United States v. Hall, Derick ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2113
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERICK HALL, also known as CALVIN FRANKLIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 134—Rudolph T. Randa, Chief Judge.
____________
ARGUED MARCH 29, 2006—DECIDED JULY 19, 2006
____________
Before BAUER, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. When Derick Hall phoned the
police to report that his girlfriend smashed the windows
of his car, he probably did not anticipate a 72-month prison
sentence would be the result. Nor did he likely expect to be
the one who would be serving that sentence. If Hall had
known that his girlfriend had already complained about his
retaliatory rampage at her house, maybe he would not have
invited the police inside his home when they arrived. And
whether Hall reasonably believed he was in custody when
he told the police he was a felon and a gun was hidden in
his bedroom is a question we need not answer.
2 No. 05-2113
I. HISTORY
On the morning of February 9, 2004, Officers Steven
Strasser and Mario Gutierrez of the Milwaukee Police
Department were on patrol when the dispatcher informed
them of a complaint from Angela Smith. The dispatcher told
them that Hall allegedly smashed Smith’s front door, broke
her window, and took a gun. The dispatcher also relayed
that Hall drove a silver Buick and provided them with the
license plate number. The two officers were sent to Hall’s
address, while a third officer, Matthew Knight, set off to
interview Smith at her residence.
While Strasser and Gutierrez were on the way to Hall’s
house, the dispatcher informed them that Hall had phoned
in a complaint about Smith. When the officers arrived at
Hall’s residence, they saw a silver Buick and ran a check of
the license plate number. The license plate was registered
to Hall, at his reported address, but the car associated with
the license plate was a maroon Buick, not a silver one.
Parked across the street was a maroon Buick.
Hall was standing in the doorway of his house. He waved
at the officers and identified himself as they approached.
Hall said he called in a complaint for the vandalism of his
vehicle, referring to the maroon Buick, which did appear to
be damaged. While the officers stood at the bottom of the
stairs to the front entrance, they asked Hall if they could
enter to discuss his complaint. Hall replied, “Sure, come in.”
Inside the house, Hall explained that this was his resi-
dence and that his girlfriend, Smith, had come over and
knocked the windows out of his maroon Buick. Hall said
that in response, he went to Smith’s house and kicked in a
door and broke a window.
The conversation continued in Hall’s living room, and
Hall invited the officers to sit down. The officers declined
and told Hall that Smith had reported he took a gun from
No. 05-2113 3
her residence. Hall denied this allegation and stated that,
as a convicted felon, he could not legally possess a firearm.
Hall did not ask the officers to leave, nor did the officers
advise him he was free to terminate the interview. The
officers asked Hall for permission to search the residence.
Gutierrez wrote a statement in his log book to the effect, “I
give police permission to search the premises.” Gutierrez
read the statement to Hall, who then read it and signed it.
Gutierrez began to search the first floor. Strasser remained
with Hall in the living room. Hall was seated, and Strasser
stood.
Gutierrez found a locked room and asked Hall about it.
Hall replied that it was his bedroom and, without being
asked, gave Gutierrez a key to the room. Inside Hall’s
bedroom, Gutierrez found a box of ammunition and
showed it to Strasser and Hall in the living room. Hall
lowered his head and said he wanted to cooperate. Then
Hall said that a gun was hidden above a ceiling tile in his
bedroom. After Gutierrez found a gun in the place where
Hall described, Hall was placed under arrest and advised of
his Miranda rights.
On June 2, 2004, a grand jury returned a one-count
indictment charging Hall with being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). Hall filed a
motion to suppress both his statements to the officers and
the gun they found as a result. Hall argued the evidence
was illegally obtained because he was in police custody and
was not read his Miranda warnings. The matter was
referred to a magistrate judge.
The magistrate judge conducted an evidentiary hearing
on August 18, 2004. Officer Strasser testified, and the
government rested, reserving time for rebuttal should
Hall testify. After a break in the proceeding to allow Hall to
confer with his attorney, Hall’s attorney informed the
magistrate judge that Hall would not testify and pro-
4 No. 05-2113
ceeded to call Gutierrez and Knight (the officer dispatched
to the girlfriend’s house) to the stand.
