United States District Court, Northern District of New York
August 10, 1990
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
RAFIQUE ASLAM, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Cholakis, District Judge.
MEMORANDUM DECISION AND ORDER
Defendant-Appellant Rafique Aslam appeals to this Court
pursuant to 18 U.S.C. § 3402, from a judgment of conviction
entered after a bench trial before United States Magistrate
Ralph W. Smith, Jr. Before the Court addresses the merits of
the appeal, the following recitation of the facts is necessary.
At around 7:00 PM on January 16, 1990, a sensor alerted
border patrol agents of a possible illegal entry into this
country from Canada. Two agents, Dennis C. Doody and Jonathan
Steblein, converged on an area in the Village of Rouses Point
known as "The Knuckle," where illegal entries had occurred in
the past. Steblein headed in the direction of the point of
entry, while Doody headed toward the "cut-off point." Doody
was following a car with New Jersey license plates as he
headed toward the cutoff point, when appellant, the driver of
the car, negotiated a U-Turn and approached two individuals
who had been walking on the road in the opposite direction.
Doody stopped the car and the two individuals turned out to
be Jalal Khan and Malik Mohammad Younas, two illegal aliens
(Pakistani nationals) who had entered the United States on
foot. Agent Steblein tracked footprints in the snow which
matched those of Khan and Younas. When he reached the point
of entry, Steblein found three sets of footprints, the third
being of an alleged guide who turned back into Canada and was
apparently driven off in a car.
When Agent Doody stopped appellant, Khan and Younas were
walking on the street, and were not in appellant's car.
Appellant stated to Doody that he was looking for pizza, and
had become lost in the snow storm (approximately three inches
of snow had fallen that night). Doody took in Younas and
Khan, and directed appellant (a Pakistani with legal
residence in New Jersey) to follow him back to the Anchorage
Motel in Rouses Point, where appellant was staying with a
friend, one Mr. Ahmed (or Mahmed), who had visas for stays in
the United States and Canada. By this time, Agent Steblein
was on the scene, and he followed appellant's vehicle to the
motel. Ahmed acted as an English-Urdu interpreter at the
motel. At the motel, Younas admitted in English that he was
in the country illegally. Khan also made the same admission
through Ahmed.*fn1 While the parties were at the motel, the
phone rang, and appellant answered. In Urdu, he apparently
told the caller that the "police were here."*fn2 At this
point, appellant was arrested.
In a criminal complaint dated January 17, 1990, appellant
was charged with violating 8 U.S.C. § 1324(a)(2)(A), which
Any person who, knowing or in reckless disregard
of the fact that an alien has not received prior
official authorization to come to, enter, or
reside in the United States, brings to or attempts
to bring to the United States in any manner
whatsoever, such alien, regardless of any official
action which may later be taken with respect to
such alien shall, for each transaction constituting
a violation of this paragraph, regardless of the
number of aliens involved —
(A) be fined in accordance with title 18,
United States Code, or imprisoned not more than
one year, or both . . .
(Emphasis added). Appellant consented to a trial before
Magistrate Smith, and waived his right to a jury trial.
During trial, which was held February 8, 1990, the Government
presented the following scenario — Younas and Khan were driven
by the "drop vehicle" in Canada to the border. From the border,
the two walked along with a guide through the woods until they
had reached the United States. The guide then returned by foot
to Canada, and was driven off in the drop vehicle. Appellant
drove the "pick-up vehicle," and was to have picked up Younas
and Kahn and driven them away from the border into the United
States. Once defendant saw Younas and Khan, he negotiated a
U-Turn, in order to pick them up. Doody caught appellant, Khan
and Younas at this point.
Appellant's version of the facts was as follows — He drove
up on the 16th with his friend Ahmed, who was to meet his
friend Ashrad (a Pakistani living in Toronto) at the border.
