United States v. Swan

90 F.4th 1294

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 23, 2024
• Docket: 22-6132
• Status: Published

Opinion

Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 23, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-6132

JOHN MIGUEL SWAN,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:21-CR-00028-F-1) _________________________________

Keith Bradley of Squire Patton Boggs (US) LLP (Virginia L. Grady, Federal Public Defender; Leah D. Yaffe, Assistant Federal Public Defender, on the opening brief), Denver, Colorado, for Defendant-Appellant.

Allison B. Christian, Assistant United States Attorney (Robert J. Troester, United States Attorney, and Jackie Hutzell, Assistant United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee. _________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. _________________________________

MORITZ, Circuit Judge. _________________________________

John Swan appeals the district court’s denial of his presentence motion to

withdraw his guilty plea. At the hearing on Swan’s motion, plea counsel testified that

he told Swan, who is Black, that all minorities would be removed from his jury and Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 2

that his case would be tried before exclusively white jurors. This material

misrepresentation about Swan’s right to an impartial jury selected through racially

nondiscriminatory means occurred just before Swan told plea counsel that he wanted

to plead guilty. What’s more, counsel’s misrepresentation was neither corrected

during the district court’s plea colloquy nor negated by Swan’s prior experience in

the criminal-justice system. Under these circumstances, Swan’s plea was unknowing

and involuntary, and the district court abused its discretion in denying Swan’s motion

to withdraw his guilty plea. We reverse and remand for the district court to allow

Swan to withdraw his guilty plea and for further proceedings.

Background

While arresting Swan on a warrant stemming from state domestic-violence

charges, Oklahoma police officers saw ammunition “f[a]ll from somewhere on . . .

Swan’s person” and land on the ground. R. vol. 1, 96. The video of the arrest from

the officers’ body cameras does not show the ammunition falling out of Swan’s

pocket, but still images taken from the bodycam footage show ammunition on the

ground near where Swan was taken down. Based on this incident, a grand jury

indicted Swan for being a felon in possession of ammunition. See 18 U.S.C.

§ 922(g)(1). Swan entered a guilty plea, which the district court accepted after

conducting a plea colloquy.

Five months later, the district court allowed Swan’s plea counsel to withdraw

after finding a complete breakdown of effective communication and the absence of a

workable attorney-client relationship. On the same day, it appointed new counsel for

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Swan.

Around two months later, Swan wrote a pro se letter to the district court

asserting his factual innocence and indicating that plea counsel had “compelled” him

to plead guilty. R. vol. 1, 38. The district court treated this letter as a motion to

withdraw the plea and ordered additional briefing. Swan’s counsel then filed an

expanded motion to withdraw the plea, arguing that Swan was factually innocent.

Counsel also argued that Swan’s plea was unknowing and involuntary because Swan

“believed, based on his discussions with [plea] counsel, that he had no choice but to

plead guilty because it would be his word against the word of the police, and that he

would necessarily be disbelieved by a jury.” Id. at 52.

At the hearing on the motion to withdraw the plea, Swan testified that he was

factually innocent and said that the complete video footage of his arrest showed that

law enforcement had planted the ammunition after his arrest. He further testified that

he “didn’t feel like [he] was going to be able to get a fair trial” and that the jury

would believe the officers over him. R. vol. 3, 21.

Testifying for the government, plea counsel explained that in his meetings

with Swan, he showed Swan still images from the bodycam footage of the arrest, as

well as a short clip of the footage, but not the entire video. He explained that

although the video did not show the ammunition falling out of Swan’s pocket, the

still images showed “Swan being placed on the ground, . . . being picked up, and then

the clip being within close proximity of where he was placed facedown.” Id. at 48.

Describing his final meeting with Swan, plea counsel said that he showed Swan the

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video clips and still photos again and told “Swan that it would be his word against all

of the officers that were present.” Id.

