Antonio Prieto-Morejon v. United States

Fifth Circuit

Antonio Prieto-Morejon v. United States

468 F.2d 250, 1972 U.S. App. LEXIS 7205

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 12, 1972

Docket72-2154

StatusPublished

This text of 468 F.2d 250 (Antonio Prieto-Morejon v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Antonio Prieto-Morejon v. United States, 468 F.2d 250, 1972 U.S. App. LEXIS 7205 (5th Cir. 1972).

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Opinion

PER CURIAM:

This is an appeal from the district court’s denial of the motion to vacate judgment and sentence 1 of Antonio Prieto-Morejon, a federal prisoner. We affirm.

The appellant was convicted upon trial by jury of conspiracy to unlawfully import narcotic drugs 2 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 § 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. § 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, *251 24 L.Ed.2d 610. The district court made no ruling on this specific contention, but granted leave to appeal in forma pauper-is. 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 § 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 § 2255 relief to this appellant is due to be and is hereby affirmed.

Affirmed.

1

. As authorized by 28 U.S.C. § 2255.

2

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

3

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

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PER CURIAM:

This is an appeal from the district court’s denial of the motion to vacate judgment and sentence 1 of Antonio Prieto-Morejon, a federal prisoner. We affirm.

The appellant was convicted upon trial by jury of conspiracy to unlawfully import narcotic drugs 2 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 § 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. § 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, *251 24 L.Ed.2d 610. The district court made no ruling on this specific contention, but granted leave to appeal in forma pauper-is. 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 § 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 § 2255 relief to this appellant is due to be and is hereby affirmed.

Affirmed.

1

. As authorized by 28 U.S.C. § 2255.

2

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

3

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

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468 F.2d 250, 1972 U.S. App. LEXIS 7205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antonio-prieto-morejon-v-united-states-ca5-1972.

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