1 18 U.S.C. § 494 (1996) states: 

Whoever falsely makes, alters, forges, or counterfeits

any bond, bid, proposal, contract, guarantee, security,

official bond, public record, affidavit, or other writing

for the purpose of defrauding the United States; or

Whoever . . . [knowingly] possesses with intent to utter

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-60772

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRIS A. PRESTENBACH,

Defendant-Appellant.

 

Appeal from the United States District Court

For the Northern District of Mississippi

 

October 16, 2000

Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

On May 17, 1983, while serving time for a prior conviction,

prison officials conducted a routine inspection of defendant Chris

Prestenbach’s personal property. They discovered that a lotion

bottle in his possession contained a plastic bag with six Postal

Service money orders inside. Four of the money orders had been

altered.

Prestenbach was indicted and convicted of four counts of

violating 18 U.S.C. § 494.1 Each count had charged him with knowing
or publish as true, any such false, forged, altered, or

counterfeited writing . . . 

Shall be . . . imprisoned not more than ten years.

2 FED. R. CRIM. P. 35(a) (1984) (“The court may correct an

illegal sentence at any time.”). Defendant’s offense occurred

before the effective date of the current version of the rule. See

FED. R. CRIM. P. 35(a) (2000).

3 He raises the subject matter jurisdiction argument for the

first time in his reply brief, but, of course, this court may

always raise the question of subject matter jurisdiction on appeal

and in the courts below. See, e.g., United States v. Santora, 711

F.2d 41, 42 (5th Cir. 1983); Goldin v. Bartholow, 166 F.3d 710, 714

2

possession with intent to utter and publish as true one of the

altered money orders. The district judge sentenced him to five

years for each violation, sentences to run consecutively.

Prestenbach’s direct appeal challenged the sufficiency of the

evidence and an evidentiary ruling. This court affirmed the

conviction without opinion in 1986.

He was released from state custody in 1993, and after the

completion of his first sentence, he filed a motion under Federal

Rule of Criminal Procedure 35(a)2 to correct his sentence. He

argued that his sentence punished him four times for a single

offense. Since his first five-year term had been completed, he

argued he should be released. The district court denied his motion.

Prestenbach appeals.

I

As a threshold matter, Prestenbach argues that the sentencing

court lacked subject matter jurisdiction and therefore his

conviction and sentence are invalid.3 He argues that 18 U.S.C. §
(5th Cir. 1999).

4 See, e.g., United States v. Scott, 688 F.2d 368, 369-70 (5th

Cir. 1982).

5 See, e.g., United States v. Stumpf, 900 F.2d 842, 844 (5th

Cir. 1990); Santora, 711 F.2d at 42.

6 The effective date of the AEDPA was April 24, 1996; the

statute of limitations expires one year after that date or the date

the defendant’s conviction becomes final, whichever is later. See

United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998)

(allowing more than a year after the effective date of the AEDPA if

“reasonable”), cert. denied, 525 U.S. 1091 (1999).

3

494 does not prohibit possession of altered postal money orders,

and thus his indictment failed to state a claim.

We cannot revisit his conviction. Under Rule 35(a), a

defendant cannot challenge his conviction; he can only challenge

his sentence.4 Further, this court cannot construe his Rule 35(a)

appeal as a 28 U.S.C. § 2255 motion5 because the one-year statute

of limitations on filing a federal habeas petition expired years

ago.6

Focusing then on the court’s jurisdiction to sentence, we rule

that subject matter jurisdiction did exist. Defendant’s indictment

alleged violations of 18 U.S.C. § 494, clearly a federal question.

The indictment alleges every element of the crime. That

Prestenbach’s alleged acts do not violate section 494 goes to the

merits of the case, not jurisdiction. This alleged error should be
7 See Congress of Racial Equality v. Clemmons, 323 F.2d 54,

59 (5th Cir. 1963) (“A distinction must be drawn between the

question of federal jurisdiction and the question of sufficiency of

the complaint . . . to show a cause of action arising under

[federal law]. . . . [T]he complaint in this case, as drafted,

states an action created or arising under [federal statutes]. The

district court therefore had jurisdiction, even if the case should

be dismissed for failure of the plaintiffs to show a cause of

action under the federal statutes.”).

