United States v. Broce, No. 87-1190

• Court: United States Supreme Court
• Writing for the Court: KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, and SCALIA, JJ., joined. STEVENS
• Citation: 488 U.S. 563,102 L.Ed.2d 927,109 S.Ct. 757
• Parties: UNITED STATES, Petitioner v. Ray C. BROCE and Broce Construction Co., Inc
• Docket Number: No. 87-1190
• Decision Date: 23 January 1989

488 U.S. 563 109 S.Ct. 757 102 L.Ed.2d 927 UNITED STATES, Petitioner

v.

Ray C. BROCE and Broce Construction Co., Inc.

No. 87-1190. Argued Oct. 4, 1988. Decided Jan. 23, 1989. Syllabus

Respondents pleaded guilty to two separate conspiracy indictments in a single proceeding in District Court. One indictment charged respondents with entering into an agreement to rig bids on a certain highway project in violation of the Sherman Act, and the other made similar charges with respect to a different project. After the District Court conducted a hearing, at which respondents were represented by counsel, and found the guilty pleas free and voluntary and made with an understanding of their consequences and of the nature of the charges, convictions were entered on the pleas and sentences were imposed. Respondents subsequently filed a motion to vacate the convictions and sentences under the second indictment, contending, in reliance on the District Court's holding in another case involving the same bid-rigging conspiracy, that only one conspiracy existed and that double jeopardy principles required their convictions and sentences to be set aside. The District Court denied the motion, but the Court of Appeals reversed, holding that notwithstanding their guilty pleas, respondents were entitled to introduce evidence outside the original record to support their one-conspiracy claim, since in pleading guilty they admitted only the acts described in the indictments, not their legal consequences, and that moreover, since the indictments did not expressly state that the two conspiracies were separate, no such concessions could be inferred from the pleas. On remand, the District Court granted the motion, finding that there was only a single conspiracy, and the Court of Appeals affirmed.

Held: Respondents' double jeopardy challenge is foreclosed by their guilty pleas and convictions. Pp. 569-576.

(a) In holding that the admissions inherent in a guilty plea "go only to the acts constituting the conspiracy," the Court of Appeals misapprehended the nature and effect of the plea. By entering a guilty plea, the accused does not simply state that he did the discrete acts described in the indictment; he admits guilt of a substantive crime. Here, the indictments alleged two distinct agreements, and the Court of Appeals erred in concluding that because the indictments did not explicitly state that the conspiracies were separate, respondents did not concede their separate nature by pleading guilty to both. When respondents pleaded

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guilty to both indictments, they conceded guilt to two separate offenses. Pp. 569-571.

(b) By pleading guilty, respondents relinquished the opportunity to receive a factual hearing on their double jeopardy claim. That their attorney did not discuss double jeopardy issues with them prior to their pleas, and that they had not considered the possibility of raising a double jeopardy defense before pleading, did not entitle respondents to claim that they had not waived their right to raise a double jeopardy defense. Conscious waiver is not necessary with respect to each potential defense relinquished by a guilty plea. Pp. 571-574.

(c) Under the well-settled principle that a voluntary and intelligent guilty plea by an accused who has been advised by competent counsel may not be collaterally attacked, respondents, who have not called into question the voluntary and intelligent character of their pleas, were not entitled to the collateral relief they sought. P. 574.

(d) The exception to the rule barring collateral attack on a guilty plea established by Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195, in cases where a conviction under a second indictment must be set aside because the defendant's right not to be haled into court was violated, has no application in this case. Here, in contrast to those cases which were resolved without any need to go beyond the indictments and the original record, respondents could not prove their double jeopardy claim without introducing new evidence into the record. Pp. 574-576.

Reversed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 580. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 581.

Roy T. Englert, Jr., Washington, D.C., for petitioner.

Glenn E. Casebeer, II, Coffeyville, Kan., for respondent.

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Justice KENNEDY delivered the opinion of the Court.

