Report and Recommendation — United States v. Misseldine (Dkt. 32, S.D. Ohio)

Summary

A report and recommendation by United States Magistrate Judge Norah McCann King in United States of America v. Ava Misseldine, No. 2:22-cr-168, in the U.S. District Court for the Southern District of Ohio, dated October 5, 2022 and filed October 6, 2022 as Doc #: 32. It states that under a Rule 11(c)(1)(B) plea agreement Misseldine agreed to plead guilty to an Information charging fifteen counts of wire fraud under 18 U.S.C. § 1343 (Counts 1-15) and one count of passport fraud under 18 U.S.C. § 1542 (Count 16), with a forfeiture provision. It recites that on October 5, 2022 she appeared by videoconference with counsel, waived indictment and consented under 28 U.S.C. §636(b)(3) to plead before a magistrate judge. The report recommends acceptance of the plea and explains that failure to object waives de novo review and appeal.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

Case: 2:22-cr-00168-MHW Doc #: 32 Filed: 10/06/22 Page: 1 of 3 PAGEID #: 105



                   IN THE UNITED STATES DISTRICT COURT
                    FOR THE SOUTHERN DISTRICT OF OHIO
                            EASTERN DIVISION
UNITED STATES OF AMERICA
      vs.                                        2:22-cr-168
                                                 JUDGE MICHAEL H. WATSON
AVA MISSELDINE

                         REPORT AND RECOMMENDATION

      The United States and defendant Ava Misseldine entered into a
plea agreement, executed pursuant to the provisions of Rule
11(c)(1)(B) of the Federal Rules of Criminal Procedure, whereby
defendant agreed to enter a plea of guilty to an Information charging
her with fifteen counts of wire fraud in violation of 18 U.S.C. § 1343
(Counts 1-15), and one count of passport fraud in violation of 18
U.S.C. § 1542 (Count 16). Information, ECF No. 19.1        The Information
also includes a forfeiture provision. Id. On October 5, 2022,
defendant, assisted by her counsel, participated in an arraignment and
entry of guilty plea proceeding.
      After being advised of her right to appear personally and with
her counsel and after consulting with her counsel, defendant consented
to appear by videoconference.
      Defendant waived her right to an indictment in open court and
after being advised of the nature of the charge and of her rights.
See Fed. R. Crim P. 7(b).
      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, 25
Fed.Appx. 290, 291(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).



      1 The original Plea Agreement, ECF No. 20, was executed by defendant and
her original counsel. The current Plea Agreement, ECF No. 29, includes the
same terms but has also been executed by defendant’s current counsel. The
Plea Agreement includes an appellate waiver provision that preserves only
certain claims for appeal, collateral challenge, or motion for reduction of
sentence. In the Plea Agreement, defendant also agreed to a restitution
obligation and to the forfeiture provision in the Information.
                                       1

  Case: 2:22-cr-00168-MHW Doc #: 32 Filed: 10/06/22 Page: 2 of 3 PAGEID #: 106



     During 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 she entered her guilty plea, defendant was in full possession of
her faculties, was not suffering from any apparent physical or mental
illness and was not under the influence of narcotics, other drugs, or
alcohol.
     Prior to accepting defendant’s plea, the undersigned addressed
defendant personally and in open court and determined her competence
to plead.   Based on the observations of the undersigned, defendant
understands the nature and meaning of the charges in the Information
and the consequences of her plea of guilty to those charges.
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.
     Having 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 her, her attorney and the
attorney for the United States and filed on October 3, 2022,
represents the only promises made by anyone regarding the charges in
the Information.    Defendant was advised that the District Judge may
accept or reject the Plea Agreement and that all sentencing terms will
be determined by the District Judge. Defendant was further advised
that, even if the District Judge refuses to accept any provision of
the Plea Agreement not binding on the Court or if the sentence imposed
is more severe than the sentence that defendant expected, defendant
may nevertheless not withdraw her guilty plea.
     Defendant confirmed the accuracy of the statement of facts
supporting the charges, which is attached to the Plea Agreement.            She
confirmed that she is pleading guilty to Counts 1 through 16 of the
Information because she is in fact guilty of those offenses.          The
Court concludes that there is a factual basis for the plea.


                                       2

  Case: 2:22-cr-00168-MHW Doc #: 32 Filed: 10/06/22 Page: 3 of 3 PAGEID #: 107



     The Court concludes that defendant’s plea of guilty to Counts 1
through 16 of the Information is knowingly and voluntarily made with
understanding of the nature and meaning of the charges and of the
consequences of the plea.
     It is therefore RECOMMENDED that defendant’s guilty plea to
Counts 1 through 16 of the Information be accepted.         Decision on
acceptance or rejection of the Plea Agreement was deferred for
consideration by the District Judge after the preparation of a
presentence investigation report.
     In accordance with S.D. Ohio Crim. R. 32.1, and as expressly
agreed to by defendant through counsel, a written presentence
investigation report will be prepared by the United States Probation
Office.    Defendant will be asked to provide information; defendant’s
attorney may be present if defendant so wishes.        Objections to the
presentence report must be made in accordance with the rules of this
Court.
     If any 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).
     The 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 United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019);
Thomas v. Arn, 474 U.S. 140 (1985).


October 5, 2022                                 s/ Norah McCann King
 Date                                            Norah McCann King
                                           United States Magistrate Judge
                                       3

File and source

File

gov.uscourts.ohsd.272120.32.0.pdf

Size

137,879 bytes

SHA-256

ea63be20823faf2c1a86cabe7ee6fac1ae88c50601119ec08649cb9ca98ae21d

Our copy

gov.uscourts.ohsd.272120.32.0.pdf

Original

archive.org