FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 28, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellant,

v.                                                            No. 14-7027
                                                   (D.C. No. 6:13-CR-00069-RAW-1)
DAVID BRIAN MAGNAN,                                           (E.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

       David Magnan pled guilty in Oklahoma state court in Oklahoma state court to

three counts of first degree murder and one count of shooting with intent to kill. After he

was sentenced to death, this court granted him habeas relief, ruling that the property upon

which the crimes were committed qualified as Indian country and the state court lacked

jurisdiction. Magnan was then charged in federal court and moved to exclude the

admissions of guilt he made during the state-court plea colloquy under Federal Rule of

Evidence 410(a), which precludes admission of statements made in support of “a guilty

plea that was later withdrawn.” 

court held that our jurisdictional ruling

effectively withdrew Magnan’s guilty plea and granted the motion.

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       The government has filed an interlocutory appeal of that ruling. It contends that

an order vacating a judgment of conviction does not set aside an underlying guilty plea.

But a determination that a trial court lacked jurisdiction does more than vacate a

judgment; it voids each and every action taken by the court. We accept the government’s

concession that a direct judicial invalidation of a plea qualifies as a withdrawal, and

conclude that our jurisdictional ruling invalidated Magnan’s plea. Exercising jurisdiction

under 18 U.S.C. § 3731, we affirm.

                                              I

       Magnan, an enrolled member of the Fort Peck Assiniboine and Sioux Tribes, was

charged in Oklahoma state court with one count of conspiracy to commit murder in the

first degree, one count of shooting with intent to kill, and three counts of murder in the

first degree. After receiving the results of a psychological competency evaluation, the

state court found that Magnan was competent. Without the benefit of a plea agreement,

Magnan pled guilty to all but the conspiracy count, which was dismissed. Before

accepting the plea, the state trial court engaged in a colloquy with Magnan, ensuring that

he understood the charges against him, the potential sentence, and his trial rights.

Defense counsel stated that Magnan was entering his plea against the advice of his

attorneys, but was doing so knowingly, intelligently, and voluntarily.

       Magnan provided a factual basis for his plea, admitting in some detail that he

attempted to kill one victim and murdered three others. He stipulated to several

aggravating factors, stated that he did not wish to present mitigation evidence, and asked

to be sentenced to death. The trial court imposed the death penalty for each of the three

                                             -2-
murder counts, and life imprisonment for shooting with intent to kill. Magnan filed a

direct appeal with the Oklahoma Court of Criminal Appeals (“OCCA”), which concluded

that he waived all but two non-waivable issues. The OCCA remanded the case to the

trial court for an evidentiary hearing on whether the crimes occurred in Indian country

and thus fell outside the state court’s jurisdiction.

       In a prior federal proceeding in 1998, the property on which Magnan committed

the crimes at issue was held to be not Indian country. That ruling was based on a

determination that Indian land restrictions on the property had been extinguished in 1970

when surface rights were conveyed to the Seminole Nation Housing Authority. The state

trial court found that the property did not qualify as Indian country, and the OCCA

affirmed.

       Magnan then filed a habeas petition in federal court, arguing that his crimes of

conviction occurred in Indian country. The district court denied habeas relief, but this

court reversed. Magnan v. Trammell, 

, 1161 (10th Cir. 2013). We

concluded that because the 1970 conveyance of the property had not been approved by

the Secretary of the Interior, that conveyance was invalid and the parcel remained Indian

country at the time of Magnan’s crimes. 

The Oklahoma state courts

accordingly lacked jurisdiction. 

the case to the district court with

instructions to grant habeas relief. 

The district court granted the petition

and directed that Magnan be released from custody.

       Magnan was then charged in the U.S. District Court for the Eastern District of

Oklahoma with three counts of murder in Indian country in violation of 18 U.S.C.

                                              -3-
§§ 1111, 1151, and 1153. He filed a motion in limine seeking to exclude his state-court

guilty plea and related statements under Federal Rule of Evidence 410. The district court

granted the motion. Although it acknowledged that “strictly speaking, the defendant’s

plea was not withdrawn” and thus “strictly speaking, Rule 410 does not apply,” the court

treated our decision vacating Magnan’s conviction as a “constructive withdrawal” and

applied “Rule 410 by analogy.” The government filed a timely interlocutory appeal from

that decision.

                                            II

       We ordinarily review a district court ruling on a motion in limine for abuse of

discretion. See Seeley v. Chase, 

, 1293 (10th Cir. 2006). However, the

proper interpretation of a federal rule of evidence is a question of law reviewed de novo.

