ON REHEARING EN BANC
JOHN P. MOORE, Circuit Judge.
These cases are before the court for rehearing en banc. The questions presented are whether a plea of guilty constitutes a waiver of a defendant’s right to assert a violation of the Double Jeopardy Clause of the Fifth Amendment and whether the second of two indictments charging a Sherman Act conspiracy is duplicitous of the first. We hold that a guilty plea does not waive the defense of double jeopardy under the circumstances of this case. We further hold the record requires a remand of this case for a hearing to determine as a matter of fact whether the acts charged constitute one or two conspiracies. We therefore reverse the judgment of the district court.
On November 7, 1981, a two count indictment was returned charging defendants, Ray C. Broce and Broce Construction Co., Inc., with conspiracy to violate the Sherman Act, 15 U.S.C. § 1. In the second count, Mr. Broce was charged with mail fraud, 18 U.S.C. § 1341. On February 4, 1982, a second indictment was returned [794]*794charging Mr. Broce and the corporation in one count with violation of 15 U.S.C. § 1.
On February 8, 1982, pursuant to a plea agreement between the government and the two defendants, Mr. Broce appeared and entered pleas of guilty to both indictments in his own behalf and as president of the corporation. Subsequently, Broce was sentenced to concurrent two-year terms and fined $50,000 on the conspiracy counts of both indictments. The corporation was fined $750,000 on each indictment.
One year later, both defendants filed motions pursuant to Fed.R.Crim.P. 35(a) to vacate the judgments alleging their conviction on the second indictment violated the Double Jeopardy Clause of the Fifth Amendment. The defendants asserted the conspiracy counts charged a single transaction rather than two separate conspiracies; hence, the second charge was unconstitutionally duplicitous and void. This contention was motivated by a ruling from another judge in the same district dismissing an indictment in a companion case.
The defendants, Broce and the Broce Construction Company, were actively engaged in the highway construction business in the state of Kansas for a number of years prior to the indictments. Indeed, these indictments grew out of that very activity, as did the indictment in the companion case, United States v. Beachner Construction Co., Inc., 555 F.Supp. 1273 (D.Kan.1983). In Beachner, as here, the defendants had been indicted on a charge of conspiracy to rig bids on a particular Kansas highway project. After trial and acquittal on this charge, the defendants were again indicted on a second conspiracy charge connected to a different highway project. Id. at 1274. Prior to trial, the defendants moved to dismiss the indictment on double jeopardy grounds. After a three-day evidentiary hearing pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the trial court concluded there had been a pervasive conspiracy to rig bids in the Kansas highway construction industry that had existed for “in excess of twenty-five years.” Beachner, supra, at 1277. Accordingly, the court dismissed the indictment and the government appealed. The ruling was affirmed by this court. United States v. Beachner Construction Co., Inc., 729 F.2d 1278 (10th Cir.1984).
The hearing from which the present appeal emanates occurred after the Beachner appeal but before our affirmance of the dismissal. In order to focus the issues in this case, Broce and the government stipulated that the record of the Beachner hearing could be considered by the trial court in ruling on appellants’ Rule 35 motion. That record is also before us. Following the hearing, and before the publication of our opinion in Beachner, the trial court denied relief, holding as a matter of law, the defendants had waived their right to raise the double jeopardy issue by their guilty pleas. This appeal followed.
The panel which originally heard this case ordered reversal of the trial court’s judgment. United States v. Broce, 753 F.2d 811 (10th Cir.1985). That opinion was vacated and rehearing was granted to consider whether the guilty pleas are admissions by the defendants that there were actually two conspiracies and whether the defendants could collaterally attack the foundations of an indictment following a plea of guilty.
I.
The government contends a fundamental principle in this circuit is that the double jeopardy defense is personal and subject to waiver. Cox v. Crouse, 376 F.2d 824 (10th Cir.), cert. denied, 389 U.S. 865, 88 S.Ct. 128, 19 L.Ed.2d 136 (1967); Caballero v. Hudspeth, 114 F.2d 545 (10th Cir.1940). On that premise the government argues that an unconditional plea of guilty constitutes that waiver, Caballero, supra, and precludes a challenge of the indictment. Although the panel held that Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), compel a reversal of Caballero, the government takes issue with this re-[795]*795suit. The government further postulates allowing a collateral attack will encourage defendants to challenge their sentences “long after their guilty pleas are entered, thus undermining the finality of convictions and increasing the already heavy workload of the federal courts.”
These contentions were considered and rejected in Blackledge, supra.1 There, in response to an argument that a due process claim could not be asserted following a guilty plea, the Supreme Court stated when the claim of constitutionality goes to “the very power of the State to bring the defendant into court to answer the charge,” a guilty plea does not waive the constitutional issue. Blackledge, 417 U.S. at 30, 94 S.Ct. at 2103.