Defendant had a 9:30 PM flight out of New York to Pakistan on
the following evening. The two had arrived at the Anchorage
Motel at around 4:00 PM, and appellant decided to go out to
look for pizza. He misunderstood the directions that he was
given, and passed the pizza shop, which was approximately
one-quarter of a mile down the road from the motel. He then
entered a residential section, and decided to turn around to
retrace his tracks. It was at this point that Doody stopped
At trial, appellant objected to, inter alia, the use of Ahmed
as an interpreter. Ahmed was not charged and was not present at
trial. Defendant also objected to the use of any of Younas' and
Khan's statements. Magistrate Smith overruled these objections.
On February 9, 1990,
Magistrate Smith found appellant guilty of violating
8 U.S.C. § 1324(a)(2)(A), and sentenced him to time already served (10
days), fined him $2,000.00 (the forfeiture of bail money which
appellant had already paid) and imposed a $25.00 assessment.
Defendant now appeals to the District Court, which reviews
the judgment before the Magistrate in the same manner as the
Circuit reviews District Court decisions. United States v.
Robinson, 523 F. Supp. 1006, 1012 (E.D.N.Y. 1981), aff'd,
685 F.2d 427 (2d Cir. 1982). The Court must determine, viewing the
evidence in a light most favorable to the Government, and
drawing all permissible inferences in the Government's favor,
whether there is substantial evidence to support the
Magistrate's findings. United States v. Rastelli, 870 F.2d 822,
827 (2d Cir. 1989); United States v. Rodriguez, 702 F.2d 38, 41
(2d Cir. 1983). The appellate court must determine whether the
Magistrate may fairly and logically have concluded that
appellant was guilty beyond a reasonable doubt. United States
v. Torres, 901 F.2d 205, 216 (2d Cir. 1990); United States v.
Campino, 890 F.2d 588, 594 (2d Cir. 1989); United States v.
Macklin, 671 F.2d 60, 66 (2d Cir. 1982); United States v.
Taylor, 464 F.2d 240, 243 (2d Cir. 1972). Appellant's burden in
challenging the sufficiency of the evidence is indeed a heavy
one. United States v. Villegas, 899 F.2d 1324, 1339 (2d Cir.
1990), aff'g, 700 F. Supp. 94 (N.D.N.Y. 1988); United
States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989).
The Court need only address appellant's first contention on
appeal, for in this Court's judgment, that contention merits
reversal of appellant's conviction. Appellant was charged
with and convicted of violating 8 U.S.C. § 1324(a)(2)(A), which
prohibits the bringing in of or the attempt to bring illegal
aliens into this country. The Assistant United States Attorney
stressed to Magistrate Smith that the Government was seeking a
conviction of attempting to bring illegal aliens into the
United States. The Court quotes the following excerpts from the
That Mr. Aslam attempted to bring them into the
United States by means of transportation with an
automobile . . . (Transcript ("Tr."), at 26).
. . . I think that the government has carried
it's [sic] burden of proving beyond a reasonable
doubt that Defendant Aslam was guilty as charged of
attempting to bring these aliens into the United
States by means of his automobile. (Tr., at 213).
. . . the charges (sic)*fn3 that he
attempted to bring . . . into the United States so
there's no need for the government to prove that he
actually put them in the car . . . (Tr., at 218).
(Emphasis added). The Court has thoroughly reviewed the trial
transcript and the cases cited by parties in their appellate
briefs. Furthermore, the Court has conducted its own research
in this area. In this Court's judgment, appellant was
improperly convicted under 8 U.S.C. § 1324(a)(2)(A).
