dissenting.
I respectfully dissent from the majority opinions.
Preliminary Statement
This is a case in which the United States of America prosecuted Broce Construction Company and its President, Raymond C. Broce. The defendants plead guilty to two counts of conspiracy in restraint of trade, in violation of the Sherman Act, 15 U.S.C. § 1. Ray Broce also plead guilty to one count of mail fraud, 18 U.S.C. § 1341. Broce received a two year prison sentence and $101,000 in fines, $50,000 per conspiracy and $1,000 for the mail fraud conviction. Broce Construction was required to pay $1,500,000 in fines, $750,000 per conspiracy. The contention of the defendants is that these two conspiracies were so connected that they must be considered as a single conspiracy, an argument which is an important issue in the case. We maintain that there are two transactions and two conspiracies.
The fines are claimed to be in violation of the double jeopardy clause of the Fifth Amendment of the Constitution. The argument is that the defendants are being punished twice for a single offense. Another issue raised here is whether or not the defendants waived their double jeopardy claim by entering pleas of guilty to both of the conspiracy charges.
The Indictments
The first indictment was filed November 17, 1981 in the United States District Court for the District of Kansas, Case No. 81-20119-01. This charged the appellants in *819this case and Gerald R. Gumm, an employee of the company, with conspiracy to violate the Sherman Act, 15 U.S.C. § 1, and mail fraud, 18 U.S.C. § 1341, in connection with Project No. 23-60-RS-1080(9), a federal aid highway project let by the State of Kansas.
On February 4, 1982, a second indictment, Case No. 82-20011-01, was returned by the same grand jury, charging the appellants with conspiracy to violate the Sherman Act, 15 U.S.C. § 1. The latter Project No. KRL 29-2(26), was a public highway project also let by the State of Kansas (R.O.A. Yol. 1, p. 1). For purposes of this dissent the indictment filed on November 17, 1981, is referred to as Indictment 1 and the indictment filed on February 4 is treated as Indictment 2.
The present appeal concerns only the conspiracy in violation of the Sherman Act charged in Count I in Indictment 1, and the Sherman Act conspiracy in Indictment 2. The defendants seek to ignore the proposition that Indictment 2 is a separate and distinct claim. Their reason for this is that they have learned that the only possible door which could bring about a refund of the money paid as a fine would be by way of regarding the two indictments here considered as a single transaction, a conclusion which is not tenable. It was only after Mr. Broce had served his prison term that the idea of treating the two conspiracies as one transaction came to the surface. They claim that if there is but one transaction the fine should be returned. The theory is entirely new in a criminal case. These two transactions are not related so as to link these two projects. They have independent construction programs. Also they do not come together. They were some distance apart.
They would have us look back to a two year old plea of guilty which they say caused the payment of the $750,000 fine. It is said to have been a mistake of law the effect of which could result in being fined twice for one violation. They maintain that the two indictments are one transaction even though they are set forth in two transactions which do not pretend to be one.
We hold that the one transaction theory is invalid; and that these are clearly independent transactions. This single transaction idea was an afterthought. The defense has contended ever since Mr. Broce finished his prison term that it was a single transaction, as the result of which they claim that they are entitled to have returned their money paid as a fine in the second transaction. The effort to thus create a “single” transaction has no support in the cases or in the facts developed.
Appellants would have us look back two years to the plea of guilty and the $750,000 fine. They contend that this plea was the result of a mistake of law which should be recognized and the $750,000 should be restored. But even if the defendants have lost interest in this second indictment, we have not. Nor should we give them an ex post facto restoration which was also the product of afterthought. To consider this it would be necessary to find that the plea of guilty was unlawful and void. This is hard to accept in the present circumstances inasmuch as the plea of guilty was accepted by Broce as part of a plea bargain.
The Pleas of Guilty
On February 8, 1982 the appellants entered pleas of guilty in accordance with a plea bargain entered into between the defendants and the United States. (R.O.A. Vol. 2, p. 167) Defendant Ray C. Broce plead guilty to both counts of Indictment No. 1 and to Indictment No. 2. Broce Construction Company, Inc. plead guilty to Count I of Indictment No. 1 and Count I of Indictment No. 2 (R.O.A. Vol. 2, pp. 168-169). The defendant Broce, individually and on behalf of Broce Construction Company, affirmatively was advised of and waived rights to a speedy trial by jury, the right to compulsory process, and to cross-examination and the right against self-incrimination. No affirmative mention was made nor was any affirmative waiver given to the defendant’s Fifth Amendment rights against double jeopardy.
