United States v. McIntosh ( 2022 )

Appellate Case: 20-5089 Document: 010110660067 Date Filed: 03/21/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 21, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5089
JOHN MICHAEL McINTOSH,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:19-CR-00059-JED-1)
_________________________________
John M. Bowlin, Bowlin & Schall LLC, Greenwood Village, Colorado, for Defendant-
Appellant.
Eleanor F. Hurney, Assistant United States Attorney (Clinton J. Johnson, Acting United
States Attorney, with her on the briefs), Tulsa, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before McHUGH, EBEL, and EID, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Defendant-Appellant John Michael McIntosh pled guilty to five counts of
robbery in violation of 18 U.S.C. § 1951, plus three counts of brandishing a pistol
during those five robberies in violation of 18 U.S.C. § 924(c). During the change-in-
plea hearing held by the district court, however, Mr. McIntosh repeatedly expressed
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doubts about whether he should plead guilty and suggested that his mental capacity
was impaired. After much indecision and two off-the-record discussions with the
government, he finally went forward with the plea and the district court completed its
plea colloquy.
But two months after entering the plea, Mr. McIntosh filed a motion to
withdraw it, contending that the plea was neither knowing nor voluntary and
therefore violated his constitutional due process rights. The district court denied the
motion and accepted the plea agreement at sentencing. Mr. McIntosh now appeals,
arguing that the plea was constitutionally invalid in the first instance and also
arguing, in the alternative, that the denial of his motion to withdraw the plea was an
abuse of discretion. Exercising jurisdiction under 28 U.S.C. § 1291, we find that the
district court failed to ensure the plea was knowingly and voluntarily made, and so
we VACATE Mr. McIntosh’s convictions and REMAND for further proceedings.
I. BACKGROUND
A grand jury charged Mr. McIntosh with five counts of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951, and five counts of brandishing a firearm during the
robberies, in violation of 18 U.S.C. § 924(c), based on allegations that he robbed five
Oklahoma convenience stores and other retail establishments at gunpoint over a
period of six days in February 2019.
Before trial, at the request of defense counsel and by order of the district court,
a psychologist examined Mr. McIntosh and diagnosed him with substance abuse
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disorders and malingering. The evaluator concluded that Mr. McIntosh did not meet
the diagnostic criteria for any mood, depressive, or psychiatric disorder that would
render him unable to understand the proceedings against him. The district court
subsequently found Mr. McIntosh competent to stand trial.
About a month before trial was scheduled to begin, Mr. McIntosh notified the
district court that he intended to plead guilty pursuant to an agreement with the
government. The agreement stipulated that Mr. McIntosh would plead guilty to eight
of the ten charges and be sentenced to 300 months’ imprisonment, while the
government would dismiss two of the brandishing counts against him. In advance of
a change-in-plea hearing, Mr. McIntosh signed the plea agreement documents,
including a statement attesting that he had reviewed the entire agreement with
counsel, understood all provisions, and voluntarily agreed to the deal.
But at the beginning of the district court’s change-in-plea hearing on
November 1, 2019, Mr. McIntosh voiced doubts about the agreement, stating:
I just feel like—honestly I feel like that it’s too much
time in my opinion. And I haven’t been taking my
medication because they took me off of it in David L. Moss
[Criminal Justice Center]. And I just don’t feel like my
judgment is right, you know what I’m saying? I just feel
like—I’m all over the place. You know, I want to take the
deal, I don’t want to take the deal. And I feel like my mental
state of mind isn’t right to take anything right now because
I don’t understand, you know, what’s really going on.
(R., vol. II at 16.)
The district court responded that Mr. McIntosh seemed to “need[] some other
time,” and asked Mr. McIntosh’s counsel for their thoughts. (Id. at 17.) Counsel
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replied that Mr. McIntosh had a “basic understanding” of the plea agreement and
appeared to be competent, and noted that the government’s plea offer was likely the
best option for him. (Id. at 18.) At that point, the government offered to speak with
Mr. McIntosh and his counsel off the record to explain the plea agreement in more
detail. The court agreed and granted recess, during which the parties conferred.
Upon returning from recess, Mr. McIntosh told the court that he would “just
take the deal.” (Id. at 22.) The court proceeded to explain some of the terms of the
plea agreement to him and stated, “I think what the government and the defense
counsel have done is something that would be better for you.” (Id. at 22.) The court
then administered an extensive plea colloquy, asking Mr. McIntosh and his counsel
questions such as whether he suffered from any mental disability or whether there
was any reason the hearing should not proceed. No objections or reasons not to
proceed were given.
After the court discussed the rights being waived and the precise terms of the
plea agreement with Mr. McIntosh, Mr. McIntosh asked to speak with his lawyer. He
was allowed to do so, and when the hearing resumed his counsel informed the court
that Mr. McIntosh had changed his mind again and now wished to go to trial. The
court said, “All right. You understand the difference? . . . You know that whatever
the government has told you about, you know, for 25 years here, the government can
go a lot further?” (Id. at 39–40.) Mr. McIntosh said he did understand and confirmed
that trial was what he wanted.
