468 F2d 250 Prieto-Morejon v. United States

468 F.2d 250

Antonio PRIETO-MOREJON, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 72-2154 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 12, 1972.

Antonio Prieto-Morejon, pro se.

Robert W. Rust, U. S. Atty., Miami, Fla., Barbara E. Vicevich, William R. Northcutt, Asst. U. S. Attys., Miami, Fla., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and MORGAN, Circuit Judges.


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This is an appeal from the district court's denial of the motion to vacate judgment and sentence1 of Antonio Prieto-Morejon, a federal prisoner. We affirm.


The appellant was convicted upon trial by jury of conspiracy to unlawfully import narcotic drugs2 and of aiding and abetting the unlawful importation of narcotics.3 He was sentenced to serve two concurrent 10-year prison terms. On direct appeal the judgment was affirmed, sub nom. United States v. Gonzalez-Perez, 5th Cir. 1970, 426 F.2d 1283.


In his Sec. 2255 motion the appellant alleged generally that at his trial the District Court had erred in its instruction on possession of the narcotics. The district court denied relief on grounds that matters involving instructions should have been raised on the direct appeal.


In his motion for rehearing, the applicant particularized his allegation. He contended therein that the District Court erred in instructing the jury as to the presumption contained in 21 U.S.C. Sec. 174 relative to the cocaine which was seized. This obviously is more than merely an allegation of improper jury instructions. See Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610. The district court made no ruling on this specific contention, but granted leave to appeal in forma pauperis. Appellant makes the same contention on this appeal.


As the Government's brief points out, the transcript of the jury instructions shows that the court did not in fact charge the jury concerning the presumption stated in Sec. 174. The appellant apparently fell into error on this point due to his not having a copy of the transcript available to him.


Our examination of the entire charge given to the jury has convinced us that the district court fully and fairly instructed the jury on the applicable law. The district court's denial of Sec. 2255 relief to this appellant is due to be and is hereby affirmed.



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Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


As authorized by 28 U.S.C. Sec. 2255


In violation of former 21 U.S.C. Secs. 173, 174


In violation of former 21 U.S.C. Secs. 173, 174 and 18 U.S.C. Sec. 2