8 Our interpretation of 18 U.S.C. § 494 thus assumes the

conviction was proper. However, we do not decide whether

Prestenbach’s conviction under 18 U.S.C. § 494 rather than 18

U.S.C. § 500 was valid.

9 Note that Prestenbach challenges multiple sentences, not

successive prosecutions. Thus, the issue in this case is merely

legislative intent; the Constitution does not prevent Congress from

making possession of each altered money order a separate offense.

“With respect to cumulative sentences imposed in a single trial,

the Double Jeopardy Clause does no more than prevent the sentencing

court from prescribing greater punishment than the legislature

intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).

4

addressed as a failure to state a claim, not as a jurisdictional

defect.7 We now address the merits of Prestenbach’s claim.8

II

Prestenbach contends that he is guilty of only a single act of

possessing four altered money orders, and thus his consecutive

sentences punish him four times for a single crime. We must

determine the “unit of prosecution” Congress created—the act of

possessing money orders, or the act of possessing a single money

order.9 As there is no precedent directly on point, we interpret

the text with the aid of analogous cases.

The statutory language is ambiguous. It prohibits possession

of “any such . . . writing.” Although the government argues that
10 The government cites cases such as United States v. Windom,

510 F.2d 989 (5th Cir. 1975), interpreting 18 U.S.C. § 495

(uttering or publishing “any” forged writing), and United States v.

Guzman, 781 F.2d 428 (5th Cir. 1986) (per curiam), interpreting 18

U.S.C. § 1001 (making “any” materially false representation).

11 349 U.S. 81 (1955).

12 Id. at 82, quoting 18 U.S.C. § 2421.

13 In the same spirit of Bell is United States v. Driscoll, 454

F.2d 792, 801 (5th Cir. 1972), holding that the passing of six

fraudulent checks on three occasions amounted to only three

violations of a statute prohibiting interstate transport of

fraudulent checks. The statute at issue, 18 U.S.C. § 2314,

prohibited transportation of “any” forged traveler’s check. See

also United States v. Berry, 977 F.2d 915, 918-20 (5th Cir. 1992)

(construing 18 U.S.C. § 922(g), which prohibits possession of “any

firearm or ammunition” by certain individuals); United States v.

Hodges, 628 F.2d 350, 351 (5th Cir. 1980) (construing 18 U.S.C. §

922(h) and 18 U.S.C. App. § 1202 (now 18 U.S.C. §§ 922(g) & (n)),

which prohibit possession or receipt of “any firearm or ammunition”

by certain individuals); United States v. Edmonson, 659 F.2d 549

(5th Cir. Unit A 1981) (construing 18 U.S.C. § 1708, which forbids

theft or possession of “any letter”); Williams v. United States,

385 F.2d 46 (5th Cir. 1967) (per curiam) (same).

5

“any” indicates each writing comprises the unit of prosecution,10

courts have not so held. In Bell v. United States11 the Supreme

Court interpreted the Mann Act, which prohibited “knowingly

transport[ing] in interstate or foreign commerce . . . any woman or

girl for the purpose of prostitution or debauchery, or for any

other immoral purpose,”12 to allow only one conviction for the

simultaneous transportation of two women. The Court noted that,

lacking explicit instructions from Congress, it would treat each

transportation as the unit of prosecution.13
14 One dictionary defines “any” as “one, a, an, or some; one

or more without specification or identification.” RANDOM HOUSE COLLEGE

DICTIONARY (rev. ed. 1982).

15 Guzman, 781 F.2d at 432. Guzman found that the offenses

alleged were separate; Williams, 385 F.2d at 47, stated the same

rule and found only a single offense.

