United States v. Ahmed Khan ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 14, 2007
No. 06-11228 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff – Appellee
v.
SHARIQ AHMED KHAN
Defendant – Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-133-2
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Shariq Ahmed Khan (“Khan”) appeals his conviction of one
count of Conspiracy to Transport and Harbor Aliens Illegally in the United
States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (iii), and (v)(I); three counts of
Transportation of Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II) and 18 U.S.C. § 2; and three counts of Harboring
Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-11228
and (v)(II) and 18 U.S.C. § 2. Khan asserts that these convictions were not
supported by sufficient evidence. Because we find that the government produced
sufficient evidence to support these convictions, we affirm.
I. BACKGROUND
In the Summer of 2005, Immigration and Customs Enforcement (ICE)
Senior Special Agent Robert J. Hlavac was conducting an investigation involving
the sale of fraudulent immigration documents to illegal aliens in Dallas, Texas.
During the investigation, ICE Special Agent David Guerra, Jr. had numerous
meetings with Khan, in which Agent Guerra was working undercover and posing
as a person who had access to a corrupt Citizenship and Immigration Services
(CIS) employee. In June 2005, Khan met with Agent Guerra and told him he
was interested in obtaining work permits for individuals from India. Agent
Guerra told Khan that he would charge $3,000 per person each time documents
were purchased. It was contemplated that this money would be used to bribe the
corrupt CIS official that Agent Guerra allegedly had access to.
Subsequently, Syed Shahabuddin transported numerous illegal aliens
from Chicago to Dallas, in part by automobile, to pre-arranged meetings with
Khan in Dallas.1 According to Shahabuddin, he transported such individuals
from Chicago to Dallas based upon information from a man named Naseem
Khan in Chicago and based upon requests from the individuals themselves.
Once Shahabuddin arrived in Dallas, he would call Shariq Khan for directions
to a meeting place–usually a restaurant parking lot. Khan would meet with
Shahabuddin, the illegal alien(s), and Agent Guerra. Agent Guerra then sold
fraudulent immigration documents to Khan, who in turn sold them to the
alien(s) for $6,000 each.
1
Shahabuddin testified that he had known Khan since 1991, at which time Khan lived
in Chicago.
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These meetings occurred on approximately August 25, September 14, and
October 20, 2005.2 The meetings were observed by Agent Hlavac and other
agents, who were conducting surveillance.
On May 17, 2006, a grand jury returned a superseding indictment
charging Khan with the following offenses: one count of Conspiracy to Defraud
the United States in violation of 18 U.S.C. § 371 (Count One); two counts of
Fraud and Misuse of Documents in violation of 18 U.S.C. §§ 1546(a) and 2
(Counts Two and Three); one count of Fraud and Misuse of Documents in
violation of 18 U.S.C. §§ 1001 and 2 (Count Four); one count of Conspiracy to
Transport and Harbor Aliens Illegally in the United States in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), (iii), and (v)(I) (Count Five); three counts of
Transportation of Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II) and 18 U.S.C. § 2 (Counts Six, Eight, and Ten); and
three counts of Harboring Illegal Aliens and Aiding and Abetting in violation of
8 U.S.C. § 1324(a)(1)(A)(iii) and (v)(II) and 18 U.S.C. § 2 (Counts Seven, Nine,
and Eleven). Khan pleaded not guilty to all counts.
On October 23 and 24, 2006, Khan was tried before a jury. The jury
acquitted Khan of Counts Three and Four, but convicted him on the other
counts. On February 13, 2007, the district court sentenced Khan to 33 months
imprisonment for each count, to be served concurrently, plus three years of
supervised release for each count, also to run concurrently. The court also
imposed a mandatory special assessment of $900. Khan now appeals Counts
Five through Eleven.3
2
The illegal aliens involved in the August 25 meeting were Sonia Nayab and Rais
Uddin. The illegal aliens involved in the September 14 meeting were Ashish Patel and Payal
Patel. The illegal aliens involved in the October 20 meeting included Pravinkumar Patel,
Shaunakkumar Patel, Ranjanbahen Patel, and Ashish Patel.
3
8 U.S.C. § 1324(a) governs Counts Five through Eleven. Section 1324(a) provides in
relevant part:
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II. STANDARD OF REVIEW
In reviewing the sufficiency of the evidence, this Court must “affirm if a
rational trier of fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt.” United States v. Lopez, 74
F.3d 575, 577 (5th Cir. 1996). We review the evidence, “whether direct or
circumstantial, in the light most favorable to the jury verdict” and “[a]ll
credibility determinations and reasonable inferences are to be resolved in favor
of the verdict.” United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995).
