Petition for Writ of Certiorari — United States v. Broce

87-119@ |) FiteD

No.

In the Supreme Court of the United

OCTOBER TERM, 1987

UNITED STATES OF AMERICA, PETITIONER

V.

RAY C. BROCE AND BROCE CONSTRUCTION Co., INC.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CHARLES FRIED

Solicitor General

CHARLES F. RULE

Assistant Attorney General

Louis R. COHEN

Deputy Solicitor General

KENNETH G. STARLING

Deputy Assistant Attorney General

Roy T. ENGLERT, JR.

Assistant to the Solicitor General

JOHN J. POWERS, Ill

JOHN P. FONTE

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether a defendant who pleads guilty to two indict-

ments alleging two different criminal conspiracies, as part

of a plea bargain in which the government agrees not to

prosecute him on other charges, is entitled to a factual

determination of his contention, raised for the first time in

a later collateral attack on his sentences, that the two con-

spiracies alleged were actually a single conspiracy.

(1)

mt cm

TABLE OF CONTENTS

Page

I ee ee ee a ead eee dade ea aekbun I

ES A ee A ey ee ee en aa l

Constitutional provision involved ........................ 2

EE ede ns catlad wudvbestebe 2

Reasons for granting the petition ...................... ives 10

Conclusion ..... i a ean 29

TABLE OF AUTHORITIES

Cases:

Blackledge v. Perry, 417 U.S. 21 (1974) ...... RABID AP ace 7, 8,

10, 11, 15, 21, 24, 28, 29

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ........... 28

Braverman v. United States, 317 U.S. 49 (1942)... ...... 19

Brown v. Maryland, 618 F.2d 1057 (4th Cir.), cert. denied,

EE ee 11, 12, 14, 15

Garrett v. United States, 471 U.S. 773 (1985) ........... 25

Grand Jury Proceedings, In re, 797 F.2d 1377 (6th Cir.

1986), cert. denied, No. 86-663 (Jan. 12, 1987) ........ 12

lannelli v. United States, 420 U.S. 770 (1975) ........... 19

Jeffers v. United States, 432 U.S. 137 (1977) ........... 25

Kercheval vy . United States, 274 U.S. 220 (1927) ......... 22

Kerrigan v . United States, 644 F.2d 47 (ist Cir. 1981) .... 7, 11,

12, 13, 14, 20

Kotteakos v. United States, 328 U.S. 750 (1946)... ...... 14

Kuhimann vy. Wilson, No. 84-1479 (June 26, 1986)... _.. 27

Launius v. United States, 575 F.2d 770 (Mh Cir. 1978) ...12, 18,

20, 23

Lee v. United States, 432 U.S. 23 (1977) ............... 25

Mabry v. Johnson, 467 U.S. 504 (1984) ........ Sane 22, 27

McCarthy v. United States, 394 U.S. 459 (1969)... ..... 22

Mennav. New York, 423 U.S. 61 (1975) .......... _.... passim

Ohio v. Johnson, 467 U.S. 493 (1984) ...... 22... 25, 26

Ricketts v. Adamson, No. 86-6 (June 22, 1987) ......... 9, 22,

25, 26, 27

Sanabria v. United States, 437 U.S. §4(1978) ........... 25

Standefer v. United States, 447 U.S. 10 (1980)... ..... 1Y

(iil)

IV

Cases — Continued: Page

United States v. Allen, 724 F.2d 1556 (11th Cir. 1984)... 11, 12,

17, 20, 27

United States vy. Atkins, No. 86-1610 (Sth Cir. Dec. 8,

ere ere ee weer

United States v. Ba’!, 163 U.S. 662 (1896) ............ 25

United States v. Bascaro, 742 F.2d 1335 (11th Cir. 1984),

cert. denied, 472 U.S. 1017 (1985) .................. 18

United States v . Baugh, 787 F.2d 1131 (7th Cir. 1986) .... 12,

18, 20

United States v. Beachner Construction Co., 555 F. Supp.

1273 (D. Kan. 1983), aff'd, 729 F.2d 1278 (10th Cir.

TN oikéextckinweeu bene steteediuen 6, 12, 16, 19

United States v . Blocker, 802 F.2d 1102 (9th Cir. 1986) . . . 12,

18, 20

United States v. Broussard, 645 F.2d 504 (Sth Cir. 1981) . 12,

18, 20

United States v. Dinitz, 424 U.S. 600 (1976) ............ 25

United States v. Goodwin, 457 U.S. 368 (1982) ......... 28

United States v . Griffin, 765 F.2d 677 (7th Cir. 1985) .... 18, 27

United States vy. Herzog, 644 F.2d 713 (8th Cir.), cert.

Ss Gre Gres I oo cw vcuncdccccccncccecs 18

United States v. Jorn, 400 U.S. 470 (1971)... 228... 25

United States v. Metropolitan Enterprises, Inc., 728 F.2d

TILE Me eS, Re ee 4

United States v. Perez, 565 F.2d 1227 (2d Cir. 1977) ..... 18

United States v. Pratt, 657 F.2d 218 (8th Cir. 1981) ...... 41, 12,

15, 16, 17, 20, 27

United States v. Scott, 437 U.S. 82 (1978) .............. 24, 25

United States v. Sheehy, $41 F.2d 123 (ist Cir. 1976) .... 18

United States v. Sisson, 399 U.S. 267 (1970) ............ 23

United States v . Solomon, 726 F.2d 677 (11th Cir. 1984) . 18

United States \. Tateo, 377 U.S. 463 (1964) ............ 25

United States v. Washita Construction Co., 789 F.2d

IR: I ot) IM eee ol ¥- 4

Constitution, statutes and rules:

U.S. Const. Amend. V (Double Jeopardy Clause) . . . passim

Sherman Act § 1,15 U.S.C. 1. 2

18 U.S.C. 1341 . 2

BEST AVAILABLE COPY

V

Rules — Continued:

Fed. R. Crim. P.:

Miscellaneous:

2 W. LaFave & J. Israel, Criminal Procedure (1984) ... ..

Saltzburg, Pleas of Guilty and the Loss of Constitutional

Rights: The Current Price of Pleading Guilty, 76 Mich.

= © Seerrrerrrrrrrr Tr rrr Tiere

R. Stern, E. Gressman & S. Shapiro, Supreme Court

Westen, Away from Waiver: A Rationale for the For-

feiture of Constitutional Rights in Criminal Procedure,

SO ee SED a oc ccccaceseucssssuees

Page

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

Ray C. BROCE AND BROCE CONSTRUCTION Co., INC.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Tenth Circuit

in this case.

OPINIONS BELOW

The order and judgment of the court of appeals affirm-

ing the district court’s grant of relief to respondents (App.

la-4a) is unreported. The memorandum and order of the

district court granting respondents relief (App. Sa-13a) is

unreported. The prior opinion of the en banc court of ap-

peals reversing the district court’s denial of relief (App.

14a-86a) is reported at 781 F.2d 792. The prior opinion of

the court of appeals panel (App. 87a-1l11la), which was

vacated on the grant of rehearing en banc, is reported at

753 F.2d 811. The original memorandum and order of the

district court denying respondents relief (App. 112a-123a)

is unreported.