Plea counsel further testified that he told Swan, during this final meeting, that

the jury “would be [composed] of no one of minority color.” Id. More than that, plea

counsel also agreed on cross-examination that he had told Swan the jury “would be

culled of any minorities.” Id. at 64. According to plea counsel, Swan paused after

receiving this information and then said “that he was going to go ahead and enter a

plea of guilty.” Id. at 49. Plea counsel testified that he told Swan he would not let

Swan plead guilty if the ammunition was not Swan’s. Then, plea counsel stated,

Swan “disclosed . . . that it was his.” Id.

The parties then offered closing arguments, with the government contending

that Swan’s assertion of factual innocence was not credible, that his plea was

knowing and voluntary, and that he had close assistance of counsel. Swan’s counsel

argued to the contrary on each point. In so doing, Swan’s counsel twice emphasized

that plea counsel’s statement about the all-white jury contributed to Swan being

compelled to enter a guilty plea.

Ruling from the bench, the district court devoted most of its discussion to

concluding that Swan’s assertion of factual innocence was “not credible” because

Swan merely “had a change of heart after he saw the full videos in terms of his

evaluation of his odds” and “offered nothing other than his speculation that these

officers would have been motivated to, would have been willing to, and did, in fact,

plant the [ammunition].” Id. at 92–93. The district court also briefly concluded that

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Swan had close assistance of counsel and that his plea was knowing and voluntary.

On the latter point, it did not mention plea counsel’s commentary about the selection

and makeup of Swan’s potential jury and instead reasoned that because Swan had

prior experience with the criminal-justice system, he understood what it meant to

plead guilty. Overall, the district court concluded that Swan failed to show a fair and

just reason to withdraw his plea and thus denied the motion.1

At sentencing, the district court imposed the statutory maximum of ten years in

prison,2 followed by three years of supervised release.3 Swan appeals.

Analysis

Swan argues that the district court erred in refusing to allow him to withdraw

his plea. Reviewing that decision, we would typically ask whether the district court

abused its discretion in assessing, under this circuit’s applicable seven-factor test,

whether Swan “‘establish[ed] a fair and just reason’ for his request” to withdraw his

1 About two months after the district court’s ruling, the Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The next month, Swan filed a pro se motion to reconsider the ruling on his motion to withdraw his plea. The district court permitted argument on the reconsideration motion prior to sentencing, and there Swan’s counsel also argued that Swan should be entitled to withdraw his plea on grounds of legal innocence because the felon-in-possession statute was unconstitutional under Bruen. The district court rejected the Bruen argument and denied the motion for reconsideration. 2 The statutory maximum for this crime has since increased to 15 years. See Bipartisan Safer Communities Act, Pub. L. 117-159, sec. 12004(c), 136 Stat. 1313, 1329 (2022) (codified at 18 U.S.C. § 924(a)(2), (8)). 3 Swan’s sentencing range under the United States Sentencing Guidelines was 57 to 71 months, based on a total offense level of 18 and a criminal-history category of VI. The district court imposed a longer sentence based primarily on concerns about Swan’s lengthy criminal history, noting that prior sentences had not deterred him and that he needed to be incapacitated. 5 Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 6

plea. United States v. Dominguez, 998 F.3d 1094, 1103–04 (10th Cir. 2021) (quoting

United States v. Marceleno, 819 F.3d 1267, 1272 (10th Cir. 2016)); see also Fed. R.

Crim. P. 11(d)(2)(B) (allowing withdrawal of plea before sentencing if “defendant

can show a fair and just reason for requesting the withdrawal”). But one of those

seven factors, and one that Swan raises on appeal, is whether the plea was knowing

and voluntary. See Dominguez, 998 F.3d at 1103–04. The requirement that a plea be

knowing and voluntary stems from the Due Process Clause of the Fourteenth

Amendment and is a legal issue that we review de novo. United States v. McIntosh,

29 F.4th 648, 655 (10th Cir. 2022); see also id. at 655 n.1 (explaining that district

court necessarily “abuses its discretion if it denies a motion to withdraw a plea that

was not knowingly and voluntarily entered”). We therefore begin—and ultimately

end—our assessment of Swan’s overall withdrawal argument with his position that

his plea was not knowing and voluntary.

