United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION TO ACCEPT DEFENDANT'S
E. LARSEN United States Magistrate Judge
case was referred to me by Chief United States District Court
Judge Greg Kays to conduct a change-of-plea hearing. I find
that Defendant's plea is voluntary and therefore
recommend that it be accepted.
November 12, 2013, an indictment was returned charging
Defendant Wilson with, inter alia, one count of
conspiracy to distribute (1) a mixture or substance
containing cocaine in the amount of 5 kilograms or more,
and/or (2) a mixture or substance containing cocaine base in
an amount of 280 grams or more, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846. A change-of-plea
hearing was held on October 12, 2016. Defendant was present,
represented by appointed counsel John Gromowsky. The
government was represented by Assistant United States
Attorney Joseph Marquez. The proceeding was recorded and a
transcript of the hearing was filed (Doc. No. 438).
AUTHORITY OF THE COURT
authority of federal magistrate judges to conduct proceedings
is created and defined by the Magistrates Act, 28 U.S.C.
§ 636. Besides certain enumerated duties, the Act
provides that a “magistrate may be assigned such
additional duties as are not inconsistent with the
Constitution and the laws of the United States.” 28
U.S.C. § 636(b)(3).
Eighth Circuit, following the reasoning of several other
circuits, has held that magistrate judges may preside over
allocutions and pleas in felony cases, so long as certain
procedural safeguards are met. United States v.
Torres, 258 F.3d 791, 795-96 (8th Cir. 2001); see
also United States v. Dees, 125 F.3d 261 (5th Cir.
1997), United States v. Williams, 23 F.3d 629 (2d
Cir. 1994). The reasoning applied by the appellate courts
relies upon previous opinions by the United States Supreme
Court that conducting jury voir dire falls within a
magistrate judge's “additional duties” when
the defendant has consented. See Torres, 258 F.3d at
795 (citing Peretz v. United States, 501 U.S. 923
(1991); Gomez v. United States, 490 U.S. 858
Peretz, the Supreme Court held that when a defendant
consents to a magistrate judge's involvement in voir
dire, he waives any objection based on his right to have
an Article III judge hear his felony case. 501 U.S. at 936.
Moreover, the availability of de novo review by a
district judge preserves the structural guarantees of Article
III. Torres, 258 F.3d at 795. Applying the
Peretz holding and adopting the reasoning of
Williams, the Eighth Circuit held that the
acceptance of guilty pleas bears adequate relationship to
duties already assigned by the Magistrates Act in that
“[a]n allocution is an ordinary garden variety type of
ministerial function that magistrate judges commonly perform
on a regular basis.” Id. (quoting
Williams, 23 F.3d at 633). Plea allocutions are
substantially similar to evidentiary proceedings explicitly
assigned by the Act. Id. at 796 (citing
Dees, 125 F.3d at 265). Even if taking a guilty plea
were considered to be of greater importance than those duties
already assigned, the consent of the defendant saves the
delegation. Id. “Consent is the key.”
Id. (quoting Williams, 23 F.3d at 633).
Torres court also addressed the implications of such
a delegation for Article III's case and controversy
clause. Id. Because plea proceedings are submitted
to the district court for approval, the court retains
ultimate control over the proceedings and is not bound to
accept a plea taken by a magistrate judge. Id.
Moreover, the district court's de novo review of
the plea proceedings contributes to the ministerial nature of
the magistrate judge's role. Id.
on the above, I find that, with the consent of the defendant,
the District Court may properly refer a felony case to a
Magistrate Judge for conducting a change-of-plea hearing and
issuing a report and recommendation on whether the plea
should be accepted.
FINDINGS OF FACT
parties consented to the delegation of the change of plea to
the magistrate judge (Tr. at 2-3).
Defendant was advised of the following:
a. That he has a right to a trial by jury of at least 12
individuals and that their verdict must be ...