*820Sentence was pronounced in case number 1 on March 15, 1982. At that time the corporation was fined the sum of $750,000 on each charge for a total of $1,500,000. The fines were to have been paid one-third by December 31, 1982, one-third by December 31, 1983 and one-third by December 31, 1984. The defendant Ray C. Broce personally was fined the sum of $50,000 and was sentenced to two years imprisonment on Count I of Indictment No. 1. On Count II of Indictment No. 1 he was fined the sum of $1,000 and sentenced to two years of imprisonment to be served concurrently with the sentence on Count I. On Indictment No. 2 defendant Broce was fined the sum of $50,000 and was sentenced to two years imprisonment to run concurrently with the sentences in Indictment No. 1. The fines were committed fines which were to have been paid immediately prior to the defendant’s release from incarceration (R.O.A. Vol. 2, p. 203).
The Motion To Vacate the Judgment
On February 22, 1983, the defendants Broce Construction Company and Ray C. Broce filed a Motion to Vacate the Judgment and Sentence of the trial court in Indictment No. 2. Case No. 82-20011-01 (and to do away largely with the plea bargains), under the provisions of Federal Rules of Criminal Procedure 35(a). The judgment and sentence were alleged to have been illegal in that they violated the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. The contention of Broce Construction Company, Inc. was that the total of $1,500,000 in fines was illegal because it exceeded the $1,000,000 which they insist is the maximum amount if there was only one transaction rather than two (R.O.A. Vol. 1, p. 34 and Vol. 2, p. 212). The allegation of the appellants was that the two indictments presented, although purporting to charge two separate conspiracies, actually charged separate parts of a single overall conspiracy (R.O.A. Vol. 1, p. 34 and Vol. 2, p. 212).
The United States government filed a response to appellants’ motions on March 21, 1983. Most of its argument was that the appellants had waived their rights to raise double jeopardy by pleading guilty to both indictments. The government’s argument concerning the actual basis for the motion was contained in one sentence: “The charges in the Broce indictments are not multiplicious on their face or in fact.”
Defendant’s theory in this appeal was inspired by a recent district court opinion by Judge Saffels in a similar case, United States v. Beachner Construction Co., Inc. Beachner had been acquitted of one bid-rigging conspiracy (Beachner I) and the government brought another indictment against them on a similar charge (Beachner II). Beachner urged the court to dismiss the record indictment on double jeopardy grounds. Judge Saffels found that the Beachner I and II indictments were different manifestations of a single conspiracy, that being because they described the same conspiracy. The Beachner II indictment named Jerry Beachner rather than Robert Beachner and Beachner II specified three different highway projects. Nevertheless Judge Saffels found that the conspiracies charged in Beachner I and Beachner II were merely separate parts of a single larger and ongoing bid rigging conspiracy which had continued for several years. That opinion adopts the contractors’ position. In no way does it stand out as a precedent for this court. This led to adoption of a similar theory in this ease even though the facts and their aspects were wholly different.
The court held a hearing on the motion to vacate in the instant case on May 1, 1983. At that time the motion was taken under advisement. The court denied the motion and memorandum and order dated November 18, 1983, and held that the double jeopardy claim had been waived (R.Vol. 1, pp. 100-112 and Vol. 2, pp. 278-290). This appeal was timely filed on November 28, 1983 (R.O.A. Vol. 1, p. 113 and Vol. 2, p. 291).
The question here is whether the double jeopardy clause of the Fifth Amendment of the United States Constitution was violated *821in that Ray C. Broce and Broce Construction' Company, Inc. were punished twice for a single offense.
The result to the double jeopardy claim of entering a plea of guilty to the conspiracy charge is to add more fuel to the original fire. The fact that a plea of guilty was entered results in confirming by the defendants of both transactions.
. There is no great dispute about the double jeopardy clause of the Fifth Amendment prohibiting infliction of multiple punishment for the same offense. There is essentially no dispute that if these indictments reflected one conspiracy that the appellant is not to be punished twice. The essence of this appeal is that the two transactions were actually divided into two sub-parts, one procedural and one factual.
First, the procedural question: Did the defendants waive their claims to double jeopardy?
Second, do the facts admitted by the appellant in pleading guilty allow this court to find that there was only one conspiracy, rather than two?
