United States v. Lyons ( 2000 )

No. 99-50746 c/w 99-51105
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50746 c/w 99-51105
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUS LYONS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. A-98-CV-628-SS (A-94-CR-126-4-SS)
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May 17, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Gus Lyons, federal prisoner # 61209-080, appeals the
district court’s amended criminal judgment entered on June 10,
1999, and he seeks a certificate of appealability (COA) to appeal
the district court’s denial of his remaining grounds for relief
in his 28 U.S.C. § 2255 proceeding. Lyons’ motion to consolidate
the two appeals is GRANTED.
Lyons argues that the jury was permitted to return a general
verdict as to count one when the indictment presented to the jury
included a ground that had been dismissed. According to Lyons,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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this caused the jury’s verdict to be impermissibly ambiguous,
depriving him of due process. He also argues that the district
court’s attempt to remedy the error by merely removing the
reference to the conviction on the dismissed charge from the
judgment was ineffective to cure the due process violation.
Lyons’ arguments concern a clerical error in the indictment
submitted to the jury during deliberations and a clerical error
in the judgment. Lyons does not dispute that the transportation
in interstate commerce portion of count one, 18 U.S.C. § 2314,
was dismissed by the court on the government’s motion.
It is apparent from comparing the superseding indictment and
the redacted indictment that the reference to § 2314 remaining in
the indictment was a clerical error. The jury charge makes no
reference to § 2314, and thus the erroneous reference to § 2314
was not submitted to the jury by the court. The district court
instructed the jury that the indictment was not evidence of the
defendant’s guilt. The submission of the incorrect indictment,
given the fact that the district court properly charged the jury,
did not render the jury verdict ambiguous and did not deprive
Lyons of notice of the charges. See United States v. Utz, 886
F.2d 1148, 1149-51 (9th Cir. 1989).
The clerical error in the indictment was carried over to the
judgment. Lyons correctly noted in his § 2255 motion that the
judgment erroneously stated that he had been convicted of a
conspiracy to violate § 2314. The district court granted § 2255
relief and amended the judgment to reflect the offense for which
Lyons was actually convicted. Lyons argues that the district
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court did not have the authority to do so and that this did not
remedy the harm.
Pursuant to Rule 36 of the Federal Rules of Criminal
Procedure, “[c]lerical mistakes in judgments, orders or other
parts of the record and errors in the record arising from
oversight or omission may be corrected by the court at any time
and after such notice, if any, as the court orders.” See United
States v. Lopez, 26 F.3d 512, 515 n.5 (5th Cir. 1994).
The inclusion of the reference to a conspiracy to violate
§ 2314 was a clerical error, and the district court had the
authority to correct it. There was no prejudice to Lyons. See
United States v. Prince, 868 F.2d 1379, 1385 (5th Cir. 1989)
(this court ordered judgment and commitment order reformed to
reflect the correct charges). The amended criminal judgment is
AFFIRMED.
Lyons argues that he was deprived of notice and due process
because counts eleven through fourteen of the redacted indictment
charged him as a principal who was aided and abetted by his co-
defendants, when the preceding indictment charged all the
defendants as aiding and abetting each other.
Altering the indictment to charge Lyons as a principal
instead of as an aider and abettor was a technical rather than
substantive change. Because aiding and abetting is an
alternative means of convicting someone of an underlying crime
rather than a separate offense, it is irrelevant whether a
defendant is charged as the principal. The aiding and abetting
statute, 18 U.S.C. § 2, abolishes the common law distinction
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between principals and accessories. There is no substantive
difference between being convicted as a principal or accomplice,
and the same evidence supports a conviction as either. United
States v. Sorrells, 145 F.3d 744, 752 (5th Cir. 1998). Lyons was
not prejudiced by the amendment.
Lyons argues that his counsel provided ineffective
assistance of counsel by not objecting and allowing the
prosecutor to ask witnesses “have you heard” questions. Lyons
does not provide any record cites and provides no citations to
legal authorities in support of his argument. He states that the
details are set forth in his memorandum filed in the district
court. Lyons has not adequately briefed this issue, and so we do
not consider it. See Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995);
Fed. R. App. P. 28(a)(7) and (9)(A)(1998); 5TH CIR. R. 28.2.3.
Lyons has not made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). Therefore, his
request for a COA is DENIED. AMENDED JUDGMENT AFFIRMED.