Appellant argues that the facts are insufficient to support
a conviction under the above subsection, and this Court
agrees.*fn4 Every fact at trial showed that appellant's
allegedly illegal activities occurred solely within the
United States. The government took the position that
appellant drove the "load car," which was the car that was to
pick up the aliens in the United States.*fn5 The Court
agrees with appellant's counsel that the evidence at trial
was directed toward
proving that appellant violated 8 U.S.C. § 1324(a)(1)(B), which
Any person who —
(B) knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in
the United States in violation of law,
transports, or moves or attempts to transport or
move such alien within the United States by means
of transportation or otherwise, in furtherance of
such violation of law; . . . shall be fined in
accordance with title 18, United States Code,
imprisoned not more than five years, or both, for
each alien in respect to whom any violation of this
(Emphasis added). While the Government may have erred in
charging the wrong violation,*fn6 this Court cannot affirm
appellant's conviction on grounds not presented before the
Magistrate. See Chiarella v. United States, 445 U.S. 222, 236,
100 S.Ct. 1108, 1118-19, 63 L.Ed.2d 348 (1980). Section 1324 of
Title 8 of the United States Code is a penal statute, and as
such, must be strictly construed against the Government and in
favor of the defendant. United States v. Washington,
471 F.2d 402, 404 (5th Cir. 1972), cert. denied, 412 U.S. 930, 93 S.Ct.
2759, 37 L.Ed.2d 158 (1973); United States v. Moreno-Duque,
718 F. Supp. 254, 259 (D.Vt. 1989); United States v.
Orejel-Tejeda, 194 F. Supp. 140, 143 (N.D.Cal. 1961). Therefore,
the Court must determine whether appellant's conviction for
attempting to bring illegal aliens into the United States was
The Government attempts to equate appellant to that of the
driver of a getaway car in a bank robbery, and cites a
plethora of cases which stand for the proposition that the
driver of the getaway car is a principal to the bank robbery,
which continues through the escape phase. United States v.
Grubczak, 793 F.2d 458, 464 (2d Cir. 1986); United States v.
McCaskill, 676 F.2d 995, 1000-1001 (4th Cir. 1982); United
States v. Wilkins, 659 F.2d 769, 773 (7th Cir. 1981); United
States v. Willis, 559 F.2d 443, 444 n. 5 (5th Cir. 1977);
United States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir.
1970); United States v. Simmons, 281 F.2d 354, 360 (2d Cir.
1960) (en banc). All of the above cases confer guilt under
18 U.S.C. § 2113 to the driver of the getaway car under an aiding
and abetting theory. No provision within section 2113 of Title
18 specifically makes "driving the getaway car" a crime. As
such, 18 U.S.C. § 2, the aiding and abetting statute, is the
means by which the driver of the getaway car is held
responsible for the bank robbery. In the case at bar, however,
the same argument cannot be made. Assuming, arguendo, that
appellant is akin to the driver of the getaway car, appellant
can be charged with 8 U.S.C. § 1324(a)(1)(B), which
specifically makes illegal "driving the getaway car" when the
car contains illegal aliens, as opposed to stolen money. The
Court rejects the Government's invitation to equate appellant
to the driver of the getaway car in a bank robbery.
The cases are clear in holding that to be held to have
violated 8 U.S.C. § 1324(a)(2)(A), a defendant must have
assisted in the physical ingress into the United States. United
States v. Washington, 471 F.2d 402, 404 (5th Cir. 1973);
McFarland v. United States, 19 F.2d 805, 806 (6th Cir. 1927);
United States v. Anaya, 509 F. Supp. 289, 295 (S.D.Fla. 1980)
(en banc). The defendant need not have actually been present
during the time at which the illegal entry was made, if he can
be considered the mastermind of a scheme to import illegal
aliens. United States v. Wishart, 582 F.2d 236, 241 n. 6 (2d
Cir. 1978); Claramont v. United States, 26 F.2d 797, 797
(5th Cir. 1928). Use of a guide to bring aliens across the
border on foot has been considered sufficient to satisfy the
"by any means of transportation or otherwise" language of the
predecessor of 8 U.S.C. § 1324(a)(2)(A). Carranza-Chaidez v.
