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Tenth Circuit: Plea Not Knowing and Voluntary Where Plea Counsel Materially Misrepresented Defendant’s Right to Impartial Jury Selected Through Racially Nondiscriminatory Means

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that John Miguel Swan’s guilty plea was not knowing and voluntary because “his plea counsel materially misrepresented his right to an impartial jury selected through racially nondiscriminatory means.”

While Swan was being arrested on a domestic violence warrant, Oklahoma police officers alleged that they saw ammunition fall from his person and land on the ground. The arresting officers’ body cameras’ footage did not show the ammunition falling from Swan’s pocket, “but still images taken from the bodycam footage show[ed] ammunition on the ground near where Swan was taken down.”

A grand jury indicted Swan for being a felon in possession of ammunition. The U.S. District Court for the Western District of Oklahoma subsequently accepted Swan’s guilty plea after conducting a plea colloquy. Five months later, the District Court allowed defense counsel to withdraw due to a complete breakdown in effective communication, and new counsel was appointed.

Ultimately, new counsel filed a motion to withdraw the guilty plea, arguing (1) Swan was factually innocent and (2) 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.’”

At a hearing on the motion, plea counsel testified for the Government. He testified that at their last meeting, he told Swan, who is Black, that the jury “would be [composed] of no one of minority color.” On cross-­examination, plea counsel affirmed that he had told Swan that the jury “would be culled of any minorities.” 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.’”

The District Court concentrated its discussion on its finding that Swan’s claim of factual innocence was not credible. The District Court also concluded that Swan’s plea was knowing and voluntary because he had prior experience with the criminal justice system. The District Court denied the motion. Swan was sentenced to the then statutory maximum of 10 years’ imprisonment followed by three years of supervised release. Swan timely appealed.

The Court observed a “knowing and voluntary plea ‘must be deliberate and intelligent and chosen from reasonable alternatives.’” United States v. McIntosh, 29 F.4th 648 (10th Cir. 2022). “To enter a plea that is knowing and voluntary, the defendant must have a full understanding of what the plea connotes and of its consequences.” United States v. Marceleno, 819 F.3d 1267 (10th Cir. 2016). “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 (10th Cir. 2002). To demonstrate that a plea was involuntary because it was the product of a material misrepresentation, the defendant must show he or she “relied on the misrepresentation or that the misrepresentation impacted the decision to plead.” United States v. Williams, 919 F.2d 1451 (10th Cir. 1990). “Purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79 (1986).

In the present case, Swan contended 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—was effectively nonexistent.” The Government argued that plea counsel’s material misrepresentation did not establish a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). For support, the Government cited the habeas case of Worthen v. Meachum, 842 F.2d 1179 (10th Cir. 1988): “When 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.”

But the Court observed that Swan’s case was not a habeas corpus but an appeal of the denial of a motion to withdraw the guilty plea. Further, the Court stated that his claim was not that counsel was ineffective but 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.” The Court had “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 (10th Cir. 1989).

The Court also rejected the Government’s argument that Swan’s prior experience with the criminal justice system negated his claim. The “record contain[ed] nothing about the nature of [Swan’s] prior experiences in the criminal court.” The Court stated, “for all we know, he had an all-white jury in that prior case, which would only reinforce the material misrepresentation at issue here.” Finally, the Court observed that nothing in the District Court’s Federal Rule of Criminal Procedure 11 plea colloquy corrected plea counsel’s material misrepresentation. The Court held that “Swan’s plea was not knowing and voluntary because plea counsel materially misrepresented his right to an impartial jury selected through racially nondiscriminatory means” and that the District Court abused its discretion by denying his motion to withdraw his plea.

Accordingly, the Court vacated Swan’s conviction and remanded for the District Court to allow him to withdraw his plea. See: United States v. Swan, 91 F.4th 1052 (10th Cir. 2024).  

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United States v. Swan



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