U.S. v. Broce

• Decision Date: 09 January 1985
• Docket Number: 83-2559,Nos. 83-2558,s. 83-2558
• Citation: 753 F.2d 811
• Parties: , 1985-1 Trade Cases 66,474 UNITED STATES of America, Plaintiff-Appellee, v. Ray C. BROCE and Broce Construction Company, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 811

753 F.2d 811

53 USLW 2370, 1985-1 Trade Cases 66,474

UNITED STATES of America, Plaintiff-Appellee, v. Ray C. BROCE and Broce Construction Company, Inc. Defendants-Appellants.

Nos. 83-2558, 83-2559.

United States Court of Appeals Tenth Circuit.

Jan. 9, 1985.

John P. Fonte, Dept. of Justice, Washington, D.C. (John J. Powers, III, Dept. of Justice; J. Paul McGrath, Asst. Atty. Gen., Charles F. Rule, Deputy Asst. Atty. Gen., Washington, D.C.; Judy Whalley, Mary Jones, Dept. of Justice, Chicago, Ill., with him on brief), for plaintiff-appellee.

Glenn E. Casebeer, II, Coffeyville, Kan. (Curt T. Schneider, Coffeyville, Kan., with

him on brief), of Schneider & Casebeer, Coffeyville, Kan., for defendants-appellants.

Before SETH and DOYLE, Circuit Judges, and BOHANON, Senior District Judge. ^*

BOHANON, District Judge.

Broce Construction Co. and Ray C. Broce (hereinafter "defendants") appeal from an order of the United States District Court for the District of Kansas denying their motion to vacate the judgment and sentence entered by that court March 15, 1981, in one of the two cases combined here on appeal. Defendants claim that the judgment and sentence in question are in violation of the Double Jeopardy Clause of the United States Constitution. The district court, without making a finding as to whether the two sentences did in fact violate the Double Jeopardy Clause, found that defendants had waived their rights to raise that issue by pleading guilty to the indictment supporting the judgment and sentence challenged. The central issue on appeal is whether the trial court's finding of waiver was erroneous.

Defendants were indicted by a grand jury in Case No. 83-2559 (No. 81-20119-01 below) on November 17, 1981. That indictment charged, in Count I, violations of the Sherman Act, 15 U.S.C. Sec. 1 (1976), and, in Count II, violation of the mail fraud statute, 18 U.S.C. Sec. 1341 (1976), in connection with a conspiracy to rig bids submitted to the State of Kansas on a particular highway construction job, designated by the State as Project No. 23-60-RS-1080(9) and let for bidding on April 25, 1978. The mail fraud count of this indictment is not involved in this appeal and will not be discussed further.

On February 4, 1982, the same grand jury returned a second indictment against defendants in Case No. 83-2558 (No. 82-20011-01 below) charging violation of the Sherman Act in connection with a conspiracy to rig bids on yet another Kansas highway construction job, designated Project No. KRL 29-2(26) and let by the State on July 17, 1979. Threatened by government prosecutors with a series of further indictments for each highway project believed to have been rigged, defendants accepted a plea bargain wherein they agreed to plead guilty to two indictments charging conspiracy to violate the Sherman Act in exchange for the government's promise not to prosecute them "for or on account of any collusion between defendant[s] and other contractors regarding any other highway, street or airport runway construction projects let by awarding authorities within the States of Kansas and Oklahoma prior to the date" of the plea bargain. (ROA at 150).

Accordingly, on February 8, 1982, defendants entered pleas of guilty to both pending indictments. At that time, Mr. Broce, appearing both on his own behalf and on behalf of the corporation, was advised of and waived both defendants' rights to be represented by separate counsel, to have a speedy and public trial by a jury, to cross-examine all opposing witnesses, to utilize compulsory process, to be free from compelled self-incrimination, and to be presumed innocent until the government established guilt by competent evidence to the satisfaction of the judge or jury beyond a reasonable doubt. The record of these proceedings does not disclose, however, that Mr. Broce was at any time advised of his and the defendant corporation's double jeopardy rights or that these rights were ever considered by any party to the proceedings. Subsequently, on March 15, 1982, sentence was pronounced in both cases; Broce Construction Co. received a $750,000 fine for the antitrust count in each case, for a total fine of $1,500,000, and Ray C. Broce received a $50,000 fine and two years imprisonment for each anti-trust charge, the two 2-year prison terms to run concurrently. Mr. Broce paid his $100,000 total fines on June 2, 1982, and has already completed his prison terms. Broce Construction Co. was allowed to pay its fines in installments and still owes a substantial sum despite timely payments.