Waiver of the Double Jeopardy Claim
The general rule on waiver of constitutional claims is that a defendant waives all objections of a constitutional nature when he voluntarily and knowingly enters a plea of guilty. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id at 267, 93 S.Ct. at 1608.
The leading case concerning waiver of the double jeopardy provisions of the Fifth Amendment to the Constitution is Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). In that case Menna had refused to answer questions before a New York State Grand Jury after a grant of immunity. He was adjudged in contempt and sentenced to 30 days in jail. This he served. Approximately ten years later he was indicted for the same conduct. After asserting unsuccessfully, in state court, that the indictment violated the double jeopardy prescription of the Fifth Amendment, he pleaded guilty to the indictment. He then appealed again raising the double jeopardy claim. The New York Court of Appeals declined to address the double jeopardy claim on the merits, holding that it had been waived by Menna’s counseled plea of guilty.
The United States Supreme Court reversed in a per curiam decision which held that where the state is precluded by the United States Constitution from hauling a defendant into court on a charge, federal law requires that conviction on that charge be set aside even if conviction was entered pursuant to a counseled plea of guilty. The question is whether this holding is proper authority for the proposition that a claim of double jeopardy is not defeated by an intervening plea of guilty. The decision is confused by the court’s statement in Footnote No. 2 to its decision. The Supreme Court ruled that it “did not hold that a double jeopardy claim may never be waived, but simply held 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.”
In the instant case the defendants engaged in widespread plea bargaining. They paid a $750,000 fine. Two years later the defendant tried to renege two years after paying. It was argued by the defendants that they were charged twice. This was based on a new idea that he could challenge the plea of guilty — that he was entitled to challenge the validity of the $750,000 fine. The defendants seem to believe that they are free to renounce their plea of guilty. But the plea of guilty is a solid agreement to stand by the plea bargain. They cannot successfully decide to walk away from the plea of guilty which *822served so well before. It is not subject to walking out such as is being allowed by the majority here.
The majority of the circuit has not come to grips with the various features of double jeopardy. However, it seems likely that it would follow the fundamentals. Seemingly it would follow the principle that a plea of guilty is an admission of the elements and material facts of the formal criminal charge contained in the indictment. See McCarthy v. U.S. 394 U.S. 459, 89 S.Ct. 1166. All non-jurisdictional defects are accepted.
The Court in Menna left unanswered the question of what constitutes a valid waiver of the Fifth Amendment claim and whether or not a plea of guilty to a charge which is not multiplicious on its face constitutes a waiver of the double jeopardy claim. The court did indicate in the same footnote that a counseled plea of guilty is an admission of factual guilt so reliable that it validly removes the issue of factual guilt from the case.
This circuit has no extraordinary knowledge to address these questions. At the same time other circuits have taken opposing positions. The Fifth and Ninth Circuits have had no trouble holding that a guilty plea does not result in the 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). This Ninth Circuit decision indicates that a waiver of a double jeopardy claim must be a waiver as defined in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). There the court defined a waiver as the knowing relinquishment or abandonment of a known right or privilege. The Eighth and Second Circuits have ruled that a claim of double jeopardy is non-jurisdictional and is waived if not timely and effectively pleaded. United States v. Herzog, 644 F.2d 713 (8th Cir.1981); McClain v. Brown, 587 F.2d 389 (8th Cir.1978); United States v. Perez, 565 F.2d 1227 (2nd Cir.1977). These decisions thus seem to conflict with the decision in Menna, supra. The court below nevertheless chose not to apply the waiver theories of either the Launius or Herzog line of cases. Rather the court chose as controlling the opinion in Kerrigan v. United States, 644 F.2d 47 (1st Cir.1981). It stated that the case more closely resembled the facts and issues in terms of the instant one.
In Kerrigan two separate indictments which conspired to transport stolen merchandise in interstate commerce. In the first indictment it was averred that Kerri-gan, Kirkwood and a third person, Lambert, had conspired and agreed to transport lithographs stolen in Boston, Massachusetts during a period of time between August 25, 1977 and September 1, 1977. The second indictment alleged that Kerrigan and Kirkwood conspired and agreed to transport jewelery stolen from West Dennis, Massachusetts during a time between September 1, 1977 and September 22, 1977. The court held that despite the holdings and findings in Menna and Launius, a defendant who had pleaded guilty to indictments which did not on their face charge multiple conspiracies could not waive a double jeopardy claim after a plea of guilty.