“The evidence need not exclude every reasonable hypothesis of innocence or be
wholly inconsistent with every conclusion except that of guilt, and the jury is
free to choose among reasonable constructions of the evidence.” Lopez, 74 F.3d
at 577.
III. DISCUSSION
A. Conspiracy to Transport and Harbor Aliens Illegally in the United
States
Khan asserts that the government produced insufficient evidence of his
participation in a conspiracy to transport and harbor illegal aliens because
(1)(A) Any person who–
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, transports, or moves or attempts to
transport or move such alien within the United States by means of transportation or
otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, conceals, harbors, or shields from
detection, or attempts to conceal, harbor, or shield from detection, such alien in any
place, including any building or any means of transportation; [or]
***
(v)(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
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Shahabuddin, a government witness and Khan’s alleged co-conspirator, testified
that: (1) he did not know that the people he transported from Chicago to Dallas
were illegal aliens; (2) the illegal aliens talked to someone else–not Khan–about
coming to Dallas; and (3) it was the illegal aliens–not Khan–who asked
Shahabuddin to help them get to Dallas.
The jury, however, was not required to believe Shahabuddin’s testimony,
and there is ample other evidence in the record showing Khan’s participation in
the conspiracy.
To prove Conspiracy to Transport and Harbor Aliens Illegally in the
United States in violation of § 1324(a)(1)(A)(ii), (iii), and v(I), the government
was required to prove that Khan agreed with one or more persons to transport
or move illegal aliens within the United States in furtherance of their unlawful
presence, or to conceal, harbor, or shield from detection such aliens, knowingly
or in reckless disregard of the fact that such aliens had come to, entered, or
remained in the United States in violation of law.
To prove a conspiracy, “[n]o express agreement to violate the law need be
shown and the conspiracy may be proven by showing that the defendant
conspired with one or more others, named or unnamed, to achieve an illegal
purpose.” United States v. Martin, 790 F.2d 1215, 1219-20 (5th Cir. 1986). A
conspiracy, or participation therein, need not be proved by direct evidence–“[t]he
conspiracy's existence can be inferred from the facts and circumstances of a
particular case.” United States v. Robertson, 659 F.2d 652, 656 (5th Cir. 1981).
“[A] common purpose and plan may be inferred from a development and
collocation of circumstances,” id. (internal quotations omitted), and evidence of
concerted action “can indicate agreement and voluntary participation” in the
conspiracy. United States v. Quiroz-Hernandez, 48 F.3d 858, 866 (5th Cir. 1995).
The circumstantial evidence shows that Khan agreed with
someone–whether it was Shahabuddin, “Naseem Khan,” or the aliens
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No. 06-11228
themselves–that the aliens would be transported to a meeting place in Dallas
where they would pay him to obtain fraudulent immigration documents. Khan
devised a scheme to obtain work permits for undocumented workers through the
bribery of a supposedly corrupt immigration employee. The undocumented
workers traveled to Dallas and paid Khan up to $6,000 each for the work
permits. Shahabuddin transported the illegal aliens while in Dallas. Khan
directed Shahabuddin’s driving while in Dallas, ultimately guiding Shahabuddin
and the aliens he was with to meetings with him and Agent Guerra. On at least
one occasion, on August 25, 2005, the aliens–Nayab and Uddis–were kept at a
house prior to being transported to the parking lot meeting. Nayab testified that
the house they stayed at was Khan’s, and Khan accompanied them to the
meeting with Agent Guerra. Furthermore, the testimony of Ashish and Payal
Patel provided evidence that Khan was the one who told them to come to Dallas
for the work permits. Finally, as Khan’s entire scheme was to provide illegal
aliens with phony immigration documents, it is clear that Khan knew that the
aliens with which he was dealing were in the United States illegally and that his
acts were in furtherance of their unlawful presence.
This evidence, viewed in the light most favorable to the government, is
sufficient for a rational jury to conclude beyond a reasonable doubt that the
charged conspiracy existed and Khan voluntarily participated in it.
B. Transportation of Illegal Aliens and Aiding and Abetting
Khan contests the sufficiency of the evidence for his conviction on three
counts of Transportation of Illegal Aliens and Aiding and Abetting in violation
of §1324(a)(1)(A)(ii) and (v)(II) and 18 U.S.C. § 2 for the transportation of Rais
Uddin, Ashish Patel, and Ranjanbahen Patel–Counts Six, Eight, and Ten,
respectively.
