Full opinion text
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 charging 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-suit. 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. 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. 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. 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). The 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. 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). Accordingly, 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. 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 the 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. . The government seeks to avoid the implication of Blackledge with the argument Blackledge is a due process and not a double jeopardy case. While that statement is true, it does not negate the clear impact the case has upon collateral attack following guilty pleas. This impact is the same whether the complaint is grounded in due process or double jeopardy when the right asserted goes to the government's power to file charges. Blackledge, supra. . The question was raised but not dealt with in Bromley v. Crisp, 561 F.2d 1351 (10th Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978). . The government argues our holding in United States v. Rich, 589 F.2d 1025 (10th Cir.1978) decided after Blackledge and Menna indicates our adherence to the concept of waiver despite the assertion of a constitutional defect. The government urges the panel ignored the established law in the circuit. That argument is based upon an overbroad reading of Rich, for that case did not deal with the Double Jeopardy Clause in the context presented here. Additionally, the pre-Blackledge cases from this circuit relied upon by the government are equally inapposite. See Bracey v. Zerbst, 93 F.2d 8 (10th Cir.1937); 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). The government also cites United States v. Bascaro, 742 F.2d 1335 (11th Cir.), cert. denied, — U.S. —, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985), as a "waiver" case. Examination shows, however, the “waiver” was a failure to preserve the issue for appeal by failing to raise it in the trial court. The reliance is misplaced. . Moreover, careful reading discloses the Kerri-gan district court did not rule on the question of waiver; hence, the discussion of that topic by the circuit court is dictum. . See also United States v. Broussard, 645 F.2d 504 (5th Cir.1981).
McKAY, Circuit Judge, concurring: I concur fully in part I of the majority’s opinion. I join in part II of the majority opinion insofar as it remands to the trial court to give it the first opportunity to consider that issue. I do so reluctantly because I believe the matter is clear enough on the record before us to establish as a matter of law that the second indictment charging the defendant with violation of the Sherman Act in connection with a conspiracy to rig bids on another Kansas highway construction project violates the double jeopardy clause. I base this conclusion upon my agreement with this court’s panel opinion in the instant case, authored by Judge Bohanon. United States v. Broce, 753 F.2d 811 (10th Cir.1985). In that opinion, this court stated: Facts therefore now appearing in this record lead to the conclusion that the defendants have been twice punished for their participation in a single continuing conspiracy. Because their double jeopardy rights have been so violated, the judgment and sentence entered under the second indictment below were illegal and the defendants’ Rule 35(a) motion must be granted. Accordingly, the judgment and sentence entered by the district court on March 15, 1982 in case No. 83-2558 is hereby vacated. Id. at 823. My views are based, as were Judge Bo-hanon’s, on the similarity between the two indictments with which the defendants were charged, along with the lack of specificity of those indictments. As Judge Bo-hanon aptly stated: The indictments state approximate beginning dates for the conspiracies but give no conclusion dates, stating merely that they were “continuing.” Nothing in the first indictment would preclude a finding that the conspiracy alleged therein was “continuing” throughout the period encompassed by the second indictment. The indictments do not even specify with definiteness who was involved in the alleged conspiracies. Nothing would preclude a finding that all of the people participating in the first alleged conspiracy were also participants in the second. And finally, as noted previously, there is nothing in the first indictment to indicate that the agreement and conspiracy described therein with regard -to Project No. 23-60-RS-1080(9) did not also encompass other projects and and [sic] other bid-letting dates. Indeed, nothing in either indictment is definitely inconsistent with the view that the conspiracies they allege are in fact identical, and, further, are identical with the ongoing conspiracy to rig bids, extending over a period exceeding a quarter century.... Id. at 820. The rationale behind my view that this court should vacate the judgment and sentence entered in Case No. 83-2558 can be found in Short v. United States, 91 F.2d 614 (4th Cir.1937): Blanket charges of “continuing” conspiracy with named defendants and with “other persons to the grand jurors unknown” fulfill a useful purpose in the prosecution of a crime, but they must not be used in such a way as to contravene constitutional guarantees. If the government sees fit to send an indictment in this general form charging a continuing conspiracy for a period of time, it must do so with the understanding that upon conviction or acquittal further prosecution of that conspiracy during the period charged is barred, and that this result cannot be avoided by charging the conspiracy to have been formed in another district where overt acts in furtherance of it were committed, or by charging different overt acts as having been committed in furtherance of it, or by charging additional objects or the violation of additional statutes as within its purview, if in fact the second indictment involves substantially the same conspiracy as the first. And, if two indictments charging continuing conspiracy and covering the same period in whole or in part are drawn with blanket coverage “with other persons to the grand jurors unknown,” a plea of former jeopardy should be submitted to the jury if there is proof that the same partnership in criminal purposes is prosecuted by both, even though the appearance of identity of offenses may have been avoided in the indictment by charging a different place of conspiracy, or by joining additional defendants, or by charging different overt acts, or by charging the violation of additional statutes as being among the objects of the conspiracy. The constitutional provision against double jeopardy is a matter of substance and may not be thus nullified by the mere forms of criminal pleading. Id. at 624. I, along with Judge Bohanon, believe that “the government cannot be allowed to evade the Double Jeopardy Clause by using vague indictments, facially distinguishable only by their reference to different overt acts, here, the submission of rigged bids on different construction projects." Broce, 753 F.2d at 822. Accordingly, while I do not believe that this case needs to be resubmitted to the trial court for determinations of fact, I have no objection to joining in giving the trial court the first opportunity to review the issue. I therefore join in the judgment to remand. SEYMOUR, Circuit Judge,
concurring in part and dissenting in part. This case presents a difficult problem concerning the Double Jeopardy Clause of the Fifth Amendment, which declares that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb....” I agree that defendants’ guilty pleas did not forfeit their right to challenge the indictments on double jeopardy grounds. I must respectfully disagree, however, with the broad conclusion that the Double Jeopardy Clause embodies not “an individual right which is subject to waiver,” but an “absolute inhibition” upon government. See Majority Op. at 795. Although alluring for its clarity in an area of law which is anything but clear, in my view such a rule conflicts with the •Supreme Court’s consistent approval of knowing and voluntary waivers of constitutional rights. I also disagree with the conclusion that this case must be remanded to determine whether the Double Jeopardy Clause was in fact violated. I would hold that it has been and would vacate the second Sherman Act conspiracy conviction and sentence. The notion of waiver embodies the aspiration that individuals should be entitled to decide for themselves whether to invoke constitutional protections. As the Supreme Court stated in Adams v. United States ex rel. McCann, 317 U.S. 269, 279-80, 63 S.Ct. 236, 241-42, 87 L.Ed. 268 (1942): “[T]he procedural safeguards of the Bill of Rights are not to be treated as mechanical rigidities. What were contrived as protections for the accused should not be turned into fetters_ “... When the administration of the criminal law in the federal courts is hedged about as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards ... is to imprison [him] ... in his privileges and call it the Constitution.” The Court has thus consistently allowed criminal defendants to relinquish constitutional rights. See, e.g., Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976) (freedom from self-incrimination); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (speedy trial); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (trial of any kind); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (confrontation of witnesses); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (claims otherwise reviewable via habeas corpus); Adams, 317 U.S. 269, 63 S.Ct. 236 (counsel and jury trial). To be sure, the waiver of any such right must be knowing and voluntary, and courts should “ ‘indulge every reasonable presumption against waiver_Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (citations omitted); see also Tigar, The Supreme Court, 1969 Term, Forward: Waiver of Constitutional Rights: Disquiet in the Citadel, 84 Harv.L.Rev. 1 (1970). When these conditions are properly fulfilled, the relinquishment of constitutional rights is permissible. The Court has countenanced no exception for the Double Jeopardy Clause. In the seminal case of Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904), the Court characterized freedom from double jeopardy as a right which may not be denied a defendant “ ‘without his consent.’ ” Id. at 131, 24 S.Ct. at 805 (quoting 1 Bishop, Criminal Law § 1026 (5th ed.)). In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the Court described the right in ostensibly personal terms: “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense .... “... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possiblity that even though innocent he may be found guilty.” Id. at 187-88, 78 S.Ct. at 223. The Court then held that the right had not been waived in the circumstances of that case: “Nevertheless the Government contends that Green ‘waived’ his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degreée murder. We cannot accept this paradoxical contention. ‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019].” Id. at 191, 78 S.Ct. at 225 (emphasis in original). In Schneckloth v. Bustamonte, 412 U.S. 218, 237-38, 93 S.Ct. 2041, 2052-53, 36 L.Ed.2d 854 (1973), the Court listed the right to be free from twice being placed in jeopardy” as one of those rights to which the Zerbst standard of knowing and intelligent waiver had been applied, specifically citing Green. The subsequent cases of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam), in no way mark a retrenchment from the Court’s waiver jurisprudence or its conception of the Double Jeopardy Clause. Blackledge and Menna characterize the right in “jurisdictional” terms in order to delimit the circumstances under which a valid forfeiture — not waiver — may occur. Both cases hold that a mere guilty plea does not forfeit an unambiguous claim that the prosecution lacked all power to hale a defendant into court. As explained in Menna: “Neither Tollett v. Henderson, 411 U.S. 258 [93 S.Ct. 1602, 36 L.Ed.2d 235] (1973), nor our earlier cases on which it relied, e.g., Brady v. United States, 397 U.S. 742 [90 S.Ct. 1463, 25 L.Ed.2d 747] (1970), and McMann v. Richardson, 397 U.S. 759 [90 S.Ct. 1441, 25 L.Ed.2d 763] (1970), stand for the proposition that counseled guilty pleas inevitably ‘waive’ all antecedent constitutional violations .... [I]n Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 U.S. at 266 [93 S.Ct. at 266]. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim.” 423 U.S. at 62-63 n. 2, 96 S.Ct. at 242 n. 2 (emphasis added); see also Haring v. Prosise, 462 U.S. 306, 319-21, 103 S.Ct. 2368, 2376-77, 76 L.Ed.2d 595 (1983). Black-ledge and Menna recall Green: the nature of the guarantee against double jeopardy restricts what may qualify as a valid forfeiture, but does not negate the possibility of a deliberate waiver. The Menna Court thus explicitly declined to rule that a double jeopardy claim may never be waived. See 423 U.S. at 62-63 n. 2, 96 S.Ct. at 242 n. 2. Characterizing a right in jurisdictional terms simply does not make it any less personal or necessarily immune from waiver. In Johnson v. Zerbst, the Court identified the right to counsel as a “jurisdictional prerequisite” to the commencement of criminal proceedings: “Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance ivith this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” 304 U.S. at 467-68, 58 S.Ct. at 1024 (emphasis added). Like the guarantee against double jeopardy described in Menna, the right to counsel deprives a court of power to proceed against an accused who is unrepresented. Yet Zerbst was a landmark decision precisely because of its statement that such a right may be knowingly and voluntarily relinquished. See id. at 465, 58 S.Ct. at 1023. It thus does not follow from the Court’s jurisdictional characterization that the guarantee against double jeopardy is somehow exceptional and may never be deliberately relinquished. Accord Launius v. United States, 575 F.2d 770, 772 (9th Cir.1978). Although I conclude that a double jeopardy claim may be waived, I agree with Judge Bohanon, author of the panel opinion, that there has been no waiver in this case. Menna confirms that any waiver of a double jeopardy claim must be deliberate in the sense envisioned by Zerbst. The defendant in Menna had raised the defense prior to pleading guilty. The New York Court of Appeals therefore construed his guilty plea as a knowing and voluntary waiver. See People v. Menna, 36 N.Y.2d 930, 373 N.Y.S.2d 541, 335 N.E.2d 848 (1975). In reversing, the Supreme Court held that