United States v. Orr, 

, 1088 (10th Cir. 2012). We are nevertheless

“reluctant to overturn evidentiary rulings of the trial court.” Messina v. Kroblin Transp.

Sys., Inc., 

, 1310 (10th Cir. 1990).

       Rule 410(a) provides:

       In a civil or criminal case, evidence of the following is not admissible
       against the defendant who made the plea or participated in the plea
       discussions:
         (1) a guilty plea that was later withdrawn;
         (2) a nolo contendere plea;
         (3) a statement made during a proceeding on either of those pleas under
       Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
         (4) a statement made during plea discussions with an attorney for the
       prosecuting authority if the discussions did not result in a guilty plea or
       they resulted in a later-withdrawn guilty plea.

government does not seek to introduce the facts that Magnan was charged,

pled guilty, and was convicted in state court. This appeal concerns only the admissibility

under Rule 410(a)(3) of Magnan’s factual admissions during his plea colloquy. And the

government does not dispute that the state-court plea colloquy qualified as a procedure

comparable to that under Federal Rule of Criminal Procedure 11. Accordingly, the sole

question is whether Magnan’s statements were made during a proceeding on a “guilty

plea that was later withdrawn.” Fed. R. Evid. 410(a)(1). The district court concluded

that our jurisdictional decision effectively withdrew Magnan’s plea. We agree.

       It is well settled that “[t]he judgment of conviction pronounced by a court without

jurisdiction is void.” Johnson v. Zerbst, 

, 468 (1938); see also United States

v. Bigford, 

, 865 (10th Cir. 2004). The government contends that although

the judgment resulting from Magnan’s guilty plea was vacated, we did not withdraw or

otherwise set aside the plea itself. It notes that as a general matter, our court’s practice is

to remand to allow the defendant an opportunity to withdraw when we determine a plea is

invalid. See, e.g., United States v. Avila, 

, 1260 (10th Cir. 2013) (because

guilty plea “was not knowing and voluntary . . . , we vacate Mr. Avila’s conviction and

remand the case with directions for the district court to vacate its sentence and allow Mr.

Avila to withdraw his guilty plea”); United States v. Benard, 

, 1215 (10th

Cir. 2012) (“Defendant’s convictions and sentence are REVERSED and REMANDED.

On remand, Defendant should decide whether he wishes to withdraw his plea under Rule

11(a)(2).”). If the plea were rendered a nullity simply by vacating the conviction, the



                                              -5-
government argues, we would not allow defendants the choice to withdraw on remand or

maintain the plea.

       The problem with this argument is that it ignores the full effect of our holding that

the state court lacked jurisdiction. “Without jurisdiction the court cannot proceed at all in

any cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869). Accordingly, when a

court “assume[s] a jurisdiction which in fact it could not take, . . . all the proceedings in

that court must go for naught.” Riverdale Cotton Mills v. Ala. & Ga. Mfg. Co., 

, 195 (1905); see also Cunningham v. BHP Petroleum Gr. Brit. PLC, 

,

1244 (10th Cir. 2005) (holding that “[a] court may not exercise authority over a case” for

which it lacks jurisdiction (quotation and alteration omitted)). Unlike an order vacating a

judgment, a decision holding that a court lacked jurisdiction voids each and every action

taken in the case. Perhaps the closest analog in our jurisprudence to the present question

arose in Hunt v. Lamb, 

(10th Cir. 2005). There, we concluded that a

district court lacked jurisdiction over a removed action. 

We explained that

“[b]ecause the district court lacked jurisdiction, its order directing [plaintiff] to file a

complaint was a nullity. It necessarily follows that [plaintiff’s] complaint was also a

nullity.” 

n.1. By the same token, because the state court lacked jurisdiction to

order Magnan to enter a plea, it follows that the plea itself is a nullity.

       In some cases, rather than remanding to allow a defendant a chance to withdraw

his plea, we have simply reversed a conviction and remanded. See, e.g., United States v.

Romero, 

, 1254 (10th Cir. 2004) (“[I]n the unusual circumstances of this

case, the district court should have permitted Mr. Romero to withdraw his plea . . . .