A knowing and voluntary plea “must be ‘deliberate and intelligent and chosen

from available alternatives.’” Id. at 655 (quoting United States v. Libretti, 38 F.3d

523, 529 (10th Cir. 1994), aff’d, 516 U.S. 29 (1995)). Stated differently, “[t]o enter a

plea that is knowing and voluntary, the defendant must have ‘a full understanding of

what the plea connotes and of its consequence.’” Marceleno, 819 F.3d at 1276

(quoting United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002)). Thus, and

as relevant here, “[a] plea may be involuntary when an attorney materially

misinforms the defendant of the consequences of the plea.” Fields v. Gibson, 277

F.3d 1203, 1213 (10th Cir. 2002) (quoting United States v. Rhodes, 913 F.2d 839,

6 Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 7

843 (10th Cir. 1990)). In that instance, “the defendant must show the plea was a

product of [the] material misrepresentation[],” meaning that he or she “relied” on the

misrepresentation or that the misrepresentation impacted the decision to plead.

United States v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990).

Swan contends that his plea was not knowing or voluntary “because he was

informed that one of the rights he was waiving by pleading guilty—his right to an

impartial jury trial—was effectively nonexistent.” Aplt. Br. 18. In support, he relies

on plea counsel’s testimony that the jury “would be [composed] of no one of minority

color” and that Swan “wasn’t going to get a very good jury because it would be

culled of any minorities.” R. vol. 3, 48, 64. Swan contends this statement materially

misrepresented the nature of his right to an impartial jury, and he asserts that this

misrepresentation impacted his decision to enter his plea.

To its credit, the government does not dispute that plea counsel’s commentary

on the selection process for and racial makeup of Swan’s hypothetical jury

fundamentally and materially misrepresented the constitutional guarantees of being

tried by a jury of one’s peers that is selected without racial discrimination.4 As the

Supreme Court has long held, “[p]urposeful racial discrimination in selection of the

venire violates a defendant’s right to equal protection because it denies him the

4 The government also does not argue that Swan forfeited this argument by failing to make it below and waived it on appeal by failing to argue for plain error. The government has therefore waived any such argument. See United States v. Heckenliable, 446 F.3d 1048, 1049 n.3 (10th Cir. 2006) (holding that government “waived the waiver” where it did “not argue [d]efendant waived his present challenge”). 7 Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 8

protection that a trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79,

86 (1986); see also Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019) (“Equal

justice under law requires a criminal trial free of racial discrimination in the

jury[-]selection process.”). Thus, as the government does not dispute, plea counsel’s

statement to Swan was a material misrepresentation about one of the rights Swan was

sacrificing by pleading guilty.

The government nevertheless argues that this material misrepresentation did

not render Swan’s plea unknowing and involuntary. It first seeks to elevate the

applicable standard that Swan must meet from showing a material misrepresentation

that rendered his plea unknowing and involuntary to establishing a claim for

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668

(1984). For support, it relies on habeas cases involving claims of plea-stage

ineffective assistance of counsel for the proposition that “[w]hen an involuntariness

claim rests on the faulty legal decisions or predictions of defense counsel, the plea

will be deemed constitutionally involuntary only when the attorney is held to have

been constitutionally ineffective.” Worthen v. Meachum, 842 F.2d 1179, 1184 (10th

Cir. 1988) (emphasis added), overruled on other grounds by Coleman v. Thompson,

501 U.S. 722, 750 (1991); see also Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“Where,

as here, a defendant is represented by counsel during the plea process and enters his

plea upon the advice of counsel, the voluntariness of the plea depends on whether

counsel’s advice ‘was within the range of competence demanded of attorneys in

criminal cases.’” (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970))).