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The government requested to speak with Mr. McIntosh again. The court
allowed them to have an off-the-record conference. After this second conference
with the government, Mr. McIntosh again indicated he was willing to proceed with
the plea agreement. The court said, “All right. Thank you. If it helps, I think it’s the
right thing you did, all right?” (Id. at 40.) Mr. McIntosh then confirmed that he was
satisfied with his representation and told the court there was no reason why it should
not accept his guilty plea. The hearing proceeded with the government stating the
facts underlying the charges, Mr. McIntosh expressly pleading guilty to each charged
count, and the district court making findings to support the conviction—including a
finding that “the plea of guilty is knowingly, voluntarily, and intelligently made with
a full understanding of the nature of the charges, the consequences of the plea, and
defendant’s constitutional rights.” (Id. at 49.) The court accepted the plea but
deferred its decision on the stipulated sentence until the sentencing hearing, which
was scheduled for February 3, 2020.
On December 30, 2019—approximately two months after entering the guilty
plea, but before sentencing—Mr. McIntosh filed a motion to withdraw his plea. He
claimed that the plea was not “knowing” because he did not understand “that the
Court had no authority to order a sentence below the stipulated twenty-five years,”
and that it was not voluntary because “it was clear that [he] did not wish to enter plea
of guilty” and “[t]he nature of the environment was such that Mr. McIntosh was
unable to exercise his free will.” (R., vol. I at 63–64.) The district court denied this
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motion, finding that Mr. McIntosh’s guilty plea was knowing and voluntary and as a
result there was no “fair and just” reason to grant his request. (Id. at 124.)
At sentencing, the district court accepted the plea agreement terms and
sentenced Mr. McIntosh to 25 years’ imprisonment. This appeal followed,
challenging both the district court’s initial acceptance of the plea and its subsequent
denial of the motion to withdraw the plea.
II. STANDARD OF REVIEW
Challenges to the validity of a plea are generally reviewed de novo. United
States v. Rollings, 751 F.3d 1183, 1191 (10th Cir. 2014). The government argues,
however, that Mr. McIntosh failed properly to preserve his challenges to the plea’s
validity, which would mean this court would apply a plain-error standard of review.
See United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir. 2021). We disagree.
Mr. McIntosh specifically claimed that his plea was not knowing and not voluntary in
his motion to withdraw the plea below. In that motion, he supported his claims that
the plea was not knowing by highlighting the statements that his “judgment” was not
“right,” his “mental state of mind” was not “right,” and he did not “understand . . .
what [was] really going on.” (R., vol. I at 83–84.) As for his claims of
involuntariness, the motion noted the repeated conferences with the government
during the hearing and argued that they were coercive.
On appeal, Mr. McIntosh makes arguments that are substantially similar—if
not identical—to his arguments below, asserting that the plea was not knowing and
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not voluntary due to his “frail” mental state, which the district court inadequately
explored, plus alleged coercion by the government. (Aplt. Br. at 14.) Though his
appellate briefs may be more detailed than his motion to withdraw the plea, Mr.
McIntosh’s arguments below nonetheless gave the district court ample opportunity to
consider these issues—and the district court in fact did so in a thorough written
opinion. This is sufficient to preserve Mr. McIntosh’s arguments. See United States
v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (noting that “a federal appellate
court does not consider an issue not passed upon below” (emphasis added) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
We will review de novo Mr. McIntosh’s claim that his guilty plea was not
entered knowingly and voluntarily. United States v. Mitchell, 633 F.3d 997, 1002
(10th Cir. 2011) (applying de novo review where the issue of “whether [the
defendant’s] plea was knowing and voluntary was raised before the district court on
multiple occasions”). 1
1
Mr. McIntosh also appealed the district court’s denial of his motion to withdraw his
plea. That issue would be reviewed for an abuse of discretion, rather than de novo,
because “[d]efendants do not have an absolute right to withdraw a guilty plea.”
United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). Additionally, in the
context of motions to withdraw, “[t]he burden is on the defendant to establish a ‘fair
and just reason’ for the withdrawal of the plea.” Id. (quoting United States v. Black,
201 F.3d 1296, 1299 (10th Cir. 2000)). See also Fed. R. Crim. P. 11(d)(2)(B).
However, the underlying issue of “whether the plea was knowing and voluntary” is
one of the factors courts must consider “in deciding whether a defendant has met the
burden of showing that the district court, in denying a motion to withdraw a plea,
acted unjustly or unfairly.” Id. at 749. This factor is the only one addressed by Mr.
McIntosh in his arguments regarding the motion to withdraw his plea. Because the
“knowing and voluntary” requirement is constitutional, a district court abuses its
discretion if it denies a motion to withdraw a plea that was not knowingly and
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III. DISCUSSION
“The Due Process Clause of the Fourteenth Amendment requires that a
defendant knowingly and voluntarily enter a plea of guilty.” Fields v. Gibson, 277
F.3d 1203, 1212–13 (10th Cir. 2002). See also Brady v. United States, 397 U.S. 742,
748 (1970). This means a defendant’s decision to plead guilty must be “deliberate
and intelligent and chosen from available alternatives.” United States v. Libretti, 38
F.3d 523, 529 (10th Cir. 1994), aff’d, 516 U.S. 29 (1995). In the first instance, the
burden is on the sentencing court and the attorneys on both sides “to apprise the
defendant of the consequences of the plea and ensure that it is voluntary. If these
duties are not discharged, the defendant is not ‘fully aware’ of the consequences of
the plea and it is therefore involuntary.” United States v. Williams, 919 F.2d 1451,
1456 (10th Cir. 1990), cert. denied, 499 U.S. 968 (1991) (quoting Brady, 397 U.S. at
755). Again, we assess de novo whether the district court and attorneys adequately
performed those duties. Id. at 1455.