                                               -6-
Accordingly, we REVERSE and REMAND. The district court is instructed to vacate its

judgment . . . .”). The district court cited to a treatise suggesting that under such

circumstances, Rule 410(a) should apply:

       [T]he policy that supports exclusion of withdrawn guilty pleas would seem
       to be equally applicable when the guilty plea is set aside by an appellate
       court, i.e., the decision to set aside the plea would be almost a meaningless
       gesture if the plea could be used against the defendant as an admission in
       the ensuing trial. . . . [T]he language [of Rule 410] need only be stretched a
       few inches more to encompass pleas that are invalidated on appeal; the
       policy of the rule will probably lead most courts to so hold.

Charles Alan Wright & Kenneth W. Graham Jr., 23 Federal Practice & Procedure § 5343,

at 360-61 (footnotes omitted).

       One of the few cases considering that scenario is Childs v. State, 

(Tex. App. 1992). There, the defendant pled guilty but his conviction was reversed

because the trial court “failed to properly admonish him as to the range of punishment.”

At his second trial, defendant pled not guilty but apparently did not formally

withdraw his prior plea. 

state rule identical to Rule 410(a), the appellate

court concluded that introduction of the prior plea was impermissible. 

of a

plea of not guilty at the second trial, the court concluded, effectively withdrew the prior

plea entered in the same tribunal. 

cites Standen v. State, 

(Nev. 1985), which concluded that “[a] prior guilty plea that has been legally withdrawn

or judicially invalidated is deemed never to have existed and should not be used as

evidence.” 

       The government concedes that if an appellate court directly invalidates a plea,

rather than allowing the defendant an opportunity to withdraw, Rule 410(a) would

                                              -7-
govern. Because we conclude that an order vacating a conviction for lack of jurisdiction

invalidates the underlying plea, we do not discern a meaningful difference between our

habeas ruling and the circumstances considered in Childs, Standen, or the treatise.

       Relatedly, the government argues that the legislative history of Rule 410 supports

its position. The Rule was adopted in 1975 following debate on several different versions

of both Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6)

(which at the time were identical). See United States v. Lawson, 

, 692-93

(2d Cir. 1982) (discussing legislative history). One of the proffered versions would have

made pleas and related discussions inadmissible “if a judgment on a plea of guilty or nolo

contendere is reversed on direct or collateral review.” See Wright & Graham, 23 Federal

Practice & Procedure § 5343, at 360 n.22 (quoting Hearing on Proposed Amendments to

Fed. Rules of Criminal Procedure Before the Subcomm. on Criminal Justice of the H.

Judiciary Comm. 75-76 (1974)). Because Congress rejected that proposal, the

government argues it would be inappropriate to apply Rule 410(a) whenever a conviction

is reversed. This argument again fails to account for the difference between a ruling that

the trial court lacked jurisdiction and other orders reversing a conviction. We do not hold

that Rule 410(a) applies whenever a conviction is vacated. We merely conclude that if a

trial court is held to have lacked jurisdiction, a plea entered before it is invalidated.

Under these circumstances, the plea must be treated as “withdrawn.”1


       1
        The parties debate in the briefing whether the state court might have possessed
the power to question Magnan for violating a federal statute. We have no occasion to
consider this question, which was not raised below. See Harman v. Pollock, 

, 1089 (10th Cir. 2006) (we generally will not consider issues “not raised before or
                                              -8-
                                             III

       For the foregoing reasons, the district court’s exclusion of Magnan’s statements

made during his state-court plea colloquy is AFFIRMED. We REMAND for further

proceedings consistent with this order and judgment.2


                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




ruled upon by the trial court”). Magnan moved to exclude the evidence at issue under
Rule 410; he did not argue that the questioning violated the Fourth Amendment.
       2
         The government moves this court to take judicial notice of docket entries and
transcripts from Magnan’s state-court proceedings that were not part of the record below.
“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other
courts, both within and without the federal judicial system, if those proceedings have a
direct relation to matters at issue.” St. Louis Baptist Temple, Inc. v. FDIC, 

, 1172 (10th Cir. 1979).
        Magnan opposes the motion, arguing that the government has not established a
“direct relation” between the proffered materials and the issue in this appeal. In its reply,
the government states that it was unable to determine whether the documents will bear on
the disposition of this appeal because (at that time) the briefs had not yet been filed. It
appears the government’s motion was an attempt to cut off any suggestion that Magnan
was not permitted an opportunity to seek to withdraw his plea in state court. Because
Magnan has not advanced such an argument, the proffered materials are irrelevant and
the motion is DENIED. See Ramsey v. Citibank, N.A., 475 F. App’x 711, n. 2 (10th Cir.
2012) (unpublished) (“Because these documents have no impact on our disposition, we
deny defendants’ motion [to take judicial notice of publicly filed records].”).
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