Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-Cr-669 -- Charles P. Kocoras, Judge.
Before Swygert, Senior Circuit Judge, Bauer and Cudahy, Circuit Judges.
Defendant-appellant Noel Spears was convicted, after a bench trial, of three counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1).
The trial lasted two days, January 21 and 22, 1981. The prosecution presented four witnesses, two undercover agents to whom Spears sold the heroin, and two agents who performed surveillance. Their testimony was that an informant led the undercover agents to Spears, introducing them as drug dealers from Ohio. Spears agreed to sell heroin to them and discussed the possibility of buying cocaine from them. Spears sold heroin to the agents on three occasions; on the third occasion he was arrested.
Spears set up a defense of entrapment. He testified that he had been a heroin addict, and sold heroin to support his habit, until 1978, when he entered a methadone program. Since then, he had not dealt in drugs until 1980, when the informant (his erstwhile supplier of heroin) began to pressure him to re-enter the drug trade. Because he was having financial difficulties, he agreed to sell heroin to the informant's "buyers," who were, in fact, the undercover agents. Spears further testified that at his first meeting between the informant and one of the undercover agents, the agent gave Spears a small amount of cocaine; Spears tried it and liked it, and asked to buy a quantity of it from the agents. According to Spears, the agent insisted, as a precondition to Spears' purchase of cocaine, that Spears sell him a quantity of heroin. Spears also testified that he did not know where to obtain heroin, and that it was the informant who procured a source of heroin for him.
The trial judge took the case under advisement at the close of the evidence, and announced his decision three weeks later, on February 12, 1981. The judge did not offer defense counsel an opportunity to make closing argument, and defense counsel did not request such an opportunity, did not object when the court announced the decision without hearing final arguments, and filed no post-trial motions requesting reconsideration in light of closing argument.
Spears argues on this appeal that the trial court's failure to hear closing argument deprived him of a fair trial.
The issue presented here was not raised in the court below. Issues not raised at the trial level will not be considered by this court unless the trial court has committed plain error. United States v. Stavros, 597 F.2d 108, 111 (7th Cir. 1979); United States v. Kopel, 552 F.2d 1265, 1274 (7th Cir.), cert. denied sub nom. Kopel v. United States, 434 U.S. 970, 98 S. Ct. 520, 54 L. Ed. 2d 459 (1977); United States v. Jackson, 542 F.2d 403, 409 (7th Cir. 1976). Thus, the question for this court is whether the absence of closing argument in Spears' bench trial amounted to "plain error," requiring reversal.
In Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975), the Supreme Court held that it is per se reversible error in any criminal trial, whether to a jury or to a judge, for the trial court to deny the defendant the opportunity to present a closing argument. The Court reasoned that the opportunity to make closing argument is an integral part of the sixth amendment right to counsel. The Court stated:
The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a fact finding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.
Id. at 862, 95 S. Ct. at 2555. The Court further concluded that the opportunity to make closing argument is so fundamental a right that its denial must result in reversal of the conviction without regard to whether the defendant was prejudiced. Id. at 864, 95 S. Ct. at 2556.
The government argues that this case is distinguishable from Herring. In Herring, the criminal defendant requested the opportunity to make a closing argument, but his request was denied; and the narrow holding of Herring is that the denial of a request for summation is reversible error. In the present case, the government argues, the trial court did not actively deny closing argument because Spears never affirmatively requested it. The government urges us to conclude that "in this case defense counsel's inaction constituted a waiver of closing argument." Government's Brief at 11.
We find that defense counsel waived the right of summation in this case.
We note, as a preliminary matter, that the right to present a summation may be waived. The Supreme Court in Herring endorsed this proposition in quoting with approval the ...