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But Strickland doesn’t apply here. Swan’s argument is not that plea counsel

ineffectively made a “faulty legal decision or prediction,” Worthen, 842 F.2d at

1184—his argument is that plea counsel materially misrepresented the nature of his

right to a jury trial and rendered his waiver of that right unknowing and involuntary

because he did not know what he was surrendering. In other words, Swan does not

take issue with the quality of his representation as it pertains to plea counsel’s legal

guidance specific to his case; rather, he states that he did not understand one of the

rights he was giving up because plea counsel materially mischaracterized that right.

Cf. Worthen, 842 F.2d at 1183–84 (applying Strickland to claims that plea counsel

misrepresented when defendant would be paroled, that defendant would receive

immunity on other charges, and that counsel would represent defendant in other

matters). Indeed, we have often separately examined claims of attorney

misrepresentation in the knowing-and-voluntary context outside of Strickland. See

Laycock v. New Mexico, 880 F.2d 1184, 1186–87 (10th Cir. 1989) (assessing

voluntariness of plea in light of attorney’s alleged material misstatements about

potential for suspended sentence separately from five ineffectiveness claims subject

to Strickland); United States v. Rhodes, 913 F.2d 839, 842–44 (10th Cir. 1990)

(assessing voluntariness of plea in light of attorney’s alleged material misstatements

about likely length of sentence and then reviewing ineffectiveness claim separately,

under Strickland); United States v. Carr, 80 F.3d 413, 416–19 (10th Cir. 1996)

(analyzing voluntariness of plea under three arguments, only one of which also

constituted ineffectiveness claim). We take the same path here and review Swan’s

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claim as he presents it: a claim that his plea was not knowing and voluntary.

Under that standard, Swan must show the material misrepresentation impacted

his decision to plead guilty. See Williams, 919 F.2d at 1456. The record here

establishes just that. Plea counsel recalled concluding his final meeting with Swan by

“inform[ing] . . . Swan that it would be [Swan’s] word against all of the officers that

were present, the body[-]cam footage, and jurors that would be [composed] of no one

of minority color.” R. vol. 3, 48. And on cross-examination, plea counsel agreed that

he in fact told Swan all minorities would be removed from the jury. The government

then asked plea counsel what Swan decided to do; plea counsel replied that “Swan at

that point paused” and “then [said] that he was going to go ahead and enter a plea of

guilty.” Id. at 49. This testimony and timeline establishes that Swan relied, at least in

part, on plea counsel’s material misrepresentation.5

The government asserts that Swan cannot show reliance because his motions to

withdraw his plea did not mention plea counsel’s misrepresentation and instead

focused on factual innocence. But when those motions were filed, Swan did not yet

know he had been materially misinformed about his jury-trial right, and thus neither

did his counsel. Moreover, the pro se motion mentioned that plea counsel’s

5 To be sure, plea counsel later indicated that “the still photos and the clip of the video” are what “changed” Swan’s assertions of innocence into a desire to plead guilty. R. vol. 3, 71. And the district court noted “that [Swan’s] decision to plead guilty was driven by the facts and by [his] realistic assessment of his chances at trial.” Id. at 88. But Swan viewed the photos and video clip during the same conversation in which plea counsel materially misrepresented the jury-trial right, and we cannot separate the two—particularly in light of plea counsel’s description of precisely when, during their final conversation, Swan decided to plead. 10 Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 11

statements “compelled” him to plead, and Swan’s counseled motion asserted that

Swan thought he would be “disbelieved” by a jury: both concerns would reasonably

flow from being told that the jury would be culled of all minorities. R. vol. 1, 38, 52.

