U.S. v. Broce, s. 83-2558

• Decision Date: 02 January 1986
• Docket Number: 83-2559,Nos. 83-2558,s. 83-2558
• Citation: U.S. v. Broce, 781 F.2d 792 (10th Cir. 1986)
• Parties: 1986-1 Trade Cases 66,927 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 792

781 F.2d 792

1986-1 Trade Cases 66,927

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. 2, 1986.

Glenn E. Casebeer, II(Curt T. Schneider on the briefs) Schneider, and Casebeer, Coffeyville, Kan., for defendants-appellants.

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

Before HOLLOWAY, Chief Judge, and DOYLE, BARRETT, McKAY, LOGAN, SEYMOUR, and MOORE, Circuit Judges.

ON REHEARING EN BANC

JOHN P. MOORE, Circuit Judge.

These cases are before the court for rehearing en banc.The questions presented are whether a plea of guilty constitutes a waiver of a defendant's right to assert a violation of the Double Jeopardy Clause of the Fifth Amendment and whether the second of two indictments charging a Sherman Act conspiracy is duplicitous of the first.We hold that a guilty plea does not waive the defense of double jeopardy under the circumstances of this case.We further hold the record requires a remand of this case for a hearing to determine as a matter of fact whether the acts charged constitute one or two conspiracies.We therefore reverse the judgment of the district court.

On November 7, 1981, a two count indictment was returned charging defendants, Ray C. Broce and Broce Construction Co., Inc., with conspiracy to violate the Sherman Act,15 U.S.C. Sec. 1.In the second count, Mr. Broce was charged with mail fraud, 18 U.S.C. Sec. 1341.On February 4, 1982, a second indictment was returned charging Mr. Broce and the corporation in one count with violation of 15 U.S.C. Sec. 1.

On February 8, 1982, pursuant to a plea agreement between the government and the two defendants, Mr. Broce appeared and entered pleas of guilty to both indictments in his own behalf and as president of the corporation.Subsequently, Broce was sentenced to concurrent two-year terms and fined $50,000 on the conspiracy counts of both indictments.The corporation was fined $750,000 on each indictment.

One year later, both defendants filed motions pursuant to Fed.R.Crim.P. 35(a) to vacate the judgments alleging their conviction on the second indictment violated the Double Jeopardy Clause of the Fifth Amendment.The defendants asserted the conspiracy counts charged a single transaction rather than two separate conspiracies; hence, the second charge was unconstitutionally duplicitous and void.This contention was motivated by a ruling from another judge in the same district dismissing an indictment in a companion case.

The defendants, Broce and the Broce Construction Company, were actively engaged in the highway construction business in the state of Kansas for a number of years prior to the indictments.Indeed, these indictments grew out of that very activity, as did the indictment in the companion case, United States v. Beachner Construction Co., Inc., 555 F.Supp. 1273(D.Kan.1983).In Beachner, as here, the defendants had been indicted on a charge of conspiracy to rig bids on a particular Kansas highway project.After trial and acquittal on this charge, the defendants were again indicted on a second conspiracy charge connected to a different highway project.Id. at 1274.Prior to trial, the defendants moved to dismiss the indictment on double jeopardy grounds.After a three-day evidentiary hearing pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651(1977), the trial court concluded there had been a pervasive conspiracy to rig bids in the Kansas highway construction industry that had existed for "in excess of twenty-five years."Beachner, supra, at 1277.Accordingly, the court dismissed the indictment and the government appealed.The ruling was affirmed by this court.United States v. Beachner Construction Co., Inc., 729 F.2d 1278(10th Cir.1984).

The hearing from which the present appeal emanates occurred after the Beachner appeal but before our affirmance of the dismissal.In order to focus the issues in this case, Broce and the government stipulated that the record of the Beachner hearing could be considered by the trial court in ruling on appellants' Rule 35 motion.That record is also before us.Following the hearing, and before the publication of our opinion in Beachner, the trial court denied relief, holding as a matter of law, the defendants had waived their right to raise the double jeopardy issue by their guilty pleas.This appeal followed.

