                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 14, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-1385
          v.                                             (D. Colorado)
 MCKENZIE WRIGHT LECHNER,                    (D.C. No. 1:06-CR-00343-WDM-1)
 also known as Gayla Cloud Lechner,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the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.
I. Introduction

      Defendant-Appellant McKenzie Wright Lechner appeals her conviction for

assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153.

On appeal she raises two issues: (1) the district court abused its discretion by

refusing to accept her guilty plea, and (2) the district court interfered with her

constitutional right to testify when it advised her of the effect of her failure to

testify. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

district court on both issues.

II. Background

      Lechner is an enrolled member of the Southern Ute Tribe and lives on the

Southern Ute reservation. In April of 2006, Sequoia King and Selwyn King,

Lechner’s granddaughter and grandson, respectively, traveled from their home in

Denver to the Southern Ute reservation near Durango, Colorado. They were

accompanied by Misty Cockerham, a Denver neighbor. The purpose of the trip

was for Sequoia, who had recently turned sixteen years old, to pick up a car from

Lechner. Cockerham was along for the trip so she could accompany Sequoia on

the drive back to Denver.

      The trio had planned to stay with Lechner’s son, Rendell, when they

arrived. They decided the arrangements were unsuitable and so decided to stay at

the hotel in the Sky Ute Casino. At the hotel Sequoia became upset because

Cockerham and Selwyn took a room together and she could hear them having sex.

                                          -2-
She called Lechner, who picked her up from the hotel and put her up for the

night. Although Selwyn and Cockerham knew Lechner had picked up Sequoia,

they were unable to find Sequoia the next day. They spent the day in Durango

together, where they spent some of the money Selwyn’s mother had given him for

the trip.

       That night, Selwyn and Cockerham went to Lechner’s house. At the house

with Lechner were her husband Gale, her son Rendell, and Sequoia. Lechner

began arguing with Selwyn and slapped him. Cockerham put her hands up and

attempted to get between them. Lechner’s husband, Gail, grabbed Selwyn and

held him against the wall. Lechner grabbed Cockerham by the hair, pulled her

head down, and struck her head with her knee. 1 While Lechner held Cockerham

by the hair, Cockerham tried to punch Lechner. Lechner proceeded to strike

Cockerham repeatedly, empty her pockets, and yell at her. Cockerham fell to the

ground and stopped trying to fight back, but the beating continued. Lechner

struck Cockerham in the head and the body. Lechner delivered some of the blows

with her hard-soled shoe, and also kicked Cockerham in the face. Cockerham was

left bleeding on the floor of the house for several hours before being taken back

to the casino. She was eventually hospitalized and treated for a broken nose and

two broken vertebrae.


       1
       Sequoia testified that Lechner had first tried to walk away from the
confrontation but was punched in the back by Cockerham.

                                        -3-
      Lechner was charged with two criminal counts: (1) knowing assault with a

deadly weapon with intent to do bodily harm in violation of 18 U.S.C.

§§ 113(a)(3) and 1153, and (2) knowing assault resulting in serious bodily injury

in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Lechner signed a plea

agreement whereby she agreed to plead guilty to Count II and the government

agreed to dismiss Count I, not oppose a sentence of probation, and recommend a

sentence at the bottom of the advisory guideline range. Lechner appeared before

the district court to enter her plea of guilty. At that time, the district court

questioned Lechner regarding her decision. The following exchange occurred:

      The Court: Do you understand that you are being charged with
           assaulting someone named Misty Cockerham?
      The Defendant: Yes.
      The Court: And that as a result, she suffered serious bodily injury?
      The Defendant: I guess.
      The Court: You don’t know?
      The Defendant: Yes.
      The Court: Yes, you don’t know, or yes, you acknowledge that she
           received serious bodily injury?
      The Defendant: I admit that I broke her nose, yes.
      The Court: And it also charges you with having knowingly assaulted
           her. Do you understand that; that you knew what you were
           doing?
      The Defendant: Well, I guess I should say yes.
      The Court: No, no. I want the truth. You are sworn to tell the truth.
      The Defendant: I didn’t know at the time that I hit her.
      The Court: This isn’t traffic court.
      The Defendant: I know, Your Honor.
      The Court: You are not going to be able to plead to defective muffler
           or something. You are charged with a serious crime.
      The Defendant: I know that, Your Honor. I understand that.
      The Court: You understand you are charged with knowing what you
           were doing; that you intentionally assaulted someone?

                                          -4-
      The Defendant: I did not intentionally insult [][2] her, no.
      The Court: Then I don’t think that I will accept your plea. We’ll be
           in recess.

