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United States v. Khan

United States District Court, District of Columbia

September 5, 2017

UNITED STATES OF AMERICA
v.
SHARAFAT ALI KHAN, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         On April 12, 2017, the defendant in this criminal matter pleaded guilty to Conspiracy to Defraud the United States and Conspiracy to Encourage and Induce Unauthorized Aliens to Come to the United states for Commercial Advantage and Private Financial Gain, in violation of 18 U.S.C. § 371. See Plea Agreement (Apr. 10, 2017) at 1, ECF No. 29. The defendant is now pending sentencing, and the parties have submitted memoranda in aid of sentencing, drawing into question the sentencing range applicable to the defendant under the United States Sentencing Guidelines (the “Guidelines”). See generally Government's Memorandum in Aid of Sentencing (“Gov't's Mem.”); Defendant Khan's Memorandum in Aid of Sentencing and Motion for Downward Departure (“Def.'s Mem.”). Specifically, the parties disagree as to the propriety of imposing a sentencing enhancement for the defendant's purported aggravated role as an organizer or leader in the conspiracy to which he pleaded guilty. See Gov't's Mem. at 10-16; Def.'s Mem. at 7-8. Upon careful consideration of the parties' submissions and the oral arguments made during the sentencing hearings held in this case, [1] the Court concludes that the Guidelines enhancement for playing an aggravated role in the conspiracy is warranted in this case.[2]

         I. BACKGROUND

A. Factual Background

         The following factual allegations are taken from the Statement of Offense submitted by the government in conjunction with the defendant's guilty plea, which the defendant acknowledged is accurate. Statement of Offense (Apr. 6, 2017) at 1, ECF No. 28.

         The defendant “is a Pakistani national who, at all relevant times was living in Brasilia, Brazil as a permanent legal resident.” Id. ¶ 1. “From on or about March 2014 through on or about May 2016, [the] defendant . . . knowingly conspired with others (a) to defraud the United States, and (b) to . . . encourage and induce aliens to enter and reside in the United States for [his] private financial gain.” Id. ¶ 2. As part of the conspiracy, the defendant “facilitated the travel of between [twenty-five] and [ninety-nine] different aliens for illegal entry into the United States, ” id. ¶ 3, as these aliens “had not received prior official authorization to come to, enter, and reside in the United States, ” id. ¶ 2. As part of his smuggling activities, the defendant “arrange[d] for the aliens to travel by land, air[, ] or sea through Venezuela, Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, El Salvador, Guatemala, Mexico, and eventually into the United States through various border points in Mexico.” Id. ¶ 4. He also communicated and met with the aliens and arranged for their transport and stay at safe houses during their transit towards the United States. See id. ¶ 5. And, the defendant “arrang[ed] for various smuggling associates to serve as escorts for the same purposes during different legs of the smuggling route.” Id. The defendant also

was responsible for managing the movement of these aliens through various countries via a network of individuals and transportation facilities who worked with [him] in getting [the] aliens from Pakistan (and other countries) to Brazil, through South and Central America, into Mexico, and through the Mexican border into the United States.

Id. ¶ 8.

         In exchange for his smuggling services, the “[a]liens paid [the] defendant . . . and [his] co[-]conspirators various amounts-from around $3, 000 USD to up to $15, 000 USD-to travel from Pakistan to Brazil, through South and Central America, and eventually into the United States.” Id. ¶ 6. The defendant received “a variable percentage of the total smuggling fee paid as profit.” Id.

         B. The Government's Evidence Presented at the Sentencing Hearing

         During the sentencing hearing held on July 25, 2017, the government presented the testimony of Special Agent Michael Stempinski, who is currently employed at the United States Department of Homeland Security and is assigned to the Dulles Airport Investigative Group. See July 25, 2017 Trial Transcript (“Tr.”) 8:17-24. Stempinski was one of the agents who assisted in the investigation conducted in this case, and in particular, he “assisted the New York agents with [the defendant's] arrest when he arrived and was extradited to the United States through Dulles Airport.” Id. at 12:10-21. Stempinski based his testimony on his “general[] familiar[ity] with the facts and the evidence that was collected in this case[, ] . . . [the] information conveyed to [him] by the other agents that worked on the case[, ] . . . [and his] review of reports about interviews conducted in this investigation.” Id. at 12-13. In preparation for his testimony, Stempinski primarily focused on reviewing evidence specific to the defendant's role in the smuggling conspiracy, see id. at 14:1-5, and mainly testified about three interviews of unauthorized aliens who the defendant assisted in their efforts to illegally enter the United States. These interviews were conducted by other law enforcement personnel, and Stempinski was not present during the interviews. See id. at 12-13.

         First, Stempinski testified regarding “the interview of an individual with the initials of MA, ” who is “an Afghani national that contracted with an individual in Afghanistan to be smuggled to the United States.” Id. at 14:13-20. According to Stempinski's review of MA's interview report, after MA arrived in Dubai, MA “contacted [the defendant] to arrange being smuggled to the United States.” Id. at 23-24. The defendant provided MA with directions regarding MA's travel to Brazil, and upon MA's arrival in Brazil, the defendant's “associate . . . picked [MA] up . . . and [took him] to [the defendant's] house [where h]e remained . . . for approximately four to five months.” Id. at 14:25-15:4. MA stated that this associate “indicated [to MA] that [the defendant] was his boss.” Id. at 16:20-22. MA also noted that “there were approximately [fifty] . . . people [who were also being smuggled who] would come and go” over the period of time that he was at the defendant's house, id. at 17:3-6, and that the defendant had two individuals at the house who “acted as [the defendant's] subordinates, ” id. at 17:17-18:2. These two individuals were “responsible for feeding the aliens and paying for the electricity bills.” Id. at 15:5-8. MA recalled that the defendant “would periodically come to [the] house . . . to check on . . . the individuals he was assisting[, ] . . . pick up utility and electric bills for the house[, ] and would collect money from the employees of the house.” Id. at 17:7-14.

         MA further stated that the defendant “facilitated his travels through South and Central America and Mexico up to the United States” after leaving the house in Brazil. Id. at 15:8-10. The defendant communicated with MA “using the WhatsApp text app[3] to provide direction and guidance along the way.” Id. at 15:11-13. As part of these communications, the defendant identified “other individuals that would assist MA . . . as [he] made [his] way transiting through other countries towards the United States, ” often referring to these individuals “as his man or his guys.” Id. at 18:12-17. Additionally, throughout his journey to the United States, MA “was required to pay additional sums of money, ” id. at 15:13-14, either “through a cashier or . . . a Hawala system, ” id. at 19:2-3, which is

an informal banking system that's sort of structured around friends and family . . . who will deposit an amount of money on one end in good faith, and on another end[, ] somebody else will take out [the] money and pay it to ...

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