United States v. Khalil
857 F.3d 137
| 2d Cir. | 2017Background
- Khalil and his brother Ahmed ran an international passport/identity-fraud ring that facilitated illegal entry and employment for clients from Pakistan and the U.K.; Khalil worked in Queens as a taxi driver.
- Ahmed arranged for Muhammad Nasir Rafique to enter the U.S. in 2002 using a false U.K. passport; Rafique worked as a taxi driver and paid a smuggling debt in installments.
- In late 2010 Rafique sought a fake British passport to obtain legal status; after a $1,000 down payment Khalil advised Rafique to use the passport to travel to Canada to seek status.
- On December 10, 2010, Khalil gave Rafique the fake passport, drove him from Queens to Pennsylvania Station, bought him a train ticket to Montreal, and Rafique was arrested by CBP before the border.
- Khalil was indicted on multiple counts including Count Four: transporting an alien within the U.S. "in furtherance of" the alien’s unlawful presence in violation of 8 U.S.C. § 1324(a)(1)(A)(ii); he was convicted on all counts and sentenced to 51 months concurrent.
- On appeal Khalil challenged sufficiency of evidence for Count Four; the Second Circuit reversed Count Four, concluding the Government failed to prove the required "in furtherance of" element and ordered dismissal of that count and de novo resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proved Khalil transported an alien "in furtherance of" the alien's unlawful presence under 8 U.S.C. § 1324(a)(1)(A)(ii) | Gov't: Khalil transported Rafique to facilitate travel using a false passport, supporting "in furtherance of" element | Khalil: The transport was to enable Rafique to leave the U.S. (to Canada) and thus to terminate, not further, Rafique's unlawful presence; no direct and substantial relationship to furthering illegal presence | Reversed conviction on Count Four — evidence insufficient to prove the "in furtherance of" element as instructed; dismissal of Count Four and de novo resentencing ordered |
Key Cases Cited
- United States v. Veliz, 800 F.3d 63 (2d Cir.) (standard for viewing evidence on sufficiency review)
- Jackson v. Virginia, 443 U.S. 307 (constitutional standard for sufficiency of evidence review)
- United States v. Soler, 759 F.3d 226 (2d Cir.) (standard of review for Rule 29 denials)
- United States v. Natal, 849 F.3d 530 (2d Cir.) (remedy of de novo resentencing when conviction error occurs)
- United States v. Powers, 842 F.3d 177 (2d Cir.) (related resentencing principles)
- United States v. Stonefish, 402 F.3d 691 (6th Cir.) (discussing specific intent needed to show transportation "in furtherance of" unlawful presence)
- United States v. 1982 Ford Pick-Up, 873 F.2d 947 (6th Cir.) (reasoning on intent to assist alien in maintaining illegal presence)
- United States v. Barajas-Chavez, 162 F.3d 1285 (10th Cir.) (statutory interpretation that transport must "help, advance, or promote" illegal presence)