United States v. Ray C. Broce and Broce Construction Company, Inc.

792 Religion or the Amendment

es of the First Constitution. New Mexico Clause of II, Mexico of New Article Section that: provides Constitution AFFIRMED. worship free to man shall be

Every of his according the dictates own

God

conscience, ever be person no shall political any or or denied civil

molested of his reli-

right privilege on account or religious of wor-

gious opinion or mode required to person No shall

ship. worship support any place

attend denomination; nor

any religious sect or given law to any preference be shall America, STATES UNITED or mode any religious denomination Plaintiff-Appellee, worship. of New upon examination believe We Ray and Broce Construction C. BROCE provision under this Mexico cases Inc., Defendants-Appellants. Company, correctly concluded that court district Const, II, 11 are the N.M. art. 83-2558, goals of § Nos. 83-2559. by the Establishment served same as those Appeals, States Court of the First Exercise Clauses and Free Tenth Circuit. courts have New Mexico Amendment. The N.M. Amendment and the First discussed 2, 1986. Jan. Const, II, together5 have cited art. § Amend- the First federal case law under findings support their under both

ment to provi- constitutional

the federal and state hold, the reasons therefore

sions.6 We county seal under upholding

stated in Exercise and Free

the Establishment III, II and swpra Parts

Clauses Const, II, art. violate N.M. seal does not 11.

§

V

Conclusion that the Ber-

Accordingly, we conclude County does not violate either

nalillo seal Free Exercise Claus-

the Establishment or constitution, among things, County other Seal vio and state the Bernalillo mine whether II, wearing art. See Anderson use of sectarian books and § lates N.M. Const. teachers’ (10th Cir.) schools). City Corp., religious garb public Salt Lake crucifix religious (Challenge monument grounds nonreligious symbols in on courthouse Vogenthaler, P.2d N.M. 6. See State v. right, of which volved a "basic First Amendment (1976) prohibit (discussing statute 113-14 and, jurisdiction, although court has the federal desecration); Duffy v. ing see also Las church is in provision the state constitution a like volved, Schools, (D.N.M. F.Supp. 1013 Cruces Public proper federal resolution of the 1983) (New authorizing daily statute Mexico upon state resolution not conditioned question, public uncon schools held moment of silence denied, constitution.”), cert. law or Clause and un under Establishment stitutional (1973). 38 L.Ed.2d II, dismissed, 11), appeal art. § der N.M. Const. Huff, N.M. 236 P.2d 5. See Zellers 1983). (10th Cir. June No. 83-1358 (1951) (holding federal invalid under 959-61 Casebeer, (Curt Glenn E. II T. Schneider briefs) Schneider, Casebeer, on the and Kan., Coffeyville, for defendants-appel- lants. Fonte, Dept, Justice,

John P. Wash- (John ington, Powers, III, D.C. J. Dept, of Justice, McGrath, Paul Atty. Gen., J. Asst. Rule, Deputy and Charles F. Atty. Asst. Gen., D.C., Washington, Judy Whalley Mary Jones, Dept, Justice, Chicago, Ill., brief) him with for plaintiff-appellee. HOLLOWAY, Judge, Before Chief DOYLE, BARRETT, McKAY, LOGAN, SEYMOUR, MOORE, Judges. Circuit ON REHEARING EN BANC MOORE, Judge. JOHN P. Circuit These cases are before the court for re- hearing questions presented en banc. The plea are whether a constitutes a waiver of a to assert a defendant’s Jeopardy violation of the Double Clause of the Fifth Amendment and the sec- whether charging ond of a Sherman two duplicitous Act of the first. guilty plea We hold that a does not waive under the defense of further circumstances of this case. We requires hold the record a remand of hearing case to determine as a matter charged of fact the acts constitute whether conspiracies. therefore re- one or two We the district court. judgment verse the 7, 1981, a two count indict- On November defendants, charging ment was returned Co., Ray Broce and Broce Construction C. Inc., conspiracy to violate the Sher- with Act, In the second man 15 U.S.C. § count, charged mail Broce was Mr. fraud, February 1341. On 18 U.S.C. § indictment was returned a second Beachner, Accordingly, at 1277. corporation supra, charging Mr. Broce and the indictment and U.S.C. 1. the court dismissed violation of 15 one count with § ruling af- government appealed. The pursuant to a February On firmed this court. United States government and agreement between Co., Inc., Beachner Construction defendants, appeared Mr. Broce Cir.1984). both indict- pleas guilty of to and entered president present ap- of hearing own and as from the in his behalf The which ments Subsequently, Broce was corporation. after the peal emanates occurred the two-year terms to concurrent the appeal sentenced before our affirmance of but $50,000 conspiracy the counts and fined on In order to focus the issues dismissal. corporation The was case, government stipu- both indictments. Broce and the $750,000 on each indictment. fined the record of the Beachner lated that hear- by the trial ing could considered court later, filed mo- year both One defendants That ruling Rule 35 motion. appellants’ 35(a) to pursuant to Fed.R.Crim.P. tions Following the record is before us. also convic- judgments alleging their the vacate hearing, publication before the of our and the violated tion on the second indictment Beachner, the trial court opinion denied the Fifth Jeopardy Clause of Double relief, law, holding a de- as matter of the asserted the The defendants Amendment. right their to fendants had waived raise charged single transac- conspiracy counts a pleas. guilty their issue conspiracies; rather than two tion appeal This followed. hence, charge unconstitu- the second was and This conten- tionally duplicitous void. panel originally heard this from anoth- ruling motivated a tion was reversal of the trial case ordered court’s dismissing an judge in the same district er Broce, 753 judgment. United States v. companion in a case. indictment (10th Cir.1985). opinion F.2d 811 That was rehearing granted to con- vacated and defendants, Broce the Broce and pleas sider whether admis- actively en- Company, were Construction sions defendants that there were highway busi- gaged construction actually conspiracies and whether in the state of Kansas for a number ness collaterally attack the defendants could Indeed, years prior to the indictments. following a of an indictment foundations very grew out of that these plea guilty. activity, did the in the com- as case, panion v. Beachner United States I. Co., Inc., F.Supp. 555 1273 Construction Beachner, government a (D.Kan.1983). here, the contends fundamental charge principle this circuit is that the double had indicted on a defendants been personal subject and to conspiracy rig particular on a defense bids Crouse, trial and waiver. 376 highway project. After Cox Kansas Cir.), denied, 865, 88 cert. charge, on this defendants S.Ct. acquittal (1967); Caballero again indicted on a second L.Ed.2d (10th Cir.1940). highway Hudspeth, connected to different trial, premise government argues the On that Id. at 1274. Prior project. plea guilty consti that an to dismiss the indictment unconditional defendants moved waiver, Caballero, supra, tutes that jeopardy grounds. After a on double precludes challenge of the indictment. three-day evidentiary hearing pursuant Although panel held that Menna v. Abney v. U.S. York, (1977), 96 S.Ct. the trial 52 L.Ed.2d 651 New U.S. (1975), Blackledge Per L.Ed.2d pervasive there had been a concluded court 2098, 40 high- L.Ed.2d rig ry, in the Kansas conspiracy to bids Caballero, (1974), compel a reversal industry had existed way construction re- government takes issue with this twenty-five years.” “in excess of postulates Blackledge since and Menna.2 The government further suit. The encourage will allowing present opportunity previ- collateral attack us our convinces challenge sentences defendants to longer holding appo- ous is no Caballero entered, guilty pleas are “long after their Menna, already supra, As noted in site. finality convic- undermining the thus Robinson, supra, the Fifth Amend- already heavy increasing tions Jeopardy ment’s Double Clause stands as federal courts.” workload upon government’s right an inhibition were considered and charges. These contentions to institute This inhibition is ab- There, in supra.1 rejected Blackledge, solute, though and even the bar works as a pro- a due response argument to an individuals, protection of it does not consti- following a not be asserted cess claim could subject tute an individual which is plea, Supreme stated when Court waiver. If the absence of constitutional constitutionality goes to “the the claim of authority prevents government bring the de- very power of the State instance, instituting charges in the first charge,” a court to answer the fendant into guilty plea cannot confer au- defendant’s not waive the constitution- guilty plea does thority upon government the to do what 30, 417 U.S. at 94 Blackledge, al issue. prohibits. light the Constitution In of this at 2103. S.Ct. concept, fundamental the constitutional right the court The with which essential significance.3 doctrine of waiver has no are and with which we Blackledge dealt “right not to be haled here is the concerned Hence, guilty pleas the Broce do not 417 Blackledge, U.S. at into court at all.” questioning a bar to whether the constitute Indeed, 30, as the court 94 2104. Jeopardy prohibits the Double Clause insti v. Neil: noted Robinson tution of the second indictment and vitiates jeopardy guarantee against double The if very pleas. those It also follows that the significantly different.... While is charge under attack is institution of others, is a constitu- guarantee, like defective, constitutionally signifi it is not a defendant, its right of the criminal tional attack affects cant concern that collateral prevent a trial practical result is to finality judgment. If the of the place taking at all.... upon judgment is is consti which the based 876, 878, 505, 509, 93 S.Ct. 35 infirm, process tutionally either on due added). (1973)(emphasis L.Ed.2d 29 judgment jeopardy grounds, Prosise, Haring “final.” v. cannot be we have This is the first occasion Cf. 2424, 954, 77 L.Ed.2d 103 S.Ct. 461 the nature of the U.S. had to reconsider (1983). right its effect on a 1313 urges ignored government panel estab government implication to avoid the 1. The seeks Blackledge argument Blackledge argument with the is a That is lished law in the circuit. Rich, process case. reading due and not a double upon an overbroad based true, negate not While that statement is it does Jeopardy deal the Double that case did not upon impact collateral the clear the case has presented here. Addition Clause the context following guilty pleas. impact This is the attack ally, pre-Blackledge this circuit cases from complaint grounded in whether the is due same inap government equally upon relied right process as- or double when the Zerbst, (10th posite. Bracey F.2d See v. 93 8 goes government's power to file serted charges. Blackledge, supra. Crouse, (10th Cir.1937); v. 376 F.2d 824 Cox 128, denied, Cir.), U.S. 88 S.Ct. 19 cert. 389 (1967). government also cites The L.Ed.2d question was raised but not dealt with in 2. The Bascaro, (11th States v. (10th Cir.1977), Bromley Crisp, v. 561 F.2d 1351 — U.S. —, denied, Cir.), 105 S.Ct. cert. denied, cert. U.S. 98 S.Ct. (1985), a "waiver" case. Ex 87 L.Ed.2d 613 as (1978). L.Ed.2d 499 however, shows, a the “waiver” was amination argues holding government The our in United appeal by failing preserve the issue for failure to Cir.1978) Rich, (10th States v. 589 F.2d 1025 The reliance is to raise it in the trial court. Blackledge Menna indicates decided after misplaced. despite concept our adherence to the of waiver a defect. The the assertion of constitutional argues government tionally charge, that “almost ev infirm it cannot be heard to ery appeals that has other court of con equity prohibits claim the defendants from sidered the issue since Black- raising infirmity [of waiver] the fundamental of the ledge jeop and Menna has held that double charging power. government argues ardy personal is a defense that is waived plea agree- that because adherence to the here, where, by guilty plea plea required possibility ment it to forsake the bargain.” argu plea This result of instituting conspiracy charges additional ment is not well-founded. Examination of district, in another it would be unfair to support govern the cases cited in allow the defendants to obtain the benefits proposition ment’s discloses neither Black- plea bargain detri- avoid the ledge nor were considered. Menna See argument ments. This overlooks Solomon, 726 F.2d 677 States v. government power was without to institute (11th Cir.1984); Herzog, United States charges upon one of the which the Cir.), (8th denied, 644 F.2d 713 cert. effect, agreement In was based. 101 S.Ct. 69 L.Ed.2d agreement partially upon founded (1981); State, Brown nullity. As a princi- matter of immutable Cir.), denied, cert. sub nom. Brown v. ple, government’s constitutional inabili- Maryland, 449 U.S. ty charge in the first instance (1980); L.Ed.2d 100 United States simply diminished bargained because it Perez, (2d Cir.1977). away prosecutorial advantage. fun- addition, government suggests al damental not to be haled into court lowing challenge the defendants to compromised grounds. cannot be on such pleas inequitable. both is inconsistent government argued The has also the de- upon Kerrigan In reliance v. United pleas guilty fendants’ of must be con- States, (1st 1981), 644 F.2d 47 Cir. the alleged sidered admissions of all the facts government argues pled a defendant who indictments; therefore, they in the cannot permitted argu cannot be to make validity charge. contest the of the second ments “inconsistent with the factual and prosecution contends that the indict- theoretical foundations of the indictment.” effectively alleged premise, government On this ments the existence of the contends Kerrigan supports government’s therefore, conspiracies; having the waiv two admit- Yet, theory. er in discussing the issue of allegation by pleas guilty, ted that their of waiver, the defendant’s the Kerrigan court the defendants cannot be heard to contend did not consider Blackledge its effect on conspiracy there was fact. the issue. Blackledge key Since is the Kerrigan, supra. stone in the issue of waiver under consider First, argument unpersuasive. is as distin- here, Kerrigan regarded ation cannot be as guished Kerrigan, present from the indict- persuasive authority.4 Accordingly, the specifically allege ments separate did not principle government’s cardinal that the au conspiracies. While the second indictment thority charge subject to is not to waiver alleged conspiracy rig particu- to bids on by the accused not been undercut since has highway projects, lar specif- it contained no Blackledge principle and must remain the charge conspiracy ic that the itself was guided which we are here. conspiracy alleged from the in the Second, first indictment. the admissions of

