United States v. Beachner Const. Co., Inc.

• Decision Date: 31 January 1983
• Docket Number: No. 82-20076-01.,82-20076-01.
• Citation: 555 F. Supp. 1273
• Parties: UNITED STATES of America, Plaintiff, v. BEACHNER CONSTRUCTION CO., INC., and Jerry Beachner, Defendants.
• Court: U.S. District Court — District of Kansas

555 F. Supp. 1273

UNITED STATES of America, Plaintiff, v. BEACHNER CONSTRUCTION CO., INC., and Jerry Beachner, Defendants.

No. 82-20076-01.

United States District Court, D. Kansas.

January 31, 1983.

Richard J. Braun, Joseph H. Widmar, Mary C. Jones, Judy Whalley, U.S. Dept. of Justice, Chicago, Ill., for plaintiff.

Glen E. Casebeer, II, Curt Schneider, Schneider & Casebeer, Coffeyville, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter comes before the court on defendants' motion to dismiss a November 16, 1982, indictment returned against defendants Beachner Construction Co., Inc. and Jerry Beachner. As grounds for dismissal, the motion proffered the legal theories of double jeopardy, collateral estoppel, pre-indictment delay, vindictive prosecution and compulsory joinder. Alternatively, defendants moved for an election of counts. Also before the court is the government's motion to sever the trial of the two defendants.

The motion to dismiss was orally presented to the court on January 3, 1983, at which time said motion was denied as to the individual defendant, Jerry Beachner. As to the corporate defendant, Beachner Construction Co., Inc., the court took the motion under advisement and scheduled an evidentiary hearing for January 13, 1983, on the issues of double jeopardy and collateral estoppel only.

After reviewing the detailed briefs submitted by counsel, and having heard extensive oral argument and testimony in a three-day evidentiary hearing, the court grants the government's motion to sever the trial and further grants defendants' motion to dismiss the indictment as to Beachner Construction Co., Inc., for the reason that allowing this prosecution would be contrary to the double jeopardy provision of the Fifth Amendment to the United States Constitution.

PROCEDURAL BACKGROUND

On February 4, 1982, an indictment was filed against Beachner Construction Co., Inc., a Kansas corporation, with its principal place of business at St. Paul, Kansas, and Robert T. Beachner, Secretary-Treasurer. The indictment alleged a violation of § 1 of the Sherman Act 15 U.S.C. § 1 and alleged mail fraud, in violation of 18 U.S.C. § 1341. Specifically, Count I charged defendants with having entered into and engaged in a combination and conspiracy to suppress and eliminate competition for the construction of project No. 135-40-I/IR-135-1(154) 30, Pts I & II The Harvey County Project, let by the State of Kansas on February 7, 1980. Count II charged defendants with defrauding the State of Kansas and the United States by causing a warrant to be delivered by the United States Mail in payment of the above-referenced project.

On March 2, 1982, Robert T. Beachner was again indicted for the same alleged offenses as set forth in the February 4, 1982, indictment. The government chose to proceed against Robert Beachner on the March 2, 1982, indictment and against Beachner Construction Co., Inc., on the February 4, 1982, indictment. These two indictments are hereinafter referred to as Beachner I.

Both defendants proceeded to trial on May 3, 1982, and were acquitted of the conspiracy and mail fraud charges on the Harvey County Project by a jury verdict rendered on May 7, 1982.

On November 16, 1982, an indictment was returned by the grand jury naming Beachner Construction Co., Inc. and Jerry Beachner, a Vice-President of Beachner Construction Co., Inc., in charge of bridge construction, as defendants. This indictment, hereinafter referred to as Beachner II, contains six counts, three for violations of § 1 of the Sherman Act (15 U.S.C. § 1), and three for alleged mail fraud violations under 18 U.S.C. § 1341. The three projects which are the concern of Beachner II are Project Nos. 15-18RS-1362(3) (Cowley County), let on November 1, 1978; 54-1-KR-038-5(24) and 54-6-KR-038-5(25) (Bourbon and Allen Counties), let on April 25, 1978; and 160-63-KRL-65-1(35), 169-67-KRL-65-1(37), and 169-63-KRL-65-1(36) (Montgomery and Neosho Counties), let on July 19, 1979.