JURISDICTION

The judgment of the court of appeals (App. la-4a) was

entered on August 18, 1987. A petition for rehearing and

(1)

2

suggestion for rehearing en banc was denied on November

13, 1987 (App. 124a-125Sa). The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Double Jeopardy Clause of the Fifth Amendment

provides: “nor shall any person be subject for the same of-

fence to be twice put in jeopardy of life or limb.”

STATEMENT

Respondent Ray C. Broce is the president of respondent

Broce Construction Co., Inc. Both respondents were

named as defendants in two separate indictments filed in

the United States District Court for the District of Kansas.

Each indictment charged, among other things, conspiracy

to rig bids on a specific Kansas highway construction proj-

ect in violation of Section | of the Sherman Act, 15 U.S.C.

1. Pursuant to plea bargains, both respondents entered

guilty pleas to the Sherman Act counts of both indict-

ments, and Mr. Broce also pleaded guilty to one count of

mail fraud in violation of 18 U.S.C. 1341. The district

court accepted the guiliy pleas. Consistent with the plea

bargains, the court imposed a total fine of $1.5 million

($750,000 on each Sherman Act count) on the corporation

and sentenced Mr. Broce to concurrent two-year terms of

imprisonment and a total fine of $101,000. Subsequently,

respondents filed a motion to vacate the sentences im-

posed with respect to the second indictment on the ground

that the sentences imposed constituted multiple punish-

ment for the same offense in violation of the Double

Jeopardy Clause. The district court initially denied the

motion, but the court of appeals reversed and remanded

for a factual determination. On remand, the district court

granted the motion. The court of appeals affirmed.

1. In atwo-count indictment filed November 17, 1981

(App. 143a-15la), respondents were charged with one

3

count of violating Section | of the Sherman Act and one

count of mail fraud in violation of 18 U.S.C. 1341. The in-

dictment alleged that the object of the Sherman Act con-

spiracy was to rig bids on Kansas Federal-Aid Highway

Project No. 23-60-RS-1080(9) (the Meade County

project), let by the State of Kansas on April 25, 1978. The

indictment charged that the conspiracy began in or about

April 1978. App. 147a.

Respondents were at all times represented by retained

counsel. Plea negotiations began after the government

sent a letter to respondents’ counse! on January 11, 1982,'

advising him that the government would seek an addi-

tional indictment against respondents for conspiracy to rig

bids on a Ford County project let by the State of Kansas

on July 17, 1979. Plea negotiations proceeded, and on

January 22, 1982, the government sent respondents’

counsel a letter enclosing draft plea agreements, which

were eventually signed and were filed with the district

court on February 8, 1982 (App. 126a-132a, 133a-135a).

In those agreements, both respondents agreed to plead

guilty to the indictment charging them with conspiracy to-

rig bids on the Meade County project, and Mr. Broce

agreed to plead guilty to the mail fraud charge.

Respondents also agreed to plead guilty to a second indict-

ment, which had not yet been filed, charging them with

conspiracy to rig bids on a Barton County project let by

the State of Kansas on July 17, 1979.2 Respondents

acknowledged in their plea agreements that the maximum

fine for each Sherman Act count to which each of them

was agreeing to plead guilty was $100,000 for Mr. Broce

(App. 127a) and $1,000,000 for the corporation (App.

134a). See 15 U.S.C. 1. Mr. Broce also acknowledged that

' The date stamp actually gave the year incorrecily as 19ST.

2 Respondents were never indicted for rigging bids on the bord

County project referred to in the government's letter of January 11,

1982.

4

consecutive sentences could be imposed (App. 127a). In

return for the guilty pleas, the government agreed, among

other things, (1) not to prosecute respondents for other an-

titrust violations in Kansas and Oklahoma;} (2) to dismiss

the mail fraud count against the corporation in the

November 17 indictment; and (3) to recommend a total

fine of $1.5 million against the corporation on the Sher-

man Act charges (App. 127a-128a, 134a-135a).

On February 4, 1982, as had been contemplated in the

plea agreements, respondents were charged in a separate

one-count indictment (App. 136a-142a) with Sherman Act

conspiracy. The indictment alleged that the object of the

conspiracy was to rig bids on the Barton County project,

Kansas Public Highway Project No. KRL 29-2(26). The

indictment charged that the conspiracy began in or about

July 1979. App. 139a.

On February 8, 1982, respondents entered guilty pleas

to the two Sherman Act conspiracy charges in accordance

with the previously negotiated plea agreements. At the

hearing conducted pursuant to Fed. R. Crim. P. 11, the

district court ascertained that respondents understood that

they “would be admitting all the facts alleged in these

charges” (2/8/82 Tr. 11). The district court also explained

that, “so far as the corporation is concerned, the max-

imum punishment is a fine up to one million dollars on

each [Sherman Act] charge” and that, “as to you [Mr.

Broce] individually, * * * the maximum punishment is a

fine up to one hundred thousand dollars and a term of im-

prisonment up to three years on each [Sherman Act]

’ Respondents had in tact engaged in substantial violations of the

Sherman Act in Oklahoma, some of which are described in detail

(drawing on Mr. Broce’s immunized testimony at twe trials of

Oklahoma co-conspirators following his guilty plea in this case) in

United States v. Washita Construction Co., 789 F.2d 809 (Oth Cir.

1986), and United States vy. Metropolitan Enterprises, Inc., 728 &.2d

444 (10th Cir. 1984).

charge” (id. at 11-12). Mr. Broce indicated without

qualification that he understood (ibid.). The court ques-

tioned Mr. Broce, under oath, as to whether the govern-

ment’s written statement of facts in support of the pleas

(App. 129a-132a) was correct. In response, Mr. Broce

stated that he intended to let each bid-rigging agreement

“stand on its own” and thus refused to discuss a future job

in Grey County at the time the Meade County job was rig-

ged (2/8/82 Tr. 18). He also stated, with one other

qualification not relevant here, that the government’s

statement of facts was correct (id. at 18-19). Defense

counsel stated that he saw no reason “why the Court

should not accept these pleas of guilty” (/d. at 21). The

court did accept the pleas.

Before sentencing, the government prepared and pro-

vided to defense counsel an “Official Version of the Of-

fense” for inclusion in the presentence report. That docu-

ment discussed a large conspiracy in Kansas in which

respondents and others had participated before 1973 but

stated that, “in about 1973, this conspiracy ended” (Of-

ficial Version 1). It also stated that there were “two

separate conspiracies giving rise to the Indictments” (ibid.

(emphasis added)).

Sentencing occurred on March 15, 1982. De ense

counsel was given an opportunity to state “any dispute

with what the government has included in the pre-sentence

report about the official version of the offense” (3/15/82

Tr. 6). Defense counsel expressed some disagreements

with the Official Version but did not dispute the explicit

statement in the Official Version that there were two

separate conspiracies (id. at 6-7). The court asked whether

there was “any legal reason * * * why sentence should not

be pronounced,” and defense counsel responded: “None

known to the defendant, Your Honor” (id. at 8). The

court then imposed on the corporation the fines that the

government had agreed to recommend. The court also

6

sentenced Mr. Broce to two years’ imprisonment and to

fines of $50,000 on each Sherman Act count and $1000 on

the mail fraud count. /d. at 10-11.4 The government

dismissed the mail fraud count against the corporation (id.

at 12). -

Respondents did not appeal. Nor did they, at any time

before sentencing, claim that the two indictments in fact

alleged the same conspiracy.

