USA v. John Cotton

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USA v. John Cotton

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Case: 09-30833

Document: 00511209190

Page: 1

Date Filed: 08/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30833 S u m m a r y Calendar August 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O H N TIMOTHY COTTON, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 6:00-CR-60029-1

B e fo r e KING, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* J o h n Timothy Cotton, federal prisoner # 32736-077, appeals the district c o u r t's denial of his motion for reconsideration of a postconviction order by the d is t r ic t court that corrected the jury verdict form. We construe his notice of a p p e a l as also appealing the district court's underlying order. See Lockett v. A n d e r s o n , 230 F.3d 695, 700 (5th Cir. 2000). We review the district court's r u lin g s for abuse of discretion. See United States v. Mueller, 168 F.3d 186, 188 (5 t h Cir. 1999); United States v. Brewer, 60 F.3d 1142, 1145)46 (5th Cir. 1995).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-30833

Document: 00511209190 Page: 2 No. 09-30833

Date Filed: 08/19/2010

C o t t o n 's motion to file an out-of-time reply brief is granted. After filing the n o tic e of appeal, Cotton moved to be released on bail. Cotton's motion to be r e le a s e d on bail is denied. C o t t o n was charged in a superseding indictment with conspiracy to p o s s e s s with intent to distribute cocaine base (Count One); possession with in t e n t to distribute cocaine base (Count Two); conspiracy to commit money la u n d e r in g (Count Three); engaging in a continuing criminal enterprise (CCE) (C o u n t Four); and forfeiture of all property from drug proceeds (Count Five). In anticipation of trial, the government prepared a redacted superseding in d ic t m e n t. Counts Two and Three of the superseding indictment were removed fr o m the redacted superseding indictment. Their removal changed the

n u m b e r i n g of the other counts. Count Four of the superseding indictment, c h a r g in g CCE, was Count Two in the redacted superseding indictment. The government prepared a verdict form based upon the redacted s u p e r s e d in g indictment. Count One of the redacted superceding indictment and t h e verdict form corresponded to Count One of the superceding indictment. H o w e v e r , following the redacted superceding indictment, the verdict form p r o v id e d that Count Two was the CCE charge when, in fact, the superseding in d ic t m e n t provided that Count Four was the CCE charge. The jury found Cotton guilty of Counts One and Two, which were c o n s p ir a c y to possess with intent to distribute cocaine base and engaging in a C C E , respectively. The jury also returned a forfeiture verdict against Cotton in c o n n e c t io n with his convictions on those counts. Cotton received a life sentence fo r the CCE conviction. Several years later, after responding to Cotton's habeas petition, the g o v e r n m e n t filed a "Motion to Renumber Count Two of the Verdict Form" in w h i c h the government requested that the court renumber the counts of the v e r d ic t form so that the numbers would correspond with the numbers on the c o u n t s of the superseding indictment. 2 The court granted the motion. In its

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o r d e r correcting the jury verdict form, the district court renumbered the form s u c h that the verdict now correctly states that Cotton's CCE conviction was for C o u n t Four of the superseding indictment and not Count Two of the redacted s u p e r s e d in g indictment that was used during the jury trial. C o t t o n argues that the district court lacked jurisdiction to change the jury v e r d ic t form and that the error in the jury verdict form was a jury error, not a c le r ic a l error. Cotton also argues that he should have received an evidentiary h e a r in g with respect to the following claims: whether there was fraud upon the c o u r t based on the manipulation of the grand jury through unreliable hearsay, p e r ju r e d testimony, the misinstruction of the law by the government regarding t h e numerous indictments, and in relation to the redacted superseding in d ic t m e n t and jury verdict form; whether he was denied the effective assistance o f trial and appellate counsel; whether he should be resentenced to no more than 1 0 years in prison because he could not be both an aider and abettor and a k in g p in of the CCE; whether his conviction was in violation of Burton v. United S ta te s , 531 U.S. 801 (2000), Apprendi v. New Jersey, 530 U.S. 466 (2000), and J o n e s v. United States, 526 U.S. 227 (1999); and whether he should be able to file a new appeal or an amended 28 U.S.C. § 2255 motion. He also argues that the d is t r ic t court erred in denying his motion for reconsideration because he did not h a v e three predicate offenses to support his CCE conviction and that double je o p a r d y prevents amending the jury verdict form because he has already paid a $100 special assessment for Count 2. In addition, he argues that the jury was n o t properly instructed on the forfeiture count. The jury verdict's references to the counts as numbered in the redacted s u p e r s e d in g indictment instead of as numbered in the superseding indictment w e r e clerical errors subject to correction under Federal Rule of Criminal P r o c e d u r e 36 "at any time." See FED. R. CRIM. P. 36; United States v. Dotson, 817 F .2 d 1127, 1129 (5th Cir.), modified on other grounds, 821 F.2d 1034 (5th Cir. 1 9 8 7 ); see also United States v. Stauffer, 922 F.2d 508, 510 (9th Cir. 1990). In 3

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Date Filed: 08/19/2010

a d d it io n , the jury verdict makes clear that while the redacted superseding in d ic t m e n t may have changed the number of the count for the CCE charge, the ju r y found Cotton guilty of engaging in a CCE. Thus, there is no indication that t h e r e was an improper amendment of the superseding indictment or that the r e d a c t e d superseding indictment had to be presented to the grand jury. See U n ite d States v. Alvarez-Moreno, 874 F.2d 1402, 1411 (5th Cir. 1989). Cotton's remaining arguments do not demonstrate an abuse of discretion in ruling on the motions dealing with the correction of the jury verdict form. The is s u e s Cotton raises either were not presented to the district court, are contained in a pending habeas application that has been stayed pending resolution of this a p p e a l, or are irrelevant to evaluating whether the district court abused its d is c r e t io n in correcting the clerical order. We express no view on the merits of t h e s e arguments except as they are relevant to the district court's rulings on the m o t io n s dealing with the correction of the jury verdict. The district court's r u lin g s on those motions are affirmed. Because Cotton's motion for bail

e s s e n t ia lly repeats these same arguments, it is likewise denied. AFFIRMED; motion to file out-of-time reply brief GRANTED; motion for r e le a s e on bail DENIED.

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