The essential right with which the court dealt in Blackledge and with which we are concerned here is the “right not to be haled into court at all.” Blackledge, 417 U.S. at 30, 94 S.Ct. at 2104. Indeed, as the court noted in Robinson v. Neil:
The guarantee against double jeopardy is significantly different.... While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all....
409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973) (emphasis added).
This is the first occasion we have had to reconsider the nature of the double jeopardy right and its effect on a guilty plea since Blackledge and Menna.2 The present opportunity convinces us our previous holding in Caballero is no longer apposite. As already noted in Menna, supra, and Robinson, supra,
Free access — add to your briefcase to read the full text and ask questions with AI
ON REHEARING EN BANC
JOHN P. MOORE, Circuit Judge.
These cases are before the court for rehearing en banc. The questions presented are whether a plea of guilty constitutes a waiver of a defendant’s right to assert a violation of the Double Jeopardy Clause of the Fifth Amendment and whether the second of two indictments charging a Sherman Act conspiracy is duplicitous of the first. We hold that a guilty plea does not waive the defense of double jeopardy under the circumstances of this case. We further hold the record requires a remand of this case for a hearing to determine as a matter of fact whether the acts charged constitute one or two conspiracies. We therefore reverse the judgment of the district court.
On November 7, 1981, a two count indictment was returned charging defendants, Ray C. Broce and Broce Construction Co., Inc., with conspiracy to violate the Sherman Act, 15 U.S.C. § 1. In the second count, Mr. Broce was charged with mail fraud, 18 U.S.C. § 1341. On February 4, 1982, a second indictment was returned [794]*794charging Mr. Broce and the corporation in one count with violation of 15 U.S.C. § 1.
On February 8, 1982, pursuant to a plea agreement between the government and the two defendants, Mr. Broce appeared and entered pleas of guilty to both indictments in his own behalf and as president of the corporation. Subsequently, Broce was sentenced to concurrent two-year terms and fined $50,000 on the conspiracy counts of both indictments. The corporation was fined $750,000 on each indictment.
One year later, both defendants filed motions pursuant to Fed.R.Crim.P. 35(a) to vacate the judgments alleging their conviction on the second indictment violated the Double Jeopardy Clause of the Fifth Amendment. The defendants asserted the conspiracy counts charged a single transaction rather than two separate conspiracies; hence, the second charge was unconstitutionally duplicitous and void. This contention was motivated by a ruling from another judge in the same district dismissing an indictment in a companion case.
The defendants, Broce and the Broce Construction Company, were actively engaged in the highway construction business in the state of Kansas for a number of years prior to the indictments. Indeed, these indictments grew out of that very activity, as did the indictment in the companion case, United States v. Beachner Construction Co., Inc., 555 F.Supp. 1273 (D.Kan.1983). In Beachner, as here, the defendants had been indicted on a charge of conspiracy to rig bids on a particular Kansas highway project. After trial and acquittal on this charge, the defendants were again indicted on a second conspiracy charge connected to a different highway project. Id. at 1274. Prior to trial, the defendants moved to dismiss the indictment on double jeopardy grounds. After a three-day evidentiary hearing pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the trial court concluded there had been a pervasive conspiracy to rig bids in the Kansas highway construction industry that had existed for “in excess of twenty-five years.” Beachner, supra, at 1277. Accordingly, the court dismissed the indictment and the government appealed. The ruling was affirmed by this court. United States v. Beachner Construction Co., Inc., 729 F.2d 1278 (10th Cir.1984).
The hearing from which the present appeal emanates occurred after the Beachner appeal but before our affirmance of the dismissal. In order to focus the issues in this case, Broce and the government stipulated that the record of the Beachner hearing could be considered by the trial court in ruling on appellants’ Rule 35 motion. That record is also before us. Following the hearing, and before the publication of our opinion in Beachner, the trial court denied relief, holding as a matter of law, the defendants had waived their right to raise the double jeopardy issue by their guilty pleas. This appeal followed.
The panel which originally heard this case ordered reversal of the trial court’s judgment. United States v. Broce, 753 F.2d 811 (10th Cir.1985). That opinion was vacated and rehearing was granted to consider whether the guilty pleas are admissions by the defendants that there were actually two conspiracies and whether the defendants could collaterally attack the foundations of an indictment following a plea of guilty.
I.
