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.1
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 sen*806tences 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).
*807“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 trans*808porting 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 different conspiracies beginning at different times (more than one year apart) and involving different construction projects. On their faces, the indictments alleged two distinct criminal conspiracies, and the defendants pleaded guilty to each, acknowledging the validity of the facts contained in each indictment. Accordingly, we feel compelled to adopt the First Circuit’s reasoning that the defendants ‘accepted the government’s two-conspiracy allegations, and it is too late for [them] to try to establish something else.’ 644 F.2d at 49.
“There remains, however, the defendants’ suggestion that, notwithstanding their pleas of guilty, Judge Saffels’ subsequent ruling in Beachner II, that there was only one agreement among Kansas contractors to rig bids, rendered their sentences invalid and that it now ‘appears from the face of the indictments that but one conspiracy existed for which defendants have been twice punished.’ (Defendant's Reply, at 9.) In support of this theory that an intervening court decision can merge the contents of previous indictments alleging *809two conspiracies into a single conspiracy, the defendants cite Smith v. United States, 287 F.2d 270 (9th Cir.1961).
“In Smith, the defendant pleaded guilty to a three-count information arising out of a bank robbery. Each count charged the defendant with violating a different subsection of 18 U.S.C. § 2113. After the defendant was sentenced, the Supreme Court of the United States, in another case, held that the subdivisions of 18 U.S.C. § 2113 charged but one offense and that the imposition of more than one sentence was illegal. As a result, the defendant’s sentence was corrected.
“We are not persuaded that this line of reasoning is applicable here. Smith v. United States is distinguishable from the situation at bar in that the intervening decision in that case involved a question of law: the operation of a statute. Consequently, the Supreme Court’s decision was applicable to Smith’s case. Judge Saffels’ finding of a single conspiracy in Beachner II, however, was a factual determination made in light of the evidence produced at an evidentiary hearing in that particular case. It is well settled that the question whether a single conspiracy or multiple conspiracies exist is a question of fact. United States v. Elam, 678 F.2d 1234, 1245 (5th Cir.1982); United States v. James, 576 F.2d 1121, 1126 (5th Cir.1978); United States v. Armedo-Sarmiento, 545 F.2d 785, 789 (2d Cir.1976), cert. denied, 430 U.S. 917 [97 S.Ct. 1331, 51 L.Ed.2d 595] (1977); United States v. Ippolito, 509 F.Supp. 1205, 1208 (E.D.N.Y.1981). Accordingly, we do not believe that at this late date the defendants should be permitted to take advantage of a factual determination that is inconsistent with the facts the defendants admitted in pleading guilty to the indictments alleging two separate conspiracies.
“We do not agree with the defendants’ allegation that ‘[t]he position of the government would effectively deprive any defendant who pleads guilty of the right to file a Rule 3[5] motion which specifically preserves this right to those who plead guilty.’ (Defendants’ Reply, at 10.) We hold merely that where a defendant by pleading guilty admits facts that do not give rise to a double jeopardy claim, he will not later be permitted to raise a double jeopardy claim that depends upon a version of the facts different from that he has admitted.”
(R., Vol. II, pp. 281-90.) It is apparent from the above-quoted excerpt of Judge O’Connor’s Memorandum and Order that he carefully considered the record in Beachner yet properly denied the Broce defendants relief because they had pled guilty to facially legal indictments, their pleas admitted the factual basis of the charges, and Beachner did not control this case.
I.
Menna and Blackledge
The trial eourt, unlike the majority, found that Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) was not applicable here. By analogy, the same rationale would apply to Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), which case was not addressed by the trial court. I agree with the trial court’s analysis. Thus, I conclude that Menna and Blackledge do not apply to the case at bar.
