     Case: 15-41678   Document: 00513704693    Page: 1   Date Filed: 10/04/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                No. 15-41678                           FILED
                              Summary Calendar                   October 4, 2016
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

DUANE MICHAEL SHERIDAN,

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:15-CR-505-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      After a jury trial in the Southern District of Texas, Duane Michael
Sheridan was convicted of two counts of transporting aliens within the United
States, in violation of 8 U.S.C. § 1324—one count for transporting Luis
Machaen-Lopez and one count for transporting Maria Cruz-Galindo, both
citizens of Mexico. At a checkpoint in Falfurrias, Texas, United States Border
Patrol agents found Machaen-Lopez and Cruz-Galindo in a large tool box in
the back of a pickup truck driven by Sheridan, but owned by Sheridan’s cousin.
Sheridan’s defense at trial partly depended on his supposed unawareness of
the aliens in the back of the truck.
    Case: 15-41678    Document: 00513704693       Page: 2   Date Filed: 10/04/2016


                                 No. 15-41678

      Sheridan now appeals his conviction, arguing that the district court
abused its discretion in denying his request for a jury instruction like that
found necessary in United States v. Pennington, 20 F.3d 593 (5th Cir. 1994).
In Pennington, this court held that a jury can infer the knowledge element of
unlawful drug possession from the defendant’s control of a vehicle in which the
drugs are contained, but that when the drugs are hidden, control alone is not
sufficient to prove knowledge. Id. at 598, 600.
      Sheridan requested the following instruction:
      The government may not rely only upon a defendant’s ownership
      and control of a vehicle to prove the defendant knew that the aliens
      were present in the vehicle. The government must prove by
      competent evidence, beyond a reasonable doubt, that the
      defendant knew the aliens were in the vehicle, and therefore
      within his possession and control.
After denying Sheridan’s proposed instruction, the district court instructed the
jury according to the Fifth Circuit Pattern Jury Instructions:
      For you to find the defendant guilty of [transporting aliens], you
      must be convinced that the Government has proved each of the
      following beyond a reasonable doubt:
      One, that Luis Alberto Machaen-Lopez was an alien who had
      entered or remained in the United States in violation of the law;
      Two, that the defendant knew or recklessly disregarded the fact
      that said alien was in the United States in violation of the law; and
      Three, that the defendant transported or attempted to transport
      said alien, within the United States with the intent to further the
      alien’s unlawful presence.

See generally Fifth Circuit Pattern Jury Instructions (Criminal Cases) 2.01B
(2015). The court also instructed that “Count Two is exactly the same,” but
applied to Maria Cruz-Galindo as the illegal alien.
      We review the district court’s “refusal to provide a requested jury
instruction for an abuse of discretion.” United States v. Wright, 634 F.3d 770,
775 (5th Cir. 2011) (quoting Cooper Indus., Inc. v. Tarmac Roofing Sys., Inc.,


                                       2
    Case: 15-41678     Document: 00513704693      Page: 3   Date Filed: 10/04/2016


                                  No. 15-41678

276 F.3d 704, 714 (5th Cir. 2002)). A district court abuses its discretion by
failing to issue a defendant’s requested instruction if the instruction “(1) is
substantively correct; (2) is not substantially covered in the charge given to the
jury; and (3) concerns an important point in the trial so that the failure to give
it seriously impairs the defendant’s ability to present effectively a particular
defense.” United States v. Simkanin, 420 F.3d 397, 410 (5th Cir. 2005). “‘It is
well-settled,’ however, ‘that a district court does not err by giving a charge that
tracks this Circuit’s pattern jury instructions and that is a correct statement
of the law.’” United States v. Richardson, 676 F.3d 491, 507 (5th Cir. 2012)
(quoting United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009)). Because
the district court followed the Fifth Circuit Pattern Jury Instructions, the only
issue is whether the charge is a correct statement of the law. Id.
      Sheridan argues that the district court’s instruction (and by extension,
the Fifth Circuit Pattern Jury Instruction) “took for granted Mr. Sheridan’s
awareness that ‘said alien’ (the hidden cargo) was present in the pickup truck.”
Sheridan also argues that the instruction “in no way” addresses whether the
Government can rely on a defendant’s control of a vehicle to prove that he knew
aliens were present within the vehicle.
      The actual language of the instruction renders Sheridan’s concerns
unfounded. A jury’s finding that a defendant “knew or recklessly disregarded
the fact that [an] alien was in the United States in violation of the law” requires
the jury to find that the defendant knows that a person, who is an alien, exists.
Relatedly, the third element of the offense—that a defendant “transported . . .
said alien within the United States with intent to further the alien’s unlawful
presence”—confirms both actual knowledge of an alien’s presence as well as
“intent to further the alien’s unlawful presence.” In addition, the district court
instructed the jury that knowledge cannot be shown by mistake or accident.



                                        3
    Case: 15-41678    Document: 00513704693    Page: 4   Date Filed: 10/04/2016


                                No. 15-41678

      The district court’s jury charge was a correct statement of the law
relating to the crime of transporting aliens, and the court did not abuse its
discretion in refusing to provide Sheridan’s proposed supplemental instruction,
borrowed from our constructive possession of narcotics caselaw. Accordingly,
the judgment of the district court is AFFIRMED.




                                      4