2. More than a year after the entry of their guilty

pleas, respondents filed a motion pursuant to Fed. R.

Crim. P. 35(a) to vacate their sentences on the charges

contained in the second indictment. Relying on the in-

tervening decision in United States v. Beachner Construc-

tion Co., 555 F. Supp. 1273 (D. Kan. 1983), aff'd, 729

F.2d 1278 (10th Cir. 1984), respondents argued that there

had been only a single conspiracy to rig bids in Kansas. °

Respondents therefore contended that they were guilty of

only one Sherman Act offense and that it violated the

Double Jeopardy Clause to impose fines on both Sherman

Act counts to which they had pleaded guilty

* Mr. Broce has paid his $101,000 fine and served his prison term.

The corporation has paid $750,000 of the $1,500,000 in total fines

assessed on the two Sherman Act counts.

> The defendants in Beachner alleged that the large conspiracy

discussed in the Official Version of the Offense in the present

case —/.e., a large, continuing conspiracy to rig bids on any and all

Kansas highway jobs —did not (as the government contended) end in

1973, when the major organizer of the conspiracy went out of

business. The defendants argued that the post-1973 bid-rigging

agreements with which they were charged were merely part of the

same large, continuing conspiracy. The district court agreed with the

defendants and rejected the gc vernment’s argument that, after 1973,

each new bid-letting gave rise to an Opportunity to form a new con-

spiratorial agreement. The government appealed, but the court of ap-

peals held that the question was one of fact and that the district court's

finding was not clearly erroneous.

7

The government argued_that respondents’ failure to

raise their double jeopardy defense before judgment and

sentence precluded them from doing so on collateral at-

tack. The government also argued that respondents could

not attack the factual and theoretical foundations of the

indictments to which they had pleaded guilty. The govern-

ment stipulated, however, that if the court reached the

merits of the one-conspiracy-or-two issue it could “ ‘con-

sider the record made in the evidentiary hearing’ ” held in

the Beachner case (see App. 63a).

Relying on Kerrigan v. United States, 644 F.2d 47 (Ist

Cir. 1981), the district court held that a defendant assert-

ing a double jeopardy claim may not contest the factual

and theoretical foundations of the indictment to which he

entered a guilty plea. In this case, the court noted that each

indictment, on its face, charged a separate conspiracy. The

court held that respondents had admitted their participa-

tion in separate conspiracies and therefore could not raise

a double jeopardy claim that depended on the nonex-

istence of separate conspiracies. App. 112a-123a.

3. A divided panel of the court of appeals reversed

(App. 87a-I11a), but the court granted rehearing en banc.

The en bance court also reversed by a divided vote (App.

14a-86a). Relying on Menna v. New York, 423 U.S. 61

(1975), and Blackledge v. Perry, 417 U.S. 21 (1974), the

majority held that the Double Jeopardy Clause “stands as

an inhibition upon the government’s right to institute

charges” that is “absolute” and not “subject to waiver”

(App. 18a). The majority added that “the defendants’ plea

bargain cannot work an estoppel of their right to assert the

invalidity of the charge” (App. 20a). The majority rejected

the government’s argument that “the defendants’ pleas of

guilty must be considered admissions of all the facts al-

leged in the indictments,” asserting that the indictments

8

“did not specifically allege separate conspiracies” and

reasoning that “the admissions of factual guilt subsumed

in the pleas of guilty go only to the acts constituting the

conspiracy and not to whether one or more conspiracies

existed” (App. 21a). The majority recognized that its deci-

sion was at odds with “many cases which have held to the

contrary” (ibid.).

Having decided that the district court erred by holding

respondents to their admissions that two conspiracies ex-

isted, the court of appeals next addressed the issue whether

two conspiracies did in fact exist. Although the majority

Suggested that on their faces the indictments did not

charge more than one conspiracy, it ultimately concluded

that “the question of whether the indictments charged one

or two conspiracies is, in the context of this case, wholly

factual” (App. 23a). Because the district court had not ad-

dressed that factual issue in its opinion, the court re-

manded the case “for a factual determination” (App. 24a).

Judge McKay joined the majority opinion, including the

order remanding to the district court, but he expressed

reluctance because he believed that as a matter of law the

second indictment charged the same conspiracy as the first

indictment (App. 25a). Judge Seymour agreed with the

majority’s holding that respondents could raise their dou-

ble jeopardy claim on collateral attack, but not with its

underlying reasoning that the Double Jeopardy Clause is

“an ‘absolute inhibition’ upon government” (App. 28a).

She also disagreed with the majority’s decision to remand

the case, arguing that “the Beachner findings should * * *

be accorded full preclusive effect in the proceeding” (App.

39a).

Judges Barrett and Doyle filed separate dissenting opin-

ions. Judge Barrett distinguished Menna and Blackledge

on the ground that no factual hearing was required to

9

resolve the double jeopardy and due process issues in those

cases (App. 50a-Sla). Judge Barrett argued “that an ac-

cused waives his claim of double jeopardy to a subsequent

criminal charge if the crimes charged, on their faces, are

separate and distinct and if the evidence necessary to

establish guilt as to one charge differs from that necessary

to establish guilt as to another” (App. Sla (emphasis

omitted)). Judge Barrett stated that each indictment, on its

face, charged a separate conspiracy (App. 56a, 64a).

Similarly, Judge Doyle concluded that Menna and

Blackledge are distinguishable, and that the defendants

had waived their double jeopardy argument in this case

(App. 69a-86a).°

4. On remand, the district court followed the ap-

proach taken in Beachner and found as a matter of fact

that “the two indictments returned against these defend-

ants charge simply different aspects of the same con-

spiracy to restrain competition” (App. 13a). The court

vacated the judgment and sentence entered on the second

indictment (ibid.).

The government appealed, both renewing the argument

that respondents were precluded from raising their double

jeopardy claim in the circumstances of this case and argu-

ing that the district court had committed reversible error in

finding that there was only one conspiracy. While the ap-

peal was pending, this Court decided Ricketts vy. Adam-

son, No. 86-6 (June 22, 1987), holding that the defendant

in that case had waived his double jeopardy rights through

the terms of his plea agreement.

© It is the 1986 decision of the en banc court of appeals, as partially

reaffirmed by the 1987 panel decision, that we principally challenge in

this petition. We did not seek review of the en bane decision at the

time it was rendered because of our general position that review by

this Court in criminal cases should await final disposition by the trial

court. See R. Stern, E. Gressman & S. Shapiro, Supreme Court Prac-

tice 224 n.71 (6th ed. 1986).

10

The court of appeals, once again divided, affirmed in a

short order and judgment (App. la-4a). The court wrote

(App. 2a):

Although Ricketts invalidates the broader rationale

underlying the plurality opinion [sic] in Broce, that

the double jeopardy prohibition “does not constitute

an individual right which is subject to waiver,” 781

F.2d at 795, it does not affect its narrower holding,

based on clear Supreme Court precedent, that a guilty

plea does not itself constitute a waiver of double

jeopardy protection. /d. at 796-97; see also Menna v.