Significantly, in both Menna and Black-ledge, the double jeopardy challenge was posited (like Beachner) prior to trial. I recognize that this is not always conclusive, but it weighs heavily here. It was not of significance in Menna because plainly— without the need of an evidentiary hearing — Menna had been twice placed in jeopardy: Menna had initially been incarcerated on a contempt charge for refusal to obey a court order to appear and testify before the grand jury. Thereafter, following denial of his motion to dismiss the indictment for refusal to answer questions before the same grand jury, he entered a guilty plea thereto and was sentenced. The Supreme Court logically held that Men-na’s earlier conviction for contempt was a criminal conviction “for the same crime as the one charged in the instant indict-*810merit.” 423 U.S. at 62, n. 1, 96 S.Ct. at 242, n. 1 (emphasis supplied). No eviden-tiary hearing involving the fact-finding process was required to arrive at that logical conclusion.
In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), again there was no fact-finding evidentiary hearing required in order for the Supreme Court to conclude that after Blackledge had been charged, tried and convicted by the state authorities on a misdemeanor charge that he could not subsequently be charged, tried and convicted by those same state authorities on a felony charge involving the identical facts and circumstances. The Supreme Court held that the felony charge was lodged against Blackledge in retaliation to his filing of a petition for trial de novo of his misdemeanor conviction, constituting a deprivation of due process of law. Neither Menna nor Blackledge involve the rule at the heart of the case at bar: absent a statutory impediment (i.e., lack of subject matter jurisdiction) or a Due Process deprivation (i.e., filing a subsequent charge in retaliation to a defendant taking appeal from an earlier conviction), the rule in this circuit has long been — and continues to be after Menna and Black-ledge —that an accused waives his claim of double jeopardy to a subsequent criminal charge if the crimes charged, on their faces, are separate and distinct and if the evidence necessary to establish guilt as to one charge differs from that necessary to establish guilt as to another. In such case, we have held that the right not to be placed in jeopardy twice for the offense is a personal right which may be waived by a guilty plea. Caballero v. Hudspeth, 114 F.2d 545 (10th Cir.1940); Cox v. Crouse, 376 F.2d 824 (10th Cir.1967); Cox v. State of Kansas, 456 F.2d 1279 (10th Cir.1972); United States v. Rich, 589 F.2d 1025 (10th Cir.1978); Meyer v. State, 47 Md.App. 679, 425 A.2d 664; 24 A.L.R.4th 1313.
These cases are consistent with Judge O’Connor’s reliance on Kerrigan v. United States, 644 F.2d 47 (1st Cir.1981). This is the only case, in the course of our research, which closely fits the niche of the facts of the instant case. Kerrigan pled guilty and was sentenced under two indictments, both of which charged him .with conspiracy to transport stolen goods in interstate commerce. Thereafter, Kerrigan brought a habeas corpus action contending that his sentence should be vacated on the ground that it violated his Fifth Amendment rights not to be twice placed in jeopardy for the same offense. The court of appeals affirmed the district court’s denial of relief and pertinently observed:
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 conspiracy. The court in Launius explicitly and correctly stated that “By pleading guilty the appellants admitted the facts alleged in the information.” Brady v. United States, 397 U.S. 742, 748 [90 S.Ct. 1463, 1468, 25 L.Ed.2d 747] ... (1970); Willard v. United States, 445 F.2d 814, 816 (7th Cir.1971). Kerrigan’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 multiplicitious, as in Launius, Kerrigan’s indictments sufficiently describe two separate and distinct offenses, for which Kerrigan could be constitutionally sentenced to two separate terms of imprisonment.
644 F.2d at 49 (emphasis supplied).
Consistent with the logic of Kerrigan, it is my view that the only effect that can be firmly placed on Beachner is that following the filing of that opinion, all subse*811quent 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. To that extent and only to that extent the Government should be collaterally estopped from relitigating the precise, identical issue in subsequent criminal prosecutions. This is simply the application of the principle of issue preclusion. See, Bullock v. Pearson, 768 F.2d 1191 (10th Cir., 1985). Thus, there is no analogy between Broce and the double jeopardy bar found in Blackledge based upon a due process deprivation of a fundamental nature.
