United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM JUDGE.
REPORT AND RECOMMENDATION
MCCANN KING UNITED STATES MAGISTRATE JUDGE.
United States of America and defendant Richard D. Schultz
entered into a plea agreement, executed pursuant to the
provisions of Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure, whereby defendant agreed to enter a plea
of guilty to Count 1 of the Information, which
charges him with failure to collect and pay over taxes in
violation of 26 U.S.C.§ 7202. Plea Agreement,
Doc. 27. On November 21, 2017, Defendant,
accompanied by his counsel, appeared for a guilty plea
proceeding. Defendant consented, pursuant to 28 U.S.C.
§636(b)(3), to enter a guilty plea before a magistrate
judge. See United States v. Cukaj, 2001 WL 1587410
at *1 (6th Cir. 2001) (magistrate judge may accept
a guilty plea with the express consent of the defendant and
where no objection to the report and recommendation is
filed); United States v. Torres, 258 F.3d 791, 796
(8th Cir. 2001); United States v. Dees,
125 F.3d 261, 263-69 (5th Cir. 1997); United
States v. Ciapponi, 77 F.3d 1247, 1251 (10th
previously waived his right to an indictment. Waiver of
Indictment, Doc. 11.
the plea proceeding, the undersigned observed the appearance
and responsiveness of Defendant in answering questions. Based
on that observation, the undersigned is satisfied that, at
the time he entered his guilty plea, Defendant was in full
possession of his faculties, was not suffering from any
apparent physical or mental illness, and was not under the
influence of narcotics or alcohol.
to accepting Defendant's plea, the undersigned addressed
Defendant personally and in open court and determined his
competence to plead. Based on the observations of the
undersigned, Defendant understands the nature and meaning of
the charge in the Information, Doc. 1, and the
consequences of his plea of guilty to that charge. Defendant
was also addressed personally and in open court and advised
of each of the rights referred to in Rule 11 of the Federal
Rules of Criminal Procedure.
engaged in the colloquy required by Rule 11, the Court
concludes that Defendant's plea is voluntary. Defendant
acknowledged that the current plea agreement signed by him,
his attorney and the attorney for the United States and filed
on November 8, 2017, represents the only promises made by
anyone regarding the charge in the Information.
Defendant was advised that the District Judge may accept or
reject the plea agreement and that, if the District Judge
refuses to accept the plea agreement, Defendant may withdraw
his guilty plea.
confirmed the accuracy of the statement of facts supporting
the charge, which is attached to the Plea Agreement.
He confirmed that he is pleading guilty to Count 1 of the
Information because he is in fact guilty of that
offense. The Court concludes that there is a factual
basis for the plea.
Court concludes that Defendant's plea of guilty to Count
1 of the Information is knowingly and voluntarily
made with understanding of the nature and meaning of the
charge and of the consequences of the plea.
therefore RECOMMENDED that Defendant's
guilty plea to Count 1 of the Information be
accepted. Decision on acceptance or rejection of the current
Plea Agreement, Doc. 27, was deferred for
consideration by the District Judge.
party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14)
days, file and serve on all parties objections to the
Report and Recommendation, specifically designating
this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28
U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to
objections must be filed within fourteen (14) days after
being served with a copy thereof. F.R. Civ. P. 72(b).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a
waiver of the right to de novo review by the
District Judge and of the right to appeal the decision of the
District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v.
Detroit Federation of Teachers, Local 231 etc., 829 F.2d
1370 (6th Cir. 1987); United States v. Walters, 638
F.2d 947 (6th Cir. 1981).