We consider here the circumstances under which a defendant who has entered a plea of guilty to a criminal charge may assert a double jeopardy claim in a collateral attack upon the sentence. Respondents, upon entering guilty pleas, were convicted of two separate counts of conspiracy, but contend now that only one conspiracy existed and that double jeopardy principles require the conviction and sentence on the second count to be set aside. The United States Court of Appeals for the Tenth Circuit held that respondents were entitled to introduce evidence outside the original record supporting their claim and directed further proceedings in the District Court. We hold that the double jeopardy challenge is foreclosed by the guilty pleas and the judgments of conviction.

I A.

Respondents, Ray C. Broce and Broce Construction Co., Inc., bid for work on highway projects in Kansas. Two of the contracts awarded to them became the subject of separate indictments charging concerted acts to rig bids and suppress competition in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. The relevant portions of the indictments are set forth in the Appendix to our opinion. The first indictment charged respondents with entering into an agreement, sometime in or about April 1978, to rig bids on a particular highway project. The second charged respondents with entering into a similar agreement, sometime in or about July 1979, to rig bids on a different project. Both indictments were discussed during plea negotiations, and respondents acknowledged in plea agreements that they were subject to separate sentences on each conspiracy charged. Plea Agreement between the United States of America and Defendant Ray C. Broce, App. to Pet. for Cert. 126a, 127a; Plea Agreement between the United States of America and

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Defendant Broce Construction Co., Inc., App. to Pet. for Cert. 133a, 134a.

Respondents pleaded guilty to the two indictments in a single proceeding. The District Court conducted a hearing fully in accord with Rule 11 of the Federal Rules of Criminal Procedure and found that the pleas were free and voluntary, made with an understanding of their consequences and of the nature of the charges. Respondents had counsel at all stages and there are no allegations that counsel was ineffective. Convictions were entered on the pleas. The District Court then sentenced Broce to two years' imprisonment on each count, the terms to run concurrently, and to a fine of $50,000 on each count. Broce was also sentenced for mail fraud under 18 U.S.C. § 1341, a conviction which is not relevant here. The corporation was fined $750,000 on each count, for a total of $1,500,000. Neither respondent having appealed, the judgments became final.

B

On the same day that respondents entered their pleas, an indictment was filed against Robert T. Beachner and Beachner Construction Co. charging a violation of both the Sherman Act and the mail fraud statute. The indictment alleged a bid-rigging conspiracy involving yet a third Kansas highway construction project. These defendants, however, chose a different path than that taken by the Broce respondents: they proceeded to trial and were acquitted. After the acquittal in the Beachner case (Beachner I), a second indictment was returned by the grand jury charging Beachner Construction Co. with three new Sherman Act violations and three new acts of mail fraud. The Sherman Act counts charged bid-rigging conspiracies on three Kansas highway projects not mentioned in Beachner I.

Once again, Beachner pursued a different strategy than that followed by Broce and Broce Construction Co. Prior to trial, Beachner moved to dismiss the indictment on the ground that the bid-rigging arrangements identified were

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merely smaller parts of one overarching conspiracy existing among Kansas highway contractors to rig highway bids within the State. In light of its acquittal in Beachner I, the company argued that a second prosecution would place it in double jeopardy.

The District Court granted the motion to dismiss. United States v. Beachner Construction Co., 555 F.Supp. 1273 (Kan.1983) (Beachner II). It found that a "continuous, cooperative effort among Kansas highway contractors to rig bids, thereby eliminating price competition, has permeated the Kansas highway construction industry in excess of twenty-five years, including the period of April 25, 1978, to February 7, 1980, the time period encompassed by the Beachner I and Beachner II indictments." Id., at 1277. The District Court based the finding on its determination that there had been a common objective among participants to eliminate price competition, a common method of organizing bidding for projects, and a common jargon throughout the industry, and that mutual and interdependent obligations were created among highway contractors. Concluding that the District Court's findings were not clearly erroneous, the Court of Appeals affirmed the dismissal. United States v. Beachner Construction Co., 729 F.2d1278 (CA10 1984).

C

One might surmise that the Broce defendants watched the Beachner proceedings with awe, if not envy. What is certain is that the Broce defendants sought to profit from Beachner's success. After the District Court issued its decision to...