On August 23, the magistrate judge issued her first
recommendation that Hall’s motion to suppress be denied.
The recommendation concluded with the admonition, “Your
attention is directed to 28 U.S.C. § 636(b)(1)(B) and (C),
whereby written objections to the foregoing recommenda-
tion may be filed . . . within ten days of the date of service
of this recommendation. Failure to file a timely objection
with the district court shall result in a waiver of your right
to appeal.” Hall did not file with the district judge an
objection to the magistrate judge’s recommendation.
On September 1, Hall’s appointed counsel filed a mo-
tion to withdraw as counsel, citing a “breakdown in trust
and communications.” The district judge granted the
motion. On September 8, the grand jury returned a super-
ceding indictment that charged Hall with one count of being
a felon in possession of a firearm and one count of being a
felon in possession of ammunition, both in violation of 18
U.S.C. § 922(g)(1).
Hall’s new attorney entered an appearance on September
20, and Hall was arraigned on the superceding indict-
ment shortly thereafter. Before the district judge ruled
on the magistrate judge’s recommendation, Hall filed
with the magistrate judge a motion for rehearing of his
motion to suppress. Hall asked to testify, and he also sought
to produce the testimony of Alvin Mercado, his upstairs
tenant.1 Hall argued he should be allowed to testify because
his previous attorney “failed to advise him of the neces-
1
In a supporting affidavit, Hall asserted he would testify that
after the ammunition was found, one of the officers stood in
front of Hall and yelled at Hall to divulge the gun’s location. Hall
also predicted that Mercado would testify that he heard the
officers yell at Hall.
No. 05-2113 5
sity . . . to testify on his own behalf” and would testify that
the police intimidated him so that he did not believe he was
free to leave. Hall claimed Mercado had been previously
unwilling to testify.
The magistrate judge issued an order on October 18
granting Hall’s motion in part and denying it in part.
Mercado could testify at a supplemental hearing; Hall could
not. The magistrate judge explained that Hall made the
affirmative decision not to testify, and that the substitution
of counsel was not a sufficient basis to revisit the issue. The
order stated, “The evidence presented at the supplemental
evidentiary hearing will be considered in determining
whether or not the court’s recommendation on the motion
should be modified or changed.”
The supplemental hearing was held on October 27.
Mercado testified that he was upstairs when the police
searched Hall’s residence and that 45 minutes after their
arrival, the officers’ voices grew louder and took an intimi-
dating tone as they demanded Hall to tell them where the
gun was hidden.
On November 9, the magistrate judge again recommended
to the district judge that Hall’s motion to suppress be
denied. At the outset, the magistrate judge stated, “The
issue presented by the defendant’s motion to suppress
statements and to exclude evidence is whether he was ‘in
custody’ at the time he was questioned in his apartment.”
The magistrate judge determined that Hall was not “in
custody” for Miranda purposes when he made his incrimi-
nating statements to the police during their search of his
house. Similar to her first recommendation, the magistrate
judge concluded, “Your attention is directed to 28 U.S.C.
§ 636(b)(1)(B) and (C) and General Local Rule 72.3 (E.D.
Wis.), whereby written objections to any recommenda-
tion herein or part thereof may be filed within ten days of
service of this recommendation. . . . Failure to file a timely
6 No. 05-2113
objection with the district court shall result in a waiver of
your right to appeal.”
On December 7, the district judge ruled on the issue. The
order noted, “No objections have been filed to this Recom-
mendation. The Court has reviewed the record and ratio-
nale for the denial and adopts in toto the recommenda-
tion of Magistrate Judge Gorence and the rationale support-
ing it as its own.” The court denied Hall’s motion to sup-
press.
Hall’s case proceeded to trial, and a jury convicted him on
both counts. Hall was sentenced to 72 months’ imprison-
ment and three years of supervised release on each count of
the superceding indictment, to run concurrently. Hall
appeals the district court’s denial of his suppression motion.
II. ANALYSIS
First, Hall argues he was in police custody, invoking the
duty to provide Miranda warnings, when he disclosed the
location of the gun. Second, Hall claims it was an abuse
of discretion to deny his request to testify at the supplemen-
tal evidentiary hearing. The government argues we cannot
reach the merits of these issues because Hall’s failure to
object to the magistrate judge’s recommendation before the
district court amounts to a waiver of his right to appeal
these issues.
