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.