US v. Aslam, Magistrate No. 56990.
| Decision Date | 10 August 1990 |
| Docket Number | Magistrate No. 56990. |
| Citation | 743 F. Supp. 119 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rafique ASLAM, Defendant-Appellant. |
| Court | U.S. District Court — Northern District of New York |
Gleason, Dunn, Walsh & O'Shea, Albany, N.Y., for defendant-appellant (Meave M. Tooher, of counsel).
Frederick J. Scullin, Jr., U.S. Atty., Albany, N.Y., for plaintiff-appellee (William C. Perichak, of counsel).
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 cut-off 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.1 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."2 At this point, appellant was arrested.
(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:
(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.4 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.5 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 provides:
(Emphasis added). While the Government may have erred in charging the wrong violation6 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.C...
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U.S. v. Aslam, 1004
... ... This appeal by the Government from a District Court's reversal of a judgment of conviction entered by a Magistrate Judge raises an issue of appellate jurisdiction in criminal cases and a substantive issue concerning the scope of 8 U.S.C. Sec. 1324(a)(2) (1988), ... ...