Contrary government’s to the insis guilt pleas factual in the subsumed of upon equity, tence plea the defendants’ guilty go only constituting the bargain to acts the estoppel cannot work an of their right invalidity charge. to assert the and not to whether one or more government the agree When enters into an existed. Launius ment upon Cir.1978). which is fashioned a constitu- Moreover, waiver; hence, reading topic by careful discloses the Kerri- the discussion of that gan question district court did not rule on the of the circuit court is dictum. government is not hearing, that hold, oped in as man now Accordingly, we of argue our position examination Menna, a defendant’s dated plead- to the duplicitous confined constitutionally the issue must be govern- stipulation that defendant’s ings. Can that not waiver claim. anything a double but a conces- regarded as to assert ment be many cases been of the two part there have While on its facts sion of those contrary, none to the held one is rele- have are so that cases intertwined has char Blackledge with what have dealt in consideration of the to the other vant into to be haled right not acterized not. We think legal issue? same govern recognize as we court and what us a case which have We now before power to constitutional lack ment’s in which we factually linked to another aligned find ourselves charge. We testimony that estab- already have found give full in Launius Circuit Ninth “continuous, cooperative effort lished a the double true nature cognizance rig asphalt contractors among Kansas right.5 twenty-five years.” for “more than bids” Moreover, Beachner, at 1282. 729 F.2d II. existence testimony established is whether remaining question bid-rigging that method” a “common defendants to which the indictments among all open was “well-known” con Act Sherman or two charged one pled evidence that We found Id. contractors. Beachner, de supra, a As in spiracies. obligations interdependent “mutual comparison by paragraph paragraph tailed con- participating created between reveals indictments Broce bid-rigging scheme “the and that tractors” references except for identity virtual Id. We self-perpetuating nature.” Thus, projects. highway Kansas different showed evidence added: “The then do not the two face on their in Kansas understood asphalt contractors conspiracies. charge different appear to ability years that twenty-five for over indicated, stipu- parties previously As using the afore- available rig bids was transcript court in the trial lated therefore, was, There method. mentioned the double hearing on evidentiary agreement in conspiratorial no lack be incor- Beachner would issue in at 1283. case.” Id. Thus, in this case. record porated in are viewed indictments the two When weight have must opinion in Beachner our matrix, question significant this factual previ- asserts our government here. whether, unique circum under the arises bearing this ease has no ruling ous case, defendants stood this the stances the in held Beachner merely we because long only one in participation charged with clearly were not trial court findings of the Moreover, on the conspiracy. standing argues also government erroneous. indictments, the appears it of the face charges the of whether question that the mere elements forth were set transactions conspiracies multiple single were independent and not conspiracy, in that face from the resolved must be Compare United themselves. conspiracies underlying the indictments, not from (10th Behrens, Cir. 689 F.2d v. States facts. McMurray, 680 1982); United States in other approach taken Whatever (10th Cir.1981); United States determining the nature in cases Cir.1969). (7th Palermo, 410 F.2d 468 in- stipulation conspiracy, the charged question of wheth- Notwithstanding, the tran- Beachner consideration clude or two con- charged one er the permits unique case script presents a case, of this is, in the context spiracies Having con- indictment. inquiry behind Despite the existence wholly factual. facts devel- applicability ceded Cir.1981). Broussard, also See punished in defendants have been twice opinion record and our the Beachner continuing participation single in made no deter their case, court has the trial facts, conspiracy. jeopar- and we Because of those mination essential violated, judg- dy rights been to do so. While have so are not wont significant regarded as a entered under the sec- logically could be ment and sentence requires illegal the road to signpost, system our indictment below were ond 35(a) and not by the trial court motion must be first chosen the defendants’ Rule instance, is a what must follow granted. us. In this in of the kind mandated Ab determination judgment Accordingly, the and sen- States, 431 U.S. ney v. United district court on tence entered (1977), and we must L.Ed.2d in No. 83-2558 is March case there purpose. We are remand for that hereby vacated. pro returning case for further fore Id. at 823. point at the trial ceedings at the based, Judge My views are as were Bo- at an erroneous conclusion. court arrived hanon’s, similarity on the between the guilty is the defendants’ We hold indictments with which the defendants in this case to consideration bar speci- charged, along with the lack of in the second contained whether ficity of indictments. As Bo- those because of the Double void aptly hanon stated: Jeopardy of the Fifth Amendment. Clause approximate begin- The indictments state denying the judgment of the trial court ning give dates for the but motion to vacate sentence defendants’ dates, stating merely that no conclusion reversed, re- and the case is 83-2558 “continuing.” Nothing in the they were factual determination on manded for a finding preclude would first indictment originally presented upon the the evidence conspiracy alleged therein motions, including the filing of defendants’ period “continuing” throughout en- parties. There be- stipulation between compassed by the second indictment. 83-2559, alleged appeal ing no error specify The indictments do not even is dismissed. who was involved the al- definiteness conspiracies. Nothing pre- leged would McKAY, concurring: Judge, Circuit finding people that all of the clude a fully part majority’s I I of the concur alleged conspir- participating in the first join part majority II of the opinion. I acy participants were also the second. to the trial opinion insofar as it remands previously, there is finally, And as noted opportunity to give court to it the first nothing in the first indictment to indicate reluctantly issue. I do so consider agreement de- the matter is clear because believe Project regard -to scribed therein with enough the record before us to establish on 23-60-RS-1080(9) did not also en- No. that the second indict as a matter of law oth- compass projects other [sic] charging with violation ment the defendant Indeed, nothing in bid-letting er dates. in with a of the Sherman Act connection definitely indictment is inconsist- either conspiracy rig to bids on another Kansas ent with the view highway project violates the construction identical, and, they allege are in fact I conclu clause. base this further, ongoing are identical with upon my agreement with this court’s sion bids, extending conspiracy rig to over case, panel opinion in the instant authored period exceeding quarter century.... by Judge Bohanon. States v. at 820. Id. Broce, (10th Cir.1985). In opinion, that this court stated: my view that this The rationale behind judgment and sen- in court should vacate the appearing therefore now Facts in No. 83-2558 can be the conclusion that tence entered Case record lead to I, Bohanon, along at 624. with Id. in v. United found Short government cannot be Cir.1937): believe that “the Jeopardy to evade Double allowed “continuing” con- charges Blanket indictments, by using vague facially Clause spiracy with defendants named by their to distinguishable only reference un- grand jurors persons to the “other here, acts, the submission different overt in the purpose fulfill a known” useful rigged bids on different construction crime, but must prosecution of a Broce, 753 F.2d at 822. Accord- projects." way as to contravene used in such be this case ingly, while I do not believe that If guarantees. constitutional to to the trial court indict- needs be resubmitted fit to send an government sees fact, objec- I no charging a for determinations of have general form in this ment giving the trial court the period joining tion to continuing conspiracy for a opportunity review the issue. I time, with the under- first it must do so acquit- join judgment or to remand. standing upon conviction therefore conspiracy prosecution of that tal further SEYMOUR, Judge, concurring in Circuit barred, and charged is during period dissenting part. part and by be avoided this result cannot presents problem This case a difficult conspiracy to have been charging the concerning Jeopardy Clause of Double where overt district formed another Amendment, Fifth declares that which committed, it were furtherance of acts in “subject the same person shall be no as charging overt acts by different or put be twice of life offense to furtherance having committed in been agree that defendants’ or limb....” objects or it, charging additional by or right guilty pleas did not forfeit their statutes as the violation additional jeopar- challenge the second purview, if in fact the its within disagree, dy grounds. respectfully I must substantially the involves however, conclusion that with the broad And, if the first. same as Jeopardy embodies not the Double Clause charging continuing con- two indictments subject “an individual period in covering the same spiracy and waiver,”1 inhibition” an “absolute but part are drawn with blanket whole or Op. Majority government. See upon persons to coverage “with other clarity in alluring for its Although unknown,” plea of former jurors grand clear, anything but an area of law which jury jeopardy should be submitted with the a rule conflicts my view such partner- proof the same if there is approval of consistent (cid:127)Supreme Court’s prosecuted purposes is ship in criminal voluntary of constitu- knowing and waivers both, appearance of though the by even disagree with the con- rights. I also tional may have been avoid- identity of offenses remanded to case that this must clusion by charging a differ- ed in the indictment Jeopardy the Double whether determine joining conspiracy, or place ent hold I would in fact violated. Clause was defendants, by charging or dif- additional the sec- and would vacate that it has been acts, charging the ferent overt conspiracy conviction Act ond Sherman being statutes violation additional sentence. conspiracy. objects of the among the aspi- embodies notion of waiver against dou- provision constitutional be entitled that individuals should ration of substance and jeopardy is a matter ble invoke for themselves whether decide nullified the mere may not be thus Supreme protections. As the constitutional pleading. forms of criminal relinquish such a decision to analysis, and uncoerced forfeiture purposes of 1. For consistent Westen, Away Waiver: A See a defense. may loss of constitutional be defined as the from Constitutional through operation with- Rationale of law and defense Forfeiture of for Procedure, 75 Mich.L.Rev. Rights Criminal regard intentions. In con- for a out trast, defendant’s deliberate, (1977). informed, 1214 an waiver connotes 800 Court stated v. 100, United States ex 797, Adams 195 U.S. 24 S.Ct. L.Ed. 114 49 McCann, 269, 279-80,

rel. 317 (1904), 63 U.S. S.Ct. the Court characterized freedom 236, 241-42, (1942): 87 L.Ed. 268 right may as “ not be denied a procedural defendant ‘without his safeguards of Bill “[T]he ” 131, consent.’ Id. at 24 Rights are S.Ct. at 805 to be treated as me- (quoting 1 Bishop, rigidities. chanical Criminal Law 1026 What were contrived § (5th ed.)). States, In protections Green v. 355 the accused should not for fetters_ 184, 221, (1957), U.S. 78 2 S.Ct. L.Ed.2d 199 be turned into the Court right described the in ostensibly “... When the administration of the personal terms:

criminal law the federal is courts “The prohibition hedged against constitutional about as it is the Constitution- jeopardy’ designed ‘double safeguards protect al protection for of an accused, an being subjected individual from deny him in the exercise of possible hazards of trial right his free choice and conviction dispense more than once an safeguards alleged some of for impri- these is to of- ... fense .... son privileges ... in his and call it [him] the Constitution.” idea, “... The underlying one that is deeply ingrained in Anglo- at least the consistently Court has thus allowed system American jurisprudence, criminal relinquish defendants to constitu that the State with all its resources and See, rights. tional e.g., Garner v. United power should not allowed be to make States, 648, 1178, 424 96 U.S. S.Ct. 47 repeated attempts to convict an individu- (1976) (freedom L.Ed.2d 370 from self-in offense, al an alleged for thereby sub- crimination); Wingo, Barker v. 407 U.S. jecting embarrassment, him to expense 514, 2182, 92 S.Ct. (1972) 33 L.Ed.2d 101 compelling ordeal and him to live (speedy trial); Alabama, Boykin v. 395 continuing anxiety state of and insecuri- 238, 1709, U.S. 89 S.Ct. 23 L.Ed.2d 274 ty, as enhancing well as the possiblity (1969) (trial kind); of any Brookhart v. though even innocent he Janis, 384 U.S. 86 S.Ct. 16 L.Ed.2d found guilty.” (1966) (confrontation 314 witnesses); Noia, Fay 187-88, 372 at U.S. 83 S.Ct. Id. 9 78 S.Ct. at 223.2 The Court (1963) (claims L.Ed.2d 837 right then held that otherwise re had not been Adams, viewable via waived in corpus); habeas circumstances of that case: (counsel U.S. 63 S.Ct. 236 jury “Nevertheless the Government con- trial). sure, To be any waiver of such tends that Green ‘waived’ his constitu- right knowing must be voluntary, tional defense of former to a “ courts ‘indulge every should prosecution reasonable second degree on the first waiver_Johnson presumption against charge by murder making a successful Zerbst, v 458, 464, . 304 U.S. appeal improper his conviction of sec- 1019, 1023, (1938) (citations L.Ed. degreée ond accept murder. We cannot omitted); Tigar, see also Supreme paradoxical contention. ‘Waiver’ is Court, Term, vague Forward: Waiver term great variety used Disquiet Constitutional Rights: purposes, bad, good and in the law. Citadel, (1970). 84 Harv.L.Rev. 1 sense, When however, normal it connotes these fulfilled, conditions properly voluntary some kind of knowing relin- relinquishment rights quishment constitutional right. Cf. Johnson v. permissible. Zerbst, 304 U.S. 458 S.Ct. [58 1019].” The Court has exception countenanced no Id. at (emphasis S.Ct. for the Jeopardy Double Clause. In the original). In Bustamonte, Schneckloth v. seminal case of Kepner 237-38, S.Ct. 2052- Neil, 505, 509, 2. See also guarantee Robinson against as “a consti- 876, 878, (1973) (describing L.Ed.2d 29 defendant"). tutional of the criminal

