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June 8, 1990

PETER A. MAKRES, Defendant


 In 1982, pursuant to Fed. R. Crim. P. 20, defendant Peter Makres pleaded guilty to a five-count indictment alleging transportation of forged checks in violation of 18 U.S.C. § 2314. Each count involved a separate check, but the checks involved in the first four counts were all drawn on the same account and cashed on May 21, 1982 in Greensboro, North Carolina. Presently, defendant apparently concedes that each of the four checks was cashed at a different bank. *fn1" The parties apparently agree that, to the extent it is found to be relevant, a hearing is necessary to determine if the checks related to the challenged counts were all forwarded to the drawee bank in Illinois in a single shipment. As is discussed below, the relevant fact is the manner of the transactions, not the actual transportation, and, in any event, there is no legal basis for holding a hearing to add to the record of the guilty plea hearing.

 Makres was originally sentenced to six months' work release on Count One and a five-year probationary period on Counts Two through Five. Four years later, probation was revoked on Counts Two through Four and consecutive sentences of ten years each were imposed for those three counts. *fn2" The new sentence was affirmed on appeal. United States v. Makres, 851 F.2d 1016 (7th Cir. 1988). In his present Rule 35(a) motion, *fn3" defendant claims it was illegal to impose consecutive sentences on Counts Two through Four. *fn4" He argues that § 2314 punishes the interstate transportation of forged checks, not the forging or passing of checks. Thus, the argument goes, if the four checks were transported from North Carolina to Illinois *fn5" in a single shipment, he can only be sentenced for one violation.

 The government argues that defendant has waived this claim because not raised on direct appeal of his sentence nor in an earlier Rule 35(b) motion. Rule 35(a) provides that an illegal sentence may be corrected at any time. It would be inconsistent with that Rule to hold that despite the fact that the Rule can be invoked at any time, issues raised pursuant to that Rule will be considered waived if not raised on direct appeal. Such a position is also inconsistent with the rule that illegal sentences must be corrected sua sponte by the court. See Lee v. United States, 400 F.2d 185, 188 (9th Cir. 1968); United States v. Allen, 733 F. Supp. 1186 (N.D. Ill. 1990). It is unnecessary, however, to determine if waiver can ever apply to Rule 35(a) motions. It is clear that waiver does not apply when double jeopardy claims are raised under that Rule. United States v. Baugh, 787 F.2d 1131, 1132 (7th Cir. 1986) (per curiam); United States v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986). Defendant has not waived the claims raised in this case.

 Section 2314 provides, in part, *fn6" "Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; . . . shall be fined not more than $ 10,000 or imprisoned not more than ten years, or both." The Supreme Court has held that one trip involving the personal transportation of five money orders across state lines constitutes a single violation of § 2314. Castle v. United States, 368 U.S. 13, 7 L. Ed. 2d 75, 82 S. Ct. 123 (1961) (per curiam) (vacating 287 F.2d 657 (5th Cir. 1961)). The circuits, however, are split as to what constitutes a separate violation under this statute when the defendant causes another to do the transporting.

 In Gilinsky v. United States, 368 F.2d 487 (9th Cir. 1966) (" Gilinsky II "), the defendant, on a single day, passed five forged checks at three locations in Seattle. By chance, two of the checks cashed at two different locations were transported together and the three other checks, all cashed at the same location, were also transported together. The Ninth Circuit held that only two offenses could be charged since the two transportations, not the five passings, were the offense under § 2314. In United States v. Driscoll, 454 F.2d 792, 801 (5th Cir. 1972), the Fifth Circuit held that passing more than one check in a single transaction could only constitute one violation of § 2314.

 It has also been held, or indicated in dicta, that happenstance that fraudulent instruments are transported together does not prevent charging a separate § 2314 violation regarding each instrument. In United States v. White, 524 F.2d 1249, 1254 (5th Cir. 1975), cert. denied, 426 U.S. 922, 96 S. Ct. 2629, 49 L. Ed. 2d 375 (1976), the Fifth Circuit held that negotiating two forged checks several hours apart at the same store constituted two violations of § 2314 even though the instruments were transported to the bank together. The Fifth Circuit considered it to be happenstance that checks negotiated on the same day and at the same location were transported together and therefore found its prior decision in Driscoll to be distinguishable. See id. at 1254 n. 1. Amer v. United States, 367 F.2d 803 (8th Cir. 1966), involved the passing of four checks at four different locations in a city. Defendant contended that at least two of the checks would have been transported in the same mail train. The Eighth Circuit, applying the Blockburger test, indicated that each check could constitute a separate offense because each involved proof of distinct facts. The Eighth Circuit also indicated that the passing of each check could be considered a separate "causing" of transportation. This is all dicta, however, because the Eighth Circuit upheld the district court's finding that there was inadequate proof any of the checks were transported together. In Ketchum v. United States, 327 F. Supp. 768 (D. Md. 1971), the defendant passed two checks on the same day but at different locations. The court followed the dicta in Amer and also held that the defendant was not entitled to relief because he had not proven the two checks had been simultaneously transported. Id. at 776.