Aiding and abetting occurs “when the defendant associates with the
criminal venture, purposefully participates in it, and seeks by his actions to
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make it succeed.” United States v. Vaden, 912 F.2d 780, 783 (5th Cir. 1990).
Aiding and abetting thus has two components: “[a]n act on the part of a
defendant which contributes to the execution of a crime and the intent to aid in
its commission.” United States v. Smith, 546 F.2d 1275, 1284 (5th Cir. 1976).
Additionally, “[t]he evidence supporting a conspiracy conviction is generally
sufficient to support an aiding and abetting conviction as well.” United States
v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997).
The record demonstrates that Khan committed acts which contributed to
the unlawful transportation of the named illegal aliens and intended to aid in
such transportation, in furtherance of the aliens’ unlawful presence. As
described above, the record shows that: Khan agreed with someone that illegal
aliens would be transported to Dallas where they would purchase fraudulent
immigration documents; Khan directed Shahabuddin’s driving in Dallas, guiding
Shahabuddin and the illegal aliens to pre-arranged meetings; and, on at least
one occasion, he guided Shahabuddin and the aliens to his house, where they
spent the night, and the next morning he guided and accompanied them to the
meeting with Agent Guerra.4 Furthermore, it is clear that Khan intended to aid
in the transportation of the aliens and for such transportation to succeed, as he
would not get paid unless the aliens were successfully transported to the
meeting with him and Agent Guerra.
4
Although there was direct evidence that Khan directed Shahabuddin’s driving once
Shahabuddin was in Dallas with Uddin and Ashish Patel, there is only circumstantial evidence
of such direction with respect to Ranjanbahen Patel. In fact, the testimony indicates that
Ranjanbahen arrived at the parking lot meeting in a vehicle driven by an unidentified male.
Although there is no direct evidence linking Khan with the direction of this vehicle, the
evidence shows that Khan was the point person for the Dallas meetings and was the only
person to direct other aliens to similar meetings on previous occasions. Thus, the jury could
have reasonably concluded that in accordance with Khan’s overall scheme, Khan directed
Ranjanbahen or his driver to the meeting, as Ranjanbahen would have had no way to find the
meeting location but for Khan’s direction.
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Viewed in the light most favorable to the government, this evidence is
sufficient for a rational jury to find beyond a reasonable doubt that Khan aided
and abetted the illegal transportation of the named aliens.
C. Harboring Illegal Aliens and Aiding and Abetting
Finally, Khan contests the sufficiency of the evidence for his conviction on
three counts of Harboring Illegal Aliens and Aiding and Abetting in violation of
§1324(a)(1)(A)(iii) and (v)(II) and 18 U.S.C. § 2 for the unlawful harboring by
automobile of Sonia Nayab, Payal Patel, and Pravinkumar Patel–Counts Seven,
Nine, and Eleven, respectively.
Harboring encompasses “activity tending substantially to facilitate an
alien's remaining in the United States illegally.” United States v. Cantu, 557
F.2d 1173, 1180 (5th Cir. 1977) (internal quotations omitted). Section
1324(a)(1)(A)(iii) prohibits harboring “in any place, including . . . any means of
transportation.”
For the same reasons the jury could conclude that Khan aided and abetted
the illegal transportation of aliens, the jury could conclude that Khan committed
acts which contributed to the harboring of the named illegal aliens and intended
to aid in such harboring. The transportation in Dallas was necessary for the
accomplishment of Khan’s entire scheme and clearly facilitated the named
aliens’ unlawful presence in the United States.5
IV. CONCLUSION
5
There is admittedly only slight circumstantial evidence that Khan aided and abetted
in the harboring of Pravinkumar Patel. However, viewed in the light most favorable to the
government and given the evidence of Khan’s intimate involvement in the entire scheme, there
was sufficient evidence with respect to this count of aiding and abetting harboring. Agent
Hlavac witnessed Pravinkumar at the October 20, 2005 meeting with Khan and Agent Guerra,
and another alien testified that Pravinkumar was in a group of aliens from Chicago. Based
on this evidence and the evidence of the logistics of Khan’s entire scheme, it was reasonable
for the jury to believe that: Pravinkumar was an illegal alien present to purchase fraudulent
immigration documents, Pravinkumar came to the meeting by automobile as other aliens had
before him, and that Khan–in accordance with his past actions–directed Pravinkumar to the
meeting.
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For the foregoing reasons, the judgment of the district court is
AFFIRMED.
9