The government also argues that Swan’s prior experience with the judicial

system proves that plea counsel’s misrepresentation did not make a difference to his

decision to plead guilty because Swan necessarily knew how jury trials work.6 But as

Swan replies, the record contains nothing about the nature of his prior experiences in

criminal court. Indeed, although the government notes that Swan cited his prior

criminal-court experience as one of the reasons he was entering a guilty plea, such

fact does not assist the government—for all we know, he had an all-white jury in that

prior case, which would only reinforce the material misrepresentation at issue here.

In short, that Swan has prior experience in criminal court does not mean he could not

have relied on plea counsel’s material misrepresentation in this case.

Last, the government invokes the thoroughness of the district court’s colloquy

under Federal Rule of Criminal Procedure 11 at the change-of-plea hearing. But the

Rule 11 colloquy is not the source of the misrepresentation at issue here, so the

government’s argument puts the cart before the horse. Cf. Williams, 919 F.2d at 1456

(“Both the attorneys and the court have a duty to apprise the defendant of the

consequences of the plea and ensure that it is voluntary.”). Even if “[n]othing in Rule

11 requires a court to advise a defendant that he is giving up his right to a fair,

6 Recall that Swan’s prior experience in the criminal-justice system was also the basis for the district court’s knowing-and-voluntary ruling. 11 Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 12

impartial, or unbiased jury,” Aplee. Br. 13, the more relevant question here is

whether anything in the Rule 11 colloquy negated or overcame plea counsel’s

material misrepresentation about Swan’s jury-trial rights. See Dominguez, 998 F.3d at

1106 (noting that defendant did “not contest the sufficiency of the court’s Rule 11

colloquy” but addressing other circumstances that could have rendered plea

unknowing or unintelligent). And there is no dispute here that the district court did

not delve into the right to an impartial jury selected without racial bias, effectively

(although certainly unintentionally) allowing plea counsel’s misrepresentation to

stand uncorrected. Thus, we reject the government’s Rule 11 argument.

In sum, because plea counsel advised Swan that his jury would be culled of all

minorities—suggesting implicitly “that [Swan] would not receive a fair trial because

of race”—Swan was materially misinformed about the nature of one of the rights he

was sacrificing by pleading guilty: his right to a jury trial, which includes the right to

a jury of his peers selected via nondiscriminatory means. Aplt. Br. 13. And plea

counsel’s testimony established that Swan relied on this misrepresentation when

deciding to plead guilty. Nothing in the Rule 11 colloquy corrected the

misrepresentation; nor, on this record, did Swan’s prior experience with the criminal-

justice system. We therefore hold that Swan’s plea was not knowing and voluntary

and that the district court accordingly abused its discretion in denying Swan’s motion

to withdraw his plea.7 See McIntosh, 29 F.4th at 655 n.1 (“[A] district court abuses its

7 We reach this conclusion based solely on the knowing-and-voluntary requirement and thus need not consider Swan’s arguments on other plea-withdrawal 12 Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 13

discretion if it denies a motion to withdraw a plea that was not knowingly and

voluntarily entered.”).

Conclusion

Swan’s plea was not knowing and voluntary because, during the conversation

in which he decided to plead guilty, his plea counsel materially misrepresented his

right to an impartial jury selected through racially nondiscriminatory means. We

therefore reverse the district court’s denial of Swan’s motion to withdraw his guilty

plea and remand for the district court to allow Swan to withdraw his plea and for

further proceedings.

factors, including factual and legal innocence. But we pause to note that to the extent that Swan’s legal-innocence argument seeks broader relief than simply withdrawing his plea (he asserts that his statute of conviction is unconstitutional), we are bound to follow our recent decision in Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023). See United States v. Lira-Ramirez, 951 F.3d 1258, 1260–61 (10th Cir. 2020) (“We must generally follow our precedents absent en banc consideration.”). As Swan acknowledges, Vincent forecloses his position that the felon-in-possession statute is unconstitutional under Bruen, and he now maintains that argument solely for preservation purposes. 13