The court reasoned that the court in Launius had stated that “by pleading guilty the defendant admitted the facts alleged in the information.” The court further proceeded to hold that after pleading guilty a defendant is precluded from contesting the factual or theoretical basis of the charges. The addition of the theoretical basis for the charges is the court’s own. Neither Menna nor Launius contained any language pertaining to this theory behind the government’s ease, even though both state that a plea of guilty admits facts alleged.
In Kerrigan the court proceeded to analyze the indictment according to tests for double jeopardy in conspiracy cases. In United States v. DeFillipo, 590 F.2d 1228 (2nd Cir.1979), the relevant factors examined were the dates of the purported agreements, the identity of each of the alleged conspirators, and the specific criminal acts to the commission of which the defendants were alleged to have agreed. The court *823found that based on these factors the two indictments were not multiplicious on their face.
In closing it is fair to conclude that a defendant who waives all facts in effect accepts them. Such a man generally must proceed with the burden of the facts.
One Conspiracy From Two
It is apparent from the above that the defendants depend on the similarity of the form of the contracts in question. Thus, they say that these contracts are the same; a part of the same conspiracy. They argue that as a result of their calling the two contracts one contract that they automatically assume this character. They neglect the positive facts which point to each contract having an individual character. They were entered at two separate times and in two separate places. In fact the roads involved are located at different places and are not connected. The fact that the two contracts are similar in form has no consequence. Lawyers are noted for utilizing a form. Therefore, the fact that the two contracts are similar does not suggest that they are identical. It could be said that the second contract was copied from an earlier existing contract. When the second contract was executed the company pursued and obtained another independent job. No amount of wishing can change this fact.
Part of the defendants’ position is that the sentences of the defendants Ray C. Broce and Broce Construction Company, Inc., are in violation of the double jeopardy clause of the Fifth Amendment of the United States Constitution on the ground of multiplicity in that they are being punished twice for a single offense. There are so many features that demonstrate that these two indictments were based on individual transactions.
There are several reasons for this being two transactions. First, these transactions had different contracts. If they had wished to have a single contract they perhaps could have brought about a less damaging result by referring in that to the various provisions instead of writing a brand new contract. Surely these businessmen know that one does not write two contracts for one transaction.
Second, such contracts conceivably could be part of one transaction if they both pertained to the same highway. They do not. The two highways are in completely different geographical locations.
Third, several. months passed between the completion of contract number one and the undertaking of contract number two. This chronological gap implies that there were two transactions.
Fourth, this also persuades that they were not thinking at the time of the various signings that this was just one transaction. This being the case if there had been an effort to keep it under one roof there would have been only one agreement for the two roads.
It appears that these two projects fell short of being one. The double aspect was clearly an after-thought which was brought about two years too late to be of service to these defendants. How could the defendants demand their money back after two years has passed? The district court, Judge O’Conner, reached the conclusion that these were two distinct transactions and thus the defendant was not punished twice. Finally, the defendants tried to cure the problem by saying that one conspiracy permeated the entire work of Broce Co. But a careful examination of the two contracts reveals that they clearly represent distinct transactions. The “conspiracy” came to life long after the creation of the contracts. Although it seemed to have been brought to the surface in an effort to establish the double jeopardy claim. But it fails.
The Conclusion
The record reveals that the defendants waived any and all rights under the double jeopardy clause. This came about when the defendants agreed to voluntary pleas of guilty. It was not until Broce’s release from prison that they came forward with their present claims. But even if their *824rights under the double jeopardy clause were not waived, the guilty pleas admit the facts in the indictments, both of which plainly acknowledge two separate conspiracies. Not only that, the facts readily reveal that under no theory could their conduct be ruled to be part of a single larger conspiracy. The attempt by the defendants to put forth a single larger conspiracy fails miserably. The trial court saw through their efforts to restore a past which itself fails. The result that they seek does not emerge.
The argument is that Broce has continuously been in a conspiracy the object of which was to realize excessive gain at the expense of Kansas and United States taxpayers. The defendants here do not hesitate to acknowledge this. This demand seeks to undo the payments which the court assessed as punishment for their misdeeds.
To allow them to obtain this is contrary to law including not only laws of Congress, but also the United States Constitution.