      After the district court rejected her plea, Lechner went to trial. She waived

a jury trial. At trial, Lechner indicated she wanted to testify. Her counsel

advised the court, “I think now is a good time for the Court to advise Ms. Lechner

with respect to her right to testify.” The district court proceeded to advise

Lechner as follows:

      The Court: Ms. Lechner, your counsel indicates that you desire to
           testify. And I wanted to be sure you were aware that you are
           given the absolute right not to be a witness by our Constitution
           and you have that absolute privilege. And if you chose not to
           testify, I won’t make any inference from that whatsoever. Do
           you understand that?
      The Defendant: Yes.
      The Court: Do you understand that the issue before me to be decided
           is not whether you are innocent. The question is whether the
           government has proved you guilty beyond a reasonable doubt.
           So I am not deciding whether you did anything right or wrong
           as what may or may not be your sense of right or wrong. I am
           only going to be deciding what the government—whether or
           not the government has proved you guilty beyond a reasonable
           doubt as to each and every element of the charges. So your
           failure to testify will not have any impact on my decision
           making whatsoever. Do you understand that?
      The Defendant: Yes.
      The Court: But if you do choose to testify and your attorney limits
           the types of questions that she asks, that doesn’t mean that I
           won’t allow the government to ask questions beyond the scope
           of what your attorney asked. Do you understand that?

      2
       The transcript contains the word “(sic)” at this point, most likely
indicating the court reporter heard Lechner say “insult” but believed she meant to
say “assault.” We omit the notation because one issue on appeal involves
whether the district court correctly understood Lechner’s testimony.

                                         -5-
      The Defendant: Yes.
      The Court: In other words, the government’s attorney won’t
           necessarily be limited to the subject matter of what your
           attorney asks. As long as what the government asks is
           relevant, if I believe it’s relevant, I may require you to answer
           the question. Do you understand that?
      The Defendant: Yes.
      The Court: And do you understand that if you refuse to answer a
           question after I require you to do that, I may then consider
           your refusal or I may disregard all of your testimony. Do you
           understand that?
      The Defendant: Yes.
      The Court: Have you consulted with [counsel] whether or not you
           should testify? Don’t tell me what she has advised you.
      The Defendant: No, not really Your Honor.
      The Court: You have not talked to her about it?
      The Defendant: No, I have not talked to her. It was in the air.
      The Court: All right. Well, then I am going to recess and I am going
           to ask you to discuss it fully with [counsel] before I allow you
           to testify.

After the recess, Lechner informed the court she no longer wished to testify.

      After the close of evidence, the court returned a verdict of guilty on the

count of assault with a deadly weapon, and not guilty on the count of assault

resulting in serious bodily injury. Lechner was sentenced to 60 months’

imprisonment, and now appeals.

III. Discussion

A. Refusal to Accept Plea

      Lechner first contends the district court erred in refusing to accept her plea.

She argues the district court refused her plea after she stated she did not

intentionally insult Cockerham. Because an intent to insult the victim is not an


                                         -6-
element of knowing assault, Lechner argues the district court had no basis to

reject her plea.

         When the government and a defendant reach an agreement whereby the

government dismisses one charge in exchange for a plea of guilty to another

charge, the district court may accept or reject the agreement. Fed. R. Crim. P.

11(c)(3)(A). Before accepting a plea of guilty, the district court must ensure the

plea is voluntary and that there is a factual basis for the plea. Fed. R. Crim. P.

11(b)(2), (3). The district court’s decision to accept or reject a plea is reviewed

for abuse of discretion. United States v. Young, 45 F.3d 1405, 1414 (10th Cir.

1995).

         The district court’s questions of Lechner were intended to establish a

factual basis for the plea and confirm the plea was voluntary. When the district

court asked Lechner if she committed the assault knowingly, Lechner responded,

“Well, I guess I should say yes.” The district court then instructed her to tell the

truth, and she denied having the requisite mens rea: “I didn’t know at the time

that I hit her.” The district court asked her a third time whether she intentionally

assaulted Cockerham, and Lechner’s reply was, “I did not intentionally insult []

her, no.” In light of the previous questions, it is clear Lechner intended to give a

responsive answer to the question posed by the district court. The only

reasonable interpretation of her statement was that she did not intend to

assault Cockerham. It was certainly not an abuse of discretion for the district

                                           -7-
court, which actually heard Lechner’s answer and observed her demeanor while

she spoke, to interpret the comment as a refusal to admit to intentional assault. In

addition, Lechner had twice previously denied she had the required state of mind,

further supporting the district court’s decision to reject the plea based on an

insufficient factual basis.

      Lechner notes the signed plea agreement contained a factual recitation with

all of the required elements of the crime. Because she signed the agreement and

admitted to the truth of the factual recitation, Lechner argues the district court

erred in finding there was no factual basis for the plea. This argument, if

accepted, would prohibit a district court from inquiring further into the factual

basis for a plea agreement if the written agreement contained admissions as to all

the elements of the crime. Under Fed. R. Crim. P. 11(b)(3), however, the district

court has a duty to “determine that there is a factual basis for the plea.” As part

of that duty, the district court may choose to verify, in open court, the assertions

made in the written plea agreement. Here, the district court did exactly that, and

Lechner refused, after repeated questioning, to admit to all the elements of the

crime. Lechner’s position is also inconsistent with our precedent permitting a

“district court, once it has accepted a plea, to reject it after the discovery of facts

inconsistent with the plea.” United States v. Moran, 452 F.3d 1167, 1171 (10th

Cir. 2006). Under these circumstances, the district court did not abuse its

discretion in refusing to accept Lechner’s plea.