Waiver only occurs when a defendant intentionally
relinquishes a known right, and no less. See United States
v. Olano, 507 U.S. 725, 733 (1993) (“Whereas forfeiture is
the failure to make the timely assertion of a right, waiver
is the intentional relinquishment or abandonment of a
known right.” (citations and quotations omitted)); see also
United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005)
(citations omitted); United States v. Baretz, 411 F.3d 867,
875 (7th Cir. 2005) (citation omitted). Unfortunately for
No. 05-2113 7
Hall, the failure to object to the recommendations and
decisions of a magistrate judge is one instance we have held
waiver of appellate review results. United States v.
Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003) (citation
omitted); United States v. Brown, 79 F.3d 1499, 1503-04
(7th Cir. 1996) (collecting authority); United States v.
Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988) (citation
omitted). The purpose of this waiver rule is to promote
efficiency between the district and appellate courts, so that
district courts have the opportunity to nip errors in the bud
without requiring them to conduct plenary reviews of
proceedings supervised by magistrate judges. See
Hernandez-Rivas, 348 F.3d at 598 (citing Thomas v. Arn,
474 U.S. 140, 147 (1985)); Lockert v. Faulkner, 843 F.2d
1015, 1017-18 (7th Cir. 1988) (holding the rationale of
Thomas requires waiver to apply to each issue not included
in an objection); see also Johnson v. Zema Sys. Corp., 170
F.3d 734, 742 (7th Cir. 1999) (sandbagging problem identi-
fied in Thomas may be cured with adequate notice to the
district judge of the contested issues).
Hall concedes he had notice that his Miranda claim
was subject to waiver but argues he lacked similar notice
regarding his claim that he should have been allowed to
testify at the supplemental suppression hearing. Our circuit
requires “that a party shall be informed by the magistrate
that objections must be filed within ten days or further
appeal is waived.” Provident Bank v. Manor Steel Corp., 882
F.2d 258, 261 (7th Cir. 1989). Hall points out that in her
October 18 order denying Hall’s request to testify, the
magistrate judge did not mention that waiver would result
should he not object. Although the magistrate judge did not
include in this particular order an explicit warning of
waiver, it does not follow that there was a failure of notice.
The magistrate judge’s refusal to allow Hall to testify
at the supplemental suppression hearing fell within the
ambit of her subsequent recommendation that Hall’s
8 No. 05-2113
suppression motion be denied. In other words, had Hall
objected to this recommendation, one of the grounds he
could have raised would have been that the magistrate
judge erred in failing to allow Hall to testify. The magis-
trate judge’s second recommendation stated, “written
objections to any recommendation herein or part thereof may
be filed.” (emphasis added). This order also cited the
applicable legal standards for objecting and warned,
“Failure to file a timely objection with the district court
shall result in a waiver of [Hall’s] right to appeal.” There-
fore, Hall and his attorney were sufficiently on notice that
waiver was at stake should he not object to any issue
relating to the denial of his motion to suppress.2
Hall presented two issues to the magistrate judge, and
they were denied. Hall could have raised both of these
objections to the district court, but he did not. Therefore,
Hall has waived the only issues he raises on appeal. See
Provident Bank, 882 F.2d at 262. As a result of Hall’s
deliberate act, the errors, if any, are extinguished and
appellate review is precluded. Baretz, 411 F.3d at 875
(citing United States v. Staples, 202 F.3d 992, 995 (7th Cir.
2000)). To avoid this outcome, Hall crafts a variety of
arguments that his case is the exception.
First, Hall asserts that the interests of judicial efficiency
are not served in his case and so the waiver rule need
not be enforced. Hall maintains that the purpose of the
waiver rule was “mooted” by the district judge’s independ-
ent review of the magistrate judge’s recommendation. But
when the district judge reviewed the record, he did so with
the understanding that “[n]o objections have been filed
2
We also note it is likely Hall was already on notice in light of
the magistrate judge’s reference to 18 U.S.C. § 636 in the first
order, as well as from General Local Rule 72.3(a). Hall did not
object to the first recommendation.