New York, 423 U.S. 61, 62-63 & n.2 (1975) (guilty

plea is merely an admission of factual guilt, which

does not bar a claim that the state may not constitu-

tionally prosecute the defendant no matter how valid-

ly his factual guilt is established); Blackledge v. Perry,

417 U.S. 21, 29-31 (1974).

The court also rejected the government’s argument that

there were in fact two conspiracies (App. 2a-3a). Judge

Barrett dissented (App. 4a). Rehearing was denied, Judge

Barrett again dissenting, and rehearing en banc was denied

(App. 124a-12Sa).

REASONS FOR GRANTING THE PETITION

In Menna v. New York, supra, a case arising under the

Double Jeopardy Clause, this Court was careful to state

the limitations of its holding: “We simply hold that a plea

of guilty to a charge does not waive a claim that — judged

on its face —the charge is one which the State may not con-

stitutionally prosecute” (423 U.S. at 63 n.2). Earlier, in

Blackledge v. Perry, supra, this Court had reached the

same conclusion in a case arising under the Due Process

Clause. The Court in Blackledge held that a plea of guilty

to a felony indictment, returned following the defendant’s

demand of a trial de novo on a misdemeanor charge based

on the same conduct as the later felony charge, did not

foreclose a contention that the bringing of the greater

charge amounted to vindictive prosecution as a matter of

law. In neither case was the guilty plea a result of plea

bargaining in which the government made concessions to

the defendant in exchange for his guilty plea. And in

neither case did the constitutional challenge depend on

establishing facts contrary to the allegations contained in

the indictment to which the defendant had pleaded guilty.

The question presented by this case is whether Menna

and Blackledge should be extended in two ways. First,

should a defendant, notwithstanding Menna’s explicit

limitation to cases in which the invalidity of the charge can

be “judged on its face,” be allowed long after his guilty

plea to go behind the allegations of the indictment and ob-

tain a factual determination, contrary to the allegations in

the indictment, that two facially distinct crimes are in fact

the same offense? Second, should a defendant who —like

respondents but unlike the defendants in Menna and

Blackledge — negotiates a guilty plea and secures an agree-

ment from the government, in exchange for that plea, not

to prosecute other charges be allowed later to use the Dou-

ble Jeopardy Clause to free himself from some of his half

of the bargain? The court of appeals answered both ques-

tions in the affirmative.

Whether Menna and Blackledge should be extended in

one or both of these ways is a question that has arisen fre-

quently in the courts of appeals; indeed, a majority of the

regional courts of appeals have now had occasion to ad-

dress the question. Compare Kerrigan v. United States,

644 F.2d 47 (Ist Cir. 1981) (holding defendant to his plea

bargain), and Brown v. Maryland, 618 F.2d 1057 (4th

Cir.) (same), cert. denied, 449 U.S. 878 (1980), and United

States v. Pratt, 657 F.2d 218 (8th Cir. 1981) (same), and

United States v. Allen, 724 F.2d 1556 (11th Cir. 1984)

(same), with United States v. Atkins, No. 86-1610 (Sth

12

Cir. Dec. 8, 1987) (allowing defendant, despite plea

bargain, to make double jeopardy argument), and United

States v. Baugh, 787 F.2d 1131 (7th Cir. 1986) (same), and

Launius v. United States, 575 F.2d 770, 772 (9th Cir. 1978)

(same). See also United States v. Blocker, 802 F.2d 1102,

1103-1104 (9h Cir. 1986) (allowing double jeopardy

challenge without indicating whether plea resulted from

plea bargaining); United States v. Broussard, 645 F.2d

504, 505 (Sth Cir. 1981) (same).

The decision below is in square conflict with the deci-

sions of at least four courts of appeals. In addition, the

court below went beyond all prior decisions in this area.

Before this case, no court of appeals had ever required a

trial court to conduct a factual inquiry into whether two

facially distinct crimes to which a defendant has pleaded

guilty were in fact the same offense. The court of appeals

did so in this case even though the defendants had ad-

mitted that two conspiracies existed. For these reasons,

and because the decision below is incorrect, review by this

Court is warranted.’

1. a. The en banc court of appeals correctly noted

that its decision was contrary to “many cases” (App. 21a).

In particular, the decision below conflicts directly with

Kerrigan v. United States, supra; Brown v. Maryland,

supra; United States vy. Pratt, supra; and United States v.

Allen, supra.

In Kerrigan, the defendant was charged with two con-

spiracies in two indictments (644 F.2d at 47-48). He

entered into a plea bargain in which he agreed to plead

’ We also strongly disagree with the holdings below, which are

based on United States v. Beachner Construction Co., supra, that the

two conspiracies charged in the two indictments were in fact the same

conspiracy. See, e.g., In re Grand Jury Proceedings, 797 F.2d 1377,

1384 (6th Cir. 1986) (criticizing approach used in Beachner to find

only one conspiracy), cert. denied, No. 86-663 (Jan. 12, 1987). We do

not believe, however, that that fact-bound issue warrants this Court’s

review.

13

guilty to both conspiracy charges and the government

agreed to dismiss one other count and to make certain

recommendations concerning sentence. His pleas were ac-

cepted, and he was sentenced to three years’ imprisonment

for one conspiracy and a consecutive two-year term for the

other. Jd. at 48. On collateral attack (see id. at 47), Ker-

rigan argued “that there was in fact only one conspiracy”

(id. at 48). The First Circuit rejected Kerrigan’s argument

that Menna required an evaluation of his double jeopardy

claim on the merits, observing that Menna does not hold

“that a defendant who pleaded guilty may later contest the

factual and theoretical foundations of the indictment to

which he pleaded, so as to show that, in fact, he com-

mitted only a single offense” (id. at 49). And the court

refused to consider Kerrigan’s argument that there was in

fact only one conspiracy, holding that “Kerrigan’s claim of

double jeopardy must be evaluated under the version of

facts stated in the indictment, not against an alternative

version of evenis which Kerrigan now claims is more ac-

curate” (ibid.).

Kerrigan is virtually identical to the present case, and its

reasoning plainly would have required rejection of

respondents’ motion to vacate their sentences; indeed,

Kerrigan was the basis of the district court’s original deci-

sion denying respondents relief. The court of appeals

dismissed Kerrigan as unpersuasive (App. 20a), but i also

endeavored to distinguish the case on two grounds."

Neither will work. First, the court stated that the portion

of Kerrigan on which the government relied was dictum

because the district court in that case had not ruled on “the

question of waiver” (App. 20a n.4). But the holding of a

* The court of appeals also said, apparenily im an effort to

distinguish Kerrigan, that “the admissions of factual guilt subsumed in

the pleas of guilty go only to the acts constituting the conspiracy and

not to whether one or more conspiracies existed” (App. 21a). Bui that

statement simply contradicts Aerrigan; it does not distinguish the case.