The panel which originally heard this case ordered reversal of the trial court's judgment.United States v. Broce, 753 F.2d 811(10th Cir.1985).That opinion was vacated and rehearing was granted to consider whether the guilty pleas are admissions by the defendants that there were actually two conspiracies and whether the defendants could collaterally attack the foundations of an indictment following a plea of guilty.

I.

The government contends a fundamental principle in this circuit is that the double jeopardy defense is personal and subject to waiver.Cox v. Crouse, 376 F.2d 824(10th Cir.), cert. denied, 389 U.S. 865, 88 S.Ct. 128, 19 L.Ed.2d 136(1967);Caballero v. Hudspeth, 114 F.2d 545(10th Cir.1940).On that premise the government argues that an unconditional plea of guilty constitutes that waiver, Caballero, supra, and precludes a challenge of the indictment.Although the panel held that Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195(1975), andBlackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628(1974), compel a reversal of Caballero, the government takes issue with this result.The government further postulates allowing a collateral attack will encourage defendants to challenge their sentences "long after their guilty pleas are entered, thus undermining the finality of convictions and increasing the already heavy workload of the federal courts."

These contentions were considered and rejected in Blackledge, supra.¹ There, in response to an argument that a due process claim could not be asserted following a guilty plea, the Supreme Court stated when the claim of constitutionality goes to "the very power of the State to bring the defendant into court to answer the charge," a guilty plea does not waive the constitutional issue.Blackledge, 417 U.S. at 30, 94 S.Ct. at 2103.

The essential right with which the court dealt in Blackledge and with which we are concerned here is the "right not to be haled into court at all."Blackledge, 417 U.S. at 30, 94 S.Ct. at 2104.Indeed, as the court noted in Robinson v. Neil:

The guarantee against double jeopardy is significantly different....While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all....

409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29(1973)(emphasis added).

This is the first occasion we have had to reconsider the nature of the double jeopardy right and its effect on a guilty plea since Blackledge and Menna.² The present opportunity convinces us our previous holding in Caballero is no longer apposite.As already noted in Menna, supra, andRobinson, supra, the Fifth Amendment's Double Jeopardy Clause stands as an inhibition upon the government's right to institute charges.This inhibition is absolute, and even though the bar works as a protection of individuals, it does not constitute an individual right which is subject to waiver.If the absence of constitutional authority prevents the government from instituting charges in the first instance, a defendant's guilty plea cannot confer authority upon the government to do what the Constitution prohibits.In light of this fundamental constitutional concept, the doctrine of waiver has no significance.³

Hence, the Broce guilty pleas do not constitute a bar to questioning whether the Double Jeopardy Clause prohibits the institution of the second indictment and vitiates those very pleas.It also follows that if the institution of the charge under attack is constitutionally defective, it is not a significant concern that collateral attack affects the finality of the judgment.If the charge upon which the judgment is based is constitutionally infirm, either on due process or double jeopardy grounds, that judgment cannot be "final."Cf.Haring v. Prosise, 461 U.S. 954, 103 S.Ct. 2424, 77 L.Ed.2d 1313(1983).

The government argues that "almost every other court of appeals that has considered the issue [of waiver] since Blackledge and Menna has held that double jeopardy is a personal defense that is waived by a guilty plea where, as here, the plea is the result of a plea bargain."This argument is not well-founded.Examination of the cases cited in support of the government's proposition discloses neither Blackledge nor Menna were considered.SeeUnited States v. Solomon, 726 F.2d 677(11th Cir.1984);United States v. Herzog, 644 F.2d 713(8th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390(1981);Brown v. State, 618 F.2d 1057(4th Cir.), cert. denied, sub nom.Brown v. Maryland, 449 U.S. 878, 101 S.Ct. 224, 66 L.Ed.2d 100(1980);andUnited States v. Perez, 565 F.2d 1227(2d Cir.1977).

In addition, the government suggests allowing the defendants to challenge their pleas is both inconsistent and inequitable.In reliance upon Kerrigan v. United States, 644 F.2d 47(1st Cir.1981), the government argues a defendant who pled guilty cannot be permitted to make arguments "inconsistent with the factual and theoretical foundations of the indictment."On this premise, the government contends Kerrigan supports the government's waiver theory.Yet, in discussing the issue of the defendant's waiver, the K...