The specific content of the district court’s duties in voluntariness
determinations is governed by Federal Rule of Criminal Procedure 11(b), which
requires among other things that the court “address the defendant personally in open
court and determine that the plea is voluntary and did not result from force, threats,
voluntarily entered. Consequently, our initial assessment of the constitutional
validity of Mr. McIntosh’s plea will necessarily control the outcome of our review of
the denial of the motion to withdraw, and so we will not separately address that
secondary issue.
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or promises (other than promises in a plea agreement).” Fed. R. Crim. P. 11(b)(1–2).
See also Williams, 919 F.2d at 1456. Though not itself a constitutional mandate,
“Rule 11 . . . is designed to assist the district judge in making the constitutionally
required determination that a defendant’s guilty plea is truly voluntary” and “to
produce a complete record at the time the plea is entered of the factors relevant to
this voluntariness determination.” McCarthy v. United States, 394 U.S. 459, 465
(1969).
Mr. McIntosh makes two main arguments as to why his plea was not knowing
and voluntary. First, he claims that his “plea was not intelligently and deliberately
made, and the district court failed to ensure that he understood what he was doing
when he entered the plea,” as evidenced by his statements at the beginning of the plea
hearing of being off his medications, about which the district court failed to inquire
fully. (Aplt. Br. at 10–11.) Second, he claims that his plea was involuntary because
his “will was overcome by mental coercion” arising from the government and the
district court’s conduct during the hearing. (Id. at 14.) We agree with his first
argument, though not his second, and find that Mr. McIntosh’s statements about his
medication and mental fitness—which the district court failed meaningfully to
investigate—show that the plea was not knowing and voluntary in the absence of any
adequate Rule 11 record to the contrary.
To prove the invalidity of his plea, Mr. McIntosh points to several pieces of
evidence. One is the fact that he changed his mind five times over the course of the
plea hearing. But a district court does not have to reject a plea just because a
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defendant is having trouble making up his mind. There is inherent angst in pleading
guilty to a significant sentence. See Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir.
1995) (“Although deadlines, mental anguish, depression, and stress are inevitable
hallmarks of pretrial plea discussions, such factors considered individually or in
aggregate do not establish that Petitioner’s plea was involuntary.”). Mr. McIntosh’s
flip-flopping here reflected that angst, not a lack of understanding of the plea’s
consequences.
A second defect targeted by Mr. McIntosh is the alleged coercion resulting
from the two off-the-record conferences with the government. Again, we find no
evidence that these conferences affected Mr. McIntosh to such an extent that they
would “overbear[] the will of the defendant.” Brady, 397 U.S. at 750. Even an
allegation that the defendant was “hounded, browbeaten and yelled at” by his own
counsel urging him to accept a plea agreement is not sufficient to render a plea
involuntary. United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). As such, mere
urging by the prosecutor (who the defendant knows to be in an adversarial position)
in a plea discussion where defense counsel was present falls well short of coercion, if
such urging even took place here—which, on the record, is speculative. Mr.
McIntosh can point to no specific threats or statements made by the prosecution that
would amount to “mental coercion,” and this court will not assume that such threats
occurred.
Third, Mr. McIntosh claims that “the district court added the weight of its
opinion to the pressure exerted on Mr. McIntosh,” exacerbating coercion, by stating
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that the plea agreement was “better” for Mr. McIntosh after Mr. McIntosh said he
would take the deal. (Aplt. Br. at 15; R., vol. II, at 22.) But this court has held that
the district court does not violate Rule 11 by “questioning the defendant regarding
the terms, consequences, and acceptance of the plea agreement” or “providing the
defendant with information relating to these matters” once the agreement’s complete
terms have been presented in open court. United States v. Carver, 160 F.3d 1266,
1269 (10th Cir. 1998).
In Carver, the district court had made comments that “evidenced some
frustration” in response to the defendant’s “vacillation” about whether or not he
would accept a plea agreement, but this court nonetheless upheld the plea because
“the judge’s comments were prompted by an attempt to resolve the inconsistent
positions taken by the defendant during the sentencing hearing and were, if anything,
related to defendant's consideration of whether or not to withdraw his already
negotiated plea agreement.” Id. (emphasis in original). The same is true here—any
statements by the district court about the plea were made after the agreement’s terms
were agreed upon by the parties and presented to the court. Mr. McIntosh had already
read and signed the written plea agreement before even entering the courtroom, and
there was never any indication at that point that the terms of the agreement were up
for revision.
Further, the district court made clear throughout the plea hearing that Mr.
McIntosh was free to go to trial without additional consequence. In United States v.
