ANTONIO PRIETO-MOREJON, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
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The court affirmed the district court's denial of the motion to vacate judgment and sentence.
Appellant, convicted of drug importation, alleged error in jury instructions regarding the presumption under 21 U.S.C. § 174. The district court denie…
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PER CURIAM:
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 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, 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.
. As authorized by 28 U.S.C. § 2255.
. In violation of former 21 U.S.C. §§ 173, 174.
. In violation of former 21 U.S.C. §§ 173, 174 and 18 U.S.C. § 2.
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Citator
Authorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Turner v. United States, 396 U.S. 398 (U.S. 1970)
- United States v. Gonzalez-Perez, 426 F.2d 1283 (5th Cir. 1970)