a guilty plea relates only to factual guilt and does not by itself imply a deliberate decision to relinquish a legal claim, notwithstanding that the defendant was aware of the claim at the time of his plea. See Menna, 423 U.S. at 62-63 n. 2, 96 S.Ct. at 242 n. 2. An affirmative and unambiguous indication of waiver is thus required. Indeed, as a practical matter, “[a] double jeopardy defense is normally not the type of claim that would be foregone for some strategic purpose.” United States v. Anderson, 514 F.2d 583, 586 (7th Cir.1975). In this case, defendants did not receive a copy of the second indictment until almost four days after its filing. They pleaded guilty the same day. The record indicates that a waiver of double jeopardy rights was neither bargained for by the Government nor otherwise discussed with defense counsel. Counsel’s uncontroverted affidavit reveals that defendants did not consider the question of double jeopardy prior to pleading guilty. Before accepting defendants’ pleas, the trial judge recited a litany of constitutional rights, but did not mention the Double Jeopardy Clause. Even without invoking the presumption against waiver of constitutional safeguards, it is clear that defendants did not deliberately relinquish their right to challenge the indictments against them. In dissent, Judge Barrett argues that defendants forfeited their double jeopardy claim by failing to raise the issue below as required by Fed.R.Crim.P. 12(b)(2). See Barrett Dissent at 813-815. The rule provides: “(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: (2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings).... ” Fed.R.Crim.P. 12(b)(2) (emphasis addfed). Professor Wright has answered the Rule 12 forfeiture argument as follows: “As a pleading matter this may well be true. The vice however, of multiplicity is that defendant may be given multiple sentences for a single offense. If this happens, the sentence is illegal and may be corrected at any time.” 1 C. Wright, Federal Practice & Procedure § 193, at 702 n. 31 (2d ed. 1982); see also id. § 145, at 525-26 & n. 14. “ ‘The argument that one waives his right to object to the imposition of multiple sentences by his fail[ing] to object to the multiplicious nature of an indictment is a non sequitur. Rule 12 applies only to objections with regard to the error in the indictment itself; the effect of Rule 12 is that dismissal of a multiplicious indictment is not required; however, if sentences are imposed on each count of that multiplicious indictment the defendant is not forced to serve the erroneous sentence because of any waiver.’ ” Launius, 575 F.2d at 772 (quoting United States v. Rosenbarger, 536 F.2d 715, 721-22 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977)); see also United States v. Mastrangelo, 733 F.2d 793, 800 (11th Cir.1984); United States v. Marino, 682 F.2d 449, 454 n. 3 (3d Cir.1982). It is noteworthy that Rule 12(b)(2) excepts jurisdictional issues from those which must be raised pretrial. Given the Supreme Court’s characterization of double jeopardy and the facts of Blackledge, it is apparent that Rule 12(b)(2) is no bar to raising a double jeopardy claim even post trial. Although Broce’s prison sentences ran concurrently, both he and his company received cumulative fines on the two indictments. They did not forfeit the right to contest the constitutionality of those fines by failing to raise the issue during the brief interval before pleading guilty. The question remains whether the Double Jeopardy Clause has been violated. Judge Barrett would hold that the indictments facially charged two separate conspiracies and that, by pleading guilty to tlie facts alleged in the indictments, Broce is factually barred from claiming a double jeopardy violation. Barrett Dissent at 810 -811. The majority declares the double jeopardy question to be one of fact which must first be determined by the trial court on remand. Majority Op. at 797. If the indictments in this case alleged two separate conspiracies with sufficient clarity and specificity, then a plea of guilty to each arguably could be construed as establishing that two such conspiracies existed. As an example, Judge Barrett relies upon the case of Kerrigan v. United States, 644 F.2d 47 (1st Cir.1981). The indictments against Kerrigan clearly charged two separate conspiracies to transport stolen goods in interstate commerce. One conspiracy allegedly occurred between the specific dates of August 25 and September 1, 1977, with two named coconspira-tors. The other, involving different goods, allegedly occurred between September 1 and September 22, 1977, with only one of the previously named co-conspirators. The court held that Kerrigan could raise a double jeopardy claim only by repudiating the alleged facts to which he had pleaded guilty: “Evaluated in this way, Kerrigan’s claim is quite different from that asserted in Launius; far from being facially multi-plicitous, as in Launius, Kerrigan’s indictments sufficiently describe two separate and distinct offenses, for which Ker-rigan could be constitutionally sentenced to two separate terms of imprisonment.” Id. at 49. Unlike Kerrigan, this case presents a clear example of two indictments which, because of imprecise draftsmanship, fail to rule out the existence of a single continuing conspiracy. The indictments are virtually identical, differing only in that they purport to charge bid-rigging with respect to different Kansas highway projects. The first indictment, however, also refers to the discussion of additional projects not specified in the indictment. The Government’s “Statement of Facts in Support of Pleas,” which was attached to the plea agreements in this case, further reveals that these additional projects were not all let on the same date. Neither of the indictments eliminates the possibility that the overt act of bid rigging alleged in the second indictment fell within the scope of the conspiracy charged in the first. The indictments give no indication of when either conspiracy ended, thereby implying an overlap in time; and they refer to “known and unknown” individuals, thereby implying an overlap of participants. These features raise a presumption that the two indictments concerned a single conspiracy. See United States v. Novak, 715 F.2d 810, 818 (3d Cir.1983) (citing United States v. Mallah, 503 F.2d 971, 985-87 (2d Cir.1974)), cert. denied, 465 U.S. 1030, 104 5.Ct. 1293, 79 L.Ed.2d 694 (1984). “[I]t is the government which has control over the drafting of indictments. Any burden imposed by the imprecision in the description of separate offenses should be borne by it.” United States v. Inmon, 568 F.2d 326, 332 (3d Cir.1977). “Blanket charges of ‘continuing’ conspiracy with named defendants and with ‘other persons to the grand jurors unknown’ fulfil a useful purpose in the prosecution of crime, but they must not be used in such a way as to contravene constitutional guaranties. If the government sees fit to send an indictment in this general form charging a continuing conspiracy for a period of time, it must do so with the understanding that upon conviction or acquittal further prosecution of that conspiracy during the period charged is barred, and that this result cannot be avoided by charging the conspiracy to have been formed in another district where overt acts in furtherance of it were committed, or by charging different overt acts as having been committed in furtherance of it, or by charging additional objects or the violation of additional statutes as within its purview, if in fact the second indictment involves substantially the same conspiracy as the first.... The constitutional provision against double jeopardy is a matter of substance and may not be thus nullified by the mere forms of criminal pleading.” Short v. United States, 91 F.2d 614, 624 (4th Cir.1937); see also United States v. Abbamonte, 759 F.2d 1065, 1070 (2d Cir.1985). Given the vagueness of the indictments, defendants could not and did not admit the existence of separate conspiracies merely by pleading guilty to the facts alleged. They are therefore not barred from establishing the existence of one continuing conspiracy. While the majority agrees with this view of the indictments, it would remand for an initial determination of the factual question. I submit, however, that the issue has already been resolved. In United States v. Beachner Construction Co., 729 F.2d 1278 (10th Cir.1984), this court upheld the factual finding of a single continuing conspiracy to rig bids within the Kansas asphalt industry. After this finding was made but before it was affirmed, the Government in this case stipulated that the record in Beachner could be considered in deciding defendants’ Rule 35 motion. I read the stipulation as conceding, apart from the issues of waiver and forfeiture, that the factual circumstances presented here are indistinguishable from those in Beachner with respect to the existence of a double jeopardy violation. Even Judge Barrett agrees that the district court's factual determination in Beachner should control future cases involving the Kansas asphalt industry: “[Fallowing the filing of that opinion, all subsequent prosecutions in the District of Kansas or elsewhere in this circuit involving the identical factual bid-rigging scenario would be controlled by our holding in Beachner: that the scheme constituted a single, on-going, continuous conspiracy.” Barrett Dissent at 810-811. The Government has received a full and fair opportunity to litigate this ultimate issue of fact. I see no reason why the Beachner findings should not be accorded full preclu-sive effect in this proceeding. Thus on remand the trial court could not now find that defendants were involved in more than one bid-rigging conspiracy. Because of the unusual relationship between this case and Beachner, I would vacate the conviction and sentences in No. 83-2558. . For purposes of consistent analysis, forfeiture may be defined as the loss of a constitutional defense through the operation of law and without regard for a defendant’s intentions. In contrast, waiver connotes an informed, deliberate, and uncoerced decision to relinquish such a defense. See Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214 (1977). . See also Robinson v. Neil, 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973) (describing guarantee against double jeopardy as “a constitutional right of the criminal defendant"). . I would overrule Caballero v. Hudspeth, 114 F.2d 545, 547-48 (10th Cir.1940), to the extent it holds otherwise, but would leave intact its characterization of the guarantee against double jeopardy as a personal right. . In Haring, the Court held that a guilty plea does not establish that a defendant has waived any Fourth Amendment claims he seeks to pursue under 42 U.S.C. § 1983, notwithstanding that he may have forfeited the opportunity to raise the identical issue in a habeas corpus proceeding. . Lower federal courts, including this one, have actually gone further in another context: litigants may consent to the exercise of subject matter jurisdiction and attendant Article III powers by non-Article III magistrates, irrespective of the rights being adjudicated. See, e.g., United States v. Dobey, 751 F.2d 1140 (10th Cir.1985) (appeal pending); Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984); Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir.1983). . Although not technically part of the indictment, this statement was on record when defendants’ pleas were accepted and it presumably reflects the Government’s account of what was to be admitted through their pleas. In any event, the indictment must not be read as referring to a single bid-letting date or it would follow that the Government chose the indictment’s language in a deliberate attempt to misstate the facts. . I do not dispute that a defendant is bound by that to which he pleads and by whatever he states in open court as the basis for his plea. In my view, however, a defendant remains free to offer evidence in support of a surviving double jeopardy claim which does not contradict these admitted facts. See Menna, 423 U.S. at 62-63 n. 2, 96 S.Ct. at 242 n. 2; see also Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977).
BARRETT, Circuit Judge, dissenting: Judge O’Connor, in my view, correctly denied relief to the Broce defendants pursuant to Fed.R.Crim.P. 35(a) which provides that “[Tjhe court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” (Emphasis supplied.) At the time the guilty pleas were voluntarily entered in Broce, the Beachner opinion had not been filed. In fact, Beach-ner did not come down for more than two years after the Broce pleas were entered. There was, then, absolutely nothing facially illegal about the two indictments to which Broce pled guilty. They charged separate, independent conspiratorial acts in violation of the antitrust laws. There had been no judicial precedent at that time finding, as a matter of fact, that the separate “rigged” highway bids were other than separate conspiracies. Although the parties stipulated that Judge O’Connor “may consider the record made in the evi-dentiary hearing on the Motion to Dismiss [in Beachner ] ... in ruling on the merits of defendants’ Motion to Vacate Sentence Pursuant to Rule 35(a) ...” (R., Vol. I, p. 97), the district court was not required to apply Beachner retroactively. Judge O’Connor did, however, consider the Beachner record. The facts of this case are not in dispute. The Broce defendants were initially charged on November 7, 1981, by a two-count indictment for violations of the federal antitrust laws (15 U.S.C. § 1) and the mail fraud statute (18 U.S.C. § 1341) in relation to a specific Kansas highway construction project. Thereafter, on February 4, 1982, the Broce defendants were charged in a second indictment with a one-count violation of the federal antitrust laws in relation to a separate, distinct Kansas highway construction project. On February 8, 1982, pursuant to a plea bargain agreement the Broce defendants entered guilty pleas to the charges contained in both indictments. The trial court, prior to sentencing, conducted a detailed, thorough Rule 11 proceeding. There is no contention that the Broce defendants were represented other than by competent counsel or that the district court did not meticulously conduct the Rule 11 proceeding. Sentences were entered March 15, 1982. The Broce defendants filed their Motion to Vacate Sentence on the ground that their sentences were in violation of the double jeopardy clause on February 22, 1983. Id. at 34. I deem the trial court’s reasoning in denying the Broce defendants Rule 35(a) relief as set forth in the court’s Memorandum and Order important in our determination of the issue. Thus, I quote therefrom: “The defendants’ recent double jeopardy claim was inspired by the