The government contends a fundamental principle in this circuit is that the double jeopardy defense is personal and subject to waiver. Cox v. Crouse, 376 F.2d 824 (10th Cir.), cert. denied, 389 U.S. 865, 88 S.Ct. 128, 19 L.Ed.2d 136 (1967); Caballero v. Hudspeth, 114 F.2d 545 (10th Cir.1940). On that premise the government argues that an unconditional plea of guilty constitutes that waiver, Caballero, supra, and precludes a challenge of the indictment. Although the panel held that Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), compel a reversal of Caballero, the government takes issue with this re-[795]*795suit. The government further postulates allowing a collateral attack will encourage defendants to challenge their sentences “long after their guilty pleas are entered, thus undermining the finality of convictions and increasing the already heavy workload of the federal courts.”
These contentions were considered and rejected in Blackledge, supra.1 There, in response to an argument that a due process claim could not be asserted following a guilty plea, the Supreme Court stated when the claim of constitutionality goes to “the very power of the State to bring the defendant into court to answer the charge,” a guilty plea does not waive the constitutional issue. Blackledge, 417 U.S. at 30, 94 S.Ct. at 2103.
The essential right with which the court dealt in Blackledge and with which we are concerned here is the “right not to be haled into court at all.” Blackledge, 417 U.S. at 30, 94 S.Ct. at 2104. Indeed, as the court noted in Robinson v. Neil:
The guarantee against double jeopardy is significantly different.... While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all....
409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973) (emphasis added).
This is the first occasion we have had to reconsider the nature of the double jeopardy right and its effect on a guilty plea since Blackledge and Menna.2 The present opportunity convinces us our previous holding in Caballero is no longer apposite. As already noted in Menna, supra, and Robinson, supra, the Fifth Amendment’s Double Jeopardy Clause stands as an inhibition upon the government’s right to institute charges. This inhibition is absolute, and even though the bar works as a protection of individuals, it does not constitute an individual right which is subject to waiver. If the absence of constitutional authority prevents the government from instituting charges in the first instance, a defendant’s guilty plea cannot confer authority upon the government to do what the Constitution prohibits. In light of this fundamental constitutional concept, the doctrine of waiver has no significance.3
Hence, the Broce guilty pleas do not constitute a bar to questioning whether the Double Jeopardy Clause prohibits the institution of the second indictment and vitiates those very pleas. It also follows that if the institution of the charge under attack is constitutionally defective, it is not a significant concern that collateral attack affects the finality of the judgment. If the charge upon which the judgment is based is constitutionally infirm, either on due process or double jeopardy grounds, that judgment cannot be “final.” Cf. Haring v. Prosise, 461 U.S. 954, 103 S.Ct. 2424, 77 L.Ed.2d 1313 (1983).
[796]*796The government argues that “almost every other court of appeals that has considered the issue [of waiver] since Black-ledge and Menna has held that double jeopardy is a personal defense that is waived by a guilty plea where, as here, the plea is the result of a plea bargain.” This argument is not well-founded. Examination of the cases cited in support of the government’s proposition discloses neither Black-ledge nor Menna were considered. See United States v. Solomon, 726 F.2d 677 (11th Cir.1984); United States v. Herzog, 644 F.2d 713 (8th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); Brown v. State, 618 F.2d 1057 (4th Cir.), cert. denied, sub nom. Brown v. Maryland, 449 U.S. 878, 101 S.Ct. 224, 66 L.Ed.2d 100 (1980); and United States v. Perez, 565 F.2d 1227 (2d Cir.1977).
In addition, the government suggests allowing the defendants to challenge their pleas is both inconsistent and inequitable. In reliance upon Kerrigan v. United States, 644 F.2d 47 (1st Cir.1981), the government argues a defendant who pled guilty cannot be permitted to make arguments “inconsistent with the factual and theoretical foundations of the indictment.” On this premise, the government contends Kerrigan supports the government’s waiver theory. Yet, in discussing the issue of the defendant’s waiver, the Kerrigan court did not consider Blackledge or its effect on the issue. Since Blackledge is the keystone in the issue of waiver under consideration here, Kerrigan cannot be regarded as persuasive authority.4 Accordingly, the cardinal principle that the government’s authority to charge is not subject to waiver by the accused has not been undercut since Blackledge and must remain the principle by which we are guided here.
Contrary to the government’s insistence upon equity, the defendants’ plea bargain cannot work an estoppel of their right to assert the invalidity of the charge. When the government enters into an agreement which is fashioned upon a constitutionally infirm charge, it cannot be heard to claim equity prohibits the defendants from raising the fundamental infirmity of the charging power. The government argues that because adherence to the plea agreement required it to forsake the possibility of instituting additional conspiracy charges in another district, it would be unfair to allow the defendants to obtain the benefits of the plea bargain and avoid the detriments. This argument overlooks that the government was without power to institute one of the charges upon which the plea agreement was based. In effect, that agreement was partially founded upon a nullity. As a matter of immutable principle, the government’s constitutional inability to charge in the first instance is not diminished simply because it bargained away a prosecutorial advantage. The fundamental right not to be haled into court cannot be compromised on such grounds.
