Joe Raymond Cortez v. United States

Appellant appeals in forma pauperis, appearing through appointed counsel. The first error urged (the trial court’s refusal to sever the defendant’s case from that of his two codefendants) is a matter lying fully within the trial court’s discretion.

The second alleged error relates to the instructions given on “possession of narcotics” and “knowledge of importation.” No objection was made to this instruction and appellant’s principal reliance is on the case of Hill v. United States, 379 F.2d 811 (9th Cir. 1967). The instructions there given are indeed “similar to, and in part identical to the instructions quoted at p. 813” of that opinion. (Note 2) But in Hill there was “no proof the defendant had possession, either active or constructive.” Id. at 813 . In this case, the trial court held, after the Government rested, that “there is evidence here that there was constructive joint possession.” R.T. 200. We agree that such evidence, though circumstantial, clearly existed, and was for the jury to pass upon. Thus the Hill case is no authority here.

The third alleged error was the use of an alleged incriminatory statement made by the codefendant Young in violation of the Bruton rule.…