801 guilt and (1973), listed valid establishment 53, the Court L.Ed.2d 854 36 offactual being way from twice con- right free do not stand to be rights as one of those placed jeopardy” viction, validly estab- guilt is if factual knowing standard of the Zerbst however, to which Here, the claim is that lished. applied, had intelligent waiver been may petitioner no not convict State citing specifically Green. guilt is validly how his factual matter Blackledge therefore, v. subsequent cases of guilty plea, established. 2098, 40 94 S.Ct. 417 U.S. Perry, the claim.” does not bar (1974), v. New and Menna L.Ed.2d 628 242 n. 2 n. 96 S.Ct. at 423 U.S. at 62-63 L.Ed.2d York, S.Ct. 46 96 added); Pro (emphasis Haring also v. see curiam), (1975) way in no mark a (per 319-21, sise, 103 S.Ct. U.S. ju- the Court’s waiver retrenchment from 2376-77, (1983).4 L.Ed.2d 595 Black- conception of Double or its risprudence the nature ledge Menna recall Green: Menna Blackledge and Jeopardy Clause. against guarantee right “jurisdictional” characterize the may a forfei qualify restricts as valid what to delimit the circumstances in order terms ture, negate possibility of but does not waiv- a forfeiture —not under which valid Court a waiver. The Menna deliberate that a may occur. Both cases hold er— that a dou explicitly thus declined rule not forfeit unam- guilty plea does an mere may waived. ble claim never be prosecution lacked biguous claim that at 242 at 62-63 n. See 423 U.S. into court.3 a defendant power all to hale n. 2. Menna: explained As Henderson, 411 “Neither Tollett Characterizing right jurisdictional 1602, 36 L.Ed.2d U.S. 258 S.Ct. 235] [93 any less simply does not it terms make on which it (1973), earlier cases nor our from waiv- personal necessarily immune or relied, e.g., Brady v. United Zerbst, identi- the Court er. In Johnson 1463, 25 S.Ct. L.Ed.2d U.S. 747] [90 “jurisdictional as right fied the to counsel Richardson, (1970), and McMann to the commencement prerequisite” 1441, 25 L.Ed.2d S.Ct. U.S. 763] [90 proceedings: criminal (1970), proposition stand constitu- Amendment the Sixth “Since ‘waive’ guilty pleas inevitably counseled crime charged with tionally entitles one viola- constitutional all antecedent counsel, compliance to the assistance emphasized we .... Tollett tions [I]n is an mandate ivith constitutional this ingredi- not the basic waiver was prerequisite to jurisdictional essential cases, at 266 this ent line of deprive authority to court’s federal point of these 266]. [93 liberty. When his an accused life guilty is plea of is that a counseled cases waived, the assist- properly guilt reliable of factual so an admission longer a neces- no counsel is ance of that, voluntary intelligent, it where jurisdiction the court’s sary element of of factu- removes the issue quite validly and sentence. to conviction proceed cases, In most the case. guilt al accused, however, represent- not If the basis for guilt is a sufficient factual competently has by counsel and not ed punishment. A imposition of State’s constitution- intelligently waived his simply renders plea, therefore, stands Amendment right, al Sixth viola- constitutional irrelevant those conviction to a valid jurisdictional bar inconsistent with the logically tions guilty plea Haring, held that a the Court Hudspeth, Caballero v. overrule 3. would has waived that a defendant Cir.1940), establish does not it extent 547-48 pur- seeks to he Amendment claims Fourth otherwise, leave its char- but would intact holds 1983, notwithstanding U.S.C. § sue under guarantee against double acterization of opportunity to forfeited the have that he right. personal as a pro- corpus in a identical issue habeas raise the ceeding. 802 Anderson, depriving (7th or

and sentence him of his life 514 F.2d Cir.1975). liberty.” his case, In this defendants did not receive 467-68, (empha at at 1024 U.S. 58 S.Ct. copy of the second indictment until almost added). guarantee against sis Like the days They pleaded filing. four after its Menna, jeopardy double described day. the same The record indicates right deprives power to counsel a court of jeopardy rights that a waiver of double was proceed against an accused who un bargained by neither the Government represented. Yet Zerbst was a landmark nor otherwise discussed with defense coun- precisely decision because of its statement sel. Counsel’s uncontroverted affidavit re- right may knowingly that such a be veals that defendants did not consider See id. voluntarily relinquished. at question jeopardy prior plead- of double S.Ct. at 1023. It thus does not follow from ing guilty. accepting Before defendants’ jurisdictional the Court’s characterization pleas, judge litany the trial recited a guarantee against jeopardy double rights, constitutional but did not mention may exceptional is somehow never be Jeopardy the Double Clause. Even with- Accord Launi relinquished.5 deliberately invoking presumption against out waiv- States, (9th us United 575 F.2d er of safeguards, constitutional it is clear Cir.1978). deliberately that defendants did not relin- Although jeopar- I that a conclude quish challenge the indict- waived, dy may agree claim be against ments them. Bohanon, panel opin- author of the dissent, Judge argues In Barrett ion, that there has been no waiver in this forfeited defendants their double case. Menna confirms that any waiver by failing claim to raise the issue below as a double claim must be deliberate 12(b)(2). required by Fed.R.Crim.P. See Zerbst. by in the sense envisioned pro- Barrett Dissent at 813-815. The rule defendant in Menna had raised the defense vides: prior pleading guilty. The New York “(b) defense, Any Pretrial Motions. Appeals Court of therefore construed his objection, request capable which is guilty plea knowing voluntary as a determination without trial Menna, People See

waiver. may 36 N.Y.2d general issue be raised trial before by may motion. N.Y.S.2d 335 N.E.2d 848 Motions be written or (1975). judge. oral at the discretion of the reversing, Supreme Court following prior must be raised to trial: guilty plea held that a relates to factu- guilt imply al and does not itself relinquish legal

deliberate decision to (2) objections Defenses and based on claim, notwithstanding that the defendant defects the indictment or informa- (other of the claim at the time his aware tion than that it fails to show Menna, jurisdiction in See plea. at n. the court or to an U.S. 62-63 objections offense which shall be no- 96 S.Ct. at 242 n. 2. An affirmative and ticed court during time unambiguous of waiver indication is thus ” pendency proceedings).... Indeed, required. practical matter, as a normally defense is 12(b)(2) addfed). (emphasis “[a] Fed.R.Crim.P. type not the of claim that would be fore- Wright Professor has answered the Rule gone strategic purpose.” argument for some 12 forfeiture as follows: “As a courts, one, Cir.1985) including (appeal pending); Diagnos 5. Lower federal this have Pacemaker actually gone America, Instromedix, Inc., further in another context: liti- tic Clinic Inc. v. gants may subject consent to the exercise of (9th Cir.) (en banc), cert. denied, jurisdiction — matter powers by Article attendant III —, 83 L.Ed.2d 45 magistrates, irrespec- non-Article III (1984); Wharton-Thomas v. United See, rights being adjudicated. e.g., tive of the (3d Cir.1983). Dobey, United States v. jeopardy question may be true. The to be one of fact which pleading matter well however, multiplicity that defend- vice must first determined the trial court be given multiple sentences for a ant Majority Op. at 797. remand. happens, If the sen- single offense. alleged If the indictments this case illegal may any corrected at tence is and conspiracies separate two with sufficient Wright, time.” 1 C. Federal Practice & clarity specificity, and then a of (2d 1982); ed. Procedure at 702 n. 31 § arguably could to each be construed as 145, at 525-26 & n. 14. see also id. § establishing that two such ex- “ argument ‘The that one waives his example, Judge isted. As an Barrett relies right object imposition of multi- to upon Kerrigan of v. case United ple fail[ing] object his to sentences (1st Cir.1981). States, 47 644 F.2d multiplicious nature of an indictment against Kerrigan clearly indictments applies only sequitur. is a non Rule charged separate conspiracies to two trans- objections regard to the error in with port goods stolen in interstate commerce. itself; the effect of Rule the indictment conspiracy allegedly occurred One between multiplicious 12 is that dismissal of a August Sep- specific dates of 25 and however, if required; indictment is not 1, 1977, coconspira- with two named tember imposed on each count of sentences are other, involving goods, tors. The different multiplicious indictment the defend- September allegedly occurred between forced to serve the erroneous ant is not ” 22, 1977, September only one of sentence because of waiver.’ previously co-conspirators. The named Launius, (quoting 575 F.2d at 772 United Kerrigan raise a dou- court held that could Rosenbarger, v. 536 F.2d 721- States by repudiating the jeopardy claim ble (6th Cir.1976), denied, cert. pleaded alleged to which he had facts (1977)); 53 L.Ed.2d guilty: Mastrangelo, also see United States (11th Cir.1984); F.2d way, Kerrigan’s claim “Evaluated in this Marino, (3d n. 682 F.2d 454 3 States quite from that asserted different Cir.1982). that Rule noteworthy It Launius; being facially multi- far from 12(b)(2) excepts jurisdictional issues from Launius, Kerrigan’s in- plicitous, inas pretrial. those which must be raised Given sepa- sufficiently describe two dictments Supreme characterization of Court’s offenses, Ker- for which rate and distinct double and the facts of Blackledge, constitutionally sentenced rigan could be 12(b)(2) apparent it is that Rule is no bar to imprisonment.” separate terms of to two raising post claim even double Id. prison Although trial. Broce’s sentences presents a Kerrigan, this case Unlike company concurrently, ran he and his both which, example two clear of indictments fines on the two indict received cumulative draftsmanship, fail to imprecise of because They ments. did not forfeit single continu- existence of a rule out the constitutionality those fines contest the conspiracy. The indictments are virtu- ing during the by failing to raise the issue they identical, differing only in that ally pleading guilty. brief interval before respect charge bid-rigging with purport to the Dou- question remains whether highway projects. The Kansas to different Jeopardy has been violated. ble Clause indictment, however, refers to the first also that the indict- Judge Barrett would hold speci- projects not discussion of additional facially charged con- ments The Government’s fied in the indictment. that, tlie spiracies by pleading Pleas,” Support of Facts “Statement indictments, alleged in the Broce is facts plea agreements attached to the which was claiming a factually barred case, that these addi- in this further reveals jeopardy violation. Barrett Dissent at 810 the same projects not all let on tional majority -811. The declares the double objects or violation ing additional elimi- indictments Neither date.6 purview, its as within statutes act of overt additional possibility nates involves indictment in fact second if in the second alleged rigging bid conspiracy as the conspiracy substantially the same scope fell within provision give The constitutional first.... first. charged in the ais matter either against when no indication time; overlap in be thus nullified an ended, implying thereby substance pleading.” and unknown” “known forms of criminal refer the mere overlap of an thereby implying individuals, v. United Short participants. Cir.1937); see also (2d presumption Cir. Abbamonte, raise F.2d 759 These features single con a concerned 1985). the two Novak, 715 States United spiracy. See indictments, the vagueness of the Given Cir.1983) (citing (3d United 810, 818 F.2d admit the not not and did could defendants (2d Mallah, F.2d 985-87 503 States merely separate of existence denied, 104 U.S. Cir.1974)), 465 cert. alleged.7 facts guilty to the pleading by (1984). 694 L.Ed.2d “[I]t 79 5.Ct. from estab- not barred They are therefore over the has control government which the continuing con- of one lishing the existence im Any burden drafting of indictments. agrees with majority the spiracy. While description in the imprecision by the posed indictments, re- it would this view be borne should offenses separate of of determination an initial mand for Inmon, States it.” United however, submit, that I question. factual Cir.1977). (3d In resolved. already has been the issue ‘continuing’ con- charges of “Blanket v. Beachner Construction with and named defendants with spiracy Cir.1984), this Co., un- grand jurors persons ‘other single finding of a factual upheld the court purpose a useful fulfil known’ bids within conspiracy rig continuing crime, not must but prosecution this find- industry. After asphalt Kansas contravene way as to a used in such be affirmed, it was but before ing was made govern- If the guaranties. constitutional stipulated that in this case the Government in to send an sees fit ment considered in Beachner could the record continuing charging form general this motion. Rule deciding defendants’ in time, it must period conspiracy for apart conceding, as stipulation read upon understanding that with the do so forfeiture, and of waiver the issues prosecu- acquittal further or conviction presented circumstances the factual that during period that tion of in from those indistinguishable here result barred, this that and charged aof to the existence respect Beachner con- charging be avoided cannot violation. in another formed been to have spiracy that dis- agrees Judge Barrett Even in furtherance overt acts district where determination factual court's trict committed, by charging of it were in- future cases control should Beachner having com- as been acts overt different industry: asphalt volving the Kansas it, charg- byor mitted furtherance is bound dispute that defendant I do not 7. technically part the indict- Although by whatever he pleads he to which ment, de- that record when was on this statement plea. In his open as basis court presumably accepted it states my pleas were fendants’ however, view, remains free a defendant what account the Government’s reflects surviving support evidence in through pleas. offer be admitted to event, these contradict which does not jeopardy claim refer- not be read as must the indictment Menna, 62-63 n. U.S. at facts. See it would admitted single bid-letting date or ring ato 2; Abney v. n. see also at 96 S.Ct. the indict- chose Government follow 651, 659, attempt mis- language a deliberate ment’s (1977). L.Ed.2d the facts. state sepa fact, that the opinion, finding, a matter all “[Fallowing filing of in the District were other subsequent prosecutions highway bids “rigged” rate circuit Although of Kansas or elsewhere conspiracies. than bid-rigging involving the identical factual Judge O’Connor parties stipulated that by our hold- be controlled scenario would in the evi- “may the record made consider consti- ing in scheme Beachner: hearing to Dismiss dentiary on the Motion con- single, on-going, continuous tuted a ruling the merits on ... [in ] spiracy.” to Vacate Sentence of defendants’ Motion Barrett Dissent 810-811. The 35(a) (R., I, p. to Rule ...” Vol. Pursuant fair received a full has Government required to 97), the district court was not issue of litigate this ultimate opportunity retroactively. apply Beachner why the Beachner fact. I see no reason however, did, the Beach consider O’Connor preclu- full findings not be accorded should ner record.1 proceeding. in this Thus sive effect dispute. are not in The facts of this case find court could not now remand the trial initially The Broce defendants involved in than defendants were more 7, 1981, by a two- charged on November bid-rigging conspiracy. Because feder- for violations of count indictment relationship between this case and unusual 1) (15 al laws U.S.C. antitrust § Beachner, I vacate the conviction would 1341) (18 in mail statute U.S.C. fraud § No. 83-2558. and sentences in highway con- specific a relation Kansas BARRETT, Judge, dissenting: Circuit Thereafter, February on project. struction view, O’Connor, correctly my Judge 4, 1982, defendants the Broce pur- to the Broce defendants denied relief a one- charged in a second indictment 35(a) pro- suant to Fed.R.Crim.P. antitrust laws of the federal count violation an il- “[Tjhe court vides that correct Kansas separate, to a distinct in relation may correct any time and legal sentence at project. On Febru- highway construction imposed illegal in an manner a sentence bargain 8, 1982, pursuant to a ary provided herein for within the time entered the Broce defendants agreement (Emphasis sup- reduction of sentence.” charges contained guilty pleas guilty pleas were At the time the plied.) court, prior to trial indictments. both Broce, voluntarily entered in the Beachner detailed, thorough a sentencing, conducted fact, filed. In Beach- opinion had not been no contention There is 11 proceeding. Rule for more did not come down than ner represent- defendants were that the Broce pleas were entered. years after the Broce or that counsel by competent other than ed was, then, absolutely nothing There facial- meticulously con- did not district court the two indictments ly illegal about Sentences proceeding. Rule duct the They charged pled guilty. which Broce Broce 1982. March were entered conspiratorial acts separate, independent to Vacate their filed Motion defendants had the antitrust laws. There violation of sen- ground that on time Sentence judicial precedent at that been no opinion reported original panel Broce In the panel that handed down of this court 1. The (10th Inc., Broce, Co., Beachner Const. as United Cir.1985), United States v. Cir.1984) achner), Judge (Be interesting consisted to note it is O'Connor, Seth, Judge judge Chief order de- of then Chief whose the trial O’Connor was Dis Court Judge, pleas States District for motion to vacate Rule 35 nied the Barrett, Kansas, Judge, who Circuit bid-rig- trict of charging separate a second a case opinion. We there held in authored the Judge appeal dis- Seth ging conspiracies. On involving scenar and identical the same holding factual been Broce had sented from Judge was us here that Saffels io as that by pleading before subjected to double concluding because clearly erroneous conspiracy charging to vio- to two indictments partici objective was shared each a common laws. late the antitrust single, and con pating as a common contractor scheme, supported trial the record tinuous conspiracy. finding single a court’s jeop- single larger ongoing bid-rigging tences were in violation of the double a ardy February clause on 1983. Id. conspiracy continuing that had been for years. Accordingly, Judge several Saffels Co., granted Beachner Inc.’s Construction reasoning in I deem the trial court’s de- motion to dismiss. 35(a) nying the Broce defendants Rule re- lief set forth in the court’s Memorandum as important in and Order our determination Discussion Thus, quote I of the issue. therefrom: case, "The in the instant .defendants “The defendants’ recent double Co., Inc., Ray Broce Construction C. inspired by January claim was Broce, light contend that in Saf by Judge Memorandum and Order Dale E. II, judgment fels’ decision in Beachner court, Saffels of in another case involv No. 82-20011-01 con and sentence Case ing bid-rigging highway in Kansas con stitutes a violation of the double projects, struction States v. Beach clause sentenced the defendants because it Inc., al., Co., ner Construction et separate highway projects, sepa on two as F.Supp. No. 82-20076-01. Beachner conspiracies, although rate were both Inc., Co., Construction was indicted on Feb part single rig overall 4, 1982, ruary a violation of the Sher for highway bids on Kansas construction man Antitrust Act and mail fraud viola addition, projects. Broce Construction charges tion. Both related to a Kansas Co., Inc., contends that the total of 1.5

