Broce case
In that case, District Judge Saffels found, after an evidentiary hearing, that a second prosecution, for conspiracy to rig bids on Kansas highway construction projects, of defendants who had previously been acquitted by a jury under an indictment differing from the second only with respect to the specific named project and other irrelevant matters, was contrary to the Double Jeopardy Clause. Beachner Construction Co., Inc., 555 F.Supp.
This motion was prompted by a memorandum and order filed on January 31, 1983, in a similar case in the same judicial district, United States of America v. 83-2558) claiming that the judgment and sentence therein were illegal for violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
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35(a), 1 filed a motion to vacate the judgment and sentence of the trial court in the second-filed case (here No. On February 22, 1983, the defendants, pursuant to F.R.Crim.P. was allowed to pay its fines in installments and still owes a substantial sum despite timely payments. Broce paid his $100,000 total fines on June 2, 1982, and Broce received a $50,000 fine and two years imprisonment for each anti-trust charge, the two 2-year prison terms to run concurrently. received a $750,000 fine for the antitrust count in each case, for a total fine of $1,500,000, and Ray C. Subsequently, on March 15, 1982, sentence was pronounced in both cases Broce Construction Co. Broce was at any time advised of his and the defendant corporation's double jeopardy rights or that these rights were ever considered by any party to the proceedings. The record of these proceedings does not disclose, however, that Mr.
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Broce, appearing both on his own behalf and on behalf of the corporation, was advised of and waived both defendants' rights to be represented by separate counsel, to have a speedy and public trial by a jury, to cross-examine all opposing witnesses, to utilize compulsory process, to be free from compelled self-incrimination, and to be presumed innocent until the government established guilt by competent evidence to the satisfaction of the judge or jury beyond a reasonable doubt. (ROA at 150).Īccordingly, on February 8, 1982, defendants entered pleas of guilty to both pending indictments.
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Threatened by government prosecutors with a series of further indictments for each highway project believed to have been rigged, defendants accepted a plea bargain wherein they agreed to plead guilty to two indictments charging conspiracy to violate the Sherman Act in exchange for the government's promise not to prosecute them "for or on account of any collusion between defendant and other contractors regarding any other highway, street or airport runway construction projects let by awarding authorities within the States of Kansas and Oklahoma prior to the date" of the plea bargain. KRL 29-2(26) and let by the State on July 17, 1979. 82-20011-01 below) charging violation of the Sherman Act in connection with a conspiracy to rig bids on yet another Kansas highway construction job, designated Project No.
On February 4, 1982, the same grand jury returned a second indictment against defendants in Case No.
The mail fraud count of this indictment is not involved in this appeal and will not be discussed further. 1341 (1976), in connection with a conspiracy to rig bids submitted to the State of Kansas on a particular highway construction job, designated by the State as Project No. 1 (1976), and, in Count II, violation of the mail fraud statute, 18 U.S.C. That indictment charged, in Count I, violations of the Sherman Act, 15 U.S.C. The central issue on appeal is whether the trial court's finding of waiver was erroneous.ĭefendants were indicted by a grand jury in Case No.
The district court, without making a finding as to whether the two sentences did in fact violate the Double Jeopardy Clause, found that defendants had waived their rights to raise that issue by pleading guilty to the indictment supporting the judgment and sentence challenged. Defendants claim that the judgment and sentence in question are in violation of the Double Jeopardy Clause of the United States Constitution. Broce (hereinafter "defendants") appeal from an order of the United States District Court for the District of Kansas denying their motion to vacate the judgment and sentence entered by that court March 15, 1981, in one of the two cases combined here on appeal. Him on brief), of Schneider & Casebeer, Coffeyville, Kan., for defendants-appellants.īefore SETH and DOYLE, Circuit Judges, and BOHANON, Senior District Judge. of Justice, Chicago, Ill., with him on brief), for plaintiff-appellee. United States Court of Appeals, Tenth Circuit BROCE and Broce Construction Company, Inc., UNITED STATES of America, Plaintiff-Appellee,