Case: 09-30833 Document: 00511209190 Page: 1 Date Filed: 08/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2010
No. 09-30833
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN TIMOTHY COTTON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:00-CR-60029-1
Before KING, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
John Timothy Cotton, federal prisoner # 32736-077, appeals the district
court’s denial of his motion for reconsideration of a postconviction order by the
district court that corrected the jury verdict form. We construe his notice of
appeal as also appealing the district court’s underlying order. See Lockett v.
Anderson, 230 F.3d 695, 700 (5th Cir. 2000). We review the district court’s
rulings for abuse of discretion. See United States v. Mueller, 168 F.3d 186, 188
(5th 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-30833 Document: 00511209190 Page: 2 Date Filed: 08/19/2010
No. 09-30833
Cotton’s motion to file an out-of-time reply brief is granted. After filing the
notice of appeal, Cotton moved to be released on bail. Cotton’s motion to be
released on bail is denied.
Cotton was charged in a superseding indictment with conspiracy to
possess with intent to distribute cocaine base (Count One); possession with
intent to distribute cocaine base (Count Two); conspiracy to commit money
laundering (Count Three); engaging in a continuing criminal enterprise (CCE)
(Count Four); and forfeiture of all property from drug proceeds (Count Five).
In anticipation of trial, the government prepared a redacted superseding
indictment. Counts Two and Three of the superseding indictment were removed
from the redacted superseding indictment. Their removal changed the
numbering of the other counts. Count Four of the superseding indictment,
charging CCE, was Count Two in the redacted superseding indictment.
The government prepared a verdict form based upon the redacted
superseding indictment. Count One of the redacted superceding indictment and
the verdict form corresponded to Count One of the superceding indictment.
However, following the redacted superceding indictment, the verdict form
provided that Count Two was the CCE charge when, in fact, the superseding
indictment provided that Count Four was the CCE charge.
The jury found Cotton guilty of Counts One and Two, which were
conspiracy to possess with intent to distribute cocaine base and engaging in a
CCE, respectively. The jury also returned a forfeiture verdict against Cotton in
connection with his convictions on those counts. Cotton received a life sentence
for the CCE conviction.
Several years later, after responding to Cotton’s habeas petition, the
government filed a “Motion to Renumber Count Two of the Verdict Form” in
which the government requested that the court renumber the counts of the
verdict form so that the numbers would correspond with the numbers on the
counts of the superseding indictment. The court granted the motion. In its
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No. 09-30833
order correcting the jury verdict form, the district court renumbered the form
such that the verdict now correctly states that Cotton’s CCE conviction was for
Count Four of the superseding indictment and not Count Two of the redacted
superseding indictment that was used during the jury trial.
Cotton argues that the district court lacked jurisdiction to change the jury
verdict form and that the error in the jury verdict form was a jury error, not a
clerical error. Cotton also argues that he should have received an evidentiary
hearing with respect to the following claims: whether there was fraud upon the
court based on the manipulation of the grand jury through unreliable hearsay,
perjured testimony, the misinstruction of the law by the government regarding
the numerous indictments, and in relation to the redacted superseding
indictment and jury verdict form; whether he was denied the effective assistance
of trial and appellate counsel; whether he should be resentenced to no more than
10 years in prison because he could not be both an aider and abettor and a
kingpin of the CCE; whether his conviction was in violation of Burton v. United
States, 531 U.S. 801 (2000), Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Jones 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
district court erred in denying his motion for reconsideration because he did not
have three predicate offenses to support his CCE conviction and that double
jeopardy 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
not properly instructed on the forfeiture count.
The jury verdict’s references to the counts as numbered in the redacted
superseding indictment instead of as numbered in the superseding indictment
were clerical errors subject to correction under Federal Rule of Criminal
Procedure 36 “at any time.” See F ED. R. C RIM. P. 36; United States v. Dotson, 817
F.2d 1127, 1129 (5th Cir.), modified on other grounds, 821 F.2d 1034 (5th Cir.
1987); see also United States v. Stauffer, 922 F.2d 508, 510 (9th Cir. 1990). In
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addition, the jury verdict makes clear that while the redacted superseding
indictment may have changed the number of the count for the CCE charge, the
jury found Cotton guilty of engaging in a CCE. Thus, there is no indication that
there was an improper amendment of the superseding indictment or that the
redacted superseding indictment had to be presented to the grand jury. See
United 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
issues 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
appeal, or are irrelevant to evaluating whether the district court abused its
discretion in correcting the clerical order. We express no view on the merits of
these arguments except as they are relevant to the district court’s rulings on the
motions dealing with the correction of the jury verdict. The district court’s
rulings on those motions are affirmed. Because Cotton’s motion for bail
essentially repeats these same arguments, it is likewise denied.
AFFIRMED; motion to file out-of-time reply brief GRANTED; motion for
release on bail DENIED.
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