     Case: 11-40238     Document: 00511700130         Page: 1     Date Filed: 12/19/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 19, 2011
                                     No. 11-40238
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JEFFERY JERMAINE HILL,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:10-CR-2022-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges
PER CURIAM:*
        Jeffery Jermaine Hill appeals his convictions for transporting an
undocumented alien for purpose of commercial advantage or private financial
gain and conspiracy to transport an undocumented alien for purpose of
commercial advantage or private financial gain, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii), (a)(1)(B)(i), (a)(1)(A)(v)(i).         He asserts that the jury
instructions on both counts were flawed because they omitted the financial gain
element of the offenses. Hill also asserts that the jury instruction for the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-40238

transportation charge improperly contained an instruction on aiding and
abetting and that it is unclear whether he was convicted as a principal or as an
aider and abettor. Finally, Hill argues that because the jury instructions were
flawed, the verdict forms were likewise flawed. Because Hill did not object on
these bases in the district court, we review these arguments for plain error. See
United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002).
      Hill is correct that the jury instruction on the alien transportation charge
failed to include the financial gain element, and we will assume that he has
established clear or obvious error in that regard. See United States v. Williams,
985 F.2d 749, 755 (5th Cir. 1993); see also United States v. Rodriguez-Parra, 581
F.3d 227, 231 (5th Cir. 2009). However, because the Government presented at
trial overwhelming and uncontroverted evidence that Hill transported an alien
for financial gain, he has not established that any error affected his substantial
rights, i.e., that the error affected the outcome of the district court proceedings.
See United States v. Marcus, 130 S. Ct. 2159, 2164 (2010); see also Neder v.
United States, 527 U.S. 1, 9 (1999). For example, Hill’s codefendant testified
that they agreed to transport aliens so that they could make money to start their
own trucking company and that two aliens gave him a total of $3000, which he
gave to Hill. One of the transported aliens testified that she gave the
codefendant an unknown amount of money as payment for the transportation
of three aliens. Additionally, because the evidence on the financial gain element
was overwhelming, Hill has also failed to establish that the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings. See
United States v. Johnson, 520 U.S. 461, 470 (1997).
      The district court’s failure to instruct the jury on the financial gain
element with respect to the aiding and abetting theory was not error, plain or
otherwise, as it is not an element of aiding and abetting. See United States v.
Nolasco-Rosas, 286 F.3d 762, 766 (5th Cir. 2002). Additionally, it is clear from
the record that Hill was convicted as a principal because the evidence on that

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                                 No. 11-40238

element was overwhelming. See United States v. Partida, 385 F.3d 546, 559 (5th
Cir. 2004). Thus, Hill has not established reversible plain error in connection
with the aiding and abetting jury instruction. See id.
      Hill’s argument that the jury instruction on the conspiracy charge was
flawed because it omitted the financial gain element is without merit because,
although the jury instruction did not include that element, the plain language
of the statute does not require that the Government prove that the offense was
committed for commercial advantage or private financial gain.                 See
§ 1324(a)(1)(A)(v)(I); see also 1324(a)(1)(B)(i) (stating that the penalty for
conspiracy to transport illegal aliens under § 1324(a)(1)(A)(v)(I) is ten years).
      Finally, Hill has not established plain error in connection with his
argument that because the jury instructions were flawed, the verdict forms were
likewise flawed. See United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009).
      AFFIRMED.




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