In addition it would set a precedent which could allow courts to disregard the United States laws in favor of their own ideas. The judge in this case rejected these efforts and upheld the law. To accept the position of the majority would favor these defendants and would create a system which tolerates the undoing of pleas of guilty. This at least would weaken the system of law which was adopted in 1789. Besides the general developments here suggested, it would leave a system which criminals could manipulate according to their will and their money.
Finally, no laws or rules could justify a result which holds out a consequence which they here demand. More violations can be expected if the criminals can apply that which they wish rather than that which they agree to.
APPENDIX
Count I of Indictment 1 consists of fifteen numbered paragraphs divided into seven sections designated by I through VII. Section I is headed “Definitions” and consists of Paragraph 1 which is divided into three sub-paragraphs, (a), (b), (c). The sub-paragraphs define the terms “highway construction”, “highway construction contract” and “federal-aid highways”, respectively. Section II is entitled “defendants” and consists of Paragraphs 2 and 3. Paragraph 2 alleges that Ray C. Broce is President and Gerald R. Gumm is General Manager of Broce Construction Company. The paragraph further identifies that Broce Construction Company is a corporation organized under the laws of the State of Kansas which does business particularly at Dodge City, Kansas. Paragraph 3 states that any reference to an act of a corporation means that the corporation acted through its officers or agents, etc. while they were actively engaged in the management, etc. of a corporation.
Much of the remaining space is devoted to the similarity in wording of the various provisions in each indictment. It proves little if anything. It repeats and repeats more of the materials in the two indictments.
Section III is entitled “co-conspirators” and consists of Paragraph 4 only. This latter paragraph states that various persons and firms not made defendants participated as co-conspirators in the offense charged and performed acts and made statements in furtherance thereof.
Section IV is entitled “trade and commerce” and it consists of five paragraphs.
Paragraph 5 asserts that federal aid highways, including the highway which is the subject of the indictment, are part of a nationwide network of inter-connecting highways over which interstate commerce is conducted.
Paragraph 6 states that there exists under the Federal Aid Highway Act, 23 U.S. C.2d 101, et seq., a cooperative effort on the part of states and the federal government, including the State of Kansas, for the development and construction of highways, including the highway which is the subject of this indictment.
*825Paragraph 7 alleges that the State of Kansas during the time period of the indictment sought sealed competitive bids from highway construction contractors.
Paragraph 8 states that Kansas requires that highway projects over $1,000 be bid competitively. Paragraph 9 explains that Kansas bidding regulations require a statement of non-collusion in it. Paragraph 10 states that materials travelling in interstate commerce were used in Kansas highway projects including the one which is the subject of the indictments. To say that the Kansas bidding regulations require a statement of non-collusion in each bid is superfluous inasmuch as there is nothing but collusion throughout all of these briefs. They have undertaken to set forth all of the contractual matters; but at the same time they allege that these were evidences of collusion. At the same time they back away from this conclusion any time a law violation comes into view. Unquestionably the appellants and Gerald R. Gumm and others unknown conspired to suppress and eliminate competition for the construction of Kansas Highway Project No. 23-60-R.S.1080(9) in violation of the Sherman Act (15 U.S.C. § 1).
Paragraph 12 states that the conspiracy was set forth in the agreement. It alleges that there was understanding and concert of action among conspirators. The substantial terms of a conspiracy were (a) to allocate the construction project named to Broce Construction Company; (b) to cement collusive, non-competitive and rigged bids to the State of Kansas in connection with the project. Paragraph 13 alleges that overt acts were committed. These included (a) discussing the submission of bids on the projects; (b) designating the successful low bidder on the project; (c) the submission of intentionally high bids by co-conspirators; (d) submitting bids containing false, fictitious and fraudulent statements and entries; and (e) discussing the submission of prospective bids on other projects let by the State of Kansas on April 25, 1978. (R.O.A. Vol. 2, pp. 139-140)
Section VI is labeled “effects” and it consists of Paragraph 14. This latter sets forth among other effects of the conspiracy: (a) that it caused the prices for the project to be maintained as artificial and non-competitive levels; (b) that it caused competition in the construction of the project to be eliminated; (c) that it caused the State of Kansas to be denied the right to receive competitive bids on the project; and (d) that it caused the State , of Kansas and the United States to be denied the benefits of competition on the project. In other words, the showing is unmistaken inasmuch as it establishes a violation of the Sherman Act and admits it with candor. Thus the conspiracy was designed in order to avoid the law; the Sherman Act. The object was to set aside the Sherman Act in favor of a small group of contractors who do not compete. Their effort is to fix prices among the selected few. The United States Government sought to prosecute these participants and the litigation by the contractors simply ignores this effort.