highway project let the state of Kansas imposed by million dollars fines the court February on 1980. Robert illegal legal was because it exceeded.the subsequently indicted the same violation, penalty per of one million dollars alleged proceeded The case offenses. prescribed by 15 U.S.C. 1.§ ’). (‘Beachner May By trial on 7, 1982, May jury verdict rendered light “The defendants contend that in acquitted conspir both defendants of the Judge ruling, they Saffels’ Beachner II acy charges. and mail fraud guilty bid-rigging of- 16, 1982, “On November another indict- single conspiracy fense—a than —rather by grand jury, ment was returned the nam- allege two. The defendants thus that the Co., Inc., ing Beachner Construction and imposed by sentence the court the violates Jerry as Beachner defendants. This indict- jeopardy ground clause the double on (‘Beachner II’) ment contained three punishes multiplicity that it them twice alleging counts violations 1 of the of § single for offense. Act, alleging and Sherman three counts certainly jeop- “It is clear that the double mail fraud violations. found Saffels ardy protect clause does a defendant the Beachner II indict- Beachner against multiplicity punishment. In identical, exception ments to be with the 711, Pearce, North 395 U.S. Carolina Jerry that Beachner II named Beachner 717, 2072, 2076, 23 89 S.Ct. L.Ed.2d 656 Beachner, rather than that Robert (1969),the Court stated: specified high- II three different Beachner guarantee [against jeopardy] That double way projects. separate has been said to consist of three II, “In Beachner Construction protections. protects constitutional It Co., Inc., moved to dismiss the November against prosecution a second for 16, indictment, alleging 1982 inter alia acquittal. protects same offense after It jeopardy estoppel. double and collateral against prosecution a second for the Following evidentiary hearing, an the court same offense after And it conviction. January entered 1983 Memorandum its protects against multiple punishments Order, in which it concluded that the the same offense.... conspiracies charged in Beachner I and (Footnotes omitted) added). (emphasis merely separate parts Beachner II were

807 “The defendants thus contend that Cir.1981); Launius v. States, 575 should be entitled to advantage take (9th Cir.1978), neither of these Judge Saffels’ Beachner II ruling because plea cases involved a of guilty to an indict 35(a) a Rule motion can be raised ‘at ment or information that multipli was not time.’ Although it general is the rule that cious on its face. In words, other the cases 35(a) a Rule motion can be at any raised cited the defendants are entirely within time States, v. United [Heflin scope of the rule announced Menna. (1959); 3 L.Ed.2d 407 “The point defendants out that there is States v. Golay, F.2d 870 broad language in the Launius opinion to (8th Cir.1977)], government argues the effect that a waiver of a jeopar double the defendants waived their double ‘ dy claim must be a “waiver” defined in jeopardy claim because it not timely Zerbst, Johnson v. raised and pleaded because defendants [1023], (1938) L.Ed. 1461 — the to two conspiracies. The intentional relinquishment or abandonment issue in the case is therefore whether a of a known or privilege.’ 575 F.2d at alleging counts sepa government, in response, has cit rate constitutes a waiver aof ed to a line of cases in Eighth claim of double ground on the Second Circuits to the effect that a claim of being subjected defendants are double jeopardy non-jurisdictional and is punishment multiple single for a offense. waived if not timely and affirmatively

pleaded. United States v. Herzog, Menna, “In though even (8th defendant’s F.2d Cir.1981); McClain v. guilty plea Brown, admitted the facts of his of- Cir.1978); fense, the indictment —on its Perez, United States v. argu- 1227, 1232 565 F.2d face — ably violated (2d Cir.1977). clause The Tenth apparent Circuit charging him a time ly second for the conduct had not question addressed the of waiver subject was the previous of his con- double jeopardy claim. We tempt Thus, conviction. convinced, however, defendant’s the waiver theo claim was not ries rendered announced either Launius or the irrelevant his guilty plea Herzog because the line of cases applied should be indictment its sought punish facts of the instant case. face conduct, same thereby giving rise a pos- “We believe that the resolution sible double jeopardy violation. con- pending motion should be controlled by the trast, challenged second opinion in Kerrigan v. United (No. 82-20011-01) instant case does not (1st Cir.1981), which more closely its punish seek to the defendants face resembles the facts and resulting legal for the conduct same for which issues of the matter at bar than does charged in the previous (No. indictment by other case parties cited or uncovered 81-20119-01). Menna left unanswered the by the court’s Kerrigan research. in- was question of plea whether a to one separate dicted two indictments a or more counts multiplicious on their grand jury. federal The first indictment face constitutes a waiver of a claim of charged Kerrigan conspired with oth- jeopardy. double ers, August between and Septem- research “Our reveals few transport courts ber to and to sell stolen have squarely question confronted left lithographs. second indictment Supreme unanswered Court Men charged Kerrigan conspired with one na. Although the defendants have previous cited of his co-conspirators, between two broadly-worded opinions propo for the September 1,1977, September 22,1977, and sition that plea a guilty does not transport constitute to to sell jewel- and stolen Indian claim, waiver of a jeopardy double Unit ry. charged second indictment also Broussard, ed Kerrigan with a count substantive of trans- jewelry constitutionally sep-

porting stolen interstate sentenced to two Kerrigan pleaded guilty to the imprisonment. commerce. arate terms of conspiracy charges, two each before a dif- 644 F.2d at 49. exchange govern- judge, and in ferent “Judge Campbell concluded that: count. ment the substantive On dismissed agreements charged the two related to Kerrigan to March was sentenced commission of crimes which were similar jewelry conspiracy and years three for the Thus, facially, possible but distinct. it is years (consecutively) lithograph for the two to conspiracies.... By have had two sentencing, Kerrigan conspiracy. After his pleading guilty, Kerrigan accepted the two-year on the challenged the sentence government’s two-conspiracy allegations, charges parts ground that the two involved try and it is too late for him to to estab- court single conspiracy. The district something allega- lish else. The factual magistrate’s finding that the adopted the sufficiently tions of the indictments conspiracies, charged separate indictments separate conspiracies; Kerri- Kerrigan’s challenge to his rejected and gan is bound these facts because of sentence. guilty pleas; Kerrigan his and has there- Kerrigan again appeal, asserted that “On placed fore not jeopardy been twice only argued, there was for the same offense. Launius, relying that his on Menna Id. his to raise guilty plea did not waive jeopardy opinion claim. In the

the double similarity “The between the facts Circuit, Judge Campbell dis- for the First Kerrigan case now at bar and those of cussed Menna and Launius at some inescapable. Ray Defendants C. Broce and length. Co., Inc., pleaded guilty Broce Construction do indeed indi- Menna Launius alleging to two differ- cate that double claim lie conspiracies beginning ent at different notwithstanding guilty plea, but nei- (more year apart) times than one and in- did the claim ther case volving projects. different construction On repudiation allega- depend upon a faces, alleged their the indictments two dis- tions in the indictment to which the conspiracies, tinct criminal and the defend- had been entered. These cases do not each, pleaded guilty acknowledging ants hold, Kerrigan suggests, that a de- validity of the facts contained in each pleaded guilty may fendant who later Accordingly, indictment. we feel com- the factual and theoretical foun- contest reasoning pelled adopt the First Circuit’s dations of the he ‘accepted govern- that the defendants fact, that, pleaded, so as to he show two-conspiracy allegations, ment’s and it is single committed offense. The try too late establish some- [them] explicitly correctly court in Launius thing else.’ 644 F.2d at 49. ‘By pleading guilty appel- stated that remains, however, “There the defend- alleged in the lants admitted the facts that, notwithstanding suggestion ants’ Ker- information.’ omitted]. [Citations pleas guilty, Judge Saffels’ subse- rigan's claim of must be II, quent ruling in that there evaluated under the of facts stat- version among agreement Kansas contrac- indictment, against ed in the an alter- not bids, rig rendered their sentences tors Kerrigan native version of events which ‘appears it from the invalid and that now claims is more accurate. Evaluated now face of the indictments that but one con- way, Kerrigan’s quite in this is claim spiracy existed for which defendants have Launius; different from that asserted (Defendant's punished.’ Reply, been twice being facially multiplicitous, as far from 9.) theory support of this that an Launius, Kerrigan’s at indictments suffi- intervening merge decision can ciently court described two and dis- offenses, alleging Kerrigan previous could contents of tinct for which single into a conspiracy, ly two that where a defendant pleading the defendants cite Smith United admits facts give that do not rise to States, Cir.1961). claim, a he will not later be permitted to raise a claim Smith, pleaded guilty “In the defendant depends upon that a version of the facts arising to three-count information out of different from that he has admitted.” robbery. charged bank Each count (R., violating II, defendant with pp. 281-90.) a different subsec- Vol. apparent It is tion of 18 U.S.C. 2113. After the defend- from the above-quoted excerpt Judge § sentenced, Supreme ant was Court O’Connor’s Memorandum and Order that case, the United in another held he carefully considered the record in that the subdivisions 18 U.S.C. yet Beachner properly § denied the Broce charged impo- but one offense and that the defendants relief pled because had il- sition of more than one sentence was facially legal indictments, their result, legal. As a the defendant’s sen- pleas admitted the factual basis of the tence corrected. was charges, and Beachner did not control this case. persuaded are not that this line of