The majority opinion does, as the Government contends, (a) encourage defendants to challenge their sentences long after their guilty pleas are entered, effectively undermining the effectiveness of the criminal justice system and the finality of convictions, and (b) discourage federal prosecutors from entering into plea bargaining with all advantages east on the side of the defendant and the government realistically inviting deprivation of its benefits under the plea bargain.
The analogy between the instant case and Kerrigan, in the double jeopardy context, is strikingly clear: Evaluating the allegations in the indictment both from a factual viewpoint and applicable law existing at the time of the Broce plea, the double jeopardy claim must fail. Notwithstanding Judge Saffels’ finding of fact in Beachner that the various highway contractors entered into a single, ongoing conspiracy to rig highway construction bids, this was not a binding rule of law when the Broce pleas were entered, voluntarily and upon advice of competent counsel. This court did not affirm Judge Saffels’ Beach-ner finding/conclusion (single versus multiple conspiracies) until more than two years after the Broce guilty pleas had been entered admitting the facts alleged, i.e., that each separate highway bid rigged contract constituted a separate, single, conspiracy.
Caballero v. Hudspeth, supra, was an appeal from the district court’s denial of habeas corpus relief. We there held on appeal, that the defendant’s guilty plea to a two count indictment involving violation of the White Slave Act was improper (but not invalid) because the emphasis of the statute is on the interstate transportation and in this case there was but one trip, and that the one transportation involved but one offense. The defendant had been charged and pled guilty to two counts involving transportation of one Elise Herbert: one count charged that the defendant intended to compel her to engage in prostitution; the second count charged that the defendant intended to unlawfully cohabit with her. This court held, however, that the charges were facially valid and that the defendant was not subjected to double jeopardy because he entered the guilty plea voluntarily, while represented by competent counsel, and did not object to the charges at any stage of the proceeding. Under these circumstances, we held that the right not to be placed in jeopardy twice is a personal right which may be waived by a plea of guilty.
In Cox v. State of Kansas, supra, Cox, a state prisoner, appealed a district court denial of his petition for federal habeas corpus relief. Cox had been convicted, following his guilty plea in 1966, to a charge of second degree kidnapping. Cox relied on Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). There, Benton had been tried in a Maryland state court for burglary and larceny. He was acquitted of larceny but found guilty of burglary. Because the jury had been selected under an invalid Maryland constitutional provision, Benton was given the option of demanding re-indictment and retrial. He was re-indicted for both larceny and burglary. Prior to retrial, Benton moved to dismiss the larceny charge on the ground of double jeopardy. The motion was denied and Benton was subsequently convicted of both larceny and burglary. The Supreme Court struck down the larceny conviction because of his acquittal of this charge in the first trial. There was no contention made that *812the charges (larceny and burglary) were facially invalid and other than separate, distinct offenses. Cox, unlike Benton, did not challenge the indictment prior to trial. In denying Cox federal habeas relief this court quoted Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970): “[A] voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”
Menna discloses the double jeopardy bar on the face of the charges involved. Blackledge discloses a prosecutorial intent to deny Blackledge due process of law by initiating felony proceedings arising out of the same acts and circumstances as those involving a misdemeanor conviction he was appealing. The due process deprivation was that of retaliation for Blackledge’s appeal from the misdemeanor conviction. Neither case, I submit, involved the situation presented here: the Broce pleas were to charges contained in indictments alleging separate, distinct conspiracies on their face; there was no statutory impediment creating lack of subject matter jurisdiction; there was no substantive due process violation by the prosecution; and there were no judicial opinions then in being and controlling dictating that the indictments to which Broce pled guilty were duplicitous. Judge Seth, in his Broce dissent, logically dissected Menna:
Virtually all the courts of appeal since Menna have continued to hold that the defense is waived if not raised in some way before trial as it was in Menna. This is a perfectly reasonable construction of Menna where the defense was so raised. The Court in Menna stated that a plea of guilty “removes the issue of factual guilt from the case.” The Court also there stated:
We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that— judged on its face — the charge is one which the State may not constitutionally prosecute.