14

case is the basis that the rendering court gives for its deci-

sion, not the basis that a lower court gave for reaching the

same result. And the holding of Kerrigan is that a defend-

ant who has pleaded guilty to two conspiracies has no right

to argue on collateral attack that there was only one con-

spiracy, except, perhaps, when the indictments on their

faces show that there was only one conspiracy. Second,

the court below stated that in this case, unlike Kerrigan,

“the * * * indictments did not specifically allege separate

conspiracies” (App. 21a). That is simply not so. Each in-

dictment in this case alleged the existence of a conspiracy

whose object was to rig bids on a particular construction

project, and each indictment alleged a different beginning

date for the conspiracy. If those allegations were true,

there were two conspiracies. See Kolteakos v. United

States, 328 U.S. 750, 769 (1946) (distinguishing “the com-

mon purpose of a single enterprise” from “the several,

though similar, purposes of numerous separate adventures

of like character”). As the Kerrigan court said, “indict-

ments charging two or more agreements, even agreements

to commit similar or related crimes, charge more than one

conspiracy” (644 F.2d at 49).

In Brown, the defendant was charged, on a felony

murder theory, with first-degree murder punishable only

by death or life imprisonment. He entered into a plea

bargain with the State and pleaded guilty to second-degree

murder and attempted armed robbery. He received con-

secutive sentences of 25 and 10 years. On collateral attack,

he argued that, because the original murder charge had

been based on a felony murder theory, the underlying

felony—armed robbery —was a lesser included offense,

and he could not be sentenced for both second-degree

murder and armed robbery. 618 F.2d at 1058. The Fourth

Circuit did not resolve that question on the merits because

it held that “Brown’s voluntary and intelligent guilty plea

waived his right to object to his convictions on double

15

jeopardy grounds” (id. at 1059). If the result in Brown is

correct, then @ fortiori the decision below is wrong.’

In Pratt, the defendant was charged with six offenses.

As part of a negotiated plea bargain, he pleaded guilty to

two counts, each of which alleged a substantive narcotics

offense occurring on the same day, and the government

moved to dismiss the remaining four counts. 657 F.2d at

219. The district court, like the district court in this case,

ascertained that the defendant understood that he could

receive cumulative punishments for the offenses to which

he had pleaded guilty (id. at 219-220), and it then imposed

two consecutive five-year sentences (id. at 220). On col-

lateral attack (see id. at 218), the defendant “urge[d] that

in fact he had been punished twice for what was really only

one offense” (id. at 220). The Eighth Circuit refused to

consider that claim, observing that Pratt “pleaded guilty,

presumably, because he preferred the certainty of a max-

imum of ten years to the risk of conviction and punish-

ment on each of six counts.” The court then considered

and rejected the argument “that Menna * * * requires us

to reach the merits of Pratt’s double-jeopardy argument.”

Ibid. The court observed (id. at 221):

Menna’s claim was wholly unrelated to the facts,

whereas the whole question raised by Pratt is inter-

twined with the issue of exactly what it was that he

and the DEA agent agreed to buy and sell—two

items, or only one. Menna’s case was not complicated

by the presence of additional charges which the state

agreed to dismiss. And Menna did not explicitly and

voluntarily expose himself to the very event (here,

consecutive terms of imprisonment) that he later

* The Brown court did not discuss Menna or Blackledge, bui those

cases are distinguishable from Brown because the guilty pleas in those

cases were not entered pursuant to plea bargains. This Court denied

certiorari in Brown.

16

claimed was a violation of the Double Jeopardy

Clause. Pratt, by contrast, never made a double-

jeopardy argument until months after his sentence.

He was aware of all the facts later asserted in support

of that argument. He had no right to be surprised at

the sentence that was imposed. He received the

benefit of his bargain, dismissal of the other four

counts.

In all of these respects, Pratt is on all fours with the

present case. The “whole question raised by” respondents

is “the issue of exactly what it was that” they and their co-

conspirators agreed to do—to rig bids on two particular

occasions through agreements “ ‘stand[ing] on [their]

own’” (see p. 5, supra) or, instead, to rig bids on all

available occasions. There were “additional charges” (both

pending and contemplated) in this case “which the [United

States] agreed to dismiss” and not to bring. Respondents

“explicitly and voluntarily exposed [themselves] to the very

event” (here, cumulative fines) “that [they] later claimed

was a violation of the Double Jeopardy Clause.”

Respondents “never made a double-jeopardy argument

until months after [their] sentence[s].” Respondents were

“aware of all the facts later asserted in support of that

argument.”'® Respondents “had no right to be surprised at

the sentence[s] that were imposed,” for the corporation

received precisely the sentence that the United States and

respondents had agreed the government would recom-

mend, and Mr. Broce explicitly acknowledged that the

range of permissible punishments in his case included fines

of up to $100,000 and imprisonment for up to three years

on each Sherman Act count—much more than the

$101,000 total fine and two-year term of imprisonment

‘© Of course, respondents did not have the Beachner record or the

Beachner decision in their possession at the time of their pleas and

sentencing, for the hearing in Beachner came later. But there is no

good reason why, if respondents wanted to litigate this issue, they

could not have done so precisely as the Beachner defendants later did.

17

that he in fact received. And respondents “received the

benefit of [their] bargain[s],” including dismissal of the

mail fraud count against the corporation and a promise

not to prosecute respondents for other claims committed

in both Kansas and Oklahoma. Yet the court below

reached the opposite result from the Eighth Circuit. The

conflict between the Eighth and Tenth Circuits (and the er-

ror of the latter’s contention that its result is compelled by

Menna) could not be clearer.

In Allen, the defendant was charged with 17 offenses.

As part of a negotiated plea bargain, he pleaded guilty to

four counts, one of which (Count 6) was for transporting a

stolen Ferrari in interstate commerce and one of which

(Count 14) was for transporting a stolen Porsche in in-

terstate commerce. The remaining 13 counts were dis-

missed. As in the present case, the defendant acknowl-

edged that he could receive cumulative punishments on all

counts to which he pleaded guilty. The district court im-

posed consecutive five-year sentences on Counts 6 and 14

(as well as one consecutive and one concurrent sentence on

the other two counts). 724 F.2d at 1557. On collateral at-

tack (see ibid.), the defendant argued that “the Ferrari and

Porsche were transported as part of a single shipment and

therefore Counts 6 and 14 constituted a single offense for

which he could receive only a single sentence under the

double jeopardy clause” (id. at 1558). The Eleventh Cir-

cuit refused to consider that claim, explicitly adopting the

Eighth Circuit’s analysis in Pratt. The court observed:

“{Allen] has received the benefit of the dismissal of the

other 13 charges and now wishes to renege on his part of

the bargain. This we will not permit.” /bid. Once again,

there can be no doubt that the court’s reasoning would

have required a different result than the one the court of

appeals reached in the present case. Respondents received

the benefit of their bargains and would not, in the

Eleventh Circuit, be allowed to renege on their parts of the

bargains.

18

Thus, the precedent of at least four circuits stands solid-

ly against the result reached in this case. See also United

States v. Herzog, 644 F.2d 713, 716 (8th Cir.), cert.

denied, 451 U.S. 1018 (1981); United States v. Solomon,

726 F.2d 677, 678 n.2 (llth Cir. 1984); United States v.

Griffin, 765 F.2d 677, 680-682 (7th Cir. 1985); cf. United

States v. Sheehy, 541 F.2d 123, 130 & n.20 (ist Cir. 1976)

(defendant may not raise multiplicity argument for the

first time on appeal); United States v. Perez, 565 F.?d

1227, 1232 (2d Cir. 1977) (double jeopardy argument

waived if not asserted before trial); United States v.

Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984) (same), cert.

denied, 472 U.S. 1017 (1985). The conflict between the

decision below and the decisions of other courts of appeals

on this frequently recurring issue warrants this Court’s at-

tention.

b. Insofar as the decision below holds that a defendant

may raise double jeopardy claims on appeal or collateral

attack despite a prior counseled, negotiated guilty plea,

the decision does find some support in the decisions of

three other circuits. United States vy. Atkins, supra; United

States v. Baugh, supra; Launius v. United Stuies, supra;

see also United States vy. Blocker, supra; United States v.

Broussard, supra. But the decision below does more than

that: it also allows the defendants to obtain a factual deter-

mination that the allegations in the indictments — specifical-

ly, the allegations that the conspiracies began on two

separate dates and had two different objects (and were

thus distinct)—were not true, even though they have

previously admitted those facts.'' The court held that “the

'! Respondents’ admissions were not limited to those that were in-

herent in the guilty pleas themselves, e., admissions of the facts

alleged in the indictments. Respondents were given explicit, on-the-

record opportunities to express any disagreement with the govern-

ment’s version of the offenses, which included an express reference to

19

question of whether the indictments charged one or two

conspiracies is, in the context of this case, wholly factual”

(App. 23a), and it remanded “for a factual determination”

(App. 24a).!?

the separate conspiracies giving rise to the indictments. With a few ex-

ceptions that are not pertinent here, respondents expressed agreement

with that version (see p. 5, supra).

'? Two of the seven judges of the en banc court suggested that the

two indictments in this case could, without the need for any findings

of fact by the district court, be deemed to charge only a single con-

spiracy. The majority, however, did not take this route. Furthermore,

it would have been manifest error for the court to hold, without any

findings of fact, that the two charged conspiracies were the same.

Judge McKay’s theory was that — without regard to the factual find-

ings in Beachner and without the need for factual findings in this

case — these two indictments on their face alleged the same conspiracy.

But the scope of any conspiracy is the scope of the unlawful agree-

ment. See Jannelli v. United States, 420 U.S. 770, 777 (1975): Braver-

man v. United States, 317 U.S. 49, 52-53 (1942). And these two indict-

ments alleged that there were two different ageements: an agreement

beginning in April 1978, to rig bids on the Meade County project, and

an agreement, beginning in July 1979, to rig bids on the Barton Coun-

ty project. Only if those factual averments were untrue—and there

was but a single agreement beginning sometime earlier — did these two

indictments allege the same conspiracy.

Judge Seymour’s theory was that the findings of fact in Beachner

collaterally estopped the government from relitigating the question

whether there had been a single conspiracy to rig bids on highway

projects throughout the 1970s. But respondents were not parties in

Beachner. Judge Seymour’s theory is therefore one of nonmutual col-

lateral estoppel against the government—a theory that this Court

unanimously rejected in Standefer v. United States, 447 U.S. 10

(1980). Indeed, there is considerable irony in Judge Seymour’s ap-

proach. She would allow respondents to use Beachner, a case in which

respondents were not parties, to estop the government from arguing

that there were two separate conspiracies in this case. Yet she ap-

parently would not allow the government to use respondents’ admis-

sion in this case, which came long before Beachner, to estop them

from arguing that there were no/ two separate conspiracies.

20

That factual determination is precisely what the First

Circuit in Kerrigan held that defendant could not obtain

(644 F.2d at 49). See also United States vy. Pratt, supra;

United States v. Allen, supra. Moreover, before this case,

no court had to our knowTedge held that a defendant could

obtain such a determination. In Menna, this Court

carefully limited its holding to the situation in which the

validity of the double jeopardy claim could be “judged on

[the] face” of the indictment (423 U.S. at 63 n.2). And, in

the prior court of appeals cases extending Menna to cover

defendants who have pleaded guilty in exchange for prose-

cutorial concessions, the courts had resolved the double

jeopardy claims without contradicting the indictment or

requiring findings of fact. See Launius, 575 F.2d at 771

(“{i]t appeared on the face of the indictment that but one

agreement was involved and hence but one conspiracy”);

Broussard, 645 F.2d at 505 (rejecting double jeopardy

claim without requiring factfinding); see also Blocker, 802

F.2d at 1104-1105 (same); Baugh, 787 F.2d at 1132 (“This

court need not transcend the four corners of the informa-

tion in this case in order to assess the validity of Baugh’s

claim.”).

' In this case, however, and in one subsequent decision

(United States v. Atkins, supra), courts of appeals have re-

quired district courts, on collateral attack, to conduct

hearings in order to resolve factual disputes that the

defendants could have raised, but did not raise, before

_entering their pleas of guilty. According to these decisions,

the Constitution requires that result. If these decisions are

followed, they portend a nightmare for the federal courts

as well as for state and federal prosecutors. Any in-

carcerated defendant who as a result of a guilty plea has

received consecutive sentences for two similar crimes, and

any defendant who as a result of a guilty plea has been

assessed cumulative fines for two similar crimes, would

have an absolute right to require a factual hearing to deter-

21

mine whether those crimes are actually distinct. That will

be true notwithstanding the defendant’s failure to raise

this factual issue at any time before pleading guilty. It will

be true no matter how much time has passed since convic-

tion. As the requirement of a tactual hea‘ing is asserted to

be of federal constitutional origin, this claim will be

cognizable in habeas corpus actions brought by state

prisoners as well as on collateral attack by convicted

federal defendants. And, according to the court below

(but not the Fifth Circuit in Afkins), the defendant’s right

to obtain a factual determination of his double jeopardy

claim includes the right to contradict facts he admitted in

his plea-taking or sentencing hearing. '?

Thus, the decision below, in addition to conflicting with

the decisions of other circuits, is literally unprecedented

and has far-reaching implications. Review by this Court is

warranted.

2. The decision below is incorrect for two separate

reasons. First, respondents’ claim of double jeopar-

dy — unlike the constitutional claims presented in Menna

and Blackledge—depends on factual assertions inconsis-

tent with the facts set forth in the indictments. A coun-

seled plea of guilty, however, is an admission of the

material facts set forth in the indictment. To the extent

that the double jeopardy claim depends on contrary facts,

the guilty plea “quite validly removes the issue of [double

jeopardy] from the case” (paraphrasing Menna, 423 U.S.

at 62 n.2). Second, this case is unlike Menna and

Blackledge in that it involves more than a mere guilty plea:

it involves a plea agreement. Respondents’ agreement to

'3 The Atkins court limited its holding in a way that would have re-

quired a denial of relief to respondents in the present case: “A peti-

tioner who later contests his sentence on double jeopardy grounds

after entering a guilty plea * * * has lost his right to challenge or

dispute either the information in the indictment or any other facts he

admitted when his guilty plea was taken.” Slip op. 958.

