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
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 ...