United States District Court, N.D. West Virginia, Clarksburg
REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY
IN FELONY CASE
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
matter has been referred to the undersigned Magistrate Judge
by the District Court for purposes of conducting proceedings
pursuant to Federal Rule of Criminal Procedure 11 (Dkt. No.
1470). Defendant, Kimberly Mozie, in person and by Counsel,
Ed Rollo, appeared before me on October 4, 2019. The
Government appeared by Assistant United States Attorney,
Zelda Wesley. The Court determined that Defendant was
prepared to enter a plea of "Guilty" to Count
Eighty-One of the Superseding Indictment.
Court proceeded with the Rule 11 proceeding by first placing
Defendant under oath and inquiring into Defendant's
competency. The Court determined Defendant was competent to
proceed with the Rule 11 plea hearing and cautioned and
examined Defendant under oath concerning all matters
mentioned in Rule 11.
Court next inquired of Defendant concerning her understanding
of her right to have an Article III Judge hear the entry of
her guilty plea and her understanding of the difference
between an Article III Judge and a Magistrate Judge.
Defendant thereafter stated in open court that she
voluntarily waived her right to have an Article III Judge
hear her plea and voluntarily consented to the undersigned
Magistrate Judge hearing her plea. Defendant tendered to the
Court a written Waiver of Article III Judge and Consent to
Enter Guilty Plea before Magistrate Judge. The waiver and
consent was signed by Defendant, countersigned by
Defendant's counsel, and concurred by the signature of
the Assistant United States Attorney.
consideration of the sworn testimony of Defendant, as well as
the representations of her counsel and the representations of
the Government, the Court finds that the oral and written
waiver of an Article III Judge and consent to enter a guilty
plea before a Magistrate Judge was freely and voluntarily
given. Additionally, the Court finds that the written waiver
and consent was freely and voluntarily executed by Defendant
Kimberly Mozie only after having had her rights fully
explained to her and having a full understanding of those
rights through consultation with her counsel, as well as
through questioning by the Court. The Court
ORDERED the written Waiver and Consent to
Enter Guilty Plea before a Magistrate Judge filed and made
part of the record.
the Court determined that Defendant's plea was pursuant
to a written plea agreement and asked the Government to
tender the original to the Court. The Court asked counsel for
the Government if the agreement was the sole
agreement offered to Defendant. The Government
responded that it was, and counsel for Defendant confirmed
the same. The Court asked counsel for the Government to
summarize the written plea agreement. Counsel for Defendant
and Defendant stated that the agreement as summarized by
counsel for the Government was correct and complied with
their understanding of the agreement. The undersigned further
inquired of Defendant regarding her understanding of the
written plea agreement. Defendant stated she understood the
terms of the written plea agreement and also stated that it
contained the whole of her agreement with the Government and
no promises or representations were made to her by the
Government other than those terms contained in the written
plea agreement. The Court ORDERED the
written plea agreement filed.
undersigned then reviewed with Defendant Count Eighty-One of
the Superseding Indictment and the elements the Government
would have to prove, charging her with Aiding and Abetting
the Distribution of Oxycodone in violation of 18 U.S.C.
§ 2 and 21 U.S.C. § 841(a)(1). Subsequently,
Defendant Kimberly Mozie pled GUILTY to the
charge contained in Count Eighty-One of the Superseding
Indictment. However, before accepting Defendant's plea,
the undersigned inquired of Defendant's understanding of
the charges against her, inquired of Defendant's
understanding of the consequences of her pleading guilty to
the charges, and obtained the factual basis for
Court heard the testimony of Officer Mark Trump. Neither
counsel for Defendant nor Defendant had any questions for the
witness. Defendant stated she heard, understood, and did not
disagree with the testimony of the Government's witness.
Additionally, Defendant provided a factual basis for the
commission of the offense.
stated on the Record that she did not disagree nor object to
the testimony of the Government's witness. She further
testified that she does not remember the events of that day
and cannot admit that she drove Co-Defendant Terry Thomas
that day to aid and abet the distribution of oxycodone. She
stated that she intended to go to Kroger, not participate in
drug dealings, but to shop and had she actually gone into the
store to make the purchase she went to the store to make. She
also stated she did not know that the drug transactions were
taking place. She stated that she found out at a later point
that the drug transaction occurred. Defense Counsel Ed Rollo
also stated that she was taking medication during the time
period that may have affected her memory. This issue was
originally brought to the undersigned's attention via
email from Defense Counsel docketed under seal. (ECF No.
AUSA Zelda Wesley and Ed Rollo stated that they believed
Defendant had provided a sufficient factual basis. Mr. Rollo
provided the Court with an unpublished Fourth Circuit
opinion, USA v. Miracle, 2012 WL 149806 (4th Cir.
Jan. 19, 2012) which he believed to be instructive in this
undersigned finds that AUSA Zelda Wesley and Officer Trump
have provided the Court with a sufficient factual basis to
which Defendant did not object. However, Defendant's
statements that she did not knowingly drive Terry Thomas to
the drug dealings, she did not know that the drug
transactions were occurring, and she intended to travel to
Kroger only to shop contradict her assertion that she is
guilty to Aiding and Abetting the Distribution of Oxycodone
and is of the concern to the undersigned to say the least.
undersigned Magistrate Judge concludes the offense charged in
Count Eighty-One of the Superseding Indictment is supported
by an independent basis in fact concerning each of the
essential elements of such offense, and that independent
basis is provided by Officer Trump's testimony.
undersigned then reviewed with Defendant the statutory
penalties applicable to an individual adjudicated guilty of
the felony charge contained in Count Eighty-One of the
Superseding Indictment and the ...