On February 22, 1983, the defendants, pursuant to F.R.Crim.P. 35(a), ¹ filed a motion to vacate the judgment and sentence of the trial court in the second-filed case (here No. 83-2558) claiming that the judgment and sentence therein were illegal for violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. This motion was prompted by a memorandum and order filed on January 31, 1983, in a similar case in the same judicial district, United States of America v. Beachner Construction Co., Inc., 555 F.Supp. 1273 (D.Kan.1983), affirmed by this court, 729 F.2d 1278 (10th Cir.1984). In that case, District Judge Saffels found, after an evidentiary hearing, that a second prosecution, for conspiracy to rig bids on Kansas highway construction projects, of defendants who had previously been acquitted by a jury under an indictment differing from the second only with respect to the specific named project and other irrelevant matters, was contrary to the Double Jeopardy Clause. Defendants in the instant case claim that, as in Beachner, the second indictment filed against them, though purporting to charge a separate conspiracy than that charged in the first indictment by naming a different construction project, in fact did no more than again draw them into jeopardy for another part of a single overall conspiracy. The district court below found, however, that by pleading guilty to both indictments defendants had admitted the facts and theory alleged in the indictments, that these indictments did not on their faces give rise to a double jeopardy claim, and that the defendants had effectively waived their right to raise a double jeopardy claim based upon any version of the facts differing from that admitted by their guilty pleas. In effect, the district court left open, without deciding, the possibility that the sentences imposed for the second indictment did in fact, if not on the face of the indictment, violate the double jeopardy clause, but determined that even if the sentences were so illegal, the defendants had waived by pleading guilty their right to challenge the sentences on that basis.

The fundamental rule of law which, ceteris peribus, would govern this case is that "a single continuing conspiracy, however diverse its objects, cannot be broken down into component sub-agreements for the purpose of multiple punishments or multiple prosecutions." United States v. Tanner, 471 F.2d 128, 141 (7th Cir.1972) citing Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); cf. Sanabria v. United States, 437 U.S. 54, 72, 98 S.Ct. 2170, 2183, 57 L.Ed.2d 43 (1978); Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977). ² The evidentiary corollary states that "[w]hen ... the separate conspiracies [alleged] are both founded upon a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform some illegal act or acts. Ward v. United States, 694 F.2d 654, 661 (11th Cir.1983)" (emphasis in original).

We are confronted at the outset, however, with the question of what effect, if any, the defendants' guilty pleas have on the applicability of these general rules. Well-established precedent in this circuit prescribes that a guilty plea by a defendant waives his right to challenge his consequent sentence on the grounds of double jeopardy. This rule was clearly spelled out in the following language from Caballero v. Hudspeth, 114 F.2d 545, 547-48 (10th Cir.1940):

The two counts of the indictment stating but a single offense, it follows that petitioner suffered double jeopardy under the sentence of the court.

The question of double jeopardy may not, however, be raised by petitioner in the present proceeding. On June 7, 1937, petitioner withdrew his former plea of not guilty and entered a plea of guilty to both counts of the indictment. No objection was raised at any stage of the proceedings to the sentence of the court. The right to not be placed in jeopardy twice for the same offense is a personal right. It is an immunity granted to the citizen by our constitution and may be waived. The plea of guilty by the defendant constituted a waiver of this right. At no stage of the proceedings did he assert this constitutional guarantee. The defense may not now be raised for the first time by writ of habeas corpus. Brady v. United States, 8 Cir. [1928], 24 F.2d 399; Curtis v. United States, 10 Cir. [1934], 67 F.2d 943; United States ex rel. Poch v. Hill, 3 Cir. [1934], 71 F.2d 906, 907; Bracey v. Zerbst, 10 Cir. [1937], 93 F.2d 8.

(emphasis added). As recently as Cox v. Crouse, 376 F.2d 824, 826 (10th Cir.1967) this court stated:

We find it unnecessary to decide whether Cox, by rearraignment on the original kidnapping charge, was again placed in jeopardy for an offense of which he had been acquitted. Here the appellant pled guilty after his rearraignment and thereby waived his defenses to the charge, including, but not by way of limitation, the defense of double jeopardy.

Indeed, cases in support of this view of the double jeopardy right were legion from all jurisdictions prior to 1975. See e.g., cases cited in Brady v. United States, 24 F.2d 399, 405 (8th Cir.1928).

This line of cases, however, was supported only by scant and oblique citation to Supreme Court precedent and its validity has been drawn into...