United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 28, 2004
Charles R. Fulbruge III
Clerk
No. 03-40536
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH W. TURNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1417-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kenneth W. Turner appeals his conviction on two counts of
transporting aliens within the United States for private
financial gain by means of a motor vehicle in violation of
8 U.S.C. § 1324. Turner argues that the district court erred by
refusing to give a requested jury instruction on the requirement
that the Government provide additional evidence of a defendant’s
guilty knowledge when contraband is found in a hidden
compartment.
*
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this opinion should not be published and is not precedent except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.
No. 03-40536
-2-
The type of instruction Turner requests is generally given
only in controlled substance cases. See Note, FIFTH CIRCUIT PATTERN
JURY INSTRUCTION 1.31 (Criminal Cases). Neither party has cited a
decision addressing the applicability of such an instruction when
the hidden cargo consists of human beings rather than controlled
substances. However, assuming arguendo that such an instruction
is available in this type of case, we conclude that Turner has
not shown that he was entitled to the instruction.
If contraband is not “clearly visible or readily
accessible,” control over the vehicle alone is insufficient to
prove knowledge of the contraband. See United States v.
Pennington, 20 F.3d 593, 598 (5th Cir. 1994) (internal quotation
and citation omitted). The “threshold issue” is whether the
contraband is “hidden”; if it is hidden, then the Government must
produce “further evidence of knowledge.” Id.
We conclude that the aliens discovered in the sleeper
compartment of Turner’s tractor-trailer were not “hidden.” Even
if we assume that the aliens were not “clearly visible” from the
driver’s seat, they clearly were “readily accessible” from that
position. Because the aliens were not hidden, Turner was not
entitled to the requested instruction, and the district court did
not abuse its discretion in refusing to give the instruction.
See United States v. Barnett, 197 F.3d 138, 142 (5th Cir. 1999).
AFFIRMED.