 More recent Eighth Circuit cases indicate a retreat from the dicta in Amer. In Cabbell v. United States, 636 F.2d 246 (8th Cir. 1980), defendant was convicted of fifteen counts of violating § 2314. On the same day, he had deposited five stolen money orders at each of three banks in Iowa. All the money orders were drawn on the same bank and all were transported to Denver. There, however, was no evidence as to whether the 15 money orders were actually transported together. Relying on dicta in United States v. Dilts, 501 F.2d 531, 535 (7th Cir. 1974) (per curiam), the court focused on what one would expect to happen to the instruments after they were negotiated. 636 F.2d at 248. If the instruments were deposited together, it should be presumed that they were transported together unless the government proves otherwise. If the instruments were deposited at separate locations, it should be presumed they were transported separately unless the defendant proves otherwise. Since no evidence of the actual transportation was presented by either side, the presumptions applied and it was presumed that there were three transportations of five checks each. Id. The court, however, did not have to decide if this was the proper analysis to apply since, consistent with White and Driscoll, the simultaneous deposit of five checks constitutes only one offense. Under that approach, there was also only three offenses. Id. While the first approach seemed to be the one favored by the court, the court was not required to determine which approach was preferable. In a subsequent case, the Eighth Circuit applied only the first approach. See United States v. Johnson, 751 F.2d 291, 293 (8th Cir. 1984), cert. denied, 471 U.S. 1126, 86 L. Ed. 2d 275, 105 S. Ct. 2659 (1985). In that case forged money orders drawn on the same account of a Minnesota bank were cashed at four different banks in Iowa on two consecutive days. Following Cabbell, the court held that the burden was on the defendant to show that checks cashed at different banks were transported together. Since defendant had not presented any evidence, conviction and sentencing on four separate counts was held to be proper.

 There are also two Seventh Circuit cases on this subject. In United States v. Dilts, 501 F.2d 531 (7th Cir. 1974) (per curiam), the defendant cashed eight forged checks drawn on the same account of a Missouri bank. The checks, however, were cashed at eight different business establishments in four different cities in the Southern District of Illinois. They were apparently cashed on various days in December 1972. Since there were no facts to indicate the checks were transported together, it was unnecessary to determine the legal effect of simultaneous transportation. Id. at 535. Nevertheless, the court indicated agreement with Amer that "the units of criminal prosecution [should not be] made dependent upon the happenstance of bank transmission procedure . . . ." Dilts, 501 F.2d at 535 (quoting Amer, 367 F.2d at 805) (brackets and ellipsis in Dilts). The court also indicated agreement with Driscoll "that the number of offenses under § 2314 is governed by the number of instances of passing forged checks." Dilts, 501 F.2d at 535. In summary, the court stated,

If all of the instruments had been negotiated at the same time and place, it would be reasonable to infer that only one transportation would ensue and, therefore, that only one offense was committed. On the facts disclosed by this record, however, we hold that since the indictment alleged eight separate instances of negotiating forged securities, it alleged eight separate violations of § 2314.


 The issue was again considered by the Seventh Circuit the following year. See United States v. Flick, 516 F.2d 489, 495-96 (7th Cir.), cert. denied, 423 U.S. 931, 96 S. Ct. 282, 46 L. Ed. 2d 260 (1975). The issue in that case involved two pairs of checks, each pair of which the defendants claimed were transported together. As regards one of the pairs, there was no evidence they were transported together nor any evidence that they arrived together at the drawee bank. As regards the other pair, the checks were drawn on the same account of a Texas bank and were both deposited at the same Indiana bank. However, they were for different amounts, were written on different days, were deposited in different accounts, and were deposited on two consecutive days. The checks were processed on the same date at the drawee bank in Texas, but the record was silent as to whether they had arrived at the Texas bank together. The court concluded there were "sufficient distinguishing factors between each pair of checks to constitute a separate transaction." Id. at 496. The court treated the dicta in Dilts as a holding and stated, "here, each of the checks was negotiated at a different time and place and, therefore, the defendant is responsible for causing separate interstate transportations to take place even if we assume that, for reasons unrelated to his own wrongful conduct, two checks may actually have traveled across state lines in the same interstate carrier." Flick, 516 F.2d at 496.

 Defendant argues that the Seventh Circuit decisions in Dilts and Flick contain dicta that need not be followed by this court. Defendant urges this court to instead follow Gilinsky II. While the relevant language in Dilts appears to be dicta, the same cannot be said of Flick. It is clear from Flick that the Seventh Circuit holds that the mere fact that forged instruments are transported together does not mean that each check cannot be the basis of separate § 2314 offenses. The holding in Flick should be understood as incorporating the dicta in Dilts. Dilts, 501 F.2d at 535, indicates that if all the instruments were negotiated at the same time and place, it would be reasonable to conclude that there was only one transportation. Flick, 516 F.2d at 496, refers to a single transportation "unrelated to [the defendant's] own wrongful conduct" as not being a single offense. This implies that a single transportation related to the defendant's conduct could constitute a single offense. Therefore, both Flick and Dilts indicate that the focus should be on what the defendant's conduct could be expected to cause in terms of interstate transportation of the improper instruments. See also Cabbell, 636 F.2d at 248.

 The law in the Seventh Circuit is that negotiating a number of forged or stolen checks in a single transaction can only constitute one violation of § 2314, regardless of whether or not the checks were actually transported together across state lines. On the other hand, negotiating a number of forged or stolen checks on more than one day or at more than one location would constitute separate offenses, again, regardless of whether or not the checks were actually transported together across state lines. Another possible scenario is the negotiation of a number of stolen or forged checks during separate visits to a single bank, but all on the same day. If the focus is simply on the number of transactions, then there would be separate offenses. If the focus is on whether the checks could be expected to be transported together, then it may be reasonable to conclude that negotiating more than one check during multiple visits to the same bank on a single day will result in all the checks being transported together. Such an inference would be reasonable if a bank generally sorts and distributes out-of-state checks on a daily basis after the bank is closed to the public. *fn7" In White, 524 F.2d at 1254, the Fifth Circuit found that it would be mere happenstance if checks cashed in separate visits on a single day were ...

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