U.S. v. Slay, 82-7286

Decision Date16 September 1983
Docket NumberNo. 82-7286,82-7286
Citation714 F.2d 1093
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Conrad SLAY, Jr., Defendant-Appellant. Non-Argument Calendar.
CourtU.S. Court of Appeals — Eleventh Circuit

N.P. Callahan, Jr., Birmingham, Ala., for defendant-appellant.

Shirley I. McCarty, Asst. U.S. Atty., Frank W. Donaldson, U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY, VANCE and ANDERSON, Circuit Judges.

PER CURIAM:

Convicted of receiving firearms and ammunition shipped in interstate commerce, 18 U.S.C.A. § 922(h)(1), Conrad Slay, Jr. claims (1) the magistrate who issued a search warrant should have disqualified himself from conducting the suppression hearing concerning the evidence seized with that warrant; (2) no probable cause existed for the issuance of the search warrant; and (3) the district court should have made a de novo determination on the question of probable cause. We affirm.

Two days after Conrad Slay, Jr. purchased a rifle and ammunition, the firearms dealer notified an agent of the Bureau of Alcohol, Tobacco and Firearms. That day the agent checked records which revealed that Slay had previously pleaded guilty to assault with intent to murder. The agent immediately obtained a warrant to search the vehicle which Slay had driven away from the firearms store. About an hour after the warrant was issued, agents stopped Slay in the vehicle and showed him the warrant. A search of the automobile's trunk produced the rifle and 100 rounds of ammunition.

At a hearing to suppress the gun and ammunition as evidence, Slay claimed that the vehicle searched was not the same vehicle listed in the warrant. The magistrate recommended the motion to suppress be denied. The district court adopted the magistrate's findings and denied the motion after considering Slay's objections to the magistrate's report and reviewing the record.

For the first time on appeal Slay contends that the same magistrate who issued the search warrant was not qualified to hear and consider the motion to suppress the evidence. His argument is based on 28 U.S.C.A. § 455, which provides:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....

A motion to disqualify a magistrate under § 455(a) must be timely. Delesdernier v. Porterie, 666 F.2d 116, 121-23 & n. 3 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 86, 74 L.Ed.2d 81 (1982); United States v. Conforte, 624 F.2d 869, 879-80 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); In re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir.). Slay's counsel was aware prior to the hearing on the motion to suppress of the facts which he now contends support a § 455(a) motion. Slay's disqualification argument is therefore untimely and need not be considered by this Court on appeal. Delesdernier, 666 F.2d at 122-23.

As to § 455(b)(1), the magistrate's report shows that the magistrate's decision to deny the defendant's motion to suppress was based on an impartial consideration of the testimony and the physical evidence presented at the hearing. There is no suggestion that the magistrate considered any extrajudicial source of knowledge or had any personal bias or prejudice.

Contrary to Slay's contention the evidence presented at the suppression hearing was sufficient to support a finding that...

To continue reading

Request your trial
1096 cases
  • Anderson v. Dunbar Armored, Inc.
    • United States
    • U.S. District Court — Northern District of Georgia
    • August 18, 2009
    ...and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983). The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expi......
  • Brandon v. Lockheed Martin Aeronautical Systems
    • United States
    • U.S. District Court — Northern District of Georgia
    • September 29, 2005
    ...of the District Court, and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983) (per curiam). The Clerk is directed to submit the Final Report and Recommendation with objections, if any, to the District ......
  • Smith v. Akstein
    • United States
    • U.S. District Court — Northern District of Georgia
    • December 30, 2005
    ...to the Report and Recommendation have been filed, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). After careful review, the Court finds no plain error in......
  • U.S. v. Rodriguez-Alejandro
    • United States
    • U.S. District Court — Northern District of Georgia
    • October 19, 2009
    ...order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983). Pursuant to Title 18, U.S.C. § 3161(h)(1)(F), the above-referenced ten (10) days allowed for filing objections is EXC......
  • Request a trial to view additional results
1 books & journal articles
  • Review Proceedings
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...of report was in “interests of justice”). Objections to the selection of a magistrate must be timely as well. See, e.g. , U.S. v. Slay, 714 F.2d 1093, 1094 (11th Cir. 1983) (per curiam) (objection of magistrate bias untimely because f‌irst raised on appeal and defendant knew of magistrate b......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT