IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America , :

Plaintiff

: 2:13-cr-0064

v. : Judge Graham

Audrey R. Costar

aka Audrey Ornstein, : Magistrate Judge Abel

Defendant

:

REPORT AND RECOMMENDATION

The United States of America and defendant Audrey R. Costar entered a plea

agreement for defendant to plead guilty to an information charging her with two counts

of theft of government funds in violation of 18 U.S.C. § 641 and two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Defendant Costar consented

under 28 U.S.C. § 636(b)(3) to enter a guilty plea before a magistrate judge.1

 She entered

her guilty pleas on April 5, 2013. 

1

See, United States v. Cukaj, 2001 WL 1587410, at *1 (6th Cir. 2001)(H: No merit to

defendant's argument that the magistrate judge lacked jurisdiction to accept his guilty

plea when the defendant expressly consented to being arraigned before the magistrate

judge and he did not file any objection to the Report and Recommendation that the

guilty plea be accepted); 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), cert. denied, 522 U.S. 1151 (1998);

United States v. Ciapponi, 77 F.3d 1247, 1251 (10th Cir..), cert. denied, 517 U.S. 1215 (1996);

United States v. Williams, 23 F.3d 629, 632-24 (2d Cir.), cert. denied, 513 U.S. 1045 (1994). 

See, United States v. Bearden, 724 F.3d 1031, 1037-38 (6th Cir. 2001)(H: Recommendation

of magistrate judge, who took defendant's nolo contendre plea with his consent, that the

plea be accepted is not binding on the district judge). 

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During the plea proceeding, I observed the appearance and responsiveness of the

defendant in answering questions. Based on those observations, I am satisfied that at

the time she entered her guilty pleas the defendant was in full possession of her faculties, that she was not suffering from any apparent physical or mental illness, and that

she was not under the influence of narcotics or alcohol.

Before accepting defendant’s plea, I addressed her personally in open court and

determined her competence to plead. I determined that defendant understands the

nature and meaning of the charge and the consequences of the plea. I further addressed

defendant personally in open court and advised her of each of the rights referenced in

Rule 11(c)(1) through (5), Fed. R. Crim. P. 

I addressed the defendant personally in open court as required by Rule 11(d) and

determined that her plea was voluntary. Defendant acknowledged that the plea agreement signed by her, her attorney, and plaintiff’s attorney and filed March 19, 2013 represents the only promises made to her by anyone regarding the charges in the information. Defendant was advised that the Court may accept or reject the plea agreement but

that if the Court rejects it, she has no right to withdraw her plea.

Defendant stated that the investigating officer’s statement of the facts supporting

the charge was accurate. She stated that she pleaded guilty because she is in fact guilty

of the offense charged. I addressed the defendant personally in open court and determined that there was a factual basis for the plea.

I determine that her plea of guilty was knowingly and voluntarily made with an

2

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understanding of the nature and meaning of the charge and the consequences of her

plea. It is RECOMMENDED that defendant Audrey R. Costar's guilty plea be accepted. 

Decision on acceptance or rejection of the plea agreement was deferred for consideration by the District Judge after a presentence report is prepared.

In accordance with S.D. Ohio Crim. Rule 32.1, a written presentence report will

be prepared by the Probation Office. Defendant will be asked to give information. Her

attorney may be present if defendant wishes. Objections to the report must be made in

accordance with S.D. Ohio Crim. Rule 32.1(c) through (e).

If any party objects to this Report and Recommendation, that party may, within

fourten (14) days, file and serve on all parties a motion for reconsideration by the Court,

specifically designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.

Civil. 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 waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

See also, United States v. Cukaj, 2001 WL 1587410, at *1 (6th Cir. 2001); Small v. Secretary of

Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

3

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