The indictments in the case before us do on their faces allege separate offenses. By the guilty pleas the defendants admitted the recitations in the indictments, and these are the facts to be used in evaluating the double jeopardy claims. Kerrigan v. United States, 644 F.2d 47 (1st Cir.1981). These facts recite separate offenses.
The case which upholds appellants’ position that Menna precludes waiver, and it may be the only case, is Launius v. United States, 575 F.2d 770 (9th Cir.1978). The post-Menna cases with contrary holdings (or which consider situations where the defense was raised at or before trial and so hold no waiver) include: United States v. Pratt, 657 F.2d 218 (8th Cir.1981); United States v. Broussard, 645 F.2d 504 (5th Cir.1981); United States v. Gaertner, 583 F.2d 308 (7th Cir.1978); United States v. Inmon, 568 F.2d 326 (3rd Cir.1977); United States v. Wild, 551 F.2d 418 (D.C.Cir.1977)....
753 F.2d 811, 824 (10th Cir.1985) (emphasis at the end of the first paragraph supplied).
II.
The Waiver Issue
The majority opinion, in reliance on Men-na and Blackledge, seems to paint a broad-swath rule that a double jeopardy claim cannot be waived. Those cases do not and cannot stand for such a broad rule. In both Menna and Blackledge the Court was dealing with obvious jurisdictional problems: the very power to prosecute a second time.
Broce does not present a jurisdictional problem. Thus, our well-recognized rule that a claim of double jeopardy is a personal right which may be waived is fully applicable. Broce, just as Beachner, presented a factual issue as to whether the conspiracies charged in the separate indictments arose out of one continuous, ongoing scheme (and thus one conspiracy) or separate, distinct conspiracies. There is noth*813ing unique in challenges to such indictments under the Double Jeopardy Clause. In making such determinations, the issue presented is one of fact for the court or jury. United States v. Dickey, 736 F.2d 571, 581 (10th Cir.), cert. denied, — U.S. —, 105 S.Ct. 957, 83 L.Ed.2d 964 (1984); United States v. Beachner Const. Co., Inc., supra; United States v. Watson, 594 F.2d 1330, 1340 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979); United States v. Petersen, 611 F.2d 1313, 1327 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980).
In Dickey, supra, the prosecution charged a single, ongoing conspiracy among the defendants involving possession and distribution of drugs for profit. On appeal the defendants urged that the evidence was insufficient to prove one conspiracy and that it disclosed multiple conspiracies. Thus, the contention was that reversal was required on the ground of variance between the charge and the evidence. This court affirmed the jury’s fact-finding of a single, ongoing conspiracy under the clearly erroneous rule. In United States v. Hines, 728 F.2d 421 (10th Cir.), cert. denied, — U.S. —, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984), we held, in the same vein as the Blackledge Court, that various counts of the indictment charging the defendant with breaking and entering a Post Office with intent to commit larceny and steal separate matters (as charged) such as letters containing credit cards, checks, etc., were not multiplicious because the statutes enacted by the Congress made each taking a separate crime and that each required proof of facts which were not required of the other. And in United States v. DuFriend, 691 F.2d 948 (10th Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983), we held that there was no inherent double jeopardy problem raised by defendant’s conviction of both conspiracy to possess marijuana and conspiracy to possess marijuana with intent to distribute, relying on Albenaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) for the proposition that “[Tjhere clearly is no inherent double jeopardy problem raised by appellant’s convictions for both conspiracy to import and conspiracy to distribute marijuana.” 691 F.2d at 952.
Rule 12(b)(2), Fed.R.Crim.P. requires that a complaint about the multiplicity of an indictment and its inherent double jeopardy problems must be raised before trial. Any defense, objection or request that is capable of determination without a trial of the general issue may be raised before trial by motion. Wright, Federal Practice and Procedure: Criminal 2d, § 193, pp. 692-93. Nothing in Menna or Blackledge dilutes compliance with this rule if the charges to which the defendant pled guilty or was convicted were valid on their face, that is: at the time of the plea, the separate charges were not subject to the impediment of lack of subject matter jurisdiction or brought in retaliation or some other deprivation of a due process right of the defendant.
