IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 2:13-CR-226

Judge James L. Graham

Magistrate Judge Elizabeth P. Deavers

MELISSA R. KINCAID,

Defendant.

REPORT AND RECOMMENDATION

The United States of America and Melissa R. Kincaid entered into a plea agreement whereby

Defendant agreed to enter a plea of guilty to an Indictment charging her in Count One with bank

fraud in violation of 18 U.S.C. § 1344. On December 20, 2013, Defendant, accompanied by her

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). 

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 she entered his guilty plea, Defendant was in full possession of her faculties, was not

suffering from any apparent physical or mental illness, and was not under the influence of narcotics

or alcohol. 

Prior to accepting Defendant’s plea, the undersigned addressed her personally and in open

court and determined her competence to plead. Based on the observations of the undersigned, and

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the statements made by Defendant and his counsel, Defendant understands the nature and meaning

of the charges returned in the Indictment and the consequences of his plea. 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 her, her attorney and

the attorney for the United States and filed on December 6, 2013, represents the only promises made

to her by anyone regarding the charges in the Indictment. 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

her guilty plea. 

Defendant confirmed the accuracy of the material aspects of the investigating officer's

statement of facts supporting the charge. She confirmed that she is pleading guilty to Count One

of the Indictment because she is in fact guilty of the offenses charged therein. The Court concludes

that there is a factual basis for the plea. 

The Court concludes that Defendant’s plea of guilty to Counts One of the Indictment is

knowingly and voluntarily made with the understanding of the nature and meaning of the charge and

of the consequences of her plea. 

It is therefore RECOMMENDED that Defendant Melissa R. Kincaid’s guilty plea to Count

One of the Indictment 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, a written presentence investigation report will

be prepared by the United States Probation Office. Defendant will be asked to provide information

and his 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). Response to objections

must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b). 

The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate judge’s

recommendations constituted a waiver of [the defendant’s] ability to appeal the district court’s

ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived

appeal of district court’s denial of pretrial motion by failing to timely object to magistrate judge's

report and recommendation). Even when timely objections are filed, appellate review of issues not

raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A]

general objection to a magistrate judge’s report, which fails to specify the issues of contention, does

not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

DATE: December 23, 2013 s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE 

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