IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Criminal Action 2:12-CR-0060

Judge Smith

MARK F. KILBARGER,

Defendant.

REPORT AND RECOMMENDATION

The United States of America and defendant Mark F. Kilbarger

entered into a plea agreement whereby defendant agreed to enter a plea

of guilty to Count 2 of an Information charging him with attempt to evade

or defeat an income tax in violation of 26 U.S.C. § 7201. On April 6,

2012, defendant, accompanied by his counsel, appeared for an arraignment. 

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, 2001 WL

1587410 at *1 (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]; United States v. Torres, 258 F.3d

791, 796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261, 263-69 (5th

Cir. 1997); United States v. Ciapponi, 77 F.3d 1247, 1251 (10th Cir.

1996). Defendant also waived his right to an indictment in open court

and after being advised of the nature of the charge and of his rights. 

See F.R. Crim. P. 7(b). 

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 he

entered his guilty plea, defendant was in full possession of his

faculties, was not suffering from any apparent physical or mental

illness, and was not under the influence of narcotics or alcohol. 

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Prior to accepting defendant’s plea, the undersigned addressed

defendant personally and in open court and determined his competence to

plead. Based on the observations of the undersigned, defendant

understands the nature and meaning of the charges returned in the

Information and the consequences of the plea of guilty to Count 2 of the

Information. 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 plea agreement signed by him, his attorney and the attorney for

the United States and filed on March 21, 2012, Doc. No. 2, 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, even if the Court refuses to accept any

provision of the plea agreement not binding on the Court, defendant may

nevertheless not withdraw his guilty plea. 

Defendant confirmed the accuracy of the material aspects of

the statement of facts supporting the charge. He confirmed that he is

pleading guilty to Count 2 of the Information because he is in fact

guilty of the offense charged in Count 2 of the Information. The Court

concludes that there is a factual basis for the plea. 

The Court concludes that defendant’s plea of guilty to Count

2 of the Information is knowingly and voluntarily made with understanding

of the nature and meaning of the charge and of the consequences of the

plea. 

It is therefore RECOMMENDED that defendant Mark F. Kilbarger’s

guilty plea to Count 2 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. 

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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 Thomas

v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,

Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981).

April 6, 2012 s/ Norah McCann King 

 Date Norah McCann King

 United States Magistrate Judge

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