UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6800

WAYNE LEE BATES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CR-86-60-R, CA-95-1223)

Argued: December 1, 1998

Decided: January 8, 1999

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,

and HILTON, Chief United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Reversed, vacated, and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Sara Elizabeth Parshall, UNIVERSITY OF VIRGINIA

SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia, for Appellant. Julie C. Dudley, Assistant United

States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Neal

L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW

APPELLATE LITIGATION CLINIC, Charlottesville, Virginia, for
Appellant. Robert P. Crouch, Jr., United States Attorney, Roanoke,

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Wayne Lee Bates brought this action pursuant to 28 U.S.C.A.

§ 2255 (West 1994)1, seeking to set aside his convictions on multiple

counts of transporting forged traveler's checks, see 18 U.S.C.A.

§ 2314 (West Supp. 1998), two counts of transporting a stolen motor

vehicle, see 18 U.S.C.A. § 2312 (West Supp. 1998), and conspiracy

to commit these crimes, see 18 U.S.C.A.§ 371 (West 1966 & Supp.

1998). The district court refused to grant relief under section 2255,

and Bates appeals. We reverse and vacate Bates' convictions on six

of the seven counts of transporting forged traveler's checks. On the

remaining count, we remand for resentencing.

I.

In July 1986, Bates escaped from jail in Kentucky and traveled to

Tennessee, where he murdered Julia Guida and stole her rental car

and twelve American Express traveler's checks belonging to her.2

Following the murder, with all the checks in his possession, Bates

picked up two hitchhikers in Tennessee and drove through Virginia

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1 Bates filed his section 2255 petition in November 1995 and amended

his motion on April 9, 1996, before the enactment of the Antiterrorism

and Effective Death Penalty Act. The Act's amendments to section 2255,

see 28 U.S.C.A. § 2255 (West Supp. 1998), do not apply to this action,

see Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997).

2 Bates subsequently confessed, during the course of a separate state

proceeding, to committing these acts.

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into Maryland where he was eventually arrested. While the trio was

in Virginia, one of the hitchhikers forged Guida's signature on seven

of the traveler's checks and negotiated them in five cities in Virginia.3

Bates was indicted on seven counts of transporting stolen traveler's

checks in interstate commerce in violation of 18 U.S.C.A. § 2314 --

one count for each check negotiated in Virginia. 4 Additionally, Bates

was indicted on two counts of interstate transportation of a stolen

vehicle in violation of 18 U.S.C.A. § 2312, and on one count of conspiracy with respect to these substantive charges. Bates pled not

guilty but was convicted on each count of the indictment. He received

a sentence of five years to run consecutively on each substantive

count under 18 U.S.C.A. § 2314. Likewise, Bates received five consecutive years on the two counts of transporting a stolen motor vehicle in violation of 18 U.S.C.A. § 2312, which were consolidated for

sentencing. Additionally, he was sentenced to five years on the conspiracy count, also to run consecutively to the substantive counts. In

total, Bates was sentenced to forty-five years' federal time, running

consecutively to his state murder and larceny sentences.

On direct appeal, this court affirmed Bates' multiple convictions.

See United States v. Bates, No. 88-5053, slip op. (4th Cir. Nov. 28,

1988) (per curiam) (unpublished). He then sought collateral review

under 28 U.S.C.A. § 2255, raising a plethora of issues for the district

court's consideration. For purposes of this appeal, only one claim

deserves mention. Bates asserted that because he simultaneously

transported the traveler's checks as a group from Tennessee to Virginia, he committed only one offense rather than seven separate violations of 18 U.S.C.A. § 2314. The district court rejected this claim,

concluding that Bates committed a separate act of illegal transportation each time a forged signature was affixed to one of the stolen

instruments. The district court granted summary judgment to the government on all of Bates' claims and dismissed the action.

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3 Two checks were cashed in Abingdon; two in Harrisonburg; one in

Wytheville; one in Staunton; and one in Mt. Jackson.

4 The indictment also charged Bates with transporting a stolen traveler's check from Tennessee to New York, but this count was dismissed

by the government prior to trial.

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On appeal, Bates raises a single issue: whether the district court

erred in sentencing Bates for multiple violations of 18 U.S.C.A.

