UNITED STATES v. BROCE, 488 U.S. 563 (1989) CASE BRIEF

UNITED STATES V. BROCE

488 U.S. 563 (1989)

NATURE OF THE CASE: This was a dispute over the effect of a guilty plea on two separate indictments that essentially consisted of one conspiracy and a motion under double jeopardy to set the convictions and sentences aside on the second indictment.

FACTS: Ray C. Broce and Broce Construction Co., Inc., (D) 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 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 Ds acknowledged in plea agreements that they were subject to separate sentences on each conspiracy charged. Ds 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. Ds 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 D to two years' imprisonment on each count, the terms to run concurrently, and to a fine of $50,000 on each count. D 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. Charges were also 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 D: 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 Prior to trial, Beachner moved to dismiss the indictment on the ground that the bid-rigging arrangements identified were 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. 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. After the District Court issued its decision to dismiss in Beachner II, Ds filed a motion pursuant to Federal Rule of Criminal Procedure 35(a) to vacate their own sentences on the Sherman Act charge contained in the second indictment. The District Court denied the motion, concluding that respondents' earlier guilty pleas were an admission of the Government's allegations of two conspiracies, an admission that foreclosed and concluded new arguments to the contrary. panel of the Court of Appeals for the Tenth Circuit reversed. That judgment was vacated and the case reheard en banc. A divided en banc court concluded that Ds were entitled to draw upon factual evidence outside the original record, including the Beachner II findings, to support the claim of a single conspiracy. The en banc court rejected the Government's argument that respondents had waived the right to raise their double jeopardy claim by pleading guilty, holding that the Double Jeopardy Clause 'does not constitute an individual right which is subject to waiver.' On remand, the District Court concluded that the indictments merely charged different aspects of the same conspiracy to restrain competition. It vacated the judgments and sentences entered against both respondents on the second indictment. In its decision on appeal from that judgment, the Court of Appeals noted that our intervening decision in Ricketts v. Adamson, 483 U.S. 1 (1987), made clear that the protection against double jeopardy is subject to waiver. It still concluded that double jeopardy protections could not be waived. It then held that the District Court's finding of a single conspiracy was not clearly erroneous, and affirmed.

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