“We

reasoning applicable is here. Smith v. distinguishable from the United States I. intervening

situation at bar in that the deci Blackledge Menna and question sion in case that involved of law: eourt, The trial operation unlike Consequently, majority, of a statute. found York, that Menna Supreme applica Court’s decision was v. New 423 U.S. (1975) 96 S.Ct. finding ble to Smith’s case. Saffels’ 46 L.Ed.2d 195 was II, single conspiracy applicable By of a not here. analogy, how the same ever, apply was a determination in rationale would Blackledge made v. Per- factual light produced ry, evidence at an eviden 40 L.Ed.2d tiary (1974), hearing particular in that It case. which case was addressed question well settled agree whether a the trial court. I with the trial single Thus, conspiracy multiple conspiracies court’s I analysis. conclude question is a exist of fact. Menna and do not Blackledge apply United States Elam, 1234, 1245(5th Cir.1982); 678 F.2d case bar. James, 576 F.2d Significantly, in both Menna and Black- (5th Cir.1978); v. Ar United States ledge, jeopardy challenge the double medo-Sarmiento, (2d 545 F.2d (like Beachner) posited prior to trial. Cir.1976), denied, cert. 430 U.S. 917 [97 recognize always that this is not conclu- (1977); L.Ed.2d 595] sive, weighs heavily it here. It but was not Ippolito, States v. F.Supp. significance plainly— in Menna because (E.D.N.Y.1981). Accordingly, we do not evidentiary the need of an without hear- believe that at this late date the defendants ing placed jeop- had been twice —Menna permitted advantage should be to take ardy: initially Menna had been incarcerat- factual determination that is inconsistent contempt charge ed on a for refusal the facts with the defendants admitted obey appear testify a court order to pleading guilty alleging to the indictments Thereafter, grand jury. follow- before separate conspiracies. ing denial of his motion to dismiss the agree questions do not defendants’ “We to answer for refusal allegation position govern- grand jury, he entered a same ‘[t]he before guilty plea effectively deprive any ment would defend- thereto and was sentenced. pleads guilty Supreme logically ant held Men- who to file Court specifically pre- contempt Rule motion which na’s earlier conviction for awas 3[5] right plead guilty.’ serves this to those who criminal the same conviction crime as “for (Defendants’ 10.) Reply, at We hold mere- charged the one in the instant indict- merit.” 423 U.S. n. 96 S.Ct. at facts of the Kerrigan pled instant case. (emphasis supplied). n. 1 No eviden- guilty and was sentenced under two indict- tiary hearing involving fact-finding ments, charged both of which him .with process required was to arrive at transport goods stolen in in- logical conclusion. Thereafter, Kerrigan terstate commerce. brought corpus a contending habeas action Perry, Blackledge that his sentence should be vacated on the (1974), again S.Ct. L.Ed.2d 628 ground that it violated his Fifth Amend- fact-finding evidentiary there was no hear- rights ment ing required placed jeop- in not to be twice Supreme order for the in ardy Court to conclude that after for the same offense. Blackledge The court of charged, appeals had been tried and convicted affirmed the district court’s denial the state authorities on a pertinently misdemeanor of relief and observed: charge subsequently that he could not be Menna and Launius do indeed indi charged, tried and convicted those same jeopardy cate that a double may claim lie felony charge state authorities on a involv- notwithstanding guilty plea, a in nei but ing the identical and circumstances. facts ther case did the claim Supreme felony Court held that depend upon repudiation a allega charge lodged against Blackledge tions the indictment to which the retaliation to filing petition his for trial had been entered. These cases do not conviction, de novo of his misdemeanor hold, Kerrigan as suggests, that a de constituting deprivation process of due pleaded guilty fendant who may later law. Neither Blackledge Menna nor in- contest the factual and theoretical foun volve the rule at the heart of the case at dations of the indictment to which he statutory impediment (i.e., bar: absent pleaded, that, fact, so as to show he subject lack jurisdiction) matter or a Due only single committed conspiracy. (i.e., deprivation Process filing a subse- explicitly court correctly Launius quent charge in retaliation to a defendant “By pleading guilty stated that appel taking appeal conviction), from an earlier lants alleged admitted the facts the rule in long this circuit has been—and States, information.” Brady v. United continues to be after Menna and Black- 1463, 1468, [90 ledge —that an accused waives his claim of (1970); L.Ed.2d ... Willard v. Unit 747] subsequent to a criminal States, (7th ed 445 F.2d Cir. charge if charged, the crimes on their 1971). Kerrigan’s jeop claim double faces, separate and distinct if ardy must be evaluated under the ver necessary evidence guilt to establish as to indictment, sion stated in the of facts differs from necessary against an alternative version of guilt case, establish as to another. In such events which Kerrigan now claims is right we have held placed not to be more accurate. way, Evaluated in this twice for per- the offense is a Kerrigan’s quite claim is different sonal which be waived Launius; that asserted in from far guilty plea. Hudspeth, Caballero v. being facially multiplicitious, (10th Cir.1940); Crouse, Cox v. Launius, Kerrigan’s (10th Cir.1967); 376 F.2d 824 v. State Cox sufficiently separate describe two Kansas, (10th Cir.1972); 456 F.2d 1279 offenses, distinct Kerrigan which Rich, United States v. 589 F.2d 1025 could constitutionally sentenced to Cir.1978); Meyer State, Md.App. 679, imprisonment. terms of 664; 425 A.2d 24 A.L.R.4th 1313. (emphasis F.2d at 49 supplied).

These cases are consistent with logic O’Connor’sreliance Consistent with the Kerrigan Kerrigan, on it (1st Cir.1981). my view that the only This is effect that can be case, the only firmly placed in the course of re- our Beachner is that follow- search, closely fits the niche of the ing filing opinion, all subse- quent prosecutions the District of Kan- Hudspeth, supra, in Caballero v. was an appeal from the involving sas or in this circuit district court’s elsewhere denial of corpus habeas relief. bid-rigging We there held on the identical factual scenario appeal, that the guilty plea defendant’s holding to a would be controlled our two count involving violation of Beachner: that the scheme constituted a (but the White improper Slave Act was not single, on-going, conspiracy. continuous invalid) emphasis because the of the stat- To that extent and to that extent the ute is on the transportation interstate and collaterally estopped Government should be in this there trip, case was but one and relitigating precise, identical issue transportation that the one involved but subsequent prosecutions. criminal This one offense. The defendant had been simply application principle is of charged pled guilty and to two counts in- See, preclusion. Pearson, issue Bullock v. volving transportation of one Elise Her- (10th Cir., 1985). Thus, charged bert: one count that the defendant analogy there is no between Broce and the compel engage intended to prosti- her to jeopardy bar found in Blackledge double tution; charged the second count process upon deprivation based a due defendant unlawfully intended to cohabit fundamental nature. held, however, with her. This court does, majority opinion as the Govern- charges were facially valid and that contends, (a) encourage ment defendants to subjected the defendant was not to double challenge long their sentences after their jeopardy guilty plea because he entered the entered, guilty pleas effectively under- voluntarily, represented by while compe- mining the effectiveness of the criminal counsel, tent object and did not justice system finality and the of convic- charges any stage proceeding. tions, (b) discourage prosecu- and federal circumstances, Under these we held that entering plea bargaining tors from into placed twice advantages all east on the side of the personal right be waived government defendant realistically and guilty. inviting deprivation its benefits under Kansas, Cox, supra, v.Cox State plea bargain. prisoner, appealed state a district court de- analogy between the instant case petition nial of his for federal habeas cor- Kerrigan, and con- convicted, pus relief. Cox had been follow- text, strikingly Evaluating clear: the al- ing guilty plea charge his to a legations in the indictment from a both degree kidnapping. second Cox relied on viewpoint applicable factual and law exist- Maryland, Benton ing at the time plea, the Broce There, (1969). 23 L.Ed.2d 707 Benton claim must fail. Notwith- Maryland had tried in a been state court standing Judge finding Saffels’ of fact burglary larceny. acquit- for He highway con- various larceny burglary. but ted of found single, ongoing tractors entered con- into a jury had Because the been selected under bids, spiracy rig highway construction Maryland provi- an invalid constitutional binding this was not a rule of law when the sion, given option Benton was de- pleas entered, voluntarily and Broce manding re-indictment and retrial. He was upon competent advice of counsel. This larceny burglary. re-indicted both court did not affirm Saffels’ Beach- retrial, Prior to Benton moved to dismiss finding/conclusion (single ner multi- versus larceny ground charge on the of double ple conspiracies) until more than two jeopardy. The motion was denied Ben- years guilty pleas the Broce had subsequently ton was convicted of both after admitting alleged, been larceny burglary. Supreme entered facts Court i.e., separate highway rigged larceny each bid conviction struck down because separate, single, acquittal contract constituted a of his of this in the first conspiracy. trial. There was no contention made that (larceny burglary) may were which the State not charges constitutional- ly prosecute. facially separate, invalid and other than Cox, Benton, unlike did distinct The indictments in the case us offenses. before challenge prior to tri- the indictment allege separate do on their faces of- denying relief al. In Cox federal habeas By guilty pleas the defend- fenses. States, quoted Brady this court v. United ants admitted the recitations in the in- 1463, 1473, 742, 757, dictments, S.Ct. and these are the facts to be (1970): voluntary plea of L.Ed.2d 747 evaluating jeopardy used in the double “[A] light States, guilty intelligently made in the Kerrigan claims. v. United (1st Cir.1981). applicable then law does not become vul- These facts recite judicial separate later decisions indi- offenses. nerable because plea faulty pre- on a cate that the rested upholds appellants’ po The case which mise.” precludes waiver, sition that Menna case, may it be the is Launius v. the double bar discloses Menna United 575 F.2d 770 Cir. charges involved. on the face 1978). post-Menna cases with con Blackledge prosecutorial discloses a intent (or trary holdings which consider situa deny Blackledge process of law to due tions where the defense was raised at or arising initiating felony proceedings out of waiver) before trial and so hold no in those the same acts and circumstances as Pratt, clude: United States v. 657 F.2d involving he a misdemeanor conviction (8th Cir.1981); United States v. process depriva- appealing. The due Broussard, (5th Cir.1981); 645 F.2d 504 Blackledge’s that of tion was retaliation for Gaertner, United 583 F.2d 308 States appeal from the misdemeanor conviction. (7th Cir.1978); Inmon, United States v. case, submit, Neither involved the situa- (3rd Cir.1977); 568 F.2d 326 presented pleas here: the Broce were tion Wild, (D.C.Cir. States charges alleg- in indictments contained 1977).... separate, ing distinct on their (10th Cir.1985)(emphasis 753 F.2d statutory impediment face; there was no paragraph supplied). at the end of the first creating subject jurisdiction; lack of matter process no due viola- there was substantive II. prosecution; tion and there were no The Waiver Issue judicial opinions being then and control- ling dictating that the indictments to which majority opinion, in reliance on Men- pled guilty duplicitous. Judge Broce Blackledge, paint na and a broad- seems Seth, dissent, logically in his Broce dissect- swath rule that a double claim ed Menna: waived. Those cases do not and cannot be cannot stand for such a broad rule. In

Virtually appeal all the courts of since Blackledge the Court was both Menna Menna have continued hold that the dealing jurisdictional prob- with obvious defense is waived if not raised in some very power prosecute lems: the a second way before trial as it inwas Menna. time. perfectly is a This reasonable construc-

tion of Menna where defense was so present jurisdictional Broce does not raised. The Court Menna stated that Thus, problem. well-recognized our rule plea “removes the issue of person- that a claim of double is a guilt factual case.” Court may fully appli- al be waived is also there stated: Beachner, Broce, just presented cable. jeopar- conspira- do not hold that a double a factual issue as to whether the

We dy charged claim never be waived. We cies continuous, ongoing simply hold that a to a arose out of one (and charge conspiracy) sepa- does not waive a claim that— scheme thus one rate, judged conspiracies. is one on its face—the distinct There is noth- ing challenges unique clearly to such indict is no inherent jeopardy prob- Jeopardy ments under the Double Clause. lem raised appellant’s convictions for determinations, making such the issue both import and conspiracy to presented is one for the court or marijuana.” distribute 691 F.2d at 952. of fact jury. Dickey, United States v. 736 F.2d 12(b)(2), Rule requires Fed.R.Crim.P. — (10th Cir.), denied, cert. complaint that a about the multiplicity of —, (1984); L.Ed.2d 964 an indictment and its inherent jeop- Co., Beachner Const. ardy problems must be raised before trial. Inc., Watson, supra; United States v. defense, Any objection request or that is 1330, (10th Cir.), denied, cert. capable of determination without a trial of 840, 78, 444 U.S. 100 S.Ct. 62 L.Ed.2d 51 general the issue be raised before trial (1979); Petersen, United States v. 611 F.2d by Wright, motion. Federal Practice and 1313, (10th Cir.1979), denied, cert. 2d, 193, Procedure: Criminal pp. 692- § 2986, U.S. 100 S.Ct. 64 L.Ed.2d 854 Nothing 93. or Menna Blackledge di- (1980). compliance lutes with this rule the if Dickey, supra, In prosecution the charges to which the pled guilty defendant charged single, ongoing a conspiracy or was convicted were valid on face, among involving possession the defendants that is: at the time plea, sepa- the and drugs profit. distribution of for On rate charges were subject not imped- appeal the urged defendants that the evi subject iment of lack of matter jurisdiction prove dence was one con insufficient brought in retaliation or some other spiracy and that it multiple disclosed con deprivation process of a due right of the Thus, spiracies. the contention was that defendant. required reversal was ground on the of important It is to recall that the Broce charge variance between the and the evi pleas were entered on February dence. This court jury’s affirmed the fact- Saffels entered his order finding single, ongoing conspiracy un finding single conspiracy a in Beachner clearly der the erroneous rule. following a second indictment filed on No- Hines, (10th Cir.), States v. 728 F.2d 421 16, 1982, vember some nine months after — denied, U.S. —, cert. 104 S.Ct. pleas the Broce had been entered. Our (1984), held, 82 L.Ed.2d 831 we the same opinion Beachner was not filed until March Court, vein as the Blackledge that various did, previously not- 1984- counts charging of the indictment the de ed, preserve jeopardy challenge the double breaking fendant with entering a Post by pre-trial 12(b)(2)motion, virtue of a Rule Office with intent to larceny commit generated pre-trial evidentiary which (as separate steal charged) matters such as hearing by Judge leading conducted Saffels cards, checks, containing etc., letters credit finding conspir- to the court’s one multiplicious were not because the statutes acy involving highway existed the Kansas by Congress enacted made taking each bid-rigging construction scheme. In addi- separate crime required and that each 12(b)(2), tion to Rule it is to be noted that proof required of facts which the Broce defendants could have availed the other. And in United States v. Du 11(b), themselves Rule Fed.R.Crim.P. Friend, (10th Cir.1982), 691 F.2d 948 cert. entering plea conditional mani- denied, 459 U.S. 103 S.Ct. festing knowledgeable admission of the (1983), L.Ed.2d 1017 we held that there was indictments, facts contained in while no jeopardy problem inherent double raised preserving the issue of jeopardy. by defendant’s conviction of conspir both Moskow, (3rd United States v. acy possess marijuana Cir.1978); Zudick, United States distribute, possess marijuana with intent to (3rd Cir.1975); 33 ALR Fed. 385. relying States, on Albenaz v. 67 L.Ed.2d The conclusively record before us shows (1981) proposition “[Tjhere for meticulously that the trial court met all of (1959) acceptance Supreme upheld requirements of Rule Court relief af- pleas, including full and com- illegal

