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August 10, 1990


The opinion of the court was delivered by: Cholakis, District Judge.


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. Agent 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 provides

  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 him.

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 trial transcript:

  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 ...

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