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 residence 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

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.

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 recommendation 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 motion 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 superceding 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 indictment 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-
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 intimidating 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 incriminating 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 recommendation 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 Recommendation. The Court has reviewed the record and rationale for the denial and adopts in toto the recommendation of Magistrate Judge Gorence and the rationale supporting it as its own.” The court denied Hall’s motion to suppress.

Hall’s case proceeded to trial, and a jury convicted him on

both counts. Hall was sentenced to 72 months’ imprisonment 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 supplemental 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 identified 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

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.

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 magistrate 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.” Therefore, 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 independent 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
No. 05-2113 9

to this Recommendation.” Therefore, we need not consider 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 prejudice 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 relinquishment—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 argument—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 defendant’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 recommendation. 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