by David M. Reutter

he U.S. Court of Appeals for the Tenth Circuit held a defendant’s guilty plea was unknowing and involuntary due to trial counsel’s misrepresentation that all minorities would be removed from the jury, resulting in a trial before exclusively white jurors. The case was remanded to allow the defendant to withdraw the plea.

John Swan, who is Black, was arrested on an Oklahoma warrant for domestic violence. During the arrest, Swan was taken down. The officers alleged they saw ammunition fall from somewhere on Swan’s person. Body camera video from the arrest failed to prove that allegation, but the footage did show ammunition on the ground near where Swan was taken down. A federal grand jury indicted Swan for being a felon in possession of ammunition.

Swan maintained his innocence. The U.S. District Court for the Western District of Oklahoma granted the motion to withdraw filed by Swan’s initial appointed counsel due to an unworkable relationship. Represented by new appointed counsel, Swan entered a guilty plea. About two months later, Swan sent a pro se letter to the District Court that asserted his factual innocence and indicated that plea counsel “compelled” him to plead guilty.

The court treated the letter as a motion to withdraw and ordered an evidentiary hearing. Swan’s attorney filed an expanded motion to withdraw the plea as unknowingly and involuntarily entered because Swan believed “that he had no choice but to plead guilty because it would be his word against the police” and the jury would likely disbelieve Swan. At the evidentiary hearing, Swan further testified he felt he would not get a fair trial.

Plea counsel agreed with Swan’s creditability assessment. Counsel further testified that at the final meeting before the plea was entered that he informed Swan that the jury “would be [composed] of no one of minority color.” On cross-examination, counsel testified that he informed Swan the jury “would be culled of any minorities.” After receiving that information, Swan paused before declaring he would enter a guilty plea. Counsel testified that he would not allow a plea of the ammunition if it was not Swan’s. Swan then “disclosed … that it was his.” The District Court denied the motion, and Swan timely appealed.

The Tenth Circuit noted that in reviewing a plea withdrawal decision, it ordinarily examines whether the District Court abused its discretion under the circuit’s seven-factor test. United States v. Dominguez, 998 F.3d 1094 (10th Cir. 2021); see also Fed. R. Crim. P. 11(d)(2)(B). One of the seven factors is whether the plea was knowing and voluntary. Dominguez. This requirement is based on the Due Process Clause of the Fourteenth Amendment is an issue that’s reviewed de novo. United States v. McIntosh, 29 F.4th 648 (10th Cir. 2022).

For a plea to be knowing and voluntary, it must be “deliberate and intelligent and chosen from available alternatives.” United States v. Libretti, 38 F.3d 523 (10th Cir. 1994). The Court noted that circuit precedent holds that “[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). The defendant “must show the plea was a product of [the] material misrepresentation,” i.e., he “relied” on the misrepresentation in the decision to plead. United States v. Williams, 919 F.2d 1451 (10th Cir. 1990).

The Government did not dispute Swan’s claim “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.” See generally Batson v. Kentucky, 476 U.S. 79 (1986).

The Government, however, argued that the higher standard applicable to ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984), should apply. The Court rejected that argument because it’s based on habeas cases involving claims of ineffective assistance of counsel due to faulty legal decisions or predictions at the plea stage. See Hill v. Lockhart, 474 U.S. 52 (1985). However, the Court distinguished those cases by noting that Swan did not argue that plea counsel ineffectively made a faulty legal decision or prediction. Rather, Swan argued that plea counsel materially misrepresented the very nature of his right to a jury trial, which rendered waiver of that right “unknowing and involuntary,” the Court explained.

Consequently, the Court stated that the proper analysis is to separately exam claims of attorney representation in the knowing-and-involuntary context outside the ineffective assistance of counsel context. See Laycock v. New Mexico, 880 F.2d 1184 (10th Cir. 1989). Under that standard, the Court concluded the material misrepresentation impacted Swan’s decision to plead guilty. It noted that Swan protested his innocence, but after being told all minorities would be removed from the jury, he reversed course and decided to enter the plea.

The Court rejected the Government’s attempt to obtain affirmation based on Swan’s previous experience with the criminal justice system. The record was devoid of any details about that experience and could have included “an all-white jury in the prior case,” the Court wrote. Thus, Swan’s prior experience doesn’t mean he could not rely on counsel’s misrepresentation. Federal Rule of Criminal Procedure 11 requires, among other things, that a defendant know the consequences of the plea and that voluntariness is ensured. The plea colloquy failed to delve into the right to an impartial jury selected without racial bias. Thus, the Court held 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.”

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).  

Writer’s note: Electing to withdraw the plea places Swan back at square one. As CLN has reported, exercising the right to a jury trial and losing results in imposition of a trial penalty. Swan may have achieved victory at this stage of the proceedings, but he still faces an uphill creditability battle. The writer has witnessed numerous cases wherein the defendant withdrew a favorable plea and ended up with a virtual or true-life sentence. CLN has also reported that a Hobson’s choice such as Swan now faced has resulted in many innocent defendants pleading guilty.

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