Cano-Varela, this court found Rule 11 error where the district court told the
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defendant at a status conference “that he would ‘be doing at least ten years in a
federal penitentiary’ if he did not plead and was found guilty at trial, and that a post-
trial ‘sentence will ... be a harsh one.’” 497 F.3d 1122, 1133 (10th Cir. 2007). The
closest the district court came to such a statement here was its question, in response
to one of Mr. McIntosh’s statements that he wanted to go to trial rather than plead,
that “[y]ou know that whatever the government has told you about, you know, for 25
years here, the government can go a lot further?” (R., vol. II at 40.) There are two
important differences between this statement and that in Cano-Varela: first, the
district court’s statements in Cano-Varela occurred during a status conference, well
before the plea agreement had been entered or even finalized. Second, the Cano-
Varela court expressly compared the post-plea sentence to a post-trial sentence and
indicated certainly that the latter would be much higher. The district court here, in
contrast, merely checked that Mr. McIntosh understood that the government had the
option to seek a higher sentence at trial—it did not suggest whether the court itself
would impose a “harsh[er] one.” There is no evidence that the court’s statements
here gave Mr. McIntosh more information that he did not have as a result of his prior
meetings with defense counsel and the government. Thus, the statements by the
district court as to the wisdom of the plea agreement here could not have changed
Mr. McIntosh’s risk/benefit calculus in accepting the agreement and so were not
“coercive.”
There is one, and only one, piece of evidence proffered by Mr. McIntosh that
we view as significant in our analysis of whether his plea was knowingly,
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intelligently, and voluntarily made. That is Mr. McIntosh’s statement at the
beginning of the hearing that he had not been taking his medication and his judgment
was not “right” as a result. (R., vol. II at 16.) The district court did not ask Mr.
McIntosh any follow-up questions regarding the medication or underlying illness, or
the effect on Mr. McIntosh of not taking his medication. As a result, the record does
not reflect any additional details about the medication or the reason it was prescribed
to Mr. McIntosh, if indeed it was, nor about Mr. McIntosh’s history with and need for
that drug.
Where the district court is made aware during a plea proceeding that a
defendant may be experiencing the effects of a mental illness, it must take that fact
into account in its voluntariness determination. See Gonzales v. Tafoya, 515 F.3d
1097, 1118 (10th Cir. 2008) (“In evaluating challenges to guilty pleas, courts must
occasionally assess a defendant’s contention that his mental illness rendered the plea
invalid.”). The extent to which the claimed mental disorder affects voluntariness
depends on the totality of the circumstances, and the district court’s response under
Rule 11 must attend to the specifics of the defendant’s situation. See United States v.
Tanner, 721 F.3d 1231, 1233 (10th Cir. 2013) (per curiam) (“Determining whether a
defendant knowingly and voluntarily waived his rights is a question of law . . . that
must be based on the particular facts and circumstances surrounding the case,
including the background, experience, and conduct of the accused” (internal
quotations and alterations omitted)). The question here, then, is how much the lack
of medication impacted Mr. McIntosh’s ability knowingly and voluntarily to plead,
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and whether the district court adequately considered that impact in accepting the
plea.
In the only two cases in this circuit considering a defendant’s claims that his
guilty plea was invalid because he had not been taking his prescription medication,
this court rejected the claims. Nicholls v. Bigelow, 558 F. App’x 778 (10th Cir.
2014) (unpublished); United States v. Cardenas-Uriarte, 498 F. App’x 843 (10th Cir.
2012) (unpublished). But in Nicholls, the defendant did not inform the trial court of
the medication issue during the plea colloquy, raising it only after the fact. 558 F.
App’x at 783. And in Cardenas-Uriarte, the district court asked about the
medications during the plea hearing and the defendant stated that he deliberately
chose not to take the medications that day to ensure he was clearheaded. 498 F.
App’x at 845. Not so here, where Mr. McIntosh claimed at the hearing that he was
being denied access to his medications and his judgment was impaired as a
consequence, and the district court asked nothing further on the subject. 2
We have more squarely addressed the voluntariness implications of a
defendant’s statements that he was taking medications that may be affecting his
judgment at plea hearing. In United States v. Browning, this court held that the
district court sufficiently ensured the voluntariness of the defendant’s plea by
confirming at the hearing that the two prescription medications the defendant was
taking were “solely for treating ulcers and reducing pain” and the defendant “had
2
Even if these cases were more directly on point, “[u]npublished decisions are not
precedential.” 10th Cir. R. 32.1.
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never been treated for mental illness,” in addition to the district court asking if the
medications “in any way affected [his] ability to think or comprehend” (to which the
defendant said no) and whether there had been any changes in the defendant’s speech
or actions due to the medication (to which defendant’s counsel answered no). 61
F.3d 752, 754 (10th Cir. 1995). Browning clarified that just a few questions from the
district court in response to a defendant’s claim that he is under the influence of
medications can be enough to demonstrate voluntariness and satisfy Rule 11. 3 But
while we have said that those questions are sufficient to ensure voluntariness, we
have not determined whether they are also necessary to ensure voluntariness.