United States, 414 F.2d 503, 505 (9th
Cir. 1969). The Government attempts to argue that the "or
otherwise" language of § 1324(a)(2)(A) is satisfied by acts
which may be consistent with transportation within the United
States. As the Government would have it, there would be no need
to distinguish between §§ 1324(a)(2)(A) and 1324(a)(1)(B), as
every person who allegedly transports within the United States
could be charged with violating 8 U.S.C. § 1324(a)(2)(A). The
Court refuses to construe the two sections in the loose fashion
that the Government suggests.
The Government makes one final attempt to save this
improper conviction, by arguing that appellant can be held
responsible as a principal under 18 U.S.C. § 2, for aiding and
abetting the attempted importation of illegal aliens. "[O]ne
who has been indicted as a principal may be convicted on
evidence showing that he merely aided and abetted the
commission of the offense." United States v. Walker,
621 F.2d 163, 166 (5th Cir. 1980) (citations omitted). See also United
States v. Russo, 284 F.2d 539, 540 n. 1 (2d Cir. 1960). The
Government argues that although it did not charge appellant
with 18 U.S.C. § 2, such a charge can be inferred. The Second
Circuit addresses the failure to indict under 18 U.S.C. § 2 in
United States v. Taylor, 464 F.2d 240 (2d Cir. 1972):
Although it is preferable that the indictment
charge a violation of 18 U.S.C. § 2 if the
prosecution intends to proceed on a theory of
aiding and abetting, the court may charge the jury
on such a theory when the evidence so warrants,
whether or not 18 U.S.C. § 2 was charged in the
Id., at 242 n. 1 (Emphasis added).
In this Court's judgment, the evidence at trial would not
have warranted presenting the aiding and abetting theory to
the jury, had there not been a bench trial. The Government
failed to allege, and the proof failed to show, an agreement
between appellant and any other party. Furthermore, the
Government never argued the aiding and abetting theory before
Magistrate Smith. The Court has reviewed numerous importation
cases, and was unable to find one case where 18 U.S.C. § 2 was
not charged along with 8 U.S.C. § 1324, when the Government
sought to attach liability on that theory. United States v.
Gonzalez-Sandoval, 894 F.2d 1043, 1045 (9th Cir. 1990); United
States v. Cuellar-Flores, 891 F.2d 92, 92 (5th Cir. 1989);
United States v. Esparza, 882 F.2d 143, 145 (5th Cir. 1989);
United States v. Morales-Quinones, 812 F.2d 604, 606 (10th Cir.
1987); United States v. Ramirez-Rizo, 809 F.2d 1069, 1070 (5th
Cir. 1987); United States v. Loya, 807 F.2d 1483, 1485 (9th
Cir. 1987); United States v. Rosales-Lopez,
617 F.2d 1349, 1352 (9th Cir. 1980), aff'd, 451 U.S. 182, 101 S.Ct.
1629, 68 L.Ed.2d 22 (1981); Wishart, 582 F.2d at 238 n. 2;
United States v. Driscoll, 449 F.2d 894, 895 (1st Cir. 1971),
cert. denied, 405 U.S. 920, 92 S.Ct. 948, 30 L.Ed.2d 790
It is clear to this Court that the Government erred in
charging appellant with the wrong crime. However, as
appellant's counsel correctly points out: "Under our system
of criminal justice, even a thief is entitled to complain
that he has been unconstitutionally convicted and imprisoned
as a burglar." Jackson v. Virginia, 443 U.S. 307, 323-4, 99
S.Ct. 2781, 2791, 61 L.Ed.2d 560, reh'g denied, 444 U.S. 890,
100 S.Ct. 195, 62 L.Ed.2d 126 (1979). The Court concludes that
appellant has met his heavy burden of showing that there were
insufficient facts before the Magistrate to sustain a
conviction under 8 U.S.C. § 1324(a)(2)(A). It is hereby
ORDERED, that appellant's conviction of February 9, 1990,
is reversed; and it is further
ORDERED, that the case is remanded to Magistrate Smith with
directions to direct a judgment of acquittal and order the
repayment of the fine imposed upon appellant.