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.
On February 22, 1983, the defendants, pursuant to F.R.Crim.P. 35(a), filed a motion to vacate the judgment and sentence of the trial court in the second-filed case (here No. 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. 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. Beachner Construction Co., Inc., 555 F. Supp. 1273 (D.Kan. 1983), affirmed by this court, 729 F.2d 1278 (10th Cir. 1984). 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.
Under this test, the inquiry focuses on the overlap of various characteristics of the two purported conspiracies. See United States v. Mallah, supra, 503 F.2d at 981-87; United States v. Papa, supra, 533 F.2d 820-22; United States v. Price, 533 F. Supp. 1183, 1187-89 (W.D.N.Y. 1982) (narcotics conspiracy); United States v. Beachner Construction Company, Inc., 555 F. Supp. 1273, 1276-82 (D.Kan. 1983), aff'd, 729 F.2d 1278 (10th Cir. 1984) (antitrust — price-fixing conspiracy); United States v. Wilshire Oil Company of Texas, 427 F.2d 969, 975-77 (10th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970) (same); United States v. Sinito, 723 F.2d 1250, 1257-59 (6th Cir. 1983) (RICO conspiracy); United States v. Tercero, 580 F.2d 312, 315-17 (8th Cir. 1978) (narcotics conspiracy); United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981) (same); Note, "Single vs. Multiple" Criminal Conspiracies: A Uniform Method of Inquiry for Due Process and Double Jeopardy Purposes, 65 Minn.L.R. 295, 310-11 (1980) (Note). * * *
United States v. Mobile Materials, Inc., 881 F.2d 866, 869 (10th Cir. 1989), cert. denied, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990) (quoting United States v. Portsmouth Paving Corp., 694 F.2d 312, 325 (4th Cir. 1982)) (emphasis added). See also United States v. W.F. Brinkley Son Constr. Co., 783 F.2d 1157, 1160 (4th Cir. 1986); United States v. Koppers Co, Inc., 652 F.2d 290, 294 (2nd Cir. 1981), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 617 (1981); United States v. Beachner Constr. Co., 555 F. Supp. 1273, 1276 (D.Kan. 1983), aff'd, 729 F.2d 1278 (10th Cir. 1984); United States v. Seville Indus. Machinery Corp., 696 F. Supp. 986, 989 (D.N.J. 1988). Cf. United States v. Suntar Roofing, Inc., 897 F.2d 469, 472-74 (10th Cir. 1990) (market allocation conspiracy requires an agreement between competitors); TV Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1075 (D.Colo. 1991) (an agreement between entities that are not competitors does not violate section one of the Sherman Act).
The District Court granted the motion to dismiss. United States v. Beachner Construction Co., 555 F. Supp. 1273 (Kan. 1983) (Beachner II). It found that a "continuous, cooperative effort among Kansas highway contractors to rig bids, thereby eliminating price competition, has permeated the Kansas highway construction industry in excess of twenty-five years, including the period of April 25, 1978, to February 7, 1980, the time period encompassed by the Beachner I and Beachner II indictments."
Aplt. Br. at 15 (citing United States v. Beachner Const. Co., Inc. , 555 F.Supp. 1273, 1275 (D. Kan. 1983) ; United States v. Jabara , 644 F.2d 574 (6th Cir. 1981) ). At least one other circuit has adopted this burden-shifting framework.
The Supreme Court rejected this attempt to use a Rule 35(a) motion to attack collaterally a final judgment based on a voluntary guilty plea: United States v. Beachner Constr. Co., 555 F. Supp. 1273 (D.Kan. 1983), aff'd 729 F.2d 1278 (10th Cir. 1984). A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.
However, it is significant that at least two courts have expressly declined to follow Ashland-Warren. See United States v. Waldbaum, Inc., 612 F. Supp. 1307, 1313 (D.Conn.), aff'd sub nom. United States v. Korfant, 771 F.2d 660 (2d Cir. 1985); United States v. Beachner Construction Co., 555 F. Supp. 1273, 1282 (D.Kan. 1983), aff'd, 729 F.2d 1278 (10th Cir. 1984). Even assuming that Judge Gibbons' view that noncompetitors can never conspire to restrain trade has some validity in theory, it seems unlikely that a situation would actually arise in which two conspirators that are truly not in competition would agree to engage in an anticompetitive practice when that agreement could in no way benefit either conspirator.
BARRETT, Circuit Judge. The United States appeals from an order of the district court, 555 F. Supp. 1273 (1983) granting the defendant-appellee Beachner Construction Co., Inc.'s (Beachner Co.) motion to dismiss an indictment on the basis of double jeopardy. On February 4, 1982, a Kansas City, Kansas, federal grand jury indicted Beachner Co. and its Secretary-Treasurer, Robert Beachner, on one count of bid-rigging in violation of section 1 of the Sherman Act, 15 U.S.C. § 1, and on one count of mail fraud in violation of 18 U.S.C. § 1341.
47. A conspiracy to rig bids in violation of 15 U.S.C. § 1 is essentially an agreement among actual or potential competitors which restrains competition in or effecting interstate trade or commerce. United States v. Beachner Const. Co. , 555 F.Supp. 1273, 1276 (D. Kan. 1983), aff'd , 729 F.2d 1278 (10th Cir. 1984). Conspiracy may be proved through direct or circumstantial evidence.