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United States v. Khalil

United States Court of Appeals, Second Circuit

May 16, 2017


          Argued: April 20, 2017

          FOR APPELLANT: Andrew H. Freifeld, Law Office of Andrew Freifeld, New

          York, NY. FOR APPELLEE: Matthew J. Jacobs (Emily Berger, Alexander A. Solomon, on the brief), Assistant United States Attorneys, for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY.

          Before: Calabresi, Wesley, and Lohier, Circuit Judges.

          GUIDO CALABRESI, Circuit Judge:

         Defendant-Appellant Choudry Muhammad Khalil appeals from a judgment of the United States District Court for the Eastern District of New York (Mauskopf, J.) following his conviction for (1) smuggling, conspiring to smuggle, transporting, conspiring to transport, and harboring an alien in violation of 8 U.S.C. § 1324; (2) transferring and conspiring to transfer false identification documents in violation of 18 U.S.C. § 1028; and (3) making false statements to federal agents in violation of 18 U.S.C. § 1001. On appeal, Khalil argues that the district court erred in denying his motion for judgments of acquittal on several counts of his conviction, that the district court constructively amended the indictment, and that the district court misapplied the United States Sentencing Guidelines.

         Most of Khalil's contentions are dealt with in a summary order filed simultaneously with this opinion. Here, we address only Khalil's argument that he should have been acquitted of transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(i) (Count Four). Khalil asserts that the evidence presented by the Government was insufficient to prove that he transported an alien "in furtherance of" the alien's illegal stay in the United States, as required by 8 U.S.C. § 1324(a)(1)(A)(ii) and by the district court's jury instructions. We agree. We therefore reverse the judgment of conviction on Count Four and remand the case with instructions for the district court to dismiss that count and for de novo resentencing.

         I. BACKGROUND

         We recount the facts and procedural history of the case only as relevant to the alien transportation charges under Count Four. Because the jury found Khalil guilty on that Count, "we view the evidence in the light most favorable to the government." United States v. Veliz, 800 F.3d 63, 66 (2d Cir. 2015), cert. denied, 136 S.Ct. 522 (2015) (internal quotation marks omitted).

         A. The Enterprise

         Khalil and his younger brother Ahmed, both born in Pakistan, became United States citizens in 2001 and 2008, respectively. At least as early as 2002, the brothers were principals of an international passport fraud ring operating primarily in Pakistan, the United States, and the United Kingdom. The organization specialized in manufacturing high-quality identity documents, such as passports, driver's licenses, and work permits. It also facilitated the illegal entry of undocumented aliens into the United States and Canada, and sometimes helped them to find housing and jobs in these countries. The organization's clients paid substantial fees for these services, which the brothers began collecting once their clients were established and employed. The record shows that Ahmed worked from Pakistan, London, and New York, while Khalil worked from Queens, New York, where he was also employed as a taxi driver.

         B. Transportation of Rafique from Queens to Pennsylvania Station

         In 2002, Ahmed agreed to smuggle Muhammad Nasir Rafique, a Pakistani man, into the United States for $25, 000. Ahmed provided Rafique with a false United Kingdom passport and arranged for his air travel using that passport from London to New York City. Upon Rafique's arrival in New York City, Ahmed and Khalil, using fraudulent licenses, helped Rafique secure employment as a taxi driver. At Ahmed's direction, Rafique began to repay his $25, 000 debt in weekly installments.

         In early 2010, Rafique told Khalil that he wanted a fake British passport. Rafique believed that a fake British passport would enable him to obtain legal status in the United States. After Rafique had made a $1, 000 down payment on the passport, Khalil recommended that Rafique instead use the passport to travel to Canada, explaining that he and Ahmed had sent other ...

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