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,”1 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 *800Court 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 223.2 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-*80153, 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.3 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).4 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 *802and 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.5 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 *803pleading 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 *804date.6 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.7 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:
*805“[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).