Other circuits addressing the same question as Browning—that is, how much a
district court must investigate “a defendant’s statement that he presently is or may be
under the influence of medication” during a plea hearing—have held that at a
minimum, “[d]istrict courts should ask about the types of drugs and whether
the medications are affecting the defendant’s mental state.” United States v. Carter,
795 F.3d 947, 952 (9th Cir. 2015). See also United States v. Yang Chia Tien, 720
3
This court has repeatedly rejected defendants’ claims that medications created
voluntariness problems when the defendant failed to mention the medication or claim
ill effects from it during the plea hearing itself—at least where there is no other
evidence, direct or circumstantial, reasonably suggesting to the court that the drugs
may be important to the voluntariness inquiry. See, e.g., United States v. McGiff, 85
F.3d 641 (10th Cir. 1996) (unpublished); United States v. Coates, 483 F. App’x 488,
495 (10th Cir. 2012) (unpublished); Freisinger v. Keith, 473 F. App’x 846, 848 (10th
Cir. 2012) (unpublished). Those cases are inapposite, however, given that the
question here is what the district court needed to do to confirm the plea’s validity
when the defendant actually claimed mental impairment due to lack of medication at
the hearing, not merely after the fact.
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F.3d 464, 470 (2d Cir. 2013); United States v. Savinon-Acosta, 232 F.3d 265, 268
(1st Cir. 2000); United States v. Damon, 191 F.3d 561, 565 (4th Cir. 1999); United
States v. Cole, 813 F.2d 43, 46 (3d Cir. 1987). But “[i]n general, appellate courts
have vacated pleas only when the district court failed completely to engage in any
meaningful follow-up with a defendant.” Carter, 795 F.3d at 952.
We think a similar approach is fitting for this analogous context, in which a
defendant tells the district court that he has not been taking his medications and
specifically indicates that the absence of those medications is impairing his judgment.
The district court must ask some follow-up questions such as what the medications
are, what conditions they treat, and how those conditions affect the defendant’s
present mental state. Here, the district court asked no questions inquiring about the
medication specifically. Consequently, it was never established that Mr. McIntosh
entered his plea knowingly and voluntarily, and we must vacate his plea as invalid as
a matter of due process.
Neither the findings of an earlier competency evaluation nor the district
court’s later questions about Mr. McIntosh’s mental state are sufficient to cure the
voluntariness issue we have identified. The competency evaluation—which the
district court ordered at the request of Mr. McIntosh’s counsel based on his past
diagnoses of mental disorders—indicated that Mr. McIntosh was not presently
suffering any disorder that would render him unable to understand the proceedings
against him. But a competency evaluation is not a proxy for the voluntariness
determination. Godinez v. Moran, 509 U.S. 389, 400 (1993); Allen v. Mullin, 368
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F.3d 1220, 1240 (10th Cir. 2004) (“The competency inquiry focuses on a defendant’s
ability to understand the proceedings; the ‘knowing and voluntary’ inquiry focuses on
whether he in fact did understand the proceedings.” (citing Godinez, 509 U.S. at
400)). The stakes are too different—in pleading guilty, the defendant is surrendering
the procedural safeguards of trial that are designed to ensure a fair process for all
defendants, including those who are mentally ill. See McCarthy, 394 U.S. at 466.
The district court’s voluntariness determination requires confirmation of mental
capacity greater than mere competency to stand trial in order to protect the due
process rights of a defendant who is legally competent but nonetheless incapable of
making a deliberate, intelligent, and voluntary choice to surrender his constitutional
rights at the moment of his plea hearing. 4
The district court’s generalized questions about Mr. McIntosh’s mental state
during the colloquy were not sufficient to ensure that the plea was knowing and
voluntary in light of Mr. McIntosh’s statement about the medication. While the
district court did ask defense counsel for their thoughts immediately after Mr.
McIntosh’s statement about the medication, counsel did not address the issue directly
4
We do not mean to imply that a defendant with a mental disorder—even a severe
one—will be unable, as a matter of law, to enter a valid guilty plea. See Wolf v.
United States, 430 F.2d 443, 445 (10th Cir. 1970) (“[T]he presence of some degree of
mental disorder in the defendant does not necessarily mean that he is incompetent to
knowingly and voluntarily enter a plea.”). We mean only to emphasize the need for
the district court to investigate adequately a defendant’s professed mental impairment
to ensure that a plea is truly voluntary and knowing. Asking a few follow-up
questions when the defendant references medication that he should be taking, but is
not taking at the time of the plea, is required to fill that crucial role.
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and instead broadly stated that they didn’t “have any concerns in regard to
competency” given the prior forensic evaluation. (R., vol. II at 18.) This follow-up
was insufficient for two reasons. First, counsel addressed competency rather than
voluntariness, which as we have said are different things. Second, Mr. McIntosh
himself—not merely his counsel—needed to be asked to elaborate on how the lack of
medication was affecting him, given that only he could give a personal account. See
McCarthy, 394 U.S. at 465 (explaining that Rule 11 requires “court to address
defendant personally” in order to “expose[] the defendant’s state of mind on the
record”); United States v. Vera, 514 F.2d 102, 104 (5th Cir. 1975) (“[M]ere
assurance of defense counsel is not sufficient” to ensure defendant’s understanding of
charge against him at plea hearing). The district court’s other inquiries about Mr.
McIntosh’s mental state came later in the plea colloquy, shortly after Mr. McIntosh
had said he would take the deal the first time (but before he changed his mind the
second time):
THE COURT: All right. Have you been treated recently
for any mental illness or addiction to narcotics of any
kind?
