UNPUBLISHED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Reversed, vacated, and remanded by unpublished per curiam opinion.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, Char-
lottesville, 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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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
_________________________________________________________________
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 con-
spiracy 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 con-
secutive years on the two counts of transporting a stolen motor vehi-
cle in violation of 18 U.S.C.A. § 2312, which were consolidated for
sentencing. Additionally, he was sentenced to five years on the con-
spiracy 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 Vir-
ginia, he committed only one offense rather than seven separate viola-
tions of 18 U.S.C.A. § 2314. The district court rejected this claim,
concluding that Bates committed a separate act of illegal transporta-
tion each time a forged signature was affixed to one of the stolen
instruments. The district court granted summary judgment to the gov-
ernment on all of Bates' claims and dismissed the action.
_________________________________________________________________
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 travel-
er'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 jeop-
ardy 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 gov-
ernment concedes that with respect to the two checks that were nego-
tiated 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 gov-
ernment 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 con-
clude 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 fraudu-
lent intent, transports in interstate or foreign commerce any traveler's

                     4
check bearing a forged countersignature ... [s]hall be fined under this
title or imprisoned not more than ten years, or both." The jurisdic-
tional element of this offense may be established by one of two meth-
ods, 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 securi-
ties in interstate or foreign commerce." Squires, 581 F.2d at 411 (rely-
ing 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 com-
merce through the subsequent check-clearing process. Therefore,
since the indictment "defines the case against[Bates]," id., the gov-
ernment 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 com-
merce, 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 imprison-
ment 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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