January 31, 1983 Memorandum and Order by Judge Dale E. Saffels of this court, in another case involving bid-rigging in Kansas highway construction projects, United States v. Beachner Construction Co., Inc., et al., 555 F.Supp. 1273, No. 82-20076-01. Beachner Construction Co., Inc., was indicted on February 4, 1982, for a violation of the Sherman Antitrust Act and a mail fraud violation. Both charges related to a Kansas highway project let by the state of Kansas on February 7, 1980. Robert Beachner was subsequently indicted for the same alleged offenses. The case proceeded to trial on May 3, 1982 (‘Beachner I ’). By a verdict rendered on May 7, 1982, a jury acquitted both defendants of the conspiracy and mail fraud charges. “On November 16, 1982, another indictment was returned by the grand jury, naming Beachner Construction Co., Inc., and Jerry Beachner as defendants. This indictment (‘Beachner II’) contained three counts alleging violations of § 1 of the Sherman Act, and three counts alleging mail fraud violations. Judge Saffels found the Beachner I and Beachner II indictments to be identical, with the exception that Beachner II named Jerry Beachner rather than Robert Beachner, and that Beachner II specified three different highway projects. “In Beachner II, Beachner Construction Co., Inc., moved to dismiss the November 16, 1982 indictment, alleging inter alia double jeopardy and collateral estoppel. Following an evidentiary hearing, the court entered its January 31, 1983 Memorandum and Order, in which it concluded that the conspiracies charged in Beachner I and Beachner II were merely separate parts of a single larger and ongoing bid-rigging conspiracy that had been continuing for several years. Accordingly, Judge Saffels granted Beachner Construction Co., Inc.’s motion to dismiss. Discussion "The .defendants in the instant case, Broce Construction Co., Inc., and Ray C. Broce, contend that in light of Judge Saffels’ decision in Beachner II, the judgment and sentence in Case No. 82-20011-01 constitutes a violation of the double jeopardy clause because it sentenced the defendants on two separate highway projects, as separate conspiracies, although they were both part of a single overall conspiracy to rig bids on Kansas highway construction projects. In addition, Broce Construction Co., Inc., contends that the total of 1.5 million dollars in fines imposed by the court was illegal because it exceeded.the legal penalty of one million dollars per violation, as prescribed by 15 U.S.C. § 1. “The defendants contend that in light of Judge Saffels’ Beachner II ruling, they were guilty of only one bid-rigging offense — a single conspiracy — rather than two. The defendants thus allege that the sentence imposed by the court violates the double jeopardy clause on the ground of multiplicity in that it punishes them twice for a single offense. “It is certainly clear that the double jeopardy clause does protect a defendant against multiplicity of punishment. In North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), the Court stated: That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.... (Footnotes omitted) (emphasis added). “The defendants thus contend that they should be entitled to take advantage of Judge Saffels’ Beachner II ruling because a Rule 35(a) motion can be raised ‘at any time.’ Although it is the general rule that a Rule 35(a) motion can be raised at any time [Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); United States v. Golay, 560 F.2d 866, 870 (8th Cir.1977)], the government argues that the defendants waived their double jeopardy claim because it was not timely raised and because the defendants pleaded guilty to two separate conspiracies. The issue in the case is therefore whether a plea of guilty to counts alleging two separate conspiracies constitutes a waiver of a claim of double jeopardy on the ground that the defendants are being subjected to multiple punishment for a single offense. “In Menna, even though the defendant’s guilty plea admitted the facts of his offense, the indictment — on its face — arguably violated the double jeopardy clause by charging him a second time for the conduct that was the subject of his previous contempt conviction. Thus, the defendant’s double jeopardy claim was not rendered irrelevant by his guilty plea because the indictment on its face sought to punish the same conduct, thereby giving rise to a possible double jeopardy violation. In contrast, the challenged second indictment in the instant case (No. 82-20011-01) does not on its face seek to punish the defendants for the same conduct for which they were charged in the previous indictment (No. 81-20119-01). Menna left unanswered the question of whether a plea of guilty to one or more counts not multiplicious on their face constitutes a waiver of a claim of double jeopardy. “Our research reveals that few courts have squarely confronted this question left unanswered by the Supreme Court in