No. 99-50746 c/w 99-51105

-1-

 

* 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that this opinion should not be published and is not precedent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.

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.

--------------------

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)

--------------------

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,
No. 99-50746 c/w 99-51105

-2-

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
No. 99-50746 c/w 99-51105

-3-

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 codefendants, 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
No. 99-50746 c/w 99-51105

-4-

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.