United States v. Francisco Martinez Liantaud

This is an appeal from a denial of post-conviction relief, pursuant to 28 U. S.C. § 2255.

Following a jury trial the appellant was convicted on three counts of a five-count indictment. Count One charged conspiracy to smuggle marijuana into the United States from Mexico; Count Two, aiding and abetting the smuggling of 317 pounds of marijuana into the United States; and Count Three, aiding and abetting the transportation of 317 pounds of illegally imported marijuana.

No evidentiary hearing was held. Neither party disagrees with the facts as stated by the trial court in its Order Denying Motion Pursuant to 28 U.S.C. § 2255 and Dismissing Action.

Appellant first complains about the instructions as given; he made no objection to them before the trial court. Generally, the claim of error under such circumstances is not well taken. Fed.R. Crim.P. 30; Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); Banks v. United States, 258 F.2d 318 (9th Cir. 1958).

We are urged, however, that the errors are of constitutional proportions and therefore should not be disregarded. Government of Virgin Islands v. Smith, 445 F.2d 1089, 1094 (3rd Cir. 1971); United States v.…