Menna. Although the defendants have cited two broadly-worded opinions for the proposition that a guilty plea does not constitute a waiver of a double jeopardy claim, United States v. Broussard, 645 F.2d 504 (5th Cir.1981); Launius v. United States, 575 F.2d 770 (9th Cir.1978), neither of these cases involved a plea of guilty to an indictment or information that was not multiplicious on its face. In other words, the cases cited by the defendants are entirely within the scope of the rule announced in Menna. “The defendants point out that there is broad language in the Launius opinion to the effect that a waiver of a double jeopardy claim must be a ‘ “waiver” as defined in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 [1023], 82 L.Ed. 1461 (1938)—the intentional relinquishment or abandonment of a known right or privilege.’ 575 F.2d at 772. The government, in response, has cited to a line of cases in the Eighth and Second Circuits to the effect that a claim of double jeopardy is non-jurisdictional and is waived if not timely and affirmatively pleaded. United States v. Herzog, 644 F.2d 713, 716 (8th Cir.1981); McClain v. Brown, 587 F.2d 389, 391 (8th Cir.1978); United States v. Perez, 565 F.2d 1227, 1232 (2d Cir.1977). The Tenth Circuit apparently had not addressed the question of waiver of a double jeopardy claim. We are not convinced, however, that the waiver theories announced in either Launius or the Herzog line of cases should be applied to the facts of the instant case. “We believe that the resolution of the pending motion should be controlled by the opinion in Kerrigan v. United States, 644 F.2d 47 (1st Cir.1981), which more closely resembles the facts and the resulting legal issues of the matter at bar than does any other case cited by the parties or uncovered by the court’s research. Kerrigan was indicted in two separate indictments by a federal grand jury. The first indictment charged that Kerrigan conspired with others, between August 25, 1977, and September 1, 1977, to transport and to sell stolen lithographs. The second indictment charged that Kerrigan conspired with one of his previous co-conspirators, between September 1,1977, and September 22,1977, to transport and to sell stolen Indian jewelry. The second indictment also charged Kerrigan with a substantive count of transporting the stolen jewelry in interstate commerce. Kerrigan pleaded guilty to the two conspiracy charges, each before a different judge, and in exchange the government dismissed the substantive count. On March 15, 1978, Kerrigan was sentenced to three years for the jewelry conspiracy and two years (consecutively) for the lithograph conspiracy. After his sentencing, Kerrigan challenged the two-year sentence on the ground that the two charges involved parts of a single conspiracy. The district court adopted the magistrate’s finding that the indictments charged separate conspiracies, and rejected Kerrigan’s challenge to his sentence. “On appeal, Kerrigan again asserted that there was only one conspiracy and argued, relying on Menna and Launius, that his guilty plea did not waive his right to raise the double jeopardy claim. In the opinion for the First Circuit, Judge Campbell discussed Menna and Launius at some length. Menna and Launius do indeed indicate that a double jeopardy claim may lie notwithstanding a guilty plea, but in neither case did the double jeopardy claim depend upon a repudiation of the allegations in the indictment to which the plea had been entered. These cases do not hold, as Kerrigan suggests, 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 committed only a single offense. The court in Launius explicitly and correctly stated that ‘By pleading guilty appellants admitted the facts alleged in the information.’ [Citations omitted]. Ker-rigan'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. Evaluated in this way, Kerrigan’s claim is quite different from that asserted in Launius; far from being facially multiplicitous, as in Launius, Kerrigan’s indictments sufficiently described two separate and distinct offenses, for which Kerrigan could be constitutionally sentenced to two separate terms of imprisonment. 644 F.2d at 49. “Judge Campbell concluded that: the two agreements charged related to commission of crimes which were similar but distinct. Thus, facially, it is possible to have had two conspiracies.... By pleading guilty, Kerrigan accepted the government’s two-conspiracy allegations, and it is too late for him to try to establish something else. The factual allegations of the indictments sufficiently charge two separate conspiracies; Kerri-gan is bound by these facts because of his guilty pleas; and Kerrigan has therefore not been twice placed in jeopardy for the same offense. Id. “The similarity between the facts of the case now at bar and those of Kerrigan is inescapable. Defendants Ray C. Broce and Broce Construction Co., Inc., pleaded guilty to two separate indictments alleging differe