22

plead guilty to two counts, in exchange for the govern-

ment’s promise not to bring other charges, was a valid and

binding agreement that “removed the double jeopardy

bar” (Ricketts v. Adamson, slip op. 6).

a. The indictments charged two different conspiracies,

beginning on different dates, to rig bids on two different

projects. There is no question of double jeopardy in this

case unless those allegations are factually wrong. But

respondents admitted the allegations by pleading guilty,

and they had absolutely no right —constitutional or other-

wise — later to litigate factual questions that were resolved

by their pleas.

It is well established that an unconditional plea of guilty

is an admission of all the elements and material facts of

the formal criminal charge maintained in the indictment.

McCarthy v. United States, 394 U.S. 459, 466 (1969); see

also Menna, 423 U.S. at 62-63 n.2 (guilty plea admits “fac-

tual guilt”). As such, the guilty plea “is itself a conviction.

Like a verdict of the jury it is conclusive.” Kercheval v.

United States, 274 U.S. 220, 223 (1927); see also Mabry v.

Johnson, 467 U.S. 504, 508 (1984). Respondents knew

that they were making factual admissions: the district

court admonished them at the plea-taking hearing that by

pleading guilty they would be admitting all of the facts

alleged in the indictments. And, as we have already noted,

respondents were given further Opportunities to dispute

the government’s version of their offenses, including its

explicit statement that there were two separate con-

spiracies, yet they did not take those opportunities. In-

deed, Mr. Broce even volunteered while under oath —in

direct contradiction to the theory later adopted in

Beachner —that he intended each bid-rigging agreement to

“stand on its own” (2/8/82 Tr. 18).

The Double Jeopardy Clause does not entiile a defend-

ant to mount a collateral attack on the factual determina-

tion, made by his own admission via a guilty plea, that he

23

entered into two conspiratorial agreements rather than

one. The double jeopardy issue is in this respect like the

issue Of factual guilt: a defendant has a constitutional

right not. to be punished unless he is guilty of crime, but his

counseled plea of guilty “quite validly removes the issue of

factual guilt from the case” (Menna, 423 U.S. at 62 n.2).'4

Nor is there any justification for construing the indict-

ments in this case as anything other than an allegation that

two conspiracies existed: one, starting in April 1978, to rig

bids on the Meade County project, and one, starting in

July 1979, to rig bids on the Barton County project.

It is true that the prosecution (together with the grand

jury), not the defense, determines what facts will be

alleged in an indictment. But a defendant who thinks that

the government’s version of the facts is either inaccurate or

incomplete can litigate disputed facts by obtaining a

pretrial hearing or by going to trial.'> Unconditional guilty

'* The court of appeals cited Launius v. United States, supra, for

the proposition that the factual admissions “subsumed in the pleas of

guilty go only to the acts constituting the conspiracy and not to

whether one or more conspiracies existed” (App. 2la (emphasis

added)). There is, however, nothing in Launius that supports that

proposition.

'S Because it is not the role of an indictment to negate all possible

defenses (United States v. Sisson, 399 U.S. 267, 288 (1970)), it will, of

course, often be the case that the factual allegations in an indictment

will be incomplete in the sense that, although they do not themselves

show a violation of the Double Jeopardy Clause, they also are not suf-

ficient to disprove the double jeopardy Jciciuse. A defendant who

does not plead guilty may then attempt to establish a valid double

jeopardy defense, in pretrial proceedings or at trial, either by proving

that the allegations of the indictment are untrue or by proving other

facts that are neither alleged in nor contradicted by the indictment.

But a defendant who chooses to plead guilty rather than make such a

factual showing forfeits his right to make that showing. In any event,

in this case no showing sufficient to support a double jeopardy

defense could have been made without contradicting the factual

allegations of the indictments.

24

pleas, whether negotiated or otherwise, are for defendants

who choose not to litigate issues of fact, and there is no

reason why they should not be held to that choice.'®

b. Respondents entered into a plea agreement under

which the United States agreed not to prosecute them on

other charges in return for their pleas of guilty to two con-

spiracy charges. The plea agreement was a valid contract.

Having entered into it and received the benefit of it,

respondents should not have been allowed to repudiate

their half of the bargain.

“(T]he Double Jeopardy Clause, which guards against

Government oppression, does not relieve a defendant

from the consequences of his voluntary choice.” United

States v. Scott, 437 U.S. 82, 99 (1978).'? Just last Term,

‘© Menna and Blackledge, which hold that in certain circumstances

a guilty plea does not waive legal rights, are distinguishable from this

case in two different respects. First, it is not necessary to find a

“waiver” in this case in order to hold respondents to their guilty pleas:

our contention is not that the plea of guilty to an indictment alleging

facts constituting two crimes “waives” the double jeopardy bar —any

more than a guilty plea “waives” the right not to be punished for a

crime one has not in fact committed. Rather, our contention is that

the guilty pleas here resolved the factual issue in a way that removed

any double jeopardy issue from the case. Second, in both Menna and

Blackledge the defendant faced only a single charge and contended

that his plea of guilty to that charge was invalid because, in light of an

earlier conviction, the prosecutor had no power to “hale him into

court” on that charge in the first place, and thus had no power to en-

force the defendant’s plea of guilty to a charge that he should never

have faced. Here, however, there is no doubt that the United States

had the right to prosecute respondents for Sherman Act conspiracy at

the time it did so prosecute them; the only doubt is whether it had the

right to “hale them into court” on one count or two. And respondents’

simultaneous pleas of guilty to both counts answer that question in a

way that the guilty pleas in Menna and Blackledge dic not.

'? This statement from Scott encapsulates the underlying principle

of numerous cases in which this Court has held that, when it is the

defendant’s own actions that lead to more than one prosecution for a

25

this Court applied that principle to the case of a defendant

who —like respondents — sought to invoke the Clause as a

means to escape from the terms of his plea agreement. In

Ricketts v. Adamson, supra, this Court held that the

defendant could be convicted of first-degree murder even

after his prior guilty plea to a lesser included offense,

because he had agreed that if he failed to give certain

promised testimony the original first-degree murder

charge would be automatically reinstated (slip op. 7).

Adamson thus squarely holds that a defendant may validly

agree to a bargain that includes the possibility of a second

prosecution for the same offense. If he chooses to take ac-

tions that subject him to a second prosecution, the “Dou-

ble Jeopardy Clause does not relieve him from the conse-

quences of that choice” (slip op. 9).

Like the defendant in Adamson, respondents in this

case made a voluntary choice. Rather than risk prosecu-

tion on all of their bid-rigging activities in Kansas and

single charge, the Double Jeopardy Clause does not forbid that result.

See, e.g., United States v. Ball, 163 U.S. 662, 671-672 (1896); United

States v. Tateo, 377 U.S. 463, 465 (1964); United States v. Jorn, 400

U.S. 470, 485 (1971) (plurality opinion); United States v. Dinitz, 424

U.S. 600, 608 (1976); Lee v. United States, 432 U.S. 23, 33 (1977);

Scott, 437 U.S. at 93; Sanabria vy. United States, 437 U.S. 54, 63 n.15

(1978). For example, multipie prosecutions growing out of the same

offense are permissible when the second proceeding was prompted or

made necessary by the defendant’s voluntary actions. Thus, “although

a defendant is normally entitled to have charges on a greater and a

lesser offense resolved in one proceeding, there is no violation of the

Double Jeopardy Clause when he elects to have the two offenses tried

separately and persuades the trial court to honor his election.” Jeffers

v. United States, 432 U.S. 137, 152 (1977) (plurality opinion). And the

Court has held that a defendant’s guilty plea to a lesser included of-

fense does not bar trial on the greater offense charged along with it, if

it was the defendant’s effort that led to “separate disposition of counts

in the same indictment.” Ohio v. Johnson, 467 U.S. 493, 502 (1984).