THE DEFENDANT: Yes.
THE COURT: What was that?
THE DEFENDANT: When I went for my evaluation.
THE COURT: All right. But what did you get?
THE DEFENDANT: I don’t know. They didn’t tell me.
THE COURT: Who was that? The person that you’re
talking about.
THE DEFENDANT: I don’t—I don’t remember her name.
...
THE COURT: All right. Are you currently under the
influence of any drug, medication, or alcoholic beverage of
any kind?
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THE DEFENDANT: No.
THE COURT: Do you suffer from any mental condition or
disability that would prevent you from fully understanding
the charges against you or the consequences of your guilty
plea?
THE DEFENDANT: No.
THE COURT: All right. Is there any reason we should not
go forward here today?
THE DEFENDANT: No. 5
(Id. at 24–25.)
Mr. McIntosh also responded “yes” when asked later if he understood the plea
agreement and its consequences. (Id. at 37–38.) It is true that Mr. McIntosh’s
statement that he did not “suffer from any mental condition” affecting his
understanding was in conflict with his prior assertion that his judgment was not right
and that he had not received his medications. But the obviousness of that
contradiction merely highlights the need for the district court to inquire further in
order to decide which statement was the more accurate one. If anything, this
inconsistent response should have alerted the district court of the need to ask more
specific questions about the medication—particularly given Mr. McIntosh’s
ambiguous answer about what treatment for mental illness he had previously received
and should be receiving.
5
Had Mr. McIntosh not given the more precise and unsolicited statement earlier in
the hearing that contradicted this assurance and suggested that he did have a mental
disability hindering his understanding of the plea, this colloquy would have been
sufficient to confirm that the plea was knowingly and voluntarily entered. See United
States v. Tanner, 721 F.3d 1231, 1233–34 (10th Cir. 2013).
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We generally accept a defendant’s in-court assurance that he understands a
plea agreement and voluntarily accepts it. United States v. Sanchez-Leon, 764 F.3d
1248, 1260 (10th Cir. 2014). However, that practice cannot excuse the court from
exploring the validity of a specific assertion by a defendant that he is not thinking
clearly because he is off his medications. If a defendant’s lack of essential medicines
prevents him from voluntarily entering a plea, it would similarly cast doubt on his
later assertion that he did voluntarily enter the plea.
To be clear, we do not hold that a defendant’s specific statements about his
mental capacity always trump the defendant’s responses to the district court’s general
colloquy questions. The need to interrogate about such statements will be governed
on a case-by-case basis. But here, Mr. McIntosh began his change-in-plea hearing by
stating that he was not taking his medication and was mentally impaired as a result.
The district court’s generalized (even boilerplate) inquiries into Mr. McIntosh’s
mental state some time later in the hearing—after he had changed his mind several
times—did not uncover any more details about this missing medication and so were
not sufficient to ensure the plea was knowing and voluntary. 6
6
The dissent makes much of the fact that Mr. McIntosh raised a “long list of
concerns” in addition to his missing medication, as he also complained about the
length of the plea agreement sentence, the conditions at the jail, and the loyalty of his
counsel. Dissent at 3–5. Of course displeasure with a sentence and conditions of
confinement cannot invalidate a defendant’s knowing and voluntary plea. But Mr.
McIntosh’s expressed unhappiness at a long sentence does not mean that his separate
statement that he was off his medication and mentally unwell can be automatically
dismissed as mere “malingering,” without further investigation by the district court.
His statement about not taking medication is a specific assertion casting doubt on his
mental fitness, and so the district court should have inquired more about it to resolve
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In sum, the record indicates that Mr. McIntosh’s guilty plea was not
established as knowing and voluntary as required by the Constitution because the
district court did not at all address his specific claim that he was off his medication
and his judgment was therefore impaired. “A guilty plea is void if it is not knowing
and voluntary.” United States v. Gigley, 213 F.3d 509, 516 (10th Cir. 2000). As a
result, the plea cannot stand and we must vacate the convictions that flowed from it.
Because we find his plea invalid on these grounds, we need not consider Mr.
McIntosh’s remaining arguments.
IV. CONCLUSION
For the reasons stated above, Mr. McIntosh’s convictions are VACATED and
the case REMANDED to the district court for proceedings consistent with this
opinion.
that doubt. We express no opinion on whether the district court could have
reasonably found Mr. McIntosh’s first statements about his ability to plead
disingenuous once it had asked him follow-up questions about his medication and the
illness for which it was prescribed. It is the failure even to try to gather that
information that invalidates Mr. McIntosh’s plea, as there is nothing in the record
following up on Mr. McIntosh’s initial statement that he had not been taking his
medication and his mental state was too unstable to enter a plea.
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United States v. McIntosh, No. 20-5089.
EID, Circuit Judge, dissenting:
Today, the majority holds “it was never established that McIntosh entered his plea
knowingly and voluntarily,” and thus, “we must vacate his plea as invalid as a matter of
due process.” Maj. op. at 16. In arriving at this conclusion, the majority also announces
a broad rule: “[where] a defendant tells the district court that he has not been taking his
medications and specifically indicates that the absence of those medications is impairing
his judgment,” “[t]he district court must ask some follow-up questions such as what the
medications are, what conditions they treat, and how those conditions affect the
defendant’s present mental state.” Id. Here, I dissent because I do not find support in our
caselaw for the rule pronounced by the majority, and because I do not find that the
absence of an immediate and direct inquiry rendered McIntosh’s plea involuntary or
unknowing.