It is important to recall that the Broce pleas of guilty were entered on February 8, 1982. Judge Saffels entered his order finding a single conspiracy in Beachner following a second indictment filed on November 16, 1982, some nine months after the Broce pleas had been entered. Our Beachner opinion was not filed until March 22, 1984- Beachner did, as previously noted, preserve the double jeopardy challenge by virtue of a pre-trial Rule 12(b)(2) motion, which generated the pre-trial evidentiary hearing conducted by Judge Saffels leading to the court’s finding that only one conspiracy existed involving the Kansas highway construction bid-rigging scheme. In addition to Rule 12(b)(2), it is to be noted that the Broce defendants could have availed themselves of Rule 11(b), Fed.R.Crim.P. by entering a conditional plea of guilty manifesting a knowledgeable admission of the facts contained in the indictments, while preserving the issue of double jeopardy. United States v. Moskow, 588 F.2d 882 (3rd Cir.1978); United States v. Zudick, 523 F.2d 848 (3rd Cir.1975); 33 ALR Fed. 385.
The record before us shows conclusively that the trial court meticulously met all of *814the requirements of Rule 11 for acceptance of the Broce pleas, including full and complete advisement of the nature of the charges, the length of possible incarceration and other punishment, and advisement that the court was not bound by the plea agreement; The court established the existence of a factual basis for the pleas, the competency of the defendants to plead, the assistance of competent counsel, the volun-tariness of the pleas based on the plea agreement, and the defendants’ complete understanding of the consequences of the guilty pleas. (R., Vol. II, pp. 102-91.) The court also fully complied with the ABA Standards, Pleas of Guilty § 1.4. Menna recognizes that a counseled guilty plea validly removes the issue of factual guilt from the ease. I conclude that the Broce defendants effectively waived their right to collaterally attack their guilty pleas by virtue of their failure to raise the double jeopardy challenge pursuant to Rule 12(b)(2) or Rule 11(b). This, in my view, is precisely the type of ease the Supreme Court made reference to in Menna when it opined that its holding was not to be considered as one which closed the door to a waiver of a double jeopardy claim by virtue of all guilty pleas. 423 U.S. at 63 n. 2, 96 S.Ct. at 242 n. 2.
I turn now to the Rule 35, Fed.Rules Crim.P. motion filed by Broce and denied by the district court. That rule provides, inter-alia: The 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.” Note that an illegal sentence may be corrected at any time. Menna and Blackledge clearly fall in that category. Broce, on the other hand, does not. A sentence is illegal under Rule 35 if it is in excess of the statute under which the charge is lodged, or in some other manner violative of an applicable statute. Simply stated, such a sentence is one that the judgment of conviction does not authorize. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Thus, in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) the Supreme Court upheld relief afforded under Rule 35 to correct an illegal sentence. The Court set aside separate sentences imposed under 18 U.S.C. § 2113(e) involving a bank robbery. The Court set aside the sentence on the count which charged that the defendant received stolen property, holding that the subsection of the statute relied on by the Government was not designed to punish one who robs a bank, but rather one who receives the loot from the robber. Thus, unlike Broce, the charge was deficient for lack of subject matter jurisdiction. No fact finding process was involved. In like manner, the Court in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) construed a statute and, as a matter of law, held that the crime of entry into a bank with intent to rob was not a crime separate and distinct from the offense of robbery proper. This case, too, involved the construction and interpretation of a statute leading to the legal conclusion that the sentence was illegal. Congressional intent was carefully considered. Again, the distinction between these cases and Broce and Beachner is clear.
