Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mozie

United States District Court, N.D. West Virginia, Clarksburg

October 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KIMBERLY MOZIE, Defendant.

          KEELEY, JUDGE

          REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This 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.

         The 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.

         The 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.

         Upon 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.

         Thereafter, 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[1] 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.

         The 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 Defendant's plea.

         The 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.

         Defendant 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. 1483).

         Both 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 matter.

         The 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.

         The 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.