of the Broce forded under Rule 35 to correct an nature of the plete advisement of the sentence. Court set aside length possible incarcera- charges, the imposed sentences under 18 U.S.C. punishment, tion other and advisement 2113(e) involving robbery. a bank § plea bound that the court was not Court set aside the on the sentence count agreement; established the ex- The court charged that the defendant received pleas, factual for the istence of a basis property, holding stolen that the subsection plead, the competency the defendants to of the statute relied on Government counsel, the competent volun- assistance designed punish was not who robs pleas based on the tariness of bank, but rather one receives the who loot agreement, complete and the defendants’ Thus, Broce, from the robber. unlike consequences of the understanding of the subject was deficient for lack of (R., II, 102-91.) pp. guilty pleas. Vol. jurisdiction. finding pro- matter No fact fully with the ABA complied court also manner, cess was involved. In like Standards, Guilty Pleas of 1.4. Menna § Court Prince v. United guilty plea recognizes that a counseled val- 322, 403, (1957) 77 S.Ct. 1 L.Ed.2d 370 guilt factual idly removes the issue of and, law, construed statute as a matter of I conclude that the Broce de- the ease. entry held that the crime of into a bank effectively right to fendants waived their intent to was not a rob crime by collaterally guilty pleas vir- attack robbery and distinct from the offense of tue of their failure to raise case, too, proper. This involved the con- jeopardy challenge pursuant to Rule interpretation struction and of a statute 11(b). This, view, 12(b)(2) my or Rule is leading legal conclusion that type Supreme precisely the of ease illegal. Congressional sentence was intent made to in it Court reference Menna when carefully Again, considered. the dis- was holding opined that its was not to be con- tinction between these cases and Broce and one which closed the door to a sidered as is clear. Beachner by of a claim virtue waiver States, 216 Marteney v. United 2, guilty pleas. of all 423 U.S. at 63 n. (10th Cir.1954), held that a 28 we 242 n. 2. S.Ct. at proceeding should be U.S.C. 2255 habeas § 35, I turn now to the Rule Fed.Rules treated as a motion to vacate sentence and filed and denied Crim.P. motion Broce proceeded affirmatively ap- to hold that it provides, the district court. That rule peared challenged face of the indict- on the “may The court correct an il- inter-alia: ment that no federal offense was commit- may legal any sentence at time and correct clearly distinguished ted. We there be- imposed illegal a sentence in an manner which, tween indictments as a matter of provided herein for the within the time not, law, face, charge do on their an of- of sentence.” Note that an il- reduction juris- and those involve fense which do not be corrected at legal sentence challenges: dictional clearly Blackledge Menna and fall time. A indictment is an an hand, Broce, category. on the other nonjurisdictional admission of all facts illegal not. A sentence is under Rule does alleged charge, judg- in the and when the if it is in excess of the statute under collaterally ment of sentence is attacked charge lodged, or in some which the court, sentencing under Section applicable other manner violative of an regulari- indulging presumption stated, Simply statute. such a sentence ty judgment will not disturb its unless judgment one that the of conviction does the indictment or shows Morgan, not authorize. United States v. information upon its that no L.Ed. 248 346 U.S. 74 S.Ct. face federal offense (1954). Thus, States, have said that has been committed. We v. United Heflin sufficiency “The test of the of the indict- 358 U.S. 79 S.Ct. 3 L.Ed.2d ment on a motion to vacate a sentence is III. by any whether reason- Stipulation Disposition and the able construction be said to charge can The majority opinion may, by inadver- the offense for which the sentence was tance, imparted have the view Stip- imposed.” States, Byers v. United ulation entered into between parties [(1949)], Cir. 175 F.2d 656. See this Rule 35 proceeding somehow bound also States, Pulliam v. Cir. Judge O’Connor to single, Saffels’ [(1949)] 777; 178 F.2d Kreuter v. Unit- ongoing conspiracy finding in Beachner. ed 33_ [(1952)], Cir. 201 F.2d simply Such is Stipula- the case. If, however, it affirmatively ap- tion reads in full as follows: pears on the face indictment or parties Comes now the stipulate information that no federal offense that the Court may consider the record committed, is vulnerable to made the evidentiary hearing on the collateral attack ... this is so even [a]nd Motion to Dismiss filed Beachner Con- in the face guilty plea, for one Co., struction Inc. in United States v. plead cannot guilty to an offense which Co., Inc., al., Construction et is not affirmatively in the charge. stated F.Supp. Case No. [555 82-20076-01 1273] also, 216 F.2d at 762. See United States v. (D.Kan.1983) in the United States [ Dis- ] Donohoe, (10th Cir.), 458 F.2d 237 cert. trict Court for the District of Kansas in denied, ruling on the merits of defendants’ Mo- (1972)(a L.Ed.2d 113 guilty plea waives all tion to Vacate Sentence Pursuant to Rule nonjurisdictional defenses); United States 35(a) in the instant case. Watkins, (an Cir.1983) (R., I, 97.) p. Vol. challenged indictment not before trial will The court did consider the Beachner upheld be unless it is so defective that it record, hearing as by Judge evidenced not, by does any construction, reasonable O’Connor’s detailed references thereto. charge an offense for which the defendant Nothing Stipulation provides that convicted; however, was an indictment Judge by O’Connor was Judge bound Saf- which to fails state an offense is a fatal finding fels’ of a single conspiracy in defect time). any be raised at in making “ruling Beachner his on the Saffels, Judge Beachner, hold, in did not 35(a) merits” on the Rule motion. It is law, aas matter of that there was lack puzzling why thus majority opinion the subject jurisdiction, matter that the sen- 797) (page states: beyond tence was scope the of the statute indicated, previously parties As stipu- the or that the sentence illegally imposed was in transcript lated the trial court in violation of a He statute. set the Beach- hearing from the evidentiary on the dou- ner sentence aside upon, based and exclu- ble issue in Beachner would be sively upon, his fact-finding determina- incorporated the in record in this case. following dismiss, tion a Rule 12 motion to Thus, opinion our in Beachner must have ground on the jeopardy. of double Follow- here_ weight ing evidentiary an hearing thereon, held Whatever the in approach taken other

Judge Saffels found that there was a sin- cases in determining the nature of the gle, ongoing conspiracy sepa- instead of the charged conspiracy, stipulation the to in- rate, distinct charged by the clude consideration the Beachner Government. There were no constitutional transcript presents unique case and underpinnings finding. in this involved It permits go us to behind the indictment. court, upheld by was appeal, on on the Having applicability conceded the of the ground that it was clearly erroneous. developed facts hearing, in that the I conclude Judge properly O’Connor government position is not in the to ar- Rule gue denied Broce 35 relief. our of the examination issue must be F.D.I.C., pleadings. stip- Temple 605 F.2d 1169 confined to the Can government regarded Cir.1979); Thomas, Ginsberg ulation be part (10th Cir.1948). anything but concession on its as Thus to remand this case of the two cases are so “hearing” that the facts court for a to district look that one is relevant to the appears intertwined behind to be an legal in of the same other consideration attempt by majority to advise the dis- not. issue? We think retroactively apply trict court to Beachner already the district when court has con- question, posed, I submit that its effect sidered on this case. Judge finding, follow- implies that Saffels’ ing a Rule 12 to Dismiss filed in Motion Third, only way I submit that the Beachner, presented based on all the could Beachner have controlled Broce facts single, ongoing hearing, that a con- proceeding the Rule 35 is Beachner had if spiracy, multiple conspiracies than rather prior acceptance decided been established, binding Judge was on was voluntary guilty pleas entered the Broce proceeding. Rule That O’Connor Such, however, defendants. was not the is not so. guilty pleas case. The Broce were entered prior decision rendered First, though majority opinion even Judge on the Motion to Saffels Dismiss. {Broce) that “on their face finds Thus, in order for Beachner to control differ- appear indictments do not disposition pro- 797), of the Broce Rule 35 conspiracies” (p. Judge ent neither ceeding, necessarily ap- Beachner must Saffels, Beachner, O’Connor, Judge nor plied retrospectively. Broce, so found. Each found to the Indeed, contrary. Judge if Saffels had so majority opinion does not address found, Beachner, there would have been apply the issue whether Beachner should evidentiary no reason to conduct the hear- retroactively so as to render the Broce ing on the Motion Dismiss determine illegal. pleas conclude that this is an single conspiracy the issue of the versus sweep issue because the broad view, multiple conspiracies. my Judge holding, majority which seems to be either (and target O’Connor Saffels guilty pleas subject that all to collat- obviously agreed) he found that “on when Stipula- eral attack or that because of faces, alleged the indictments two dis- tion, Judge finding single, Saffels’ conspiracies, tinct and the defend- criminal ongoing conspiracy in controls in Beachner each, pleaded guilty acknowledging ants court. I fail to the remand to the district validity the of the facts contained each why Stipulation see “the to include consid- (R., II, 288.) p. indictment.” Vol. transcript presents of the eration Beachner Second, Stipulation clearly unique permits inquiry the states a case behind 797) majority Judge “may (p. if the only that O’Connor consider” indictment” the by Judge implicitly the record made not should be Beachner Saf- does hold Beachner Judge suggest applied retroactively fels. That he did. To that he to Broce. Thus, I legally by Judge finding bound Saffels’ did consider Beachner. is O’Connor language Stipula- why Judge the ask considera- distortion of must O’Connor’s Judge tion. I submit that O’Connorwould tion of the record on remand should lead to majority different unless the have considered the Beachner record re- result in- apply retroactively? that gardless Stipulation because Beach- tends Beachner arguendo, if assume the ner was the basis for the Broce Rule 35 Even we guilty pleas defendants’ did not motion. The record was the Broce Beachner presided Judge their double claim and the same court over Chief waive may, sponte, Stipulation A take to consider the Beachner record O’Connor. court sua judicial pre- permits beyond records and the district court to look notice of its own indictments, why ceding records if called to the court’s atten- the face the should the parties. Baptist differently court find on remand? tion the St. Louis district Broce, Beachner, by deciding not impression decided after does an issue of first duplicitous the clearly render Broce whose resolution was not fore- shadowed_ applied retroactively. is Second, unless Beachner ... “we must holding that the indictments are Absent a weigh ... the merits and demerits in facially illegal, which I do read the by looking each case prior history the hold, (nor majority’s opinion Judge to so did question, of the rule in purpose its find), Judge I see no Saffels or O’Connor effect, retrospective opera- and whether reason to remand. operation.” tion will further or retard its Finally, weighed inequity we have the infirmity stat- Because there no imposed by application retroactive utes under which Broce or Beachner were “[wjhere a decision of this Court could indicted and convicted or other statu- produce inequitable substantial results if involved, tory infirmity upon basis applied retroactively, ample there is basis applied which Beachner can be retroac- avoiding ‘injustice in our cases for or pleas tively to render the Broce invalid hardship’ by holding of nonretroactivi- under the double clause is to do so ty.” finding in reliance on Saffels’ subsequent which occurred 106-07, (cita- fact 404 U.S. at 92 S.Ct. at 355 guilty pleas facially indict- Broce valid omitted). tions This, submit, I ments. violation of test, applying In the above I conclude: Stipulation voluntary, and the rule that a First, Beachner decision did decide a following entered counseled impression factual issue of first whose res compliance full Rule constitutes an foreshadowed, i.e., clearly olution was not admission of facts and all elements con- highway bid-rigging whether the contracts McCarthy tained in the indictment. single, ongoing conspiracy constitute a Second, multiple, separate conspiracies. (1969); Menna, supra at n. L.Ed.2d 418 Beachner, application based fact-finding process, only single pur has Huson, Company Chevron Oil pose and effect and that is to control all (1971) 30 L.Ed.2d 296 prosecutions highway bid-rigging con Supreme Court discussed retroac- conspiratorial involved in the en tractors application ju- tive versus nonretroactive terprise pursued identified in Beachner af here, Assuming, dicial as I decisions. do Third, ineq Beachner. it would be ter controlling did Beachner announce unjust to void the Broce uitable and i.e., applicable, highway rule bid pleas fully because defendants were rigging single, ongoing in Kansas awas counseled and advised. Broce defend separate conspira- rather than guilty pleas separate, ants entered upon cies the distinct contracts for based parties, distinct and all includ highway project, construction do not each O’Connor, ing Judge accepted the factual given should be ret- believe indictments; for the how basis application. roactive ever, addition, pleas and the Broce Company v. Huson set Chevron Oil predicated upon plea bargain agree a following useful in determin- forth the test guilty pleas in The fact that the ment. application judi- ing the nonretroactive pursuant plea were entered to a case cial decisions: bargain special significance. has a A dealing agreement quid pro quo. the nonre- involves

In our cases with United Cross, (5th question, generally F.2d 1375 troactivity we have States v. 638 Cir. 1981). Here, First, agreed the Government not considered three factors. prosecute or certain counts in applied the decision to be nonretroactive- law, guilty pleas. ly principle exchange for the Broce must establish a new challenge by overruling past precedent There is no before us that either clear not handled the court litigants may plea bargain on which have relied ... or 818 Florida, compliance tion.” Tibbs v. counsel in full 457 U.S. guidelines Fed.R.Crim.P., set forth (1982); Rule S.Ct. 72 L.Ed.2d 652 11(e). implicit It is in accepting that Francesco, States v. Di 449 U.S.