In Marteney v. United States, 216 F.2d 760 (10th Cir.1954), we held that a 28 U.S.C. § 2255 habeas proceeding should be treated as a motion to vacate sentence and proceeded to hold that it affirmatively appeared on the face of the challenged indictment that no federal offense was committed. We there clearly distinguished between indictments which, as a matter of law, do not, on their face, charge an offense and those which do not involve jurisdictional challenges:
A plea of guilty to an indictment is an admission of all nonjurisdictional facts alleged in the charge, and when the judgment of sentence is collaterally attacked under Section 2255, the sentencing court, indulging in the presumption of regularity will not disturb its judgment unless the indictment or information shows upon its face that no federal offense has been committed. We have said that “The test of the sufficiency of the indict*815ment on a motion to vacate a sentence is whether the indictment by any reasonable construction can be said to charge the offense for which the sentence was imposed.” Byers v. United States, 10 Cir. [(1949)], 175 F.2d 654, 656. See also Pulliam v. United States, 10 Cir. [(1949)] 178 F.2d 777; Kreuter v. United States, 10 Cir. [(1952)], 201 F.2d 33_ If, however, it affirmatively appears on the face of the indictment or information that no federal offense was committed, the charge is vulnerable to collateral attack ... [a]nd this is so even in the face of a guilty plea, for one cannot plead guilty to an offense which is not affirmatively stated in the charge.
216 F.2d at 762. See also, United States v. Donohoe, 458 F.2d 237 (10th Cir.), cert. denied, 409 U.S. 865, 93 S.Ct. 157, 34 L.Ed.2d 113 (1972) (a guilty plea waives all nonjurisdictional defenses); United States v. Watkins, 709 F.2d 475 (7th Cir.1983) (an indictment not challenged before trial will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant was convicted; however, an indictment which fails to state an offense is a fatal defect which may be raised at any time).
Judge Saffels, in Beachner, did not hold, as a matter of law, that there was any lack of subject matter jurisdiction, that the sentence was beyond the scope of the statute or that the sentence was illegally imposed in violation of a statute. He set the Beach-ner sentence aside based upon, and exclusively upon, his fact-finding determination following a Rule 12 motion to dismiss, on the ground of double jeopardy. Following an evidentiary hearing held thereon, Judge Saffels found that there was a single, ongoing conspiracy instead of the separate, distinct conspiracies charged by the Government. There were no constitutional underpinnings involved in this finding. It was upheld by this court, on appeal, on the ground that it was not clearly erroneous.
I conclude that Judge O’Connor properly denied Broce Rule 35 relief.
III.
The Stipulation and the Disposition
The majority opinion may, by inadver-tance, have imparted the view that the Stipulation entered into between the parties in this Rule 35 proceeding somehow bound Judge O’Connor to Judge Saffels’ single, ongoing conspiracy finding in Beachner. Such is simply not the case. The Stipulation reads in full as follows:
Comes now the parties and stipulate that the Court may consider the record made in the evidentiary hearing on the Motion to Dismiss filed by Beachner Construction Co., Inc. in United States v. Beachner Construction Co., Inc., et al., [555 F.Supp. 1273] Case No. 82-20076-01 [ (D.Kan.1983) ] in the United States District Court for the District of Kansas in ruling on the merits of defendants’ Motion to Vacate Sentence Pursuant to Rule 35(a) in the instant case.
(R., Vol. I, p. 97.)
The court did consider the Beachner hearing record, as evidenced by Judge O’Connor’s detailed references thereto. Nothing in the Stipulation provides that Judge O’Connor was bound by Judge Saf-fels’ finding of a single conspiracy in Beachner in making his “ruling on the merits” on the Rule 35(a) motion. It is thus puzzling why the majority opinion (page 797) states:
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_
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 us to go 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 *816confined 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.
I submit that the question, as posed, implies that Judge Saffels’ finding, following a Rule 12 Motion to Dismiss filed in Beachner, based on all the facts presented at the hearing, that a single, ongoing conspiracy, rather than multiple conspiracies was established, was binding on Judge O’Connor in the Rule 35 proceeding. That is not so.
First, even though the majority opinion finds that “on their face the two {Broce) indictments do not appear to charge different conspiracies” (p. 797), neither Judge Saffels, in Beachner, nor Judge O’Connor, in Broce, so found. Each found to the contrary. Indeed, if Judge Saffels had so found, in Beachner, there would have been no reason to conduct the evidentiary hearing on the Motion to Dismiss to determine the issue of the single conspiracy versus multiple conspiracies. In my view, Judge O’Connor was on target (and Judge Saffels obviously agreed) when he found that “on their faces, the indictments alleged two distinct criminal conspiracies, and the defendants pleaded guilty to each, acknowledging the validity of the facts contained in each indictment.” (R., Vol. II, p. 288.)
Second, the Stipulation clearly states only that Judge O’Connor “may consider” the Beachner record made by Judge Saf-fels. That he did. To suggest that he was legally bound by Judge Saffels’ finding is a distortion of the language of the Stipulation. I submit that Judge O’Connor would have considered the Beachner record regardless of the Stipulation because Beach-ner was the basis for the Broce Rule 35 motion. The Beachner record was in the same court presided over by Chief Judge O’Connor. A court may, sua sponte, take judicial notice of its own records and preceding records if called to the court’s attention by the parties. St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169 (10th Cir.1979); Ginsberg v. Thomas, 170 F.2d 1 (10th Cir.1948). Thus to remand this case to the district court for a “hearing” to look behind the indictments appears to be an attempt by the majority to advise the district court to apply Beachner retroactively when the district court has already considered its effect on this case.
Third, I submit that the only way that Beachner could have controlled Broce in the Rule 35 proceeding is if Beachner had been decided prior to the acceptance of the voluntary guilty pleas entered by the Broce defendants. Such, however, was not the case. The Broce guilty pleas were entered prior to the Beachner decision rendered by Judge Saffels on the Motion to Dismiss. Thus, in order for Beachner to control in the disposition of the Broce Rule 35 proceeding, Beachner must necessarily be applied retrospectively.
The majority opinion does not address the issue whether Beachner should apply retroactively so as to render the Broce pleas illegal. I conclude that this is an issue because of the broad sweep of the majority holding, which seems to be either that all guilty pleas are subject to collateral attack or that because of the Stipulation, Judge Saffels’ finding of a single, ongoing conspiracy in Beachner controls in the remand to the district court. I fail to see why “the Stipulation to include consideration of the Beachner transcript presents a unique case and permits inquiry behind the indictment” (p. 797) if the majority does not implicitly hold Beachner should be applied retroactively to Broce. Judge O’Connor did consider Beachner. Thus, I must ask why Judge O’Connor’s consideration of the record on remand should lead to a different result unless the majority intends that Beachner apply retroactively? Even if we assume arguendo, that the Broce defendants’ guilty pleas did not waive their double jeopardy claim and the Stipulation to consider the Beachner record permits the district court to look beyond the face of the indictments, why should the district court find differently on remand? *817Beachner, decided after Broce, does not render the Broce indictments duplicitous unless Beachner is applied retroactively. Absent a holding that the indictments are facially illegal, which I do not read the majority’s opinion to so hold, (nor did Judge Saffels or Judge O’Connor find), I see no reason to remand.
Because there is no infirmity in the statutes under which Broce or Beachner were indicted and convicted or any other statutory infirmity involved, the only basis upon which Beachner can be applied retroactively to render the Broce pleas invalid under the double jeopardy clause is to do so in reliance on Judge Saffels’ finding of fact which occurred subsequent to the Broce guilty pleas to facially valid indictments. This, I submit, is in violation of the Stipulation and the rule that a voluntary, counseled plea of guilty entered following full compliance with Rule 11 constitutes an admission of facts and all elements contained in the indictment. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Menna, supra at n. 2.
In Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) the Supreme Court discussed the retroactive versus nonretroactive application of judicial decisions. Assuming, as I do here, that Beachner did announce the controlling rule applicable, i.e., that the highway bid rigging in Kansas was a single, ongoing conspiracy rather than separate conspiracies based upon the distinct contracts for each highway construction project, I do not believe that Beachner should be given retroactive application.