One factor under the voluntariness inquiry is whether there was “an adequate
Federal Rule of Criminal Procedure 11 colloquy.” United States v. Hahn, 359 F.3d 1315,
1328 (10th Cir. 2004) (en banc) (per curiam); see United States v. Tanner, 721 F.3d 1231,
1233 (10th Cir. 2013) (finding that a “properly conducted plea colloquy . . . will, in most
cases, be conclusive”). As the majority notes, Rule 11 is not a constitutional mandate
itself, though the rule provides additional framework outlining the duties of a district
court in a voluntariness determination. See McCarthy v. United States, 394 U.S. 459, 465
(1969); see also Fed. R. Crim. P. 11(b)(1–2) (stating that the Rule 11 colloquy requires
the district court to “address the defendant personally in open court and determine that
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the plea is voluntary”). It is within this framework that the majority pronounces a broad
rule requiring district courts to ask direct and specific follow-up questions whenever “a
defendant tells the district court that he has not been taking his medications and
specifically indicates that the absence of those medications is impairing his judgment.”
Maj. op. at 16. However, I do not find that our caselaw requires that a district court take
a more specific, direct, or immediate action in response to the particular circumstances
before the court here.
In support of its rule, the majority cites to United States v. Browning, 61 F.3d 752,
754 (10th Cir. 1995). But in that case we found the court’s inquiry to be sufficient and
the defendant’s plea to be voluntary, and the court’s actions in Browning are not far from
what the district court did here. Just like in Browning, the court here immediately asked a
series of questions to McIntosh’s attorneys which elicited an extended discussion about
McIntosh’s understanding of the plea agreement, his concerns, and his overall
competency. See R. Vol. II at 17–20, 25–26; see also Browning, 61 F.3d at 754 (finding
that the court asked his counsel whether there had been any changes in the defendant’s
speech or actions due to the medication). Even though the court did not immediately
target McIntosh and ask about his comments relating to his medication, the court’s
inquiry—which did occur immediately after McIntosh’s list of concerns—resulted in a
robust discussion that focused on McIntosh’s mental state and his overall understanding.
Additionally, similar to the court in Browning, the court here gave McIntosh
additional time and then, in a plea colloquy prompted by McIntosh that took place
immediately after that recess, it asked whether McIntosh was “currently under the
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influence of any drug [or] medication,” and whether he “suffer[ed] from any mental
condition or disability that would prevent [him] from fully understanding the charges . . .
or the consequences of [his] guilty plea.” R. Vol. II at 25; see Browning, 61 F.3d at 754(finding that the court asked “whether the medication had in any way affected Mr.
Browning’s ability to think”).
Similar to our holding in Browning, and considering these facts, I do not find that
“the district court failed completely to engage in a meaningful follow-up” with McIntosh.
Maj. op. at 16 (quoting United States v. Carter, 795 F.3d 947, 952 (9th Cir. 2015).
Although the court’s immediate follow-up may have lacked direct questions to McIntosh
about his mental state and alleged lack of medication, the court’s general inquiry was an
appropriate response to McIntosh’s long list of concerns, especially when coupled with
its subsequent, extensive plea colloquy that did in fact ask McIntosh about his mental
state, mental condition, and any influence of “any drug, medication, or alcohol.” R. Vol.
II at 25.
Next, shifting the focus from the district court to McIntosh’s mental state at the
time of his plea, looking to “all of the relevant circumstances surrounding [the plea],” I
find that McIntosh had a sufficient understanding to voluntarily and knowingly plead
guilty. Brady, 397 U.S. at 748. First, while competency and voluntariness are not the
same thing, these concepts involve a large amount of overlap, and the psychologist’s
previous competency examination was relevant to McIntosh’s state of mind at the time of
his plea. Dr. Danielle Powers, a licensed psychologist and forensic evaluator, evaluated
McIntosh over the course of a month, administering several tests to assess McIntosh’s
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memory impairment, self-reported psychiatric symptoms, and ability to understand legal
proceedings. [R. Vol. IV at 21–22.] Powers concluded that McIntosh did not presently
meet the diagnostic criteria for any mood, depressive, or psychiatric disorders, and found
no evidence that McIntosh “could not assist his attorney with his defense, or [of] the
presence of a mental disease or defect that render[ed] him unable to understand the nature
and consequences of the proceeding against him.” R. Vol. II at 30–31. Instead, Powers
“diagnosed him with substance abuse disorders and malingering,” or “feigning,” meaning
Powers noted a belief that McIntosh was faking or exaggerating an illness or incapacity.1
R. Vol. II at 18; maj. op. at 4.
Second, on the day of his plea, McIntosh’s list of concerns was not simply that he
was not thinking clearly and that he was not taking proper medication. On the one hand,
McIntosh started his statement with an entirely different concern: “honestly I felt like it’s
too much time in my opinion.” Id. at 19. In response to the court’s follow-up questions,
this is exactly how McIntosh’s counsel framed the issue: “I think the real problem is what
Mr. McIntosh said initially, which is, it’s a lot of time.” Id. at 19.
