United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION TO ACCEPT DEFENDANT'S
E. LARSEN United States Magistrate Judge
a change-of-plea hearing after this case was referred to me
by United States District Court Judge Greg Kays. I find that
Defendant's plea is voluntary and therefore recommend
that it be accepted.
April 10, 2017, an information was filed against Defendant
charging her with one count of theft of government money, in
violation of 18 U.S.C. § 641. A change-of-plea hearing
was held on September 20, 2017. Defendant was present,
represented by retained counsel P.J. O'Connor. The
government was represented by Assistant United States
Attorney Kate Mahoney. The proceeding was recorded and a
transcript of the hearing was filed (Doc. No. 16).
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
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 21-22).
April 10, 2017, Defendant was charged by information with one
count of theft of government money, in violation of 18 U.S.C.
§ 641. Defendant indicated that she understood (Tr. at
statutory penalty is not more than 10 years imprisonment, not
more than a $250, 000 fine, not more than 3 years supervised
release, and an $100 mandatory special assessment fee (Tr. at
4). Defendant was informed of ...