Chevron Oil Company v. Huson set forth the following test useful in determining the nonretroactive application of judicial decisions:
In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly fore-shadowed_ Second, ... “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”
404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted).
In applying the above test, I conclude: First, the Beachner decision did decide a factual issue of first impression whose resolution was not clearly foreshadowed, i.e., whether the highway bid-rigging contracts constitute a single, ongoing conspiracy or multiple, separate conspiracies. Second, the application of Beachner, based on the fact-finding process, has only a single purpose and effect and that is to control all prosecutions of highway bid-rigging contractors involved in the conspiratorial enterprise identified in Beachner pursued after Beachner. Third, it would be inequitable and unjust to void the Broce guilty pleas because the defendants were fully counseled and advised. The Broce defendants entered the guilty pleas to separate, distinct conspiracies and all parties, including Judge O’Connor, accepted the factual basis for the separate indictments; however, and in addition, the Broce pleas were predicated upon a plea bargain agreement. The fact that the guilty pleas in this case were entered pursuant to a plea bargain has a special significance. A plea agreement involves quid pro quo. United States v. Cross, 638 F.2d 1375 (5th Cir.1981). Here, the Government agreed not to charge or prosecute certain counts in exchange for the Broce guilty pleas. There is no challenge before us that the plea bargain was not handled by the court *818and counsel in full compliance with the guidelines set forth in Fed.R.Crim.P., Rule 11(e). It is implicit that in accepting the Broce pleas, Judge O’Connor did not look upon the indictments as charging other than separate, distinct conspiracies. No challenge had been posited by the Broce defendants prior to entry of the pleas.
In United States v. Allen, 724 F.2d 1556 (11th Cir.1984), following a plea bargain, the defendant pleaded guilty to four counts of an indictment and the Government dismissed thirteen counts. Thereafter, defendant collaterally attacked his conviction, on the ground that two counts he pleaded guilty to constituted only a single offense; the court held that the defendant had waived his right to contest the maximum sentence and particularly so in that he had benefitted from the dismissal of thirteen other charges and therefore could not “renege on his part of the bargain.” Id. at 1558; United States v. Solomon, 726 F.2d 677 (11th Cir.1984).
Generally, the doctrine of Double Jeopardy is that one may not be tried or prosecuted a second time for the same offense and it is essential that the second prosecution involve the same act and crime both in law and in fact. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938) (the Double Jeopardy Clause “prohibits merely punishing twice, or attempting a second time to punish criminally for the same offense”).
I respectfully submit that Broce was not subjected to the bar of Double Jeopardy. In an evidentiary sense, the Double Jeopardy Clause comes into play as “to preclude retrial after reversal of a conviction only when the appellate court has set aside the conviction on the ground that the evidence was legally insufficient to support conviction.” Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); United States v. Di Francesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).
I would affirm the trial court’s order denying defendants’ motion to vacate the judgment of conviction pursuant to Fed.R. Crim.P. 35(a).
. The panel of this court that handed down United States v. Beachner Const. Co., Inc., 729 F.2d 1278 (10th Cir.1984) (Beachner), consisted of then Chief Judge Seth, O'Connor, Chief Judge, United States District Court for the District of Kansas, and Barrett, Circuit Judge, who authored the opinion. We there held in a case involving the same and identical factual scenario as that before us here that Judge Saffels was not clearly erroneous in concluding that because a common objective was shared by each participating contractor as a single, common and continuous scheme, the record supported the trial court’s finding of a single conspiracy.
In the original panel Broce opinion reported as United States v. Broce, 753 F.2d 811 (10th Cir.1985), it is interesting to note that Judge O’Connor was the trial judge whose order denied the Rule 35 motion to vacate guilty pleas to a second indictment charging separate bid-rigging conspiracies. On appeal Judge Seth dissented from the holding that Broce had been subjected to double jeopardy by pleading guilty to two indictments charging conspiracy to violate the antitrust laws.