On the other hand, immediately after his mental state comment, McIntosh said,
“I’m all over the place. You know, I want to take the deal, I don’t want to take the deal.”
Id. at 16. He continued, uninterrupted: “And another thing is, at the jail they sent me to I
have no access to no law library and I have, you know, limited phone calls . . . .” Id.
1
Malingering is diagnosed when the essential feature is the intentional production
of “false or grossly exaggerated physical or psychological symptoms,” motivated by
external incentives such as evading criminal prosecution. Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (DSM-5).
4
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After the court momentarily confirmed which jail he was referring to, McIntosh went on:
“They don’t even provide you like underwear or socks . . . . I also kind of feel like . . . I
just don’t feel like my lawyer is really working for me. I feel like he’s working against
me.” Id. at 17.
When considered all together, these facts show it was possible that McIntosh’s
comment was just more of the malingering he previously displayed in his medical
examination, especially considering the understandably heavy decision he had to make.
McIntosh’s long list of concerns seem to point towards the idea that he was scrambling to
buy more time to make a decision on his plea, and that his main concern was that he did
not like the amount of time that was being offered by the government. Surely, this is not
to say that the district court could not have thought otherwise. But, looking to the totality
of the circumstances, I cannot find that McIntosh’s comment was so egregious as to
dismantle the voluntariness of his plea, or require that the court halt its general concerns
or inquiries and direct its attention to one line in McIntosh’s larger statement.
Even after McIntosh’s list of concerns, McIntosh’s two attorneys told the district
court that McIntosh was competent to make this decision. Directly after McIntosh’s
comments, the court noted that “it seems to me that he needs some [more] time,” and then
asked Ms. Gullekson, one of McIntosh’s lawyers, what she thought. Id. at 17. That
lawyer told the court that she was there when they “went over the terms of the plea
agreement, the charges . . . , the potential ranges of punishment, the trial rights, and the
deal,” and that she believed McIntosh “did have a basic understanding of it.” Id. at 17–
18. At this point, the court turned to Mr. Widell, McIntosh’s other lawyer, who told the
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court, given the fact that the case began with a psychological evaluation, he did not have
“any concerns in regard to competency,” and that the report stated “no concerns . . .
regarding competency.” Id. at 18. Even after the plea colloquy, the court again asked
Gullekson whether she believed McIntosh was “in possession of his faculties and [was]
competent to proceed,” to which she responded, “Yes.” Id. at 25–26.
Finally, it is also of no small consequence that McIntosh himself assured the court,
under oath, that he knowingly and voluntarily wanted to plead guilty. See Blackledge v.
Allison, 431 U.S. 63, 73–74 (1977) (“Solemn declarations in open court carry a strong
presumption of verity.”). The essence of the plea colloquy is to ensure the voluntary and
knowing state of the defendant, and that is precisely what the district court offered
McIntosh. See McCarthy, 394 U.S. at 465 (“By personally interrogating the defendant,
not only will the judge be better able to ascertain the plea’s voluntariness, but he also will
develop a more complete record to support his determination in a subsequent post-
conviction attack.”); Tanner, 721 F.3d at 1233–34 (“A properly conducted plea colloquy,
particularly one containing express findings, will, in most cases, be conclusive on the
waiver issue, in spite of a defendant’s post hoc assertions to the contrary.”).
Upon returning from recess, as the district court started to ask counsel a question,
McIntosh independently spoke up, telling the court he wanted to “take the deal.” Id. at
24. Moments later, after the court made sure it understood his intent, the court began its
plea colloquy with McIntosh. During the colloquy, the court asked whether McIntosh
was “currently under the influence of any drug [or] medication.” R. Vol. II at 25.
McIntosh said, “No.” Id. The court asked, “Do you suffer from any mental condition or
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disability that would prevent you from fully understanding the charges against you or the
consequences of your guilty plea?” McIntosh responded, “No.” Id. The court also asked
McIntosh whether he had been treated for any mental illness, and McIntosh responded,
“Yes,” though he “didn’t know” what the mental illness was that he was treated for. Id.
at 24. Finally, the court asked, “Is there any reason we should not go forward here
today?” Id. McIntosh responded, “No.” Id.
Overall, the colloquy covered McIntosh’s mental state at the time of the hearing,
his mental condition, the influence of any drugs or medication on that mental condition,
and his understanding of the consequences of his plea. Taken together with the
surrounding circumstances, the court’s questions and McIntosh’s answers demonstrated
that McIntosh’s plea was knowing and voluntary. This is true even where McIntosh
initially stated that one of his concerns was he felt like his “mental state of mind [was]n’t
right” and that the jail had taken him off medication. Id. at 16.
Therefore, I believe the totality of the circumstances show that McIntosh
knowingly and voluntarily entered into his guilty plea. Considering the context of
McIntosh’s list of concerns, his two attorneys’ statements, and McIntosh’s own
statements to the court, I believe there is enough evidence to show that McIntosh
understood what was going on, including the consequences of his guilty plea, and
voluntarily plead guilty.
Respectfully, I dissent.
7