16 See United States v. Windom, 510 F.2d 989, 994-95 (5th Cir.

1975).

6

Since “any” can mean “one” or “some,”14 courts have determined

the unit of prosecution by reference to the conduct alleged. Courts

apply the following rule: “Whether a transaction results in the

commission of one or more offenses is determined by whether

separate and distinct acts made punishable by law have been

committed.”15 The principle underlying this rule is that the “unit

of prosecution” for a crime is the actus reus, the physical conduct

of the defendant. 

While identifying the actus reus with particularity may not

always be easy, our cases have been able to do so in a coherent

fashion. If the statute prohibits uttering false statements or

stealing mail, courts treat each utterance or theft as a single

offense. Thus, fraudulently endorsing eight checks at one time

constitutes eight violations of 18 U.S.C § 495.16 Submitting two

documents with false statements at the same time supports two
17 See Guzman, 781 F.2d at 432-33; United States v. Shaid, 730

F.2d 225, 231 (5th Cir. 1984). But cf. Driscoll, 454 F.2d at 801

(holding that the passing of six fraudulent checks on three

occasions amounted to only three violations of a statute

prohibiting interstate transport of fraudulent checks).

18 See Williams, 385 F.2d at 47.

19 Consider the alternative: a person knowingly receives a bag

of five thousand counterfeit $10 bills. See 18 U.S.C. § 473 (2000).

Five thousand counts of receiving counterfeit obligations?

20 See Edmonson, 659 F.2d at 550; Williams, 385 F.2d at 47.

21 Hodges, 628 F.2d at 351. See also Berry, 977 F.2d at 919.

22 Berry, 977 F.2d at 920; Hodges, 628 F.2d at 352.

7

convictions.17 However, stealing a single bag of mail with sixteen

pieces of mail in it is only a single offense.18

Cases interpreting statutes criminalizing possession of

firearms or stolen mail follow the same logic. If the contraband is

possessed at a single place and time, there is a single act of

possession and a single crime.19 Possession of multiple pieces of

stolen mail that were stolen at the same time gives rise to only a

single offense.20 The “simultaneous, undifferentiated possession

of multiple firearms constitutes only one offense” under statutes

forbidding convicted felons from possessing or receiving firearms.21

Consistent with the principle that the actus reus defines the unit

of prosecution, the cases involving firearms acknowledge that

receipt or possession of different guns at different times could

give rise to separate offenses, with consecutive sentences.22
23 Finally, we note that any uncertainty that remains would be

insufficient to undermine this holding. If uncertainty remains

after our interpretation of the text and its underlying policies,

the rule of lenity requires a narrow construction of the law. See

Bell, 349 U.S. at 83 (“When Congress leaves to the Judiciary the

task of imputing to Congress an undeclared will, the ambiguity

should be resolved in favor of lenity.”); Moskal v. United States,

498 U.S. 103, 108 (1990) (“[W]e have always reserved lenity for

those situations in which a reasonable doubt persists about a

statute’s intended scope even after resort to the language and

structure, legislative history, and motivating policies of the

statute.”) (quotation marks and emphasis omitted). There is no

relevant legislative history.

24 See Berry, 977 F.2d at 920; Hodges, 628 F.2d at 352.

8

Turning to the facts of this case, we find that the government

alleged only a single act of possession. As noted above, whether a

transaction results in the commission of one or more offenses is

determined by whether separate and distinct acts made punishable by

law have been committed. Keeping four altered money orders in a

lotion bottle is one action, and therefore one crime.23

If the government proved separate acts leading to his

possession of the altered money orders, it might present this court

with a different case;24 but it did not. Nor did the government

allege any acts of alteration by the defendant. Therefore, we

REVERSE the district court’s denial of defendant’s motion to

correct his sentence and INSTRUCT the district court to reduce the

three illegal sentences and grant any additional appropriate

relief, including Prestenbach’s release.

Sentence VACATED and REMANDED.