                                           -8-
B. Advisement of Right to Not Testify

      Lechner also contends the district court improperly interfered with her

constitutional right to testify in her own defense when it informed her of the

consequences of testifying and failing to testify. In particular, she takes issue

with the district court telling her, “I am only going to be deciding what the

government—whether or not the government has proved you guilty beyond a

reasonable doubt as to each and every element of the charges. So your failure to

testify will not have any impact on my decision making whatsoever.” Lechner

contends this statement was legally incorrect and was a signal that the district

court would reject her testimony.

      Lechner contends the statement was legally incorrect because her defense

was based on self-defense. Because of this, she argues, the district court was not

simply deciding whether the government proved each of the elements, because

even if it did so she could still be acquitted if there was a finding of self-defense.

Lechner did not object to the district court’s statement at trial. It is reviewed,

therefore, under a plain error standard. United States v. Taylor, 514 F.3d 1092,

1095-96 (10th Cir. 2008). Under that standard, reversal is proper only “when

there is (1) error, (2) that is plain, which (3) affects the defendant’s substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. at 1100.




                                           -9-
      We conclude the judge did not plainly err in giving his statement. The

judge correctly stated the government bore the burden of proving Lechner’s guilt

beyond a reasonable doubt. When a defendant presents evidence supporting a

self-defense theory, the government also bears the burden of proving the

defendant did not act in self-defense. United States v. Corrigan, 548 F.2d 879,

883 (10th Cir. 1977). 3 Even though the district court did not explain the

government also bore the burden of disproving her self-defense theory, there was

no implication Lechner bore the burden of proof on this or any other issue. Any

error on the part of the district court in mentioning the burden of proof without

also explaining it applied to the self-defense theory was not plain.

      Lechner also contends the district court’s statement that the “failure to

testify will not have any impact on [its] decision making whatsoever” gave her

the reasonable impression her testimony would be meaningless. We reject this

contention as well. The district court did not tell Lechner that testifying would

have no impact on its decision, but stated only that her failure to testify would

have no impact. This comment came after the district court stated, “if you chose

      3
        It is true the government’s burden to disprove a self-defense theory is only
triggered when the defendant has presented evidence that, if believed, would
support such a theory. United States v. Montoya, 676 F.2d 428, 431 (10th Cir.
1982). The district court did not address the threshold defense burden, but its
failure to do so was not plain error. The district court made a finding that, even if
Lechner were defending herself from aggression, she used more force than was
reasonably necessary under the circumstances. Thus, the district court did not
reject Lechner’s self-defense theory on the grounds that she did not meet her
threshold evidentiary burden.

                                        -10-
not to testify, I won’t make any inference from that whatsoever.” Taken together,

these statements indicate the district court was explaining it would not draw a

negative inference from her failure to testify, not that it would disbelieve the

substance of her testimony. As this was a correct statement of the law, the

district court did not commit error, let alone plain error.

      Finally, Lechner contends the entire exchange was an inappropriate

interference with her decision to testify. In support, she relies on United States v.

Leggett, 162 F.3d 237, 249 (3d Cir. 1998). Leggett, however, involved a very

different situation. In that case, defense counsel informed the court the defendant

wanted to testify against counsel’s advice. Id. at 248. The court told the

defendant to heed the advice of his attorney. Id. The next day, the court called

the attorney to sidebar and inquired, outside of the defendant’s hearing, whether

the defendant would testify. Id. Counsel indicated he would not. Id. On appeal,

the defendant argued the court inappropriately interfered with his decision

whether or not to testify. Id. The Third Circuit called the court’s actions “highly

inappropriate,” stating it “rashly injected itself into a discourse better left to the

attorney and client.” Id. at 249. It held, nonetheless, there was no reversible

error because there was no evidence the defendant actually wanted to testify when

his attorney told the court he did not. Id.

      In contrast to the situation in Leggett, the district court here did not inject

itself into a dispute between Lechner and her attorney regarding trial strategy.

                                           -11-
The district court simply informed Lechner of her right not to testify, the

government’s burden of proof, and her duty to answer questions if indeed she did

testify. Additionally, in sharp contrast with what happened in Leggett, the district

court asked Lechner herself if she wanted to testify. This is not, therefore, a

situation where the district court took the decision whether or not to testify away

from the defendant. We conclude the district court did not impermissibly

interfere with Lechner’s right to testify, and therefore there was no plain error.

IV. Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




                                         -12-
