1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

UNITED STATES OF AMERICA 

 vs. Criminal Action 2:17-cr-255 

 JUDGE JAMES L. GRAHAM 

JOHN E. KELLY 

 

REPORT AND RECOMMENDATION 

 Defendant John E. Kelly is charged in an Indictment with eight 

(8) counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 1 – 

8), eight (8) counts of money laundering in violation of 18 U.S.C. § 

1957 (Counts 9 – 16), and two (2) counts of tax evasion in violation 

of 26 U.S.C. § 7201 (Counts 17 – 18). The Indictment also contains a 

forfeiture count in which the United States seeks to forfeit any 

interest that defendant may have in property involved in connection 

with the money laundering charges (Counts 9 – 16). Indictment, ECF No. 

3. Defendant previously pleaded not guilty to the charges. The United 

States and defendant thereafter entered into a plea agreement, 

executed pursuant to the provisions of Rule 11(c)(1)(B) of the Federal 

Rules of Criminal Procedure, whereby defendant agreed to enter a plea 

of guilty to Counts 1 and 17 of the Indictment.1 On May 31, 2018, 

defendant, accompanied by his counsel, appeared for a change of plea 

proceeding. 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 

 1 Under the Plea Agreement, ECF No. 21, defendant agreed to a forfeiture 

money judgment and an order of restitution. The Plea Agreement also includes 

an appellate waiver provision which preserves only certain claims for appeal 

or collateral challenge. 
appearance and responsiveness of defendant in answering questions. 

Based on that observation, the undersigned is satisfied that, at the 

time he entered his guilty pleas, 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. 

 Prior to accepting defendant’s pleas, 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 in the Indictment

and the consequences of his pleas of guilty to Counts 1 and 17. 

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 pleas are voluntary. Defendant 

acknowledged that the plea agreement signed by him, his attorney and 

the attorney for the United States and filed on April 27, 2018, 

represents the only promises made 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 his guilty pleas. 

 Defendant confirmed the accuracy of the statement of facts 

supporting the charge, which is attached to the Plea Agreement. He 

confirmed that he is pleading guilty to Counts 1 and 17 of the 

Indictment because he is in fact guilty of those offenses. The Court 

concludes that there is a factual basis for the pleas. 

 The Court concludes that defendant’s pleas of guilty to Counts 1 

and 17 of the Indictment are knowingly and voluntarily made with 

understanding of the nature and meaning of the charges and of the 

consequences of the pleas. 

 It is therefore RECOMMENDED that defendant’s guilty pleas to 

Counts 1 and 17 of the Indictment be accepted. Decision on acceptance 
3 

or rejection of the plea agreement was deferred for consideration by 

the District Judge after the preparation of a presentence 

investigation report. 

 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). 

May 31, 2018 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge