Petitioners Brief — United States v. Broce

EARS A I

n ws -

(3) DED

No. 87-1190 may 6 1988

In the Supreme Court of the United

OCTOBER TERM, 1987

UNITED STATES OF AMERICA, PETITIONER

Vv.

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

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

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

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

a

QUESTION PRESENTED

Whether a defendant who pleads guilty to two indictments

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 conspiracies alleged

were actually a single conspiracy.

-

nee =”

the

sw yet

=

po

&,

pS aie seek Sar a DRY eS

ee

Py teoey

“a

ute

wee BLS c+

=

a,

3

<

&

ze

TABLE OF CONTENTS

Page

EEE ES l

EE EE l

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

EEE EEE OPT TT TET TT Tee 2

EE IEEE 11

Argument:

Respondents were not entitled to invalidate convictions,

following guilty pleas pursuant to plea agreements, on dou-

ble jeopardy grounds ................... aces + « 13

A. Respondents were not entitled to litigate factual ques-

tions after pleading guilty ..................... 18

B. Respondents were not entitled to repudiate their guilty

pleas after inducing the government to rely on those

EGU R a aoa seeescccceccccccccs. 26

Nene nnn en eee ccc cc cccccesccs 33

TABLE OF AUTHORITIES

Cases:

Blackledge vy. Allison, 431 U.S. 63 (1977) ............ 26

Blackledge v. Perry, 417 U.S. 21 (1974) .............. 8, Il,

15, 16, 20, 31

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ......... 31

Boykin v. Alabama, 395 U.S. 238 (1969) .......... 18, 20, 24

Brady v. United States, 397 U.S. 742 (1970) ...... 13, 14, 15

Braverman v. United States, 317 U.S. 49 (1942) ...... 22

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

EEE EE 23

Davis v. United States, 411 U.S. 233 (1973) .......... 30

Dukes v. Warden, 406 U.S. 250 (1972) .............. 31

Garrett v. United States, 471 U.S. 773 (1985) ......... 27

Henderson v. Morgan, 426 U.S. 637 (1976) .......... 18

lannelli v. United States, 420 U.S. 770 (1975) ........ 22

Jackson v. Denno, 378 U.S. 368 (1964) .............. 14

Jeffers v. United States, 432 U.S. 137 (1977) ......... 27

Kercheval v. United States, 274 U.S. 220 (1927) ...... 18, 26

Kerrigan v. United States, 644 F.2d 47 (Ist Cir. 1981) . 8,

21, 22

(ti)

IV

Cases — Continued: Page

Kotteakos v. United States, 328 U.S. 750 (1946) ...... 22

Kuhimann v. Wilson, 477 U.S. 436 (1986) ........... 30

Launius v. United States, 575 F.2d 770 (9th Cir. 1978) 24

Lee v. United States, 432 U.S. 23 (1977) ............. 27

Mabry v. Johnson, 467 U.S. 504 (1984) ........ 14, 18, 26, 30

Machibroda vy. United States, 368 U.S. 487 (1962) .... 18

McCarthy v. United States, 394 U.S. 459 (1969) ...... 18, 26

McMann vy. Richardson, 397 U.S. 759 (1970) ...... 13, 14, 15

Menna v. New York, 423 U.S. 61 (1975) ............. passim

Ohio v. Johnson, 467 U.S. 493 (1984) ............... 27, 29

Parker v. North Carolina, 397 U.S. 790 (1970) ....... 13

Ricketts v. Adamson, No. 86-6 (June 22, 1987) ....... 10, 13,

17, 27, 28, 30

Sanabria v. United States, 437 U.S. 54 (1978) ........ 27

Santobello v. New York, 404 U.S. 257 (1971) ........ 26

Tollett v. Henderson, 411 U.S. 258 (1973) ........... 13, 14,

15, 16, 17, 19

United States v. Allen, 724 F.2d 1556 (11th Cir. 1984) . 22, 31

United States v. Atkins, 834 F.2d 426 (Sth Cir. 1987) . 24

United States v. Ball, 163 U.S. 662 (1896) ........... 27

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

cert. denied, 472 U.S. 1017 (1985) ................ 23

United States v. Baugh, 787 F.2d 1131 (7th Cir. 1986) . 24

United States v. Beachner Constr. Co., 555 F. Supp. 1273

(D. Kan. 1983), aff'd, 729 F.2d 1278 (10th Cir. 1984) 7

United States v. Blocker, 802 F.2d 1102 (9th Cir. 1986) 24

United States v. Broussard, 645 F.2d 504 (Sth Cir. 1981) 24

United States v. Dinitz, 424 U.S. 600 (1976) .......... 27

United States v. Goodwin, 457 U.S. 368 (1982) ....... 31

United States v. Griffin, 765 F.2d 677 (7th Cir. 1985) . 23,

25, 30

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

Ce, Ge a ee Rk xb cksdecnsudcxceseeds 23

United States v. Jackson, 390 U.S. 570 (1968) ........ 14

United States v. Jorn, 400 U.S. 470 (1971) ........... 27

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

GP ae Se EE a has hax bocce cceaecassedeee 4

United States v. Perez, 565 F.2d 1227 (2d Cir. 1977) .. 23

United States v. Pratt, 657 F.2d 218 (8th Cir. 1981) ... 22,

31, 32

United Siates v. Scott, 437 U.S. 82 (1978) ........... 27

United States v. Sheehy, 541 F.2d 123 (Ist Cir. 1976) . 23

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

V

Cases — Continued: Page

United States v. Solomon, 726 F.2d 677 (11th Cir. 1984) 23

United States v. Tateo, 377 U.S. 463 (1964) .......... 27

United States v. Washita Constr. Co., 789 F.2d 809 (10th

Da Rg Maple ange Tel ir Se aan le ae Se 4

Woodard v. Siate, 42 Ala. App. 552, 171 So. 2d 462 (1965) 18

Constitution, statutes and rules:

U.S. Const. Amend. V:

Fe Pee eee passim

FEF EP EE POOF ETT TCE CITE COCOET 16

rr er OD ease ccecebauneeces y

ee Ue Tals en eet ie a ele Ba 2,3

Fed. R. Crim. P.:

RDI eile ashe ar ret as Ce ald eS ke eee 4

el i oy ee es ae ee ee oe 7

Miscellaneous:

Brilmayer, State Forfeiture Rules and Federal Review of

State Criminal Convictions, 49 U. Chi. L. Rev. 741 (1982)

PE ee a AT Srna Rt PP At gn NeaD 32

2 W. LaFave & J. Israel, Criminal Procedure (1984) .. 32

Saltzburg, Pleas of Guilty and the Loss of Constitutional

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

SR fC Err a rr ee 32

Westen, Away from Waiver: A Rationale for the Forfeiture

of Constitutional Rights in Criminal Procedure, 75 Mich.

— SS — RRR eels etry Pore 30, 31

Westen, Forfeiture by Guilty Plea—A Reply, 76 Mich. L.

ts) CO re Sane Oo ty ee oc aera 31-32

Jn the Supreme Court of the Anited States

OcTOBER TERM, 1987

No. 87-1190

UNITED STATES OF AMERICA, PETITIONER

v.

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

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The order and judgment of the court of appeals affirm-

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

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

the district court granting respondents relief (Pet. App.

Sa-13a) is unreported. The prior opinion of the en banc court

of appeals reversing the district court’s denial of relief (Pet.

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

ion of the court of appeals panel (Pet. App. 87a-11 1a),

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 (Pet.

App. 112a-123a) is unreported.

JURISDICTION

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

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

and suggestion for rehearing en banc was denied on

November 13, 1987 (Pet. App. 124a-125a). The petition for

a writ of certiorari was filed on January 12, 1988, and was

granted on February 29, 1988. The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

(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 nam-

ed 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 project 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 indictments, 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 guilty pleas. Consistent with the plea bargains, the court

imposed a total fine of $1.5 million ($750,000 on each Sher-

man Act count) on the corporation and sentenced Mr. Broce

to concurrent two-year terms of imprisonment and a total

fine of $101,000. Respondents subsequently filed a motion

to vacate the sentences imposed on the charges in the sec-

ond indictment. They based their request for relief on the

ground that the sentences imposed on those charges con-

stituted multiple punishment for the same offense in viola-

tion of the Double Jeopardy Clause. The district court in-

itially 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 a two-count indictment filed on November 17,

1981 (Pet. App. 143a-15la), respondents were charged with

one count of violating Section | of the Sherman Act and

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

indictment alleged that the object of the Sherman Act con-

spiracy was to rig bids on Kansas Federal-Aid Highway Pro-

ject 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.

Pet. App. 147a.

Respondents were at all times represented by retained

counsel. Plea negotiations began after the government sent

a letter to respondents’ counsel on January 11, 1982,' ad-

vising him that the government would seek an additional

indictment against respondents for conspiracy to rig bids

on a Ford County project let by the State of Kansas on Ju-

ly 17, 1979 (J.A. 75-76). 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 (Pet. 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 indictment, 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 (Pet. App. 127a) and $1,000,000

for the corporation (/d. at 134a). See 15 U.S.C. 1. Mr. Broce

also acknowledged that consecutive sentences could be

' The date stamp actually gave the year incorrectly as 1981.

> Respondents were never indicted for rigging bids on the Ford Coun-

ty project referred to in the government’s letter of January 11, 1982.

4

imposed (Pet. App. 127a). In return for the guilty pleas,

the government agreed, among other things, (1) not to pro-

secute respondents for other antitrust 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 corpora-

tion on the Sherman Act charges (Pet. 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 (Pet. App. 136a-142a) with Sherman

Act conspiracy. The indictment alleged that the object of

the conspiracy was to rig bids on the Barton County pro-

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

indictment charged that the conspiracy began in or about

July 1979. Id. at 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” (J.A. 35).

The district court also explained that, “so far as the cor-

poration is concerned, the maximum punishment is a fine

up to one million dollars on each [Sherman Act] charge”

and that, “as to you [Mr. Broce] individually, * * * the max-

imum punishment is a fine up to one hundred thousand

dollars and a term of imprisonment up to three years on

each [Sherman Act] charge” (J.A. 36). Mr. Broce indicated

‘ Respondents had in fact engaged in substantial violations of the

Sherman Act in Oklahoma, some of which are described in detail (draw-

ing on Mr. Broce’s immunized testimony at two trials of Oklahoma

co-conspirators following his guilty plea in this case) in United States

\. Washita Constr. Co. , 789 F.2d 809 (10th Cir. 1986), and United States

\. Metropolitan Enterprises, Inc., 728 F.2d 444 (10th Cir. 1984).

without qualification that he understood (/bid.). The court

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

ment’s written statement of facts in support of the pleas (Pet.

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 rigged (J.A.

40-41). He also stated, with one other qualification not rele-

vant here, that the government’s statement of facts was cor-

rect (J.A. 41-42). Defense counsel stated that he saw no

reason “why the Court should not accept these pleas of guil-

ty” (J.A. 43). The court did accept the pleas.

Before sentencing, the government prepared and provided

to defense counsel an “Official Version of the Offense” for

inclusion in the presentence report (J.A. 50-59). That docu-

ment discussed a large conspiracy in Kansas in which re-

spondents and others had participated before 1973 but stated

that, “in about 1973, this conspiracy ended” (J.A. 50). It

also stated that there were “two separate conspiracies giv-

ing rise to the indictments” (J.A. 51 (emphasis added)).*

Sentencing occurred on March 15, 1982. Defense 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” (J.A. 63-64).

Defense counsel expressed some disagreements with the Of-

ficial Version but did not dispute the explicit statements in

the Official Version that the large, continuing conspiracy

ended in 1973 and that there were two separate conspiracies

giving rise to the two indictments (J.A. 64).° The court

* Through a proofreading oversight on our part, the word “Indict-

ments” is incorrectly printed in the joint appendix as “Indictment.” The

word is plural in the original document.

> Among other things, the Official Version of the Offense described

how the Meade County and Barton County projects were rigged. The

Meade County project was one of several projects let by the State of

6

asked whether there was “any legal reason * * * why

sentence should not be pronounced,” and defense counsel

responded: “None known to the defendant, Your Honor”

(J.A. 65). The court then imposed on the corporation the

fines that the government had agreed to recommend. The

court also 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. J.A. 66-67. On the govern-

ment’s motion, the court thereafter dismissed the mail fraud

count against the corporation (J.A. 67).

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

before sentencing, claim that the two indictments in fact

alleged the same conspiracy.

Kansas on April 25, 1978. During a series of meetings and discussions

the night before that letting, many projects that were to be let were

allocated among several road construction companies. For example,

both respondents and Carlile Asphalt Company, Inc., were interested

in the Meade County project. Initially, they were unable to agree which

company would be allocated that project (J.A. 52). During the negotia-

tions, Carlile offered to let respondents win the Grey County project

that was to be let in May, in exchange for the Meade County project.

Respondents. however, rejected this proposal because Mr. Broce pre-

ferred to let each bid-rigging agreement “stand on its own” (J.A. 41).

Ultimately, Carlile agreed that respondents could be the low bidder on

the Meade County project and that Carlile would be the low bidder

for a Seward County project that was also let on April 25 (J.A. 52-53).

The bids on the Barton County project, let on July 17, 1979, were rigged

the night before the letting (J.A. 54-55). Both respondents and the Ven-

ture Corporation initially were interested in being the low bidder for

the project (J.A. 54). Ultimately, however, the project was allocated

to respondents. In exchange, respondents agreed to pay $75,000 to the

Venture Corporation (J.A. 55). All of these facts, admitted by

respondents at the time of their sentencing, lent substantial support to

the allegations of the indictments that separate conspiratorial

agreements were formed in April 1978 and in July 1979.

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

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

assessed on the two Sherman Act counts.

2. On February 22, 1983, more than a year after the

entry of their guilty pleas, respondents filed a motion pur-

suant to Fed. R. Crim. P. 35(a) to vacate their sentences

on the charges contained in the second indictment. Relying

on the intervening decision in United States v. Beachner

Constr. 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 for both Sherman

Act counts to which they had pleaded guilty.

The government argued that respondents’ failure to raise

their double jeopardy defense at any time before judgment

and sentence precluded them from doing so on collateral

attack. The government also contended that the two indict-

ments on their faces charged separate conspiracies, and

argued that respondents could not attack the factual foun-

dations of the indictments to which they had pleaded guilty.

The government stipulated, however, that if the court

reached the merits of the one-conspiracy-or-two issue it

could “ ‘consider the record made in the evidentiary

’ The defendants in Beachner alleged that the large conspiracy

discussed in the Official Version of the Offense in the present case —

i.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 defen-

dants there argued that the post-1973 bid-rigging agreements with which

they were charged were merely part of the same large, continuing con-

spiracy. The district court agreed with the defendants and rejected the

government's argument that, after 1973, each new bid-letting gave rise

tO an Opportunity to form a new conspiratorial agreement. The govern-

ment appealed, but the court of appeals held that the question was one

of fact and that the district court’s finding was not clearly erroneous.

8

hearing’ ” that was held in the Beachner case (Pet. 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

foundations of the indictment to which he entered a guilty

plea. The court concluded that respondents had no right

to obtain a factual determination whether two conspiracies

or only one existed. The court noted that each indictment,

on its face, charged a separate conspiracy. The court held

that respondents had admitted their participation in separate

conspiracies and therefore could not raise a double jeop-

ardy claim that depended on the existence of only a single

conspiracy. Pet. App. 112a-123a.

3. A divided panel of the court of appeals reversed (Pet.

App. 87a-111la). The court granted rehearing en banc, but

the en banc court also reversed by a divided vote (Pet. App.

14a-86a). Relying on Menna v. New York, 433 U.S. 61

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

* The stipulation, which is quoted in full in Judge Barrett’s dissent

from the decision of the en banc court of appeals in this case (Pet. App.

63a), provides in its entirety:

Come now the parties and stipulate that the Court may consider

the record made in the evidentiary hearing on the Motion to

Dismiss filed by Beachner Construction Co., Inc.in United States

v. Beachner Construction Co., Inc., et al., Case No. 82-20076-Vi

in the United States District Court for the District of Kansas in

ruling on the merits of defendants’ Motion to Vacate Sentence Pur-

suant to Rule 35(a) in the instant case.

Both before and after this stipulation was filed, the government con-

sistently argued in the district court that respondents had forfeited any

double jeopardy defense they could have asserted before their guilty

pleas and that, in any event, respondents were bound by the facts they

had admitted at the time the guilty pleas were taken and thus were not

entitled to a new factual determination concerning the number of bid-

rigging conspiracies in Kansas. See U.S. Reply Memo. 2-4.

9

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” (Pet.

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

bargain cannot work an estoppe! of their right to assert the

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

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

guilty must be considered admissions of all the facts alleged

in the indictments,” asserting that the indictments “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” (id. at 21a).

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 face the indictments did not charge

more than one conspiracy, it ultimately concluded that “the

question of whether the indictments charged one or two con-

spiracies is, in the context of this case, wholly factual” (Pet.

App. 23a). Because the district court had not addressed that

factual issue in its opinion, the court remanded the case “for

a factual determination” (id. at 24a).

Judge McKay joined the majority opinion, including the

order remanding to the district court, but he expressed reluc-

tance to concur in the remand because he believed that as

a matter of law the second indictment charged the same con-

spiracy as the first indictment (Pet. App. 25a). Judge

Seymour agreed with the majority’s holding that respondents

could raise their double jeopardy claim on collateral attack,

but not with its underlying reasoning that the Double

Jeopardy Clause is “an ‘absolute inhibition’ upon govern-

ment” (id. at 28a). She also disagreed with the majority’s

decision to remand the case, arguing that “the Beachner

10

findings should * * * be accorded full preclusive effect in

this proceeding” (id. at 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 resolve

the double jeopardy and due process issues in those cases

(Pet. App. 50a-5la). Judge Barrett argued “that an accused

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” (id. at S5la (emphasis omitted)). Judge Bar-

rett stated that each indictment, on its face, charged a

separate conspiracy (id. at 56a, 64a). Similarly, Judge Doyle

concluded that Menna and Blackledge are distinguishable

and that the defendants have waived their double jeopardy

argument in this case (Pet. App. 69a-86a).

4. Onremand, the district court followed the approach

taken in Beachner and found as a matter of fact that “the

two indictments returned against these defendants charge

simply different aspects of the same conspiracy to restrain

competition” (Pet. App. 13a). The court therefore 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

appeal was pending, this Court decided Ricketts v. 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.

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

short opinion (Pet. App. la-4a). The court wrote (id. at 2a):

Although Ricketts invalidates the broader rationale

underlying the plurality [sic] opinion in Broce, that the

double jeopardy prohibition “does not constitute an

individual right which is subject to waiver,” 781 F.2d

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 pro-

tection. /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 constitutionally prosecute

the defendant no matter how validly 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 (Pet. App. 2a-3a). Judge Bar-

rett dissented (id. at 4a). Rehearing was denied, Judge Bar-

rett again dissenting, and rehearing en banc was denied (id.

at 124a-12Sa).

SUMMARY OF ARGUMENT

The general rule is that a defendant who is convicted after

a voluntary and intelligent plea of guilty may not thereafter

collaterally attack his conviction. In particular, it does not

suffice to show that, in retrospect, the defendant misappre-

hended the government’s case against him, or that he would

not have pleaded guilty if he had known what later cases

would hold. In two exceptional instances, this Court has

held that a defendant was not bound by his plea of guilty

to a facially invalid charge. Blackledge v. Perry, 417 U.S.

21 (1974); Menna v. New York, 423 U.S. 61 (1975). The

court of appeals here relied on those two cases, but they

have no bearing on this case, in which the convictions were

facially valid and resulted from negotiated plea agreements.

12

A. Respondents’ double jeopardy claim is based on their

contention that there was, in fact, only a single conspiracy

to rig bids in Kansas. Their pleas of guilty to the indict-

ments in this case, however, established that there were two

conspiracies, and the pleas therefore validly removed any

issue Of double jeopardy from this case. The court of ap-

peals erred in permitting respondents to litigate a factual

issue that had been resolved by their pleas.

Each indictment on its face charged a separate conspiracy

to rig bids. Respondents, advised by counsel, entered volun-

tary and intelligent pleas of guilty, whose legal effect was

to admit all of the material facts of the formal criminal

charges contained in the indictments. Moreover, at the time

respondents entered their guilty pleas and were sentenced,

they were given a specific opportunity to challenge the

government’s contention that there were separate con-

spiracies, and they affirmatively declined to do so.

Having pleaded guilty in 1982 to two separate con-

spiracies, respondents were not entitled to reopen the issue

in subsequent collateral proceedings. Nothing in Blackledge

or Menna allows a defendant to repudiate factual admis-

sions implicit in an otherwise valid guilty plea so that he

can assert a new defense. In neither case did the Court rely

on facts contrary to those that the defendant had admitted

in pleading guilty. Indeed, each case rested on the facial

invalidity of the charge to which the defendant pleaded guil-

ty, and neither case required any further factfinding what-

ever.

B. Unlike the defendants in Blackledge and Menna,

respondents pleaded guilty pursuant to plea agreements.

Those agreements gave respondents substantial benefits, in-

cluding the government’s promise not to prosecute them for

other bid-rigging activity in either Kansas or Oklahoma. To

secure that promise from the government, respondents

agreed to plead guilty to two indictments charging separate

13

bid-rigging conspiracies. These agreements constitute valid

and enforceable contracts that respondents — having per-

manently obtained the benefits of the government’s prom-

ises — should not have been allowed to repudiate. A defend-

ant’s plea agreement that subjects him to what he only later

claims is a second prosecution for the same offense is bind-

ing and enforceable, and the Double Jeopardy Clause does

not of its own force relieve the defendant from his volun-

tary choice to enter into that agreement. Ricketts v. Adam-

son, supra.

Here respondents made a deliberate and counseled deci-

sion to subject themselves to the maximum penalty on two

conspiracy charges rather than risk the possibility of much

greater liability for all of their bid-rigging activities in both

Kansas and Oklahoma. Respondents had the opportunity

to challenge the government’s theory that each Kansas bid-

letting gave rise to a separate conspiracy, but they elected

not to do so. The government, by not pursuing other

charges, detrimentally relied on respondents’ choice not to

raise the double jeopardy issue before pleading guilty, and

that detrimental reliance is a sufficient basis to hold

respondents to their pleas.

ARGUMENT

RESPONDENTS ARE NOT ENTITLED TO INVALIDATE

CONVICTIONS, FOLLOWING GUILTY PLEAS PURSUANT

TO PLEA AGREEMENTS, ON DOUBLE JEOPARDY

GROUNDS

The basic rules governing attempts by defendants to over-

turn their own prior guilty pleas were established by this

Court in a trilogy of cases decided in 1970 and a fourth case

decided in 1973. Brady v. United States, 397 U.S. 742 (1970);

McMann vy. Richardson, 397 U.S. 759 (1970); Parker v.

North Carolina, 397 U.S. 790 (1970); Tollett v. Henderson,

411 U.S. 258 (1973). In each case, the defendant had a

14

defense that might have been successful if he had litigated

it rather than pleading guilty, but the Court refused to allow

the guiity plea to be set aside on the basis of later factual

or legal developments indicating that the defense might have

succeeded.? The Court wrote (Brady, 397 U.S. at 755 (cita-

tions and quotation marks omitted)):

[A] plea of guilty entered by one fully aware of the

direct consequences, including the actual value of any

commitments made to him by the court, prosecutor,

or his own counsel, must stand unless induced by

threats (or promises to discontinue improper harass-

ment), misrepresentation * * *, or perhaps by promises

that are by their nature improper as having no proper

relationship to the prosecutor’s business (e. g., bribes).'°

Elaborating on this stringent standard, the Court added

in Brady that “[a] defendant is not entitled to withdraw his

plea merely because he discovers long after the plea has been

accepted that his calculus misapprehended the quality of

the State’s case or the likely penalties attached to alternative

* Brady involved a plea of guilty allegedly induced by the defendant's

fear that he would receive the death penalty —- under a statute whose

death penalty provision was later held unconstitutional in United States

v. Jackson, 390 U.S. 570 (1968) —if he went to trial. McMann involved

pleas of guilty allegedy induced by the defendants’ expectation that

coerced confessions would — under a procedure later held unconstitu-

tional in Jackson v. Denno, 378 U.S. 368 (1964) — be made known to

the same jury that would decide the defendants’ guilt or innocence.

Parker involved a plea of guilty allegedly induced both by fear of the

death penalty (under a statute alleged to be unconstitutional) and by

fear of the use of an allegedly coerced confession. Tollett involved a

claim, well grounded in fact but unknown to the defendant and his

counsel at the time of the guilty plea in 1948, that black persons were

systematically excluded from grand juries in Davidson Count»

I ennessee.

'’ The Court recently repeated this statement in Mabry v. Johnson,

467 U.S. 504, 509 (1984).

15

courses of action” (397 U.S. at 757). “[T]he decision to plead

guilty before the evidence is in frequently involves the mak-

ing of difficult judgments” (McMann, 397 U.S. at 769), in

part because “uncertainty is inherent in predicting court deci-

sions” (id. at 771). Thus, “[w]Jaiving trial entails the inherent

risk that the good-faith evaluations of a reasonably com-

petent attorney will turn out to be mistaken either as to the

facts or as to what a court’s judgment might be on given

facts” (id. at 770). “Although [the defendant] might have

pleaded differently had later decided cases then been the

law, he is bound by his plea and his conviction unless he

can allege and prove serious derelictions on the part of

counsel sufficient to show that his plea was not, after all,

a knowing and intelligent act” (id. at 774). Refusing (in light

of the defendant’s guilty plea) to entertain an apparently

meritorious challenge to the composition of the grand jury,

the Court added in Tollertt, 411 U.S. at 267:

A guilty plea, voluntarily and intelligently entered,

may not be vacated because the defendant was not ad-

vised of every conceivable constitutional plea in abate-

ment he might have to the charge, no matter how

peripheral such a plea might be to the normal focus

of counsel’s inquiry. And just as it is not sufficient for

the criminal defendant seeking to set aside a plea to

show that his counse! in retrospect may not have cor-

rectly appraised the constitutional significance of cer-

tain historical facts, * * * it is likewise not sufficient

to show that if counsel had pursued a certain factual

inquiry such a pursuit would have uncovered a pos-

sible constitutional infirmity in the proceedings.

In Blackledge v. Perry, 417 U.S. 21 (1974), and Menna

v. New York, 423 U.S. 61 (1975), the Court made clear that

the Brady/Tollett rule does not mean that a guilty plea

waives the right to assert the facial invalidity of the very

16

charge to which the defendant pleads. In Blackledge, the

defendant was convicted of a misdemeanor but then invoked

his state-law right to a trial de novo in a higher court. The

prosecutor then secured a felony indictment covering the

same conduct as the earlier trial and conviction. The de-

fendant pleaded guilty to the felony charge, but this Court

overturned the conviction, holding that the Due Process

Clause forbade the prosecutor from obtaining a felony in-

dictment in these circumstances. The Court rejected the

State’s “understandable” (id. at 30) argument that the de-

fendant’s guilty plea precluded his constitutional challenge

to the bringing of the felony charge, stating that it was deal-

ing with “the very power of the State to bring the defend-

ant into court to answer the charge brought against him”

(ibid.). The Court distinguished To//ett on the ground that

“even a tainted indictment of the sort alleged in Tollett [/.e.,

one returned by an unconstitutionally composed grand jury]

could have been ‘cured’ through a new indictment by a prop-

erly selected grand jury” (417 U.S. at 30).

The next year, the Court summarily reversed a lower court

decision finding a “waiver” of a double jeopardy claim by

a guilty plea to a second charge based on conduct for which

the defendant had previously been convicted and punished.

Menna v. New York, supra. The defendant had been con-

victed of criminal contempt for failure to testify before a

grand jury; after serving his contempt sentence, he was in-

dicted for refusal to answer questions before the grand jury.

A double jeopardy claim, later conceded to be “a strong

one on the merits” (/d. at 62 n.1), was rejected by the trial

court, and the defendant then pleaded guilty. The convic-

tion was affirmed on the basis of Toll/ertt, but this Court

reversed on the authority of Blackledge and remanded tor

a determination of the merits of the double jeopardy claim

(423 U.S. at 62). In a footnote, the Court explained why

it was Blackledge rather than Tollett that controlled the out-

17

come: “The point of [the 7o//ett and Brady line of cases]

is that a counseled plea of guilty is an admission of factuat

guilt so reliable that, where voluntary and intelligent, it quite

validly removes the issue of factual guilt from the case” (423

U.S. at 62 n.2). In the same footnote, the Court added, “We

do not hold that a double jeopardy claim may never be

waived. 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 constitutionally prosecute”

(id. at 63 n.2).

It is the rule of Tollett and the Brady trilogy, not the ex-

ception recognized in Blackledge and Menna, that governs

this case. First, the effect of the guilty pleas in this case was

not any sort of “waiver” but the valid elimination of any

double jeopardy issue from the case. Judged on their face,

the indictments in this case presented charges that the

government had the power to prosecute separately. Re-

spondents’ counseled pleas of guilty admitted the material

facts set forth in the indictments. Respondents’ double

jeopardy claim is wholly dependent on factual assertions

inconsistent with the facts set forth in the indictments, and

the guilty pleas therefore “quite validly remove[d] the issue

of [double jeopardy] from the case” (paraphrasing Menna,

423 U.S. at 62 n.2). A second and independent reason why

this case is unlike Blackledge and Menna is that it involves

more than mere guilty pleas: it involves a plea agreement

supported by valid consideration. Respondents’ agreement

to 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”

(Adamson, slip op. 6). The government has detrimentally

relied on respondents’ promises, and allowing respondents

now to repudiate those promises would prejudice the

government in a way that the decisions in Blackledge and

Menna did not.

18

A. Respondents Were Not Entitled To Litigate Factual Questions

After Pleading Guilty

The indictments in this case charged two different

agreements (and therefore two different conspiracies), begin-

ning on different dates, to rig bids on two different proj-

ects. There is no question of double jecpardy in this case

unless those allegations were factually wrong. But respond-

ents admitted the allegations by pleading guilty, and they

had no right — constitutional or stherwise — 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

criminal charge contained 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 “factual! guilt”).

As such, the guilty plea “is itself a conviction. Like a ver-

dict of a jury it is conclusive.” Kercheval v. United States,

274 U.S. 220, 223 (1927); Machibroda v. United States, 368

U.S. 487, 493 (1962); see also Boykin v. Alabama, 395 U.S.

238, 242 (1969); Mabry v. Johnson, 467 U.S. 504, 508

(1984). The plea substitutes a binding confession of the facts

alleged in the indictment, and explained to the Wefendant,

for a jury verdict finding that the same facts have been pro-

ved beyond a reasonable doubt. See Henderson v. Morgan,

426 U.S. 637, 647-648 (1976) (White, J., concurring). “ “A

plea of guilty is more than a voluntary confession made in

open court. /f also serves as a stipulation that no proof by

the prosecution need be advanced. ... \t supplies both

evidence and verdict, ending controversy.’ ” Boykin, 395

U.S. at 242-243 n.4 (quoting Woodard v. State, 42 Ala.

App. 552, 558, 171 So. 2d 462, 469 (1965)) (emphasis

added). By entering pleas of guilty to both conspiracy

charges in this case, respondents admitted the facts alleged

in the indictments and stipulated that the government need

19

not put on evidence to prove the factual proposition that

there were two separate conspiracies.

Respondents knew that they were tnaking factual admis-

sions: 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, in-

cluding its explicit statement that there were two separate

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

deed, Mr. Broce even volunteered under oath — in direct con-

tradiction to the theory later adopted in Beachner — that he

intended each bid-rigging agreement to “stand on its own”

(J.A. 41).

The Double Jeopardy Clause does not entitle a defendant

to mount a collateral attack on the factual determination,

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

into two conspiratorial agreements rather than one. The

double jeopardy issue is in this respect like the issue of fac-

tual guilt: a defendant has a constitutional right —a right

of the very highest order — 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). For example, a defendant who pleads

guilty to conspiracy, only to learn later that the government’s

case was so weak that his co-conspirator who went to trial

was acquitted, is not entitled to have his conviction set aside:

his factual guilt was determined with finality by the pro-

cess he chose. So here, respondents now regret pleading guil-

ty to the two conspiracies in light of the defendants’ suc-

cess in the Beachner case, but they “solemnly admitted” the

relevant facts (7ollet:, 411 U.S. at 267), and as to them any

question of whether there was one conspiracy or two was

resolved with finality by their pleas.

20

It is no objection that respondents’ counsel could not fore-

see the outcome in Beachner. By choosing to plead guilty,

respondents ran “the inherent risk that the good-faith

evaluations of a reasonably competent attorney will turn

out to be mistaken either as to the facts or as to what a

court’s judgment might be on given facts” (McMann, 397

U.S. at 770). “[J]ust as it is not sufficient for the criminal

defendant seeking to set aside a plea to show that his counsel

in retrospect may not have correctly appraised the constitu-

tional significance of certain historical facts, * * * it is

likewise not sufficient that he show that if counsel had pur-

sued a certain factual inquiry such a pursuit would have

uncovered a possible constitutional infirmity in the pro-

ceedings” (Tollert, 4:1 U.S. at 267). Like the defendant who

pleads guilty but later insists that he is “really” innocent,

respondents have come to court too late to insist on the right

to a trial of the question whether there was one conspiracy

or two. That factual determination was made as to them

when they pleaded guilty. Boykin, 395 U.S. at 242-243 n.4.

Neither Blackledge nor Menna involved reopening any

factual issue resolved by the guilty plea. In Blackledge, the

Court ruled, without any inquiry into the prosecutor’s ac-

tual motivation (see 417 U.S. at 28) or any other disputed

issue of fact, that due process did not permit the felony

charge to be brought at all. The double jeopardy issue in

Menna involved a question of state law that was left to the

state courts to resolve on remand: whether, as a matter of

New York law, the contempt conviction and the later

refusal-:o-answer conviction were “for the same crime” (423

U.S. at 62 n.1). Indeed, the Court carefully limited its

holding to the situation in which “judged on its face * * *

the charge is one which the State may not constitutionally

prosecute” (id. at 63 n.2)—just the opposite of the situa-

tion in this case, in which the claimed constitutional

infirmity rests on factual allegations that contradict the

indictments.

We submit that the First Circuit’s opinion in Kerrigan v.

United States, supra, on which the district court relied when

it initially denied relief (Pet. App. 119a-122a), correctly

stated the controlling principles to be derived from this

Court’s decisions. In Kerrigan, the defendant “was sentenced

on the basis of guilty pleas to two indictments, both charg-

ing conspiracy to transport stolen goods in interstate com-

merce” (644 F.2d at 47). The guilty pleas were entered pur-

suant to a plea bargain in which the defendant agreed to

plead 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. /d. 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 its 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 commit-

ted 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 events

which Kerrigan now claims is more accurate” (ibid.).

Like the indictments in Kerrigan, the indictments in this

case plainly allege separate conspiracies. One indictment

charges a conspiracy starting in April 1978 to rig bids on

the Meade County project; the other charges a conspiracy

Starting in July 1979 to rig bids on the Barton County pro}j-

ect. If those allegations were true, there were two con-

spiracies: “[{I]ndictments charging two or more agreements,

even agreements to commit similar or related crimes, charge

more than one conspiracy” (Kerrigan, 644 F.2d at 49). See

Kotteakos vy. United States, 328 U.S. 750, 769 (1946)

(distinguishing “the common purpose of a single enterprise”

from “the several, though similar, purposes of numerous

separate adventures of like character”).

The en banc court of appeals’ statement that the second

indictment “contained no specific charge that the conspiracy

itself was separate from the conspiracy alleged in the first

indictment” (Pet. App. 21a) is irrelevant. The scope of any

conspiracy is the scope of the unlawful agreement. See /an-

nelliv. United States, 420 U.S. 770, 777 (1975); Braverman

v. United States, 317 U.S. 49, 52-53 (1942). To charge that

there were two different agreements, therefore, is to charge

that there were two separate conspiracies. There is no need

for a distinct statement that an agreement beginning in July

1979 was a different agreement from one beginning in April

1978. Because each indictment in this case charged an agree-

ment to rig bids on a particular project, respondents’ guilty

pleas admitted participation in separate conspiracies and

precluded a later evidentiary hearing to determine whether

there was in fact only one conspiracy. See United States v.

Allen, 724 F.2d 1556, 1557-1558 (11th Cir. 1984) (refusing

to consider claim that two counts in the indictment “con-

stituted a single offense for which [defendant] could receive

only a single sentence”); United States v. Pratt, 657 F.2d

218, 220-221 (8th Cir. 1981) (rejecting argument “that

Menna * * * requires us to reach the merits of Pratt's

double-jeopardy argument”); Aerrigan, 644 F.2d at 49

(observing that Mlenna does not hold “that a defendant who

pleaded guilty may later contest the factual and theoretical

foundations of the indictment to which he pleaded [guilty],

23

so as to show that, in fact, he committed only a single

offense”).'!

In this case no showing sufficient to support a double

jeopardy defense could have been made without contradic-

ting the factual allegations of the indictments. We think it

equally clear, however, that a defendant should not be

allowed to attack a conviction based on a guilty plea when

the attack depends on supplementing the record with fac-

tual findings. It is not the role of an indictment to negate

all possible defenses (United States v. Sisson, 399 U.S. 267,

288 (1970)), and it will often be the case that the factual

aliegations in an indictment, although they do not show a

violation of the Double Jeopardy Clause, are not sufficient

to disprove the double jeopardy defense either. A defend-

ant 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 indict-

ment are untrue or by proving other facts that are neither

alleged in nor contradicted by the indictment. But a defend-

ant who chooses to plead guilty rather than make such a

factual showing forgoes the procedure that the law provides

and thus forfeits his right to make that showing.

The court of appeals’ holding that respondents were en-

titled to an evident*ary hearing on factual issues resolved

by their guilty pleas 1s unprecedented. Although some other

'' See also United States v. Griffin, 768 F.2d 677, 680-682 (7th Cir.

1985); United States v. Solomon, 726 F.2d 677, 678 n.2 (11th Cir. 1984);

United States v. Herzog, 644 F.2d 713, 716 (8th Cir.), cert. denied, 451

U.S. 1018 (1981); Brown v. Marvland, 618 F.2d 1057, 1058-1059 (4th

Cir.), cert. denied, 449 U.S. 878 (1980); cf. United States v. Sheehy,

S41 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, S68 F.2d 127, 1232 (2d Cir. 1977) (double jeopardy argument

waived if not asserted before trial); United States \. Bascaro, 742 F.2d

1338, 1368 (1ith Cir. 1984) (same), cert. denied, 472 U.S. 1017 (1985)

24

courts of appeals have allowed double jeopardy attacks on

prior guilty pleas, no court of appeals has allowed the de-

fendant to impeach factual determinations inherent in the

making and acceptance of an otherwise valid guilty plea.

In most cases in which a double jeopardy claim has been

aliowed, the courts have stressed that no factual issue was

presented. See Launius v. United States, 575 F.2d 770, 771

(9th Cir. 1978) (“[i]t appeared on the face of the indictment

that but one agreement was involved and hence but one con-

spiracy”); United States v. Baugh, 787 F.2d 1131, 1132 (7th

Cir. 1986) (“This court need not transcend the four corners

of the information in this case in order to assess the validi-

ty of Baugh’s claim.”); United States v. Broussard, 645 F.2d

504, 505 (Sth Cir. 1981) (rejecting double jeopardy claim

without requiring fact finding); see also United States v.

Blocker, 802 F.2d 1102, 1104-1105 (9th Cir. 1986) (same).

In only one case other than this one has a court allowed

a double jeopardy defense based on fact finding, but even

in that case the court was careful to note that it would not

(as the court below did) allow a defendant to impeach the

factual determinations made by the plea: “A petitioner 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.”

United States v. Atkins, 834 F.2d 426, 439 (Sth Cir. 1987).'?

> For the reasons stated at p. 23, supra, we believe that Afkins was

wrongly decided. In 4AsKins, the allegations in the indictment did not

establish a double jeopardy claim but neither did they demonstrate that

no such clave could be valid. In those circumstances, the court found

turther tacttinding appropriate. There is, however, no support in this

Court's cases tor such a procedure. To the contrary, a defendant who

elects not to put the government to its proof at the time of his plea

in effect stipulates that he will not call on the government to prove its

case (see Bovkin, 398 U.S. at 242-243 n.4). The guilty plea should

25

There is no justification for allowing a factual inquiry

into whether two facially distinct crimes to which a defend-

ant has pleaded guilty were in fact the same offense, and

the court of appeals provided none except its erroneous

reading of Blackledge and Menna as cases attaching

talismanic significance to any and all invocations of the

Double Jeopardy Clause. Indeed, the decision of the court

of appeals, if affirmed, would simply encourage defendants

to challenge their sentences long after their guilty pleas are

entered. Any incarcerated 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 the right to a factual determination whether

those crimes are actually distinct. That would be true not-

withstanding the defendant’s failure to raise this factual issue

at any time before pleading guilty, and it would be true no

matter how much time has passed since conviction.'? The

double jeopardy claim would seldom prove meritorious, but

it would rarely be possible to dispose of the claim without

a hearing. As the requirement of a factual hearing is asserted

to be of federal constitutional origin, this claim would 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, the defend-

ant’s right to obtain a factual determination of his double

foreclose later factual proceedings designed to supplement the allega-

tions of the indictment as weil as later factual procsaengs designed

to contradict the allegations of the indictment.

'’ Cf. United States v. Griffin, 765 F.2d 677, 681-682 (7th Cir. 1985)

(because “it would be to the defendant's tactical advantage to delay

bringing * * * multiplicity claim until after trial” since government's

evidence may be lost or become stale, defendant is required to assert

multiplicity defense based on indictment before trial).

26

jeopardy claim includes the right to contradict facts he ad-

mitted in his plea-taking or sentencing hearing.

Nothing in Blackledge or Menna suggests any such result.

Indeed, such a result is inconsistent with this Court’s prior

decisions concerning the effect of guilty pleas and the finality

of convictions. See, e.g., Kercheval v. United States, supra;

McCarthy v. United States, supra; Santobello v. New York,

404 U.S. 257, 261 (1971) (plea bargaining “leads to prompt

and largely final disposition of most criminal cases”):

Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“dispositions

by guilty plea are accorded a great measure of finality”);

Mabry v. Johnson, 467 U.S. at 508 (footnote omitted) (“It

is well settled that a voluntary and intelligent plea of guilty

made by an accused person, who has been advised by com-

petent counsel, may not be collaterally attacked.”). Re-

spondents’ claim of double jeopardy — unlike the constitu-

tional claims presented in Blackledge and Menna — depends

on factual assertions that are inconsistent with, or go

beyond, the facts set forth in the indictments and admitted

by their guilty pleas. The court of appeals erred in allow-

ing respondents to repudiate those admissions, and its deci-

sion, therefore, should be reversed.

B. Respondents Were Not Entitled To Repudiate Their Guilty Pleas

After Inducing the Government To Rely on Those Pleas

There is a second and independent reason why

respondents should not be permitted to make a collaterai

attack on their convictions here. Respondents entered into

a plea agreement under which the United States agreed not

(O prosecute them on other charges in return for their pleas

of guilty to two conspiracy charges. The plea agreement was

a Valid contract. Having entered into it and received its bene

Hits, respondents should not have been allowed to repudiate

their halt of the bargain

27

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

Government oppression, does not relieve a defendant from

the consequences of his voluntary choice.” United States

Vv. Scott, 437 U.S. 82, 99 (1978).'4 Just last Term, 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, the 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 holds that a defendant may valid-

ly agree to a bargain that includes the possibility of a sec-

'* This statement from Scott encapsulates the underlying principle

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

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

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

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

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

437 U.S. at 93; Sanabria vy. United States, 437 U.S. $4, 63 n.15 (1978).

For example, multiple 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 de-

tendant is normally entitled to have charges on a greater and a lesser

ottense resolved in one proceeding, there is no violation of the Double

leopardy Clause when he elects to have the two offenses tried separately

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

Svates, 432 U.S. 137, 182 (1977) (plurality opinion) (footnote omitted).

\nd the Court has held that a defendant's guilty plea to a lesser in-

cluded offense does not bar trial on the greater offense charged along

with it, fit was the defendant's effort that led to “separate disposition

of counts in the same indictment.” Ohio v. Johnson, 467 U.S. 493. $02

(1984). See also Garrett v. United States, 471 U.S. 773, 798 (1985)

(Connor, J., concurring)

28

ond prosecution for the same offense. If he chooses to take

actions 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).

This case is very similar in that respect to Adamson. In

each case a defendant made an agreement that did not men-

tion the Double Jeopardy Clause'* but in which he obtained

substantial benefits for his guilty plea. In Adamson, the

defendant entered a plea of guilty and promised to testify

on behalf of the State, in exchange for which he gained a

substantial benefit — the substitution of the charge of second-

degree murder in place of the first-degree murder charge

and the prospect of the death penalty. Here, in exchange

for their agreements to plead guilty to the Meade County

bid-rigging indictment and the Barton County bid-rigging

allegations, respondents got the benefits of no further prose-

cution for bid rigging in either Kansas or Oklahoma, a

dismissal of the mail fraud count, and a recommendation

(which the trial court accepted) of less than the maximum

fine. Both in Adamson and in this case, the defendants were

thoroughly counseled by an attorney in the plea-bargaining

process. In both cases, the defendants knew very well the

meaning of their pleas. Finally, in both cases the defendants

breached their plea agreements. The cases differ in the relief

sought by the prosecution. On the defendant’s breach in

Adamson, the prosecution relied on the terms of the agree-

ment, which entitled the State, on the defendant’s breach,

to return to the status quo ante and prosecute the defendant

for first-degree murder. In this case the prosecution seeks

specific performance of the plea agreement to the extent

of holding respondents to their pleas

‘in Adamson this Court concluded that the fact “that ‘double

jeopardy’ was not specifically waived by name in the plea agreement”

Was irrelevant (slip op. 7)

29

Like the defendant in Adamson, respondents in this case

made a voluntary choice. Rather than risk prosecution on

all of their bid-rigging activities in Kansas and Oklahoma,

they agreed to plead guilty to specific charges in exchange

for the government’s agreement not to prosecute them fur-

ther (and other government concessions). Now that respond-

ents have received those benefits, they would 'ike to “use

the Double Jeopardy Clause as a sword” (Ohio v. Johnson,

467 U.S. at 502) and avoid their obligations under the plea

agreement. But if the government may, as in Adamson,

prosecute a defendant on the origina! charges following the

defendant’s breach of a plea agreement, then the govern-

ment should also be permitted to hold the defendant to the

plea agreement in the first place without regard to 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 con-

templated 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 have struck a

* Respondents have permanently obtained the benefit of their

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

United States from prosecuting respondents in response to their refusa

to pay the full fines imposed pursuant to the plea agreement. Mr. Broce

testified under a grant of immunity at several Oklahoma tria

Moreover, the passage of time, even if the statute of limitat

of vet expired, makes an Oklahoma prosecution a most unattr

30

different bargain, but permitting the [United States] to en-

force the agreement the parties actually made does noi

violate the Double Jeopardy Clause” (Adamson, slip op.

10).!7

This Court has long recognized that plea agreements “are

consistent with the requirements of voluntariness 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 (foot-

note omitted). When both the prosecution and the defense

make concessions to secure a plea bargain that provides

and perhaps impossible alternative. As is often the case when a con-

stitutional claim is raised for the first time on collateral attack after

an earlier guilty plea, the government is no longer in a position to go

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

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

681-682; Westen, Away from Waiver: A Rationale for the Forfeiture

of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214,

1238-1236, 1248, 1257 (1977); see also Kuhimann v. Wilson, 477 U.S.

436, 453 (1986) (opinion of Powell, J.); Davis v. United States, 411

U.S. 233, 241 (1973)

4dumson did not, of course, involve the prohibition embodied

in the Double Jeopardy Clause against multiple punishments for the

same offense. But the acceptance of the possibility that the sentencing

court would impose multiple punishments for the two conspiracy

charges in this case was part of the bargain that respondents struck with

the government, in return tor the nonprosecution of charges that car

ried with them the potential for substantial additional punishment

Respondents acknowledged as much (see p. 4, supra). There ts no logical

why a defendant who strikes such a bargain should be able to

scape from his bargain any more readily than the defendant who

agrees, in return tor the dropping of other charges, to plead guilty to

t “really” commit. “Respondent(s} [were]

, -onsequences when [they] pleaded guilty; i

with those consequences now —

31

benefits to each, a court should respect the bargain. The

question whether the government could otherwise have

prosecuted the defendants on each of two counts is prop-

erly treated as foreclosed by the parties’ agreement. See

United States v. Pratt, supra; United States v. Allen, supra.

Nothing in Blackledge or Menna affects this analysis, for

neither case involved an agreement not to bring other

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

ferent 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 bargain-

ing between the prosecution and defense.” Bordenkircher

v. Hayes, 434 U.S.357, 362 (1978); United States v. Good-

win, 457 U.S. 368, 375-380 (1982); see also Blackledge, 417

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

The government’s reliance interest is one that Members

of this Court have recognized as an important considera-

tion in determining whether a guilty plea should be set aside.

See Dukes v. Warden, 406 U.S. 250, 258 (1972) (Stewart,

J., concurring); id. at 266 (Marshall, J., dissenting) (“Where

the government can show specific and substantial harm, the

defendant may be held to his plea.”); id. at 271 n.9 (“Ours

is not a case in which, prior to the defendant’s motion to

vacate his plea, the government had performed its part of

a plea bargain and could not be restored to the status quo

ante.”) It was respondents’ conduct on which the govern-

ment relied in failing to prosecute any Oklahoma charges

against respondents, and respondents should not be permit-

ted first to induce that reliance by the government and then

to take advantage of the government's consequent actions.

See Westen, supra, 75 Mich. L. Rev. at 1259 (footnote

omitted) (a defendant “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 outstand-

ing charges”); Westen, Forfeiture by Guilty Plea— A Reply,

32

76 Mich. L. Rev. 1308, 1322 & n.49 (1978); 2 W. LaFave

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

United States v. Pratt, 657 F.2d at 220 (Pratt “pleaded guil-

ty, presumably, because he preferred the ceriainty of a max-

imum of ten years to the risk of conviction and punishment

on each of six counts. * * * [W]e think it would be unfair

to the United States * * * to consider now the double-

jeopardy claim urged by defendant.”); see also 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 oppor-

tunity to prosecute in order to please the defendant”);

Brilmayer, State Forfeiture Rules and Federal Review of

State Criminal Convictions, 49 U. Chi. L. Rev. 741, 760-761

n.91 (1982).

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. The result

of the decision below is that respondents will have secured

the full benefit of the government’s promise while paying

only the fines assessed on one count. Had respondents raised

their double jeopardy argument at the time of plea negotia-

tions, the government might 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 chose a dif-

ferent course, withholding their double jeopardy 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 re-

quires that result.

CONCLUSION

The judgment of the court of appeals shouid be reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

CHARLES F. RULE

Assistant Attorney General

Louts 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

Attorneys

May 1988

US GOVERNMENT PRINTING OFFICE 1988— 202.037/60582