No. 05-2113 9
to this Recommendation.” Therefore, we need not con-
sider Hall’s “objection-by-ratification” argument because
it is inapplicable.
Second, Hall asserts his case is particularly compelling
because the Government has not identified any prej-
udice it would endure should we address his claims. This
rationale is rooted in the notice the Government received
when Hall made these arguments to the magistrate judge.
But Hall ignores the other side of the coin: The arguments
Hall made to the magistrate judge are conclusive proof of
Hall’s actual prior knowledge of the claims he now raises on
appeal, which sets the stage for waiver to apply. Cf. United
States v. Johnson, 415 F.3d at 730-31 (holding that not
filing a motion to suppress constitutes mere neglectful
failure to pursue an argument—not intentional relinquish-
ment—which may be excused if appellant could show
cause). Moreover, even if the government is not prejudiced,
the efficient administration of justice is.
Third, Hall asserts we should at least exercise plain error
review of his issues. Hall refers to the Supreme Court’s
directive in Thomas that default may be excused by a court
of appeals “in the interests of justice,” 474 U.S. at 155,
arguing the exception should be equated with plain error.
Hall asserts other circuits have done so, but he does not
mention this circuit’s precedent, e.g., United States v.
Penny, 60 F.3d 1257, 1261 (7th Cir. 1995) (“When a right is
waived, it is not reviewable, even for plain error.”) (citing
Olano, 507 U.S. at 732-33); Video Views, Inc. v. Studio 21,
Ltd., 797 F.2d 538, 539 (7th Cir. 1986) (holding the failure
to file objections to a magistrate’s report issued pursuant to
28 U.S.C. § 636(b)(1) “waives the right to appeal all issues,
both factual and legal”) (citations omitted). Nor does Hall
explain why our case law should not be binding on him.
In Hernandez-Rivas, we considered a similar argu-
ment—that the failure of an attorney to object to a magis-
10 No. 05-2113
trate judge’s decision constitutes ineffective assistance
of counsel and that waiver of the issue would “defeat the
ends of justice.” 348 F.3d at 598-99. We rejected the defen-
dant’s argument because under that reasoning, “every
appellant’s failure to file the procedurally necessary
objections would be excused, and a party would never waive
his or her right to appeal.” Id. at 599. “[W]e decline[d] the
invitation to construe the exception to be so broad that it
swallows the rule.” Id.
Hall’s argument is functionally indistinguishable. Hall
seeks to abrogate the waiver rule by arguing that even if
there was no objection, we should review magistrate judges’
rulings for plain error. But that is the identical standard we
use where there was no objection to district judges’ rulings.
See United States v. Gibson, 170 F.3d 673, 677-78 (7th Cir.
1999) (citations omitted); United States v. Shorter, 54 F.3d
1248, 1256 (7th Cir. 1995) (citations omitted); United States
v. McKinney, 954 F.2d 471, 475-76 (7th Cir. 1992). “Absent
a requirement that objections be filed in the district court,
all issues heard by a magistrate would be the appropriate
subject of appellate review.” Hernandez-Rivas, 348 F.3d at
598 (citing Thomas, 474 U.S. at 147). Hall’s proposed
standard would resoundingly defeat the purpose of the
waiver rule by placing magistrate judges and district judges
on the same footing. In addition, a defendant who simply
forfeits—rather than waives— an issue is entitled to plain
error review. United States v. Moore, 425 F.3d 1061, 1069
(7th Cir. 2005). Hall’s position does not recognize that there
is, and must be, a difference between the consequences of
waiver and forfeiture.
Whatever “in the interests of justice” means, it does not
require plain error review in all instances in which a
defendant does not object to a magistrate judge’s recommen-
dation. See United States v. Franklin, 197 F.3d 266, 270
(7th Cir. 1999) (“We may refuse to review motions appealed
[when the defendant had an opportunity to renew a motion
No. 05-2113 11
and chooses not to] because they encourage parties to cache
unanswered motions and, by so doing, disrupt the efficient
function of the judicial process.”). Nor is there a compelling
reason not to apply the waiver rule in Hall’s case.
III. CONCLUSION
For the foregoing reasons, Hall’s convictions are
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-06