Broce pleas, Judge O’Connor did not look (1980). 66 L.Ed.2d 328 upon charging the indictments as other I would affirm the trial court’s order separate, than conspiracies. distinct No denying defendants’ motion to vacate the challenge posited by the Broce had been judgment of pursuant conviction to Fed.R. prior entry pleas. defendants 35(a). Crim.P. Allen, United States v. (11th Cir.1984), following plea bargain, DOYLE, WILLIAM E. Judge, Circuit dis- pleaded guilty the defendant to four counts senting. of an indictment and the Government dis- respectfully dissent majority from the Thereafter, missed thirteen counts. de- opinions. collaterally conviction, fendant attacked his ground on the pleaded two counts he Preliminary Statement single offense; to constituted This is a case in which the United States the court held that the defendant had prosecuted of America Broce Construction waived his to contest the maximum President, Company and its Raymond C. particularly sentence and so in that he had Broce. plead guilty The defendants to two benefitted from the dismissal thirteen trade, counts of in restraint of charges other and therefore could not “re- Act, in violation of the Sherman nege U.S.C. Id. part bargain.” on his Ray plead guilty 1. Broce also Solomon, 1558; to one § 726 F.2d fraud, count of mail Cir.1984). U.S.C. § year prison Broce received sentence Generally, Jeopar the doctrine of Double $101,000 fines, $50,000 per conspir- dy is that prose not be tried or acy $1,000 for the mail fraud convic- cuted a second time for the same offense required tion. Broce Construction was it is essential prosecu second $1,500,000 pay fines, $750,000 per con- tion involve the same act and crime both spiracy. The contention of the defendants Ohio, fact. Brown v. law and 432 U.S. is that these two were so con- 161, 165, 2221, 2225, 97 S.Ct. 53 L.Ed.2d nected that must considered as Dinitz, (1977); United States v. single conspiracy, argument an which is an 600, 606, 1075, 1079, 96 S.Ct. important issue in the case. We maintain (1976); United States v. Wil L.Ed.2d 267 there are two transactions and two son, 332, 343, 1013, 1021, 420 U.S. 95 S.Ct. conspiracies. (1975); North Carolina v. 43 L.Ed.2d 232 Pearce, 711, 717, fines are claimed to be in violation of 395 U.S. 89 S.Ct. (1969); clause of the Fifth 23 L.Ed.2d 656 Helvering v. Mitchell, 391, 399, argu- Amendment of the Constitution. The (1938) being pun- ment is that the (the defendants Jeopar L.Ed. 917 Double single ished twice for a offense. Another dy “prohibits Clause merely punishing twice, issue here is or attempting raised whether pun a second time to offense”). defendants waived their criminally ish for the same by entering pleas claim both I respectfully Broce was not submit conspiracy charges. subjected Jeopardy. bar of Double sense, In an evidentiary Jeopar- the Double The Indictments dy play preclude Clause comes into as “to retrial after only reversal of a conviction The first indictment filed was November appellate when the court has set aside the in the United States District Court ground Kansas, conviction on the that the evidence for the District of Case No. 81- legally was support insufficient convic- charged appellants 20119-01. This Gumm, employ- R. an pretend this case and Gerald transactions which do not to be company, conspiracy ee of the with to vio- one. Act,

late the Sherman 15 U.S.C. § We hold that theory the one transaction fraud, mail 18 U.S.C. in connection § invalid; clearly and that these are inde- 23-60-RS-1080(9), Project No. a feder- with pendent single transactions. This transac- highway project by let al aid State of afterthought. tion idea was an The de- Kansas. has contended fense ever since Mr. Broce 4, 1982, February prison indict- finished single On a second his term that it was a transaction, ment, 82-20011-01, Case No. returned as the result they was of which ap- grand jury, charging they claim that same are entitled to have re- pellants conspiracy their money paid Sher- turned violate as fine in the Act, Project man 1. The latter second U.S.C. transaction. The effort to thus cre- § 29-2(26), public highway KRL was a “single” No. ate a support transaction has no let the State of Kansas project also developed. the cases in the facts (R.O.A. 1). p. purposes For of this Yol. Appellants would have us look back two dissent the indictment filed November years plea guilty $750,000 of and the 17, 1981, is referred to as Indictment They plea fine. contend that this was the February 4 the indictment filed on is treat- result of a mistake of law which should be ed as Indictment 2. recognized $750,000 and the should be re- present appeal only concerns stored. But even if the defendants have conspiracy in the Sherman Act violation of indictment, lost interest second we charged in I in and the Count Indictment give have not. Nor we should them an ex Sherman Act Indictment post restoration which was also facto ignore proposi- The defendants seek to product afterthought. of To consider this tion that Indictment 2 is a necessary plea it would be to find that the claim. Their for this is that distinct reason guilty was unlawful and void. This is only possible have learned that accept present hard to circumstances bring door which could about a refund of plea guilty accept- inasmuch as the money paid by way as a fine would be part plea bargain. ed Broce regarding the two indictments here con- transaction, single Guilty sidered as a a conclusion The Pleas of which is not tenable. It was after Mr. February appellants On 1982 the en- prison Broce had served his term that the pleas tered accordance with a treating idea of the two as one plea bargain entered into between the de- They came to transaction the surface. (R.O.A. fendants and United States. claim that if there is but one transaction 167) p. Ray Defendant C. Broce Vol. theory the fine should be returned. The is plead guilty to both counts of Indictment entirely in a criminal case. new These two to Indictment 2. Broce No. No. related so link transactions are not as to Company, plead guilty Inc. Construction They independent projects. these two have I of Count I of Indictment No. and Count programs. they do not construction Also (R.O.A. pp. 168- Indictment No. Vol. together. They come were some distance Broce, 169). individually The defendant apart. Com- and on behalf of Broce Construction affirmatively

They pany, us back to a two was advised of and would have look they say rights speedy by jury, the year old waived to a trial $750,000 compulsory process, and to cross- payment caused the fine. right against self-in- It said to have a mistake of law the examination and been mention was being could fined crimination. No affirmative effect which result given They that made nor was affirmative waiver twice for one violation. maintain rights Fifth Amendment indictments are transaction to the defendant’s the two against jeopardy. though they set forth in two even 21, argument pronounced in case number 1983. Most of its was that Sentence was 15, appellants rights time the had waived their to 1 on March 1982. At that $750,000 jeopardy by pleading guilty raise double to corporation fined sum was government’s argu- $1,500,000. both indictments. The charge on each for a total of concerning ment the actual basis for the paid The fines were to been one-third have 31, 1982, motion was contained one sentence: December one-third Decem- charges “The in the Broce 31, 31, ber 1983 and one-third December multiplicious on their face or in fact.” Ray person- The defendant C. Broce 1984. $50,000 ally and was was fined sum theory appeal Defendant’s was years imprisonment sentenced to two on inspired by opinion a recent district court I of Indictment No. 1. On Count II Count case, by Judge in a Saffels similar of Indictment No. 1 he was fined the sum Co., v. Beachner Inc. Construction $1,000 years and sentenced to two acquitted bid-rig- Beachner had of one been imprisonment concurrently served (Beachner I) ging conspiracy Indict- with the sentence on Count I. On government brought another ment No. defendant Broce was fined the (Beachner against charge them on a similar $50,000 sum of sentenced to two was II). urged Beachner the court to dismiss years imprisonment concurrently to run the record indictment on double No. 1. with sentences Indictment grounds. Judge Saffels found that were fines which were The fines committed Beachner I and II indictments were differ- paid immediately prior to the to have been single conspiracy, ent manifestations of a defendant’s release from incarceration being they that the same because described 203). (R.O.A. 2, p. Vol. conspiracy. The Beachner II indictment Jerry

named Beachner rather than Robert Judgment specified The Motion To Vacate the Beachner and Beachner II three highway projects. different Nevertheless 22, 1983, February On the defendants Saffels found that the Company Ray Broce Construction C. charged in I and Beachner II Judg- filed Broce a Motion Vacate merely separate parts single of a were ment and Sentence of the trial court larger ongoing rigging conspiracy bid Indictment No. 2. No. 82-20011-01 Case years. which had continued for several (and away largely to do bar- opinion adopts posi- That the contractors’ gains), provisions under the of Federal way it tion. no does stand out as a 35(a). Rules of Criminal Procedure The precedent adop- for this court. This led alleged judgment and sentence were theory tion of a similar in this ease even they illegal have been violated the though aspects the facts and their of the Fifth Amend- clause wholly different. ment Constitution hearing of Broce Construc- The court held a on the motion to States. contention 1, Company, May case on tion Inc. was that the total of vacate the instant illegal $1,500,000 in fines was because it At that time the motion was taken under $1,000,000 insist is advisement. The court denied the motion exceeded the maximum amount if there was and memorandum and order dated Novem- (R.O.A. 18, 1983, jeop- and held transaction rather than two Vol. ber (R.Vol. 1, 212). p. p. allegation ardy pp. claim had been waived 34 and Vol. 278-290). pp. 100-112 and This appellants two indictments Vol. was timely presented, although purporting appeal filed on November (R.O.A. p. separate conspiracies, actually charged p. Vol. 113 and Vol. 291). parts single conspir- overall 212). (R.O.A. acy p. p. 34 and Vol. Vol. question here is whether the double Fifth government filed a clause of the Amendment of The United States appellants’ on March the Constitution was violated response to motions United States Ray C. Broce and Broce Construc- tions before a New York State Grand Jury Company, punished tion' Inc. were twice for grant after a immunity. of He was ad- single offense. judged in contempt and sentenced to 30 days jail. This he Approximate- served. jeopardy The result to the claim ly years ten later he was indicted for the plea of entering guilty conspir- of to the same conduct. asserting After unsuccess- acy charge is to origi- add more fuel to the fully, court, in state the indictment plea nal fire. The fact guilty that a of was violated the jeopardy prescription of confirming by entered results in the de- Amendment, the Fifth pleaded he guilty to fendants of both transactions. the indictment. He appealed again then . great dispute There is no about the dou- raising the double jeopardy claim. The ble clause of the Fifth Amend- Appeals New York Court of declined to prohibiting ment multiple pun- infliction of address the double jeopardy claim on the ishment for the same offense. There is merits, holding that it had been by waived essentially dispute no that if these indict- plea Menna’s counseled of guilty. ments reflected one The Supreme United States Court re- appellant punished is not to be twice. The per versed in a curiam decision which held appeal essence of this is that the two trans- precluded that where the state by actually actions were divided into two sub- United States Constitution hauling parts, procedural one and one factual. defendant into court a charge, federal First, procedural question: Did the requires that charge law conviction on that defendants waive their claims to double be set aside even if conviction was entered jeopardy? pursuant plea to a counseled guilty. of Second, do the by facts admitted question The holding is whether this appellant pleading guilty allow this court proper authority proposition for the that a to find that there was conspiracy, claim of double by is not defeated rather than two? intervening plea guilty. an of The decision is confused court’s statement Jeopardy Waiver the Double Claim of Footnote No. 2 to its decision. The Su- general preme rule on waiver of constitu- Court ruled that it “did not hold that tional may claims is that a defendant waives all a double claim never be waived, objections plea simply constitutional nature when but held that a voluntarily he knowingly plea guilty charge enters a to a does not waive a claim guilty. Henderson, judged Tollett v. on its face—the is one that — 258, 93 guilty plea repre- constitutionally S.Ct. which the state “[A] prosecute.” sents a break in the chain of events which preceded process. has it in the criminal en- the instant case defendants solemnly When a criminal defendant has plea gaged widespread bargaining. open admitted court that he is in fact $750,000 They paid years fine. Two later guilty of the offense with which he is renege years the defendant tried to charged, may he not thereafter raise inde- argued by paying. after It was the defend- pendent relating deprivation claims to the they charged twice. This ants that rights prior of constitutional that occurred was on a new idea that he could based entry guilty plea.” Id at guilty challenge plea he —that 93 S.Ct. at 1608. validity challenge entitled to leading $750,000 concerning case The defendants waiver fine. seem be- jeopardy provisions the double of the Fifth lieve that are free to renounce their plea guilty. plea Amendment to the Constitution is But the is a Menna York, agreement plea New 46 solid to stand bar- (1975) curiam). (per successfully gain. They L.Ed.2d 195 In that cannot decide to ques- away case Menna had refused answer walk from the subject apply served It is not less chose not to so well before. waiver theories walking being Herzog out such as is allowed of either the Launius or line of majority here. cases. Rather the court chose as control- ling opinion in Kerrigan v. United majority of the circuit has not come (1st Cir.1981). It stated grips various features double closely the case more resembled the However, it jeopardy. likely seems that it in facts and issues terms of the instant one. Seemingly would follow the fundamentals. principle plea Kerrigan it follow the that a two would In indictments guilty conspired transport is an admission of the elements and which stolen mer- material facts of the formal criminal chandise interstate commerce. In the in the charge contained indictment. first indictment it was See averred Kerri- McCarthy gan, person, v. 394 U.S. and a Kirkwood third Lam- bert, non-jurisdictional conspired agreed 1166. All are ac- transport defects had cepted. Boston, lithographs stolen in Massachu- during period setts of time between Au- The left Court Menna unanswered the gust September 1977 and The 1977. question of what constitutes a valid waiver alleged Kerrigan second indictment of the Fifth Amendment claim and whether conspired agreed and Kirkwood plea guilty charge or not a to a which is transport jewelery stolen from West Den- multiplicious not on its face constitutes a nis, during Massachusetts a time between jeopardy waiver of the double claim. The September September 1977 and court did indicate in the same footnote that despite holdings The court held that plea guilty a counseled is an admission Launius, findings in Menna and guilt validly of factual so reliable that it pleaded had guilty defendant who to indict- guilt removes the issue of factual from the ments which not on their face did case. multiple conspiracies could not waive a dou- This circuit extraordinary has no knowl jeopardy plea guilty. ble claim after a edge questions. to address these At the The court reasoned that the court same other oppos time circuits have taken “by pleading had stated that Launius ing positions. The Fifth and Ninth Circuits guilty the defendant admitted the al- facts holding guilty have had no trouble that a leged in the information.” The court fur- plea does not result waiver of proceeded pleading ther to hold that after jeopardy claim. double v. States precluded a defendant is from con- Broussard, (5th Cir.1981); 645 F.2d 504 testing the factual or theoretical basis of Launius v. F.2d charges. The addition of the theo- (9th Cir.1978). This Ninth Circuit decision charges for the retical basis is the court’s indicates that a waiver of a double own. Neither nor Menna Launius con- claim must a waiver as defined in be John any language pertaining tained to this the- Zerbst, son ease, ory government’s behind even (1938). 82 L.Ed. 1461 There the de court though both state that a knowing relinquish fined waiver as the alleged. admits facts ment or of a known abandonment Eighth privilege. Kerrigan proceeded and Second Circuits In the court to ana- lyze according ruled that a claim of have to tests for non-jurisdictional and is waived if not cases. In timely effectively pleaded. DeFillipo, United United States (2nd Cir.1979), Herzog, the relevant exam- Cir. factors 1981); Brown, purported agree- McClain v. 587 F.2d 389 ined were the dates of the ments, (8th Cir.1978); Perez, identity alleged of each United States v. (2nd Cir.1977). conspirators, specific These decisions and the criminal acts thus seem to conflict with the decision in to the commission of which the defendants Menna, alleged agreed. supra. court below neverthe- were to have The court Surely new contract. these factors two brand these busi- that based on found multiplicious on their were not nessmen know that does write two contracts for one transaction. face. closing fair conclude that a Second, it is conceivably such contracts could all facts in effect who waives