Another part, Section VII, is entitled “jurisdiction and venue”. It undertakes in Paragraph 15 to reveal that the conspiracy was formed and carried out within the District of Kansas during five years following the return of the indictment. (R.O.A. Vol. 2, p. 140)
Count II of Indictment No. 1 is not primarily involved in this appeal and accordingly, there is nothing to be gained by summarizing it.
Indictment No. 2 is organized with great care. It has seven sections designated by roman numerals. The section headings are identical to those in Indictment No. 1. That is as far as the similarity goes. The indictment consists of fourteen numbered paragraphs. Section I entitled “definitions” consists of Paragraph No. 1 which is divided into sub-paragraphs (a) and (b), which define the term “highway construction” and “highway construction contractor”, respectively. (R.O.A. Vol. 1, p. 1) The definitions of those terms are identical to the definitions given in Section I of Indictment No. 1, the only difference in the two sections being that Indictment No. 2 fails to define the term “federal-aid highways.”
*826Section II entitled “defendants” consists of Paragraphs 2 and 3 (R.O.A. Yol. 1, pp. 1-2). Paragraph 2 is identical to the same paragraph in Indictment No. 1 except that it contains no reference to Gerald R. Gumm. Paragraph 3 is exactly identical to Paragraph 3 of Indictment No. 1.
Section III is entitled “co-conspirators” and consists of Paragraph 4. (R.O.A. Vol. 1, p. 2) Section III is identical to Section III of Indictment No. 1.
Trade and Commerce
Section IV which is entitled “trade and commerce” consists of Paragraphs 5 through 9. (R.O.A. Vol. 1, pp. 2-3) Paragraph 5 is identical to Section IV, Paragraph 5 of Indictment No. 1, except that it begins with the words “public highways”, instead of the words “federal-aid highways”. This feature does not lack truth. The term “federal-aid highways” is correct because federal aid was exactly what it was. Undoubtedly federal money was the important object in the entire project.
Paragraph 6 is identical to Section IV, Paragraph 7 of Indictment No. 1. Paragraph 7 is identical to Section IV, Paragraph 8 of Indictment No. 1. Paragraph 8 is identical to Section IV, Paragraph 9 of Indictment No. 1. Paragraph 9 is identical to Paragraph 10 of Indictment No. 1. The only major difference between Sections IV of the two indictments is that Indictment No. 1 contains a paragraph describing state and federal co-operation under the Federal Aid Highway Act (15 U.S.C. § 101, et seq.). See Paragraph 6 of Indictment No. 1.
Indictment No. 2 deals with a completely different area for the building of the highway and it uses various headings and discussions. Thus Section V of Indictment No. 2, entitled “offense charged” consists of Paragraphs 10 through 12 of the indictment. Paragraph 10 is identical to Paragraph 11 of Section V of Indictment No. 1 except for the project number. In Indictment No. 2 the project number is K.R.L. 29-2(26); the date of the bid letting, July 17, 1979. The description of the project as a “public highway project” rather than a “federal-aid highway project”, and the date of commencement of the conspiracy, in or about July, 1979. Paragraph 11 is identical to Paragraph 12 of Indictment No. 1 except for the project number and date of letting in subparagraph (a) and the reference to the project as a “public highway project”, rather than ' a “federal-aid highway project.”
Paragraph 12 of Indictment No. 2 is identical in charging overt acts in furtherance of a conspiracy in Paragraph 13 of Indictment No. 1. The exception is referring to the different project numbers, sub-paragraph (e) being the only exception. Indictment No. 2, sub-paragraph (e) alleges a discussion of the payment of consideration to another contractor and in Indictment No. 1, sub-paragraph (e) alleges the discussion of the submission of bids on other projects.
Section VI entitled “effects” consists of Paragraph 13. (R.O.A. Vol. 1, page 5) It has identity to Section VI of Indictment No. 1 except for the description of the project as a “public highway project” rather than a “federal-aid highway project”, and there is the elimination of a reference to the United States in sub-paragraph (d).
Section VII is entitled “jurisdiction and venue” and consists of Paragraph 14 of the indictment. (R.O.A. Vol. 1, p. 6) Section VII of Indictment No. 2 is identical to Section VII of Indictment No. 1.