The government has also argued the defendants’ pleas of guilty must be considered admissions of all the facts alleged in the indictments; therefore, they cannot contest the validity of the second charge. The prosecution contends that the indictments effectively alleged the existence of two conspiracies; therefore, having admitted that allegation by their pleas of guilty, the defendants cannot be heard to contend there was only one conspiracy in fact. United States v. Kerrigan, supra. The argument is unpersuasive. First, as distinguished from Kerrigan, the present indictments did not specifically allege separate conspiracies. While the second indictment alleged a conspiracy to rig bids on particular highway projects, it contained no specific charge that the conspiracy itself was separate from the conspiracy alleged in the first indictment. Second, 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. Launius v. United States, 575 F.2d 770 (9th Cir.1978).
[797]*797Accordingly, we now hold, as mandated by Menna, a defendant’s plea of guilty to a constitutionally duplicitous charge is not a waiver of that defendant’s right to assert a double jeopardy claim. While there have been many cases which have held to the contrary, none of those have dealt with what Blackledge has characterized as the right not to be haled into court and what we recognize as the government’s lack of constitutional power to charge. We find ourselves aligned with the Ninth Circuit in Launius and give full cognizance to the true nature of the double jeopardy right.5
II.
The remaining question is whether the indictments to which the defendants pled charged one or two Sherman Act conspiracies. As in Beachner, supra, a detailed paragraph by paragraph comparison of the two Broce indictments reveals their virtual identity except for references to different Kansas highway projects. Thus, on their face the two indictments do not appear to charge different conspiracies.
As previously indicated, the parties stipulated in the trial court that the transcript from the evidentiary hearing on the double jeopardy issue in Beachner would be incorporated in the record in this case. Thus, our opinion in Beachner must have weight here. The government asserts our previous ruling has no bearing on this ease because we merely held in Beachner the findings of the trial court were not clearly erroneous. The government also argues that the question of whether the charges were of single or multiple conspiracies must be resolved from the face of the indictments, and not from the underlying facts.
Whatever the approach taken in other cases in determining the nature of the charged conspiracy, the stipulation to include consideration of the Beachner transcript presents a unique case and permits inquiry behind the indictment. Having conceded the applicability of the facts developed in that hearing, the government is not in the position to argue our examination of the issue must be confined to the pleadings. Can that stipulation by the government be regarded as anything but a concession on its part that the facts of the two cases are so intertwined that one is relevant to the other in consideration of the same legal issue? We think not.
We now have before us a case which is factually linked to another in which we have already found testimony that established a “continuous, cooperative effort among Kansas asphalt contractors to rig bids” for “more than twenty-five years.” Beachner, 729 F.2d at 1282. Moreover, that testimony established the existence of a “common method” of bid-rigging that was “well-known” and open among all the contractors. Id. We found evidence that “mutual and interdependent obligations were created between participating contractors” and that “the bid-rigging scheme was self-perpetuating in nature.” Id. We then added: “The evidence showed that asphalt contractors in Kansas understood for over twenty-five years that the ability to rig bids was available using the aforementioned method. There was, therefore, no lack of conspiratorial agreement in this case.” Id. at 1283.
When the two indictments are viewed in this factual matrix, a significant question arises whether, under the unique circumstances of this case, the defendants stood charged with participation in only one longstanding conspiracy. Moreover, on the face of the indictments, it appears the transactions set forth were mere elements in that conspiracy, and not independent conspiracies themselves. Compare United States v. Behrens, 689 F.2d 154 (10th Cir.1982); United States v. McMurray, 680 F.2d 695 (10th Cir.1981); United States v. Palermo, 410 F.2d 468 (7th Cir.1969).
Notwithstanding, the question of whether the indictments charged one or two conspiracies is, in the context of this case, wholly factual. Despite the existence of [798]*798the Beachner record and our opinion in that case, the trial court has made no determination of those essential facts, and we are not wont to do so. While Beachner could logically be regarded as a significant signpost, our system requires the road to be first chosen by the trial court and not by us. In this instance, what must follow is a determination of the kind mandated in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and we must remand for that purpose. We are therefore returning this case for further proceedings at the point at which the trial court arrived at an erroneous conclusion.
We hold the defendants’ plea of guilty is not a bar in this case to consideration of whether the charge contained in the second indictment is void because of the Double Jeopardy Clause of the Fifth Amendment. The judgment of the trial court denying the defendants’ motion to vacate sentence in 83-2558 is reversed, and the case is remanded for a factual determination on only the evidence originally presented upon the filing of defendants’ motions, including the stipulation between the parties. There being no error alleged in 83-2559, the appeal is dismissed.