10th Circ. Rules Counsel Duped Client Into Guilty Plea

By Emily Sawicki | January 24, 2024, 8:20 PM EST ·

In a precedential ruling, the Tenth Circuit has allowed a Black Oklahoma man to withdraw his guilty plea on felony possession of ammunition charges, determining that his court-appointed lawyer incorrectly told him he would not face an impartial jury of his peers, thus robbing him of his constitutional rights.

On Tuesday, a three-judge panel ruled that John Swan could withdraw the guilty plea he entered after being indicted on a charge of possessing pistol cartridges in violation of the U.S. criminal code. Swan argued that he was "factually innocent" but had been "forced" to plead guilty upon the urging of his plea counsel, who told him he would face an all-white jury if he went to trial.

What's more, the panel said, the district court did not correct the assertion that Swan would face only white jurors, and the statement was not negated by Swan's previous experiences navigating the criminal justice system.

"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," according to the panel.

The panel's ruling reverses an order by the U.S. District Court for the Western District of Oklahoma denying Swan's motion to withdraw his guilty plea and vacates the 10-year sentence Swan was given in 2022, remanding the suit to the district court to proceed without the guilty plea.

The events at issue in the case date to September 2020, when law enforcement officers sought to arrest Swan on a warrant on domestic violence charges.

When Swan was apprehended, Oklahoma police officers reported seeing ammunition fall "'from somewhere on … Swan's person' and land on the ground," the Tenth Circuit panel said. Though the falling ammunition was not captured by police body camera footage, images do show ammunition "on the ground near where Swan was taken down," the panel said.

In February 2021, a grand jury indicted Swan on charges of being a felon in possession of ammunition, and in June of that year, he pled guilty, waiving his right to a jury trial.

Five months later, Swan's court-appointed attorney, Cesar Armenta, filed a motion to withdraw as counsel. Armenta's motion acknowledged Swan's desire to withdraw the plea, but said he "vehemently denied" having "tricked" his client into entering a guilty plea.

"It is evident the attorney-client relationship between counsel and Mr. Swan has deteriorated to such a degree that counsel does not believe he can ethically and effectively continue to represent Mr. Swan in this matter," Armenta said.

The motion was granted, and in October 2021, lawyer David B. Autry was appointed to represent Swan.

In January, Swan wrote to U.S. District Judge Stephen P. Friot expressing his wish to withdraw his guilty plea.

In his handwritten letter from an Oklahoma detention facility, Swan told Judge Friot, "I wish to state that I stand totally innocent of this crime and was compelled to enter a guilty plea in this instant case out of blatant force and ineffective assistance of counsel by prior counsel!!" The letter was entered as a pro se motion.

A later, more formal, memorandum in support of Swan's motion to withdraw was entered a month later, in which he argued the plea was not "knowingly and voluntarily entered," due to the alleged "pressure" by Armenta. Swan further alleged that he was not fully informed of the case against him, having not been "shown the entirety of the discovery" by his plea counsel.

In a subsequent hearing on Swan's motion to withdraw the plea, Armenta 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," the panel said.

The district court denied the motion to withdraw and imposed the statutory maximum sentence for the offense.

At the time, the offense carried a suggested prison sentence of 57 to 71 months under federal sentencing guidelines. Swan was sentenced to 120 months behind bars after the district court expressed "concerns about Swan's lengthy criminal history, noting that prior sentences had not deterred him and that he needed to be incapacitated," the panel said.

The panel determined that Swan's original counsel "materially misrepresented the nature of his right to a jury trial," by telling him the jury he faced would include "no one of minority color." Therefore, Swan could not have understood the right he was giving up by pleading guilty — the right to be tried by a jury of his peers.

In essence, Swan was told he would not receive a fair trial anyway, the panel said. But, since this is incorrect, Swan's plea could not have been knowingly and voluntarily entered.

Though Swan presented other arguments in his motion to withdraw the guilty plea, the panel specified that only the knowing-and-voluntary requirement need prevail, and the circuit court did not consider arguments regarding Swan's alleged factual and legal innocence.

Judges Scott M. Matheson Jr., Robert E. Bacharach and Nancy L. Moritz sat on the panel.

Representatives for Swan and the government did not immediately respond to requests for comment Wednesday.

John Miguel Swan is represented by Keith Bradley of Squire Patton Boggs and Virginia L. Grady and Leah D. Yaffe of the Office of the Federal Public Defender.

The government is represented by Allison B. Christian, Robert J. Troester and Jackie Hutzell of the U.S. Attorney's Office.

The case is USA v. John Miguel Swan, case number 22-6132 in the United States Court of Appeals for the Tenth Circuit.

--Editing by Peter Rozovsky.

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