Id. at 476

(quotation marks, brackets, and citation omitted). If the

defendant makes that showing, “the prosecution must offer a

race-neutral basis for striking the juror.” Id. at 477. Third, “in

light of the parties’ submissions, the trial court must determine

whether the defendant has shown purposeful discrimination.”

Id.

The questions presented in this appeal all concern the third

step: the district court’s determination that Reynoso failed to

show purposeful discrimination. Reynoso asserts that the court

erred at that final step of the framework in three ways. First,

he contends that the court erred as a matter of law by failing to

consider its own observations of the juror’s demeanor. Second,

he argues that the court erred by failing to make sufficient

factual findings to permit meaningful review. And third, he

claims that the court erred in concluding that the strike was not

racially motivated. None of those arguments succeeds.

To start, the district court did not err as a matter of law by

relying on the government’s observations rather than its own.

When the government offers a prospective juror’s demeanor as

the reason for a peremptory strike, “the judge should take into

account, among other things, any observations of the juror that

the judge was able to make during the voir dire.” Thaler v.

Haynes, 559 U.S. 43, 48 (2010). But, as the Supreme Court

24

has recognized, cases will arise in which the judge “did not

observe or cannot recall the juror’s demeanor.” Id. This case

is not one in which the trial judge accepted the prosecutor’s

version of events in the face of the judge’s own conflicting

observations. Rather, the court acknowledged that it did not

notice Juror 1633’s demeanor but credited the government’s

characterization of her apparent disinterest.

That is a permissible approach. Neither our decisions nor

those of the Supreme Court hold that a demeanor-based

explanation must be rejected as a matter of law whenever the

trial judge happens to miss the conduct in question. Id. The

district court cannot watch every prospective juror at once.

We also find that the district court created an adequate

record for review. The district court elicited a sufficiently

detailed explanation from the prosecutor about the specific

aspects of the juror’s demeanor warranting the strike. The

court also gave Reynoso’s counsel an opportunity to respond

on the record. And the court took up the government on its

offer to explain not only its strike of Juror 1633 but also its

strike of three other Black jurors, even though Reynoso did not

challenge the latter strikes. Finally, the district court explained

its decision to deny the challenge: although the court did not

observe the juror’s demeanor, the prosecutor did, and the

reasons given “appear[ed] to be legitimate.” Feb. 11, 2019

Trial Tr. 229:16, J.A. 396. The district court’s discussion on

the record may have been succinct, but it left no ambiguity as

to the grounds for the ruling.

Finally, the district court did not clearly err in finding a

lack of intentional discrimination. On the factual question of

why a prosecutor struck a particular juror, our review is

deferential. The Supreme Court “has explained that the

demeanor of the prosecutor exercising a challenged strike is

25

often ‘the best evidence of discriminatory intent.’” United

States v. Moore, 651 F.3d 30, 41 (D.C. Cir. 2011) (per curiam)

(quoting Snyder, 552 U.S. at 477). And unlike appellate

judges, who have access to only a cold record, trial judges

“observe[] the prosecutor’s demeanor firsthand.” Id. For that

reason, “determinations of credibility and demeanor lie

peculiarly within a trial judge’s province.” Snyder, 552 U.S. at

477 (citation and quotation marks omitted).

Here, the district court credited the prosecutor’s

observations of Juror 1633, and we defer to the trial judge’s

assessment of the prosecutor’s sincerity. And the record shows

that the district court was justified in believing the

government’s explanation. The prosecutor listed in detail the

aspects of Juror 1633’s demeanor that raised concerns and

“defended [her] use of [the] peremptory challenges without

being asked to do so by the judge.” Hernandez v. New York,

500 U.S. 352, 369 (1991) (plurality opinion). The government

gave reasons for striking not only Juror 1633 but also three

other Black jurors. And Reynoso’s counsel recognized the

government’s “verifiable and legitimate explanation” for

striking those three jurors. Id. at 370. Each of those factors is

evidence of the government’s sincerity in asserting its race-

neutral reasons for striking Juror 1633. Id. We thus find no

reversible error in the district court’s rejection of Reynoso’s

Batson challenge.

* * * * *

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.