See also Garrett v. United States, 471 U.S. 773, 798 (1985) (O’Connor,

J., concurring).

26

Oklahoma, they agreed to plead guilty to specific charges

in exchange for the government’s agreement not to pro-

secute them further (and other government concessions).

Now that respondents have received those benefits, they

would like to “use the Double Jeopardy Clause as a sword”

(Ohio v. Johnson, 467 U.S. at 502) and avoid their obliga-

tions under the plea agreement. But if the government

may, as in Adamson, prosecute a defendant on the

original charges following the defendant’s breach of a plea

agreement, then the government should also be permitted

to hold the defendant to the plea agreement in the first

place without regard to the obstacles the Double Jeopardy

Clause might impose in the absence of the plea agreement.

As in Adamson, the agreements into which respondents

entered in this case were valid and enforceable bargains.

The only basis on which respondents seek to escape from

those bargains is the one the Court rejected in Adamson:

that the multiple prosecutions (and, in this case, sentences)

to which they have been subjected, although expressly

contemplated in the agreements, are nevertheless barred

by the policy of the Double Jeopardy Clause itself. That

policy, however, is no reason why a counseled defendant

who agrees to plead to a facially valid indictment should

not be held to his bargain, particularly one from which he

has received substantial benefits.'* “The parties could

'® Respondents have permanently obtained the benefit of their

bargain here. The events of the last six years effectively preclude the

United States from prosecuting respondents in response to their

refusal to pay the full fines imposed pursuant to the plea agreement.

Mr. Broce testified under a grant of immunity at several Oklahoma

trials. Moreover, the passage of time, even if the statute of limitations

has not yet expired, makes an Oklahoma prosecution a most unattrac-

tive and perhaps impossible alternative. Indeed, as a general matter it

is a predictable consequence of allowing defendants to raise constitu-

tional claims for the first time on collateral attack, after earlier guilty

pleas, that the government will no longer be in a position to go for-

ward with a full prosecution of the charges dismissed in reliance on the

27

have struck a different bargain, but permitting the [United

States] to enforce the agreement the parties actually made

does not violate the Double Jeopardy Clause” (Adamson,

slip op. 10).'9

Indeed, this Court has long recognized that plea agree-

ments “are consistent with the requirements of volun-

tariness and intelligence — because each side may obtain

advantages when a guilty plea is exchanged for sentencing

concessions, the agreement is no less voluntary than any

other bargained-for exchange.” Mabry v. Johnson, 467

U.S. at 508. When both the prosecution and the defense

make concessions to secure a plea bargain that each

perceives provides substantial benefits, a court should

respect the bargain. The question whether the government

could otherwise have prosecuted the defendants on each of

two counts is properly treated as foreclosed by the parties’

agreement. ?°

plea agreement. See, e.g., United States v. Griffin, 765 F.2d 677,

681-682 (7th Cir. 1985); Westen, Away from Waiver: A Rationale for

the Forfeiture of Constitutional Rights in Criminal Procedure, 75

Mich. L. Rev. 1214, 1257 (1977); see also Kuhimann v. Wilson, No.

84-1479 (June 26, 1986), slip op. 16 (opinion of Powell, J.).

'? We recognize, of course, that Adamson did not involve the pro-

hibition embodied in the Double Jeopardy Clause against multiple

punishments for the same offense. But the acceptance of the possibili-

ty that the sentencing court would impose multiple punishments for

the two conspiracy charges in this case was part and parcel of the

bargain that respondents struck with the government, in return for the

nonprosecution of charges that carried with them the potential for

substantial additional punishment. Respondents acknowledged as

much (see pp. 3-4, supra). There is no logical reason why a defendant

who strikes such a bargain should be able to escape from his bargain

any more readily than the defendant in Adamson. “Respondent{s]

[were] fully aware of the likely consequences when [they] pleaded guil-

ty; it is not unfair to expect [them] to live with those consequences

now.” Mabry v. Johnson, 467 U.S. at 511.

20 See United States v. Pratt, supra; United States v. Allen, supra; 2

W. LaFave & J. Israel, Criminal Procedure § 20.6, at 680-681 (1984);

28

Nothing in Menna or Blackledge affects this analysis,

for neither case involved an agreement not to bring other

charges in exchange for the defendant’s guilty plea. In-

deed, in a different context, this Court has distinguished.

Blackledge on just that ground, holding that its analysis

does not apply to “the give-and-take negotiation common

in plea bargaining between the prosecution and defense.”

Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978); United

States v. Goodwin, 457 U.S. 368, 375-380 (1982); see also

Blackledge, 417 U.S. at 36-37 (Rehnquist, J., dissenting).

The government agreed not to pursue other charges

against respondents in reliance on their promise to plead

guilty to two Sherman Act conspiracies — not one — yet the

result of the decision below is that respondents have

secured the full benefit of the government’s promise while

paying only the fines assessed on one count. Had respond-

ents raised their double jeopardy argument at the time of

plea negotiations, the government could have elected to

pursue other charges (in particular, Oklahoma conspiracy

charges) and either to litigate those charges or to agree that

respondents could plead guilty to one Kansas conspiracy

and one Oklahoma conspiracy in exchange for the benefits

that respondents actually received.?' But respondents

Westen, supra, 75 Mich. L. Rev. at 1259 (footnote omitted) (a de-

fendant “can * * * forfeit complete defenses to a charge if, by his

conduct, he leads the state to believe that it will not have to take him

to trial on other outstanding charges”); Saltzburg, Pleas of Guilty and

the Loss of Constitutional Rights: The Current Price of Pleading

Guilty, 76 Mich. L. Rev. 1265, 1293 (1978) (“[i]f the defendant prefers

the existing charges to the prospective charges and agrees to forego the

double jeopardy defense in exchange for the benefit of not facing the

new charges, a court could reasonably respect the bargain, since the

government gave up a legitimate Opportunity to prosecute in order to

please the defendant”).

2! Of course, the government and respondents could also have liti-

gated at the time over the constitutional validity of the two Kansas

29

chose a different course, withholding their double jeopar-

dy argument until later, and the court of appeals has now

rewarded that delay. We know of no double jeopardy

principle—and Menna and Blackledge certainly stand for

none —that requires that result.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

CHARLES F. RULE

Assistant Attorney General

aaa Louis R. COHEN

Deputy Solicitor General

KENNETH G. STARLING

Deputy Assistant Attorney General

Roy T. ENGLERT, JR.

Assistant to the Solicitor General

JOHN J. POWERS, tI

JOHN P. FONTE

Altorneys

JANUARY 1988

charges that actually were brought. Respondents, however, never

joined issue on that subject until a year after they pleaded guilty to

those charges.

US GOVERNMENT PRINTING OFFICE 1988-202 037/60201