The Beachner I and Beachner II indictments are identical, with the exception that Beachner II names Jerry Beachner in place of Robert Beachner, and specifies three different highway projects. With those exceptions, the identical "trade and commerce," the same "means" to accomplish the alleged offenses, and the same "effects" of the alleged offenses are alleged in both indictments.

It is in this posture the case came on for hearing before this court.

THE EVIDENTIARY HEARING

A. Burden of Proof

As per Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and United States v. DiSilvio, 520 F.2d 247 (3rd Cir.1975), which require consideration of a double jeopardy claim before a second trial if the defendant raises the issue in a pretrial motion, the court conducted an evidentiary hearing restricting proof to matters of double jeopardy and collateral estoppel. In conducting the hearing, the court was guided by United States v. Inmon, 568 F.2d 326 (3rd Cir.1977), aff'd. on rehg. 594 F.2d 352 (3rd Cir.1979), and the recent decision of the Sixth Circuit Court of Appeals in United States v. Jabara, 644 F.2d 574 (6th Cir.1981), regarding the burden of proof. The Inmon defendants were indicted for conspiracy to distribute and possession with intent to distribute heroin and distribution of heroin. In Jabara, the defendants were indicted for conspiracy to distribute cocaine and heroin and for interstate transportation in aid of racketeering in violation of the "Travel Act." Although neither case involved Sherman Act prosecutions, both courts were faced with a single/multiple conspiracy issue as in the instant case. The Inmon court burden-of-proof discussion concluded with the court finding:

"... when a defendant makes a non-frivolous showing that an indictment charges the same offense as that for which he was formerly placed in jeopardy, the burden of establishing separate crimes—in this case separate conspiracies—is on the government. Besides the practical considerations respecting access to proof, to which we referred earlier, we also point to the obvious fact that it is the government which has control over the drafting of indictments. Any burden imposed by the imprecision in the description of separate offenses should be borne by it. To the extent that the Reid v. United States, 177 F.2d 743 (5th Cir.1949) and United States v. O'Dell 462 F.2d 224 (6th Cir.1972) opinions suggest otherwise, we decline to follow them." Id. at 331-32.

Jabara similarly held that the burden to prove a single conspiracy lies with the defendant until a non-frivolous claim of double jeopardy is advanced. At that point, noted the court, the burden shifts to the government to show, by a preponderance of the evidence, that the conspiracies alleged in the two indictments are in fact separate.

In the instant case, the court finds defendant Beachner Construction Co., Inc. advanced a prima facie non-frivolous claim in its motion to dismiss which alleged the two indictments charged the same conspiracy. The offenses charged in both indictments had the same common objective and several of the same participants. Having met the threshold requirement of advancing a non-frivolous claim, the court finds the burden of proof shifted to the government to prove by a preponderance of the evidence the existence of multiple conspiracies. See Inmon, supra. The government failed to sustain their burden by the requisite preponderance of the evidence.

B. Single/Multiple Conspiracies

Defendant Beachner Construction Co., Inc. contends the projects which are the subject of the Beachner II indictment are merely subparts of but one overall, grand conspiracy existing among Kansas highway contractors to rig highway bids in the state of Kansas. Having been acquitted of the charge of conspiracy for the February 7, 1980, Harvey County bid-letting, defendant Beachner Construction Co., Inc. argues the Beachner II indictment places it in double jeopardy in violation of the Fifth Amendment. The court agrees.

The vitality and importance of the double jeopardy clause of the Fifth Amendment is demonstrated even today by the evergrowing number of cases. None of the more recent cases, however, better describe the general design and purpose of the clause than does Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

"... The constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense....

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Id. at 187-188, 78 S.Ct. at 223.

See also Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); and Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24 (1978).

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the court stated:

"... That guarantee against double jeopardy has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense...." Id. at 717, 89 S.Ct. at 2076. (Footnotes omitted.) (Emphasis added.)

Central to the task of determining whether or not the Beachner Construction Co., Inc. has been put in a position of having to defend twice for the same offense is the...