United States v. Swan

91 F.4th 1052

UNITED STATES of America, Plaintiff - Appellee, v. John Miguel SWAN, Defendant - Appellant.

No. 22-6132

United States Court of Appeals, Tenth Circuit

FILED January 26, 2024

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 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 thus vacate Swan's conviction 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 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 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 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 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, 116 S.Ct. 356, 133 L.Ed.2d 271 (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, 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 non-existent." 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...