defendant part if one transaction both generally man must accepts them. Such a pertained highway. They to the same do the facts. proceed with the burden of highways completely not. geographical locations. different Two Conspiracy From One Third, passed months several. between from the apparent It is above completion of contract number one and similarity of the depend on the defendants undertaking of contract number two. Thus, question. the contracts form of chronological gap implies This that there same; are the they say that these contracts transactions. were two conspiracy. They argue part the same Fourth, persuades they this also that calling a result of their the two that as thinking at the time of the vari- were not they that automati- contracts one contract signings just ous that this was one transac- They neglect cally this character. assume being if tion. This the case there had been positive point to each con- facts which keep it under one roof there an effort having They character. an individual tract only agreement have been would separate times and in entered at two were the two roads. In fact the roads separate places. two appears projects It that these two fell places different involved are located at being aspect one. The double was short The fact that the two are not connected. after-thought brought clearly an which was has no conse- are similar form contracts years too late to of service to about two be utilizing a quence. Lawyers are noted for defend- these defendants. How could the Therefore, the fact that two form. money their after two ants demand back suggest are similar does not that contracts court, years passed? has The district they identical. It could be said that the are O’Conner, reached the conclusion copied from an earlier second contract was distinct transactions that these were two existing contract. When the second con- punished company pursued thus the defendant was was executed the tract defendants tried to cure independent job. Finally, another No twice. and obtained conspiracy change by saying this fact. that one wishing problem can amount entire work of Broce Co. permeated the position is Part of the defendants’ that con- examination of two But a careful Ray the sentences of the defendants C. they clearly represent that tracts reveals Company, Broce and Broce Construction “conspiracy” The transactions. distinct Inc., of the double are violation long after the creation of came to life Fifth Amendment of the Unit- clause of the Although to have it seemed contracts. ground ed States Constitution in an effort to brought to the surface been being punished multiplicity they in that it jeopardy claim. But the double establish single There are so twice for a offense. fails. that these many features that demonstrate indictments were based on individual two The Conclusion

transactions. reveals that the defendants being record are several reasons for There any rights all under the double First, waived these transactions two transactions. when clause. This came about they If had contracts. had different voluntary pleas agreed to they per- the defendants single contract wished to have Broce’s release guilty. It was not until brought dam- of have about less haps could they came forward with prison referring in that aging result if But even their present claims. writing a their provisions instead of various rights under the double Paragraph clause sists of 1 which is divided into waived, guilty pleas were not admit the three sub-paragraphs, (a), (b), (c). The sub- indictments, facts in the both of which paragraphs define “highway the terms con- plainly acknowledge conspira- struction”, “highway construction con- that, cies. Not readily facts re- tract” and highways”, respec- “federal-aid theory veal that no under could their con- tively. Section II entitled “defendants” duct be ruled to part single larger of a and consists of Paragraphs 2 and 3. Para- conspiracy. The attempt by the defendants graph alleges Ray C. Broce is Presi- put a single larger conspiracy forth fails dent and R. Gerald Gumm is General Man- miserably. through The trial court saw ager of Broce Company. Construction past efforts to restore a which itself paragraph further identifies that Broce fails. The result that seek does not Construction Company corporation is a or- emerge. ganized under the laws of the State of argument is that Broce has continu- Kansas which does particularly business ously object been of Dodge City, Kansas. Paragraph 3 states gain realize excessive at the reference an act corpora- expense of Kansas and United States tax- tion means that corporation acted payers. The defendants here do not hes- through agents, its officers or etc. while acknowledge itate to this. This demand they actively engaged in manage- seeks to payments undo the which the ment, corporation. etc. of a punishment court assessed as for their mis- Much of the remaining space is devoted deeds. to the similarity wording of the various To allow them contrary to this is obtain provisions in each proves indictment. It including law Congress, laws of anything. little if repeats repeats It and but also the United States Constitution. more of the materials in the two indict- In precedent addition it set a would ments. which could allow to disregard courts the Section III “co-conspirators” is entitled United States laws in favor of their own and Paragraph only. consists of This judge ideas. The rejected this case these latter paragraph per- states that various upheld efforts and accept the law. To the sons and firms not partic- made defendants position majority of the would favor these ipated co-conspirators in the offense defendants and system would create a charged performed and acts and made undoing which tolerates the pleas of statements in furtherance thereof. guilty. This at least would weaken the system adopted of law which was in 1789. Section IV is entitled “trade and com- general Besides developments the here merce” paragraphs. and it consists five suggested, it system would leave a which Paragraph 5 asserts that federal aid criminals manipulate according could highways, including highway the which is money. will and their indictment, subject the part Finally, no justify laws or rules could nationwide inter-connecting network result which holds out consequence which highways over interstate which commerce they here demand. violations can More is conducted. expected if the apply criminals can that Paragraph 6 that there states exists un- they wish rather than that which Act, der Highway the they agree Federal Aid to. seq., et cooperative C.2d effort on APPENDIX part the govern- of states and the federal ment, Kansas, including the Count I of State of Indictment consists of fif- teen paragraphs development high- numbered divided into construction of sev- and en designated by ways, sections I through including highway VII. which is the I is Section headed “Definitions” subject and con- of this indictment. among conspir-

forth other effects (a) acy: prices it Paragraph alleges that caused the for the that the State during project to be maintained as period the time of the indict- artificial and Kansas levels; non-competitive (b) sought it caused competitive ment sealed bids from competition highway construction construction of the contractors. project eliminated; (c) to be that it caused Paragraph requires 8 states that Kansas State Kansas be denied the $1,000 highway projects over be bid competitive project; to receive bids on the competitively. Paragraph explains , (d) that it caused State of Kansas bidding regulations require Kansas a state- and the United States to be denied the Paragraph ment of non-collusion in it. competition project. benefits of travelling that materials in inter- states words, showing other is unmistaken high- used in state commerce were Kansas inasmuch as it establishes violation of the way projects including the one which is the Sherman and admits it candor. Act subject say indictments. To conspiracy designed Thus order bidding regulations require Kansas a state- law; to avoid the the Sherman Act. The super- ment of non-collusion in each bid object was to set aside the Sherman Act nothing fluous inasmuch as there is but group favor of a small of contractors who throughout collusion all of these briefs. compete. do not Their is to fix effort They have undertaken to set forth all of prices among the selected few. The United matters; the contractual at the same but sought prosecute Government they allege time that these were evidences participants litigation by these and the of collusion. At the same time back ignores simply contractors this effort. away from this conclusion time a law Unquestionably violation comes into view. VII, part, Another Section is entitled appellants R. Gerald Gumm “jurisdiction and venue”. It undertakes conspired suppress others unknown Paragraph 15 to reveal that the competition eliminate for the construction was formed and carried out within the Dis- Highway Project of Kansas No. 23-60- during years following five trict of Kansas R.S.1080(9)in violation Sherman Act (R.O.A. the return of the indictment. Vol. (15 1). U.S.C. § 2, 140) p. Paragraph conspiracy 12 states that the II pri- Count of Indictment No. 1 is not agreement. alleges was set forth in the It marily appeal involved and accord- understanding that there was and concert ingly, nothing there gained by is to be among conspirators. of action The sub- summarizing it. (a) conspiracy stantial terms of a to project allocate construction named organized great Indictment No. is with (b) Company; Broce Construction to ce- designated by care. It has seven sections collusive, non-competitive rigged ment and headings The roman numerals. section bids to the State of Kansas in connection identical to those in Indictment No. 1. project. alleges Paragraph with the similarity goes. That is as far as the that overt acts were committed. These consists fourteen numbered (a) discussing the included submission paragraphs. entitled “defini- Section (b) projects; designating on the bids Paragraph tions” consists of No. 1 which is (c) project; successful low on the bidder (b), (a) sub-paragraphs into divided intentionally high the submission bids “highway the term construc- which define (d) co-conspirators; submitting bids con- “highway construction contrac- tion” and false, taining fictitious and fraudulent tor”, (R.O.A. 1, 1) respectively. p. Vol. entries; (e) discussing statements of those are identical definitions terms prospective the submission of bids on other given in I of to the definitions Section projects April let of Kansas on State 1, No. difference in the Indictment (R.O.A. 139-140) 2, pp. 1978. Vol. being two sections that Indictment No. high- VI is “effects” and it fails to define the term “federal-aid Section labeled ways.” Paragraph consists of 14. This latter sets

of commencement of the conspiracy, in or II Section entitled “defendants” consists July, about Paragraph 1979. 11 is identical (R.O.A. Paragraphs pp. 2 and 3 Yol. Paragraph 12 of except Indictment No. 1 1-2). Paragraph is identical to the same project number and date letting paragraph in Indictment No. 1 except in subparagraph (a) and the reference to it contains no reference Gerald R. project “public highway as a project”, ' exactly Paragraph Gumm. 3 is identical to rather than highway “federal-aid Paragraph 3 of Indictment No. 1. project.” “co-conspirators” III is entitled Paragraph

Section 12 of Indictment No. 2 is iden- (R.O.A. Paragraph 4. and consists of Vol. tical in charging overt acts in furtherance 2)p. Section III is identical to Section of a in Paragraph 13 of Indict- III of Indictment No. 1. ment 1. exception No. referring numbers, the different project sub-para- Trade and Commerce (e) graph being only exception. Indict- ment (e) No. sub-paragraph alleges a IV which is entitled Section “trade and payment discussion of the of consideration Paragraphs commerce” consists of to another contractor and in Indictment No. (R.O.A. 2-3) through pp. 9. Vol. Para- 1, sub-paragraph (e) alleges the discussion IV, graph 5 is identical to Section Para- projects. submission of bids on other graph except 5 of Indictment No. that it begins “public highways”, the words Section VI entitled “effects” consists of high- instead of the words “federal-aid (R.O.A. Paragraph 5) page Vol. It ways”. This feature does not lack truth. identity has to Section VI of Indictment highways” The term “federal-aid is correct 1 except No. description for the exactly because federal aid was what it project “public as a highway project” rath- Undoubtedly money was. federal was the er than highway a “federal-aid project”, important object in project. the entire and there is the elimination of a reference (d). United States sub-paragraph

Paragraph IV, 6 is identical to Section Paragraph 7 of Indictment No. 1. Para- “jurisdiction Section VII is entitled graph IV, 7 is identical to Section Para- Paragraph venue” and consists of 14 of the graph Paragraph Indictment No. 1. (R.O.A. 6)p. indictment. Vol. Section IV, identical to Paragraph Section 9 of VII of Indictment No. 2 is identical to Sec- Indictment 1. Paragraph No. 9 is identical tion VII of Indictment No. 1. Paragraph 10 of Indictment No. 1. The only major difference between Sections IV

of the two indictments is that Indictment paragraph describing

No. contains a state co-operation

and federal under Federal (15 Highway

Aid Act U.S.C. seq.). et § Paragraph

See 6 of Indictment 1.No. Indictment No. deals with a completely America, STATES of UNITED building different for the high- area Plaintiff-Appellee, way headings and it uses various and dis- cussions. Thus Section V of Indictment CREWS, Jr., Marvin Arnesto charged” No. entitled “offense consists Defendant-Appellant. Paragraphs through 12 of the indict- No. 84-2211. Paragraph ment. 10 is identical to Para- graph 11 of Section V of Indictment No. 1 Appeals, United States Court of except project for the number. In Indict- Tenth Circuit. project ment No. number is K.R.L. Jan. 29-2(26); letting, July the date of the bid description project 1979. The “public highway project” rather than a highway project”, “federal-aid and the date

Case Details

Case Name: United States v. Ray C. Broce and Broce Construction Company, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 2, 1986

Citation: 781 F.2d 792

Docket Number: 83-2558, 83-2559

Court Abbreviation: 10th Cir.