§ 2314. Bates contends that under United States v. Squires, 581 F.2d

408 (4th Cir. 1978), his convictions on multiple counts of interstate

transportation of forged traveler's checks ran afoul of the double jeopardy clause of the Fifth Amendment. As he argued to the district

court, Bates maintains on appeal that he committed only one violation

under 18 U.S.C.A. § 2314 because he transported the forged traveler's

checks together as one group across state lines. In response, the government concedes that with respect to the two checks that were negotiated at the same location in Abingdon, only one offense occurred;

likewise, it concedes that only one offense occurred when two checks

were negotiated at the same location in Harrisonburg. Therefore, the

government urges us to conclude that Bates committed five separate

violations of 18 U.S.C.A. § 2314. We agree with Bates that circuit

precedent constrains us to find that he committed only one violation

of 18 U.S.C.A. § 2314.

II.

A.

Before reaching the merits of Bates' double jeopardy claim, we

first briefly address whether the claim is properly before us in this

§ 2255 proceeding. The government argued to the district court that

Bates defaulted this constitutional claim because he failed to raise it

on direct appeal. Although the district court apparently concluded that

Bates failed to demonstrate cause and prejudice for his failure to raise

the claim on direct appeal, see J.A. 130, it nevertheless directly

addressed the merits of Bates' claim. J.A. 120-24. On appeal, the government has not advanced its default argument, either in its brief or

at oral argument. In effect, the government has acquiesced in Bates'

contention that his claim should be reviewed de novo rather than

under a cause-and-prejudice standard of review. Accordingly, we conclude that the government has waived this argument and that it is

appropriate for us to consider the merits of this issue. See United

States v. Metzger, 3 F.3d 756, 757-58 (4th Cir. 1993).

B.

Under 18 U.S.C.A. § 2314, "[w]hoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any traveler's

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check bearing a forged countersignature ... [s]hall be fined under this

title or imprisoned not more than ten years, or both." The jurisdictional element of this offense may be established by one of two methods, or both. The government may demonstrate that the defendant

actually transported the forged instrument from one state to another,

or it may show that the defendant caused the forged instrument to

move in interstate commerce by initiating the negotiation process. See

Squires, 581 F.2d at 411. It is a well-rooted proposition in this circuit

that if the indictment charges transportation by the former method

only, then "a person [commits] only one offense [under 18 U.S.C.A.

§ 2314] by transporting as a group any number of counterfeit securities in interstate or foreign commerce." Squires, 581 F.2d at 411 (relying on Castle v. United States, 368 U.S. 13 (1961)).

Here, as in Squires, the indictment charged Bates with transporting

the forged traveler's checks from Tennessee to Virginia as opposed

to causing the traveler's checks to be transported in interstate commerce through the subsequent check-clearing process. Therefore,

since the indictment "defines the case against[Bates]," id., the government was limited to establishing that Bates actually transported the

checks in interstate commerce. It is uncontroverted that Bates carried

the seven forged traveler's checks together as a group across state

lines, which amounts to only one offense rather than seven under

Squires. Indeed, we are unable to distinguish our case from Squires

in any material way, where Squires was deemed to have committed

only one offense under 18 U.S.C.A. § 2314 by physically taking five

counterfeit cashier's checks from Norfolk, Virginia to Freeport,

Grand Bahamas and cashing them there at different times. See id. at

410-12. As here, the indictment in Squires charged that the defendant

had actually transported the counterfeit instruments in foreign commerce, and it was undisputed that he carried them together as a group

in a single transportation. See id. at 411-12.

We conclude that Bates committed only one offense in transporting

these seven forged traveler's checks from Tennessee to Virginia.

Therefore, the imposition of consecutive five-year terms of imprisonment for each of the checks violated Bates' rights under the double

jeopardy clause of the Fifth Amendment.

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III.

We hold that Bates' convictions must be vacated on six of the

seven substantive counts of transporting forged traveler's checks in

violation of 18 U.S.C.A. § 2314. Accordingly, we reverse and vacate

Bates' convictions on counts three through eight of the indictment.

On the sole remaining count of transporting forged traveler's checks

-- count two of the indictment -- we remand for the district court to

resentence Bates in light of this decision. We express no opinion on

whether Bates should receive a sentence that is greater, lesser, or

equivalent to the five-year sentence he originally received on this

count.

REVERSED, VACATED AND REMANDED

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