Case Law Database

Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)
• Participation in criminal activities of organized criminal group
• Organizing, directing, aiding, abetting, facilitating or counselling the commission of a crime involving an organized criminal group

Degree of Involvement

• Overt act in furtherance of agreement
• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question

Smuggling of migrants

Offences

• Enabling illegal entry
• Financial or other material benefit (to smuggler)

Mode

• land

Related Conduct

• Organizing and directing other persons

United States v. A.d.N. - 16-cr-00096-RBW

Fact Summary

The defendant in this Case in front of the United States District Court of Columbia, led the largest Pakistani migrant smuggling operation at the time of the life of the conspiracy. Throughout his 2-year prolonged criminal activity, the defendant has procured the illegal entry of between twenty-five to ninety-nine smuggled migrants. The journey of the migrants began in Pakistan, continued through Central America with the final destination being the United States of America. In March 2014, Agents of the United States Department of Homeland Security, Immigration and Customs Enforcement “ICE” were informed of the ongoing migrant smuggling operation into the United States. In July 2015, Agents of the “ICE” were tasked with this operation and conducted interviews with smuggled migrants who identified the defendant as their smuggler. Based on extensive information gained through the interviews with the smuggled migrants and complemented by other sources, the US gathered sufficient evidence for extradition of the defendant to the States to stand trial at the US District Court of Columbia.

The evidence submitted by the US government suggests that the defendant abused the migrants' vulnerable position by taking away their passport upon arrival in a safe house in Brazil. From that moment on, the defendant restricted migrants' ability to move, and the defendant completely controlled their movement throughout the journey.

Additionally, the evidence suggests that the majority of the migrants smuggled by the defendant were in an economically deprived situation due to spending most, if not all, of their savings for paying a 'handsome' price for the defendant's smuggling service. The Court emphasizes that despite the large sum of money the defendant asked for each smuggled migrant to pay, which was between 3.000-15.000$ per individual, the smuggled migrants endured months of life-threatening, uncertain travel throughout Central America by land, air and sea. The average journey of a migrant smuggled by the defendant took up to 9 months. The Case discusses that on their crossing to the States, the smuggled migrants, with their genders undisclosed by the Court, were forced to spend days in crowded boats while crossing through Columbia. Throughout the migrants' journeys through Central American countries and their stays in safe-houses in El Salvador, Panama, Guatemala, Argentina and several other countries - the smuggled migrants continuously spent their life in uncertainty. Every next step on the journey wholly depended on the defendant's ability to pay his co-conspirators to facilitate their movement. The defendant, hereby, worked with several co-conspirators, who were located throughout countries in Central America, in a hierarchical manner, of which he was the leader of. His co-conspirator facilitated the smuggled migrants' movement, managed safe houses at various locations (e.g. Guatemala, Panama) and fulfilled other organizational tasks over which the defendant had full authority over.  The smuggled migrants furthermore faced with passages through the jungle in the Darien Gap, a place known for harsh and life-threatening conditions. Throughout their route through the jungle, witnesses report little, if any access to food and water. The defendant did not inform the smuggled migrants about the long and harsh conditions they would face on their way to the States.  The Court applied aggravating circumstances to the defendant's sentence due to his leadership role and his disregard of safety and security of the smuggled migrants throughout their journey.

Commentary and Significant Features

This case includes several interesting features. First, it highlights the importance of protecting the anonymity and integrity of smuggled migrants. The primary evidence upon which the United States Government based their allegations, as well as the Court’s indictment of the defendant, are based on an extensive record of witness interviews. This case demonstrates that smuggled migrants serve as a valuable eyewitness to putting together a substantive case against migrant smugglers, especially the leaders and organizers of large-scale smuggling operations as the defendant is in this case.   

Second, the argumentation applied by the Court on the establishment of aggravating circumstances and the evaluation of the severity of the crime focuses on the defendant’s organizing role in the smuggling operation. In the reasoning behind the harsh sentencing of the defendant, the Court establishes that the defendant's authority over a large-scale smuggling operation violating US immigration law is what speaks most for the application of enhanced sentencing. With this, the Court highlights that this element of the aggravation of the crime presents the highest form of threat to the US government and public.

Finally, this case is also an example of successful international cooperation for the purpose of prosecuting a leader of a transnational smuggling organization. This case also shows the effectiveness of international cooperation in the process of indicting the defendant. Through effective Interpol communication and the extradition process, the defendant was successfully brought to the United States in a timely manner.

Sentence Date:
2017-10-17
Author:
Esther Jaromitski, as part of collaboration with Queen Mary University London

Keywords

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Brazil

Venezuela (Bolivarian Republic of)

Peru

Ecuador

Colombia

Panama

Costa Rica

Nicaragua

Honduras

El Salvador

Guatemala

United States of America

Investigation Procedure

Involved Agencies

• United States Department of Homeland Security, Immigration and Customs Enforcement ”ICE”
• Dulles Airport Investigative Group, in collaboration with New York City Agents
• Interpol
• Qatari Police

Comments

Evidence provided by the United States Government based on various witness interviews given by migrants smuggled by the defendant. The testimony of the smuggled migrants, referred to as” undocumented aliens” in the judgement in conjunction with other information of which the origin is undisclosed, provided the US Government with sufficient evidence to bring a case against the defendant to Court.
 

International Cooperation

Measures

• Extradition
• International law enforcement cooperation (including INTERPOL)

Outline

On a flight from Brazil to Pakistan, the defendant had a short stay at the airport in Doha, Qatar. The US issued an Interpol Red Notice, which the Qatari law enforcement used to detain the defendant at his presence in the airport. The defendant was thereafter handed over to Qatar Interpol with the pending request to extradite the defendant to the United States. On June 30, 2016, the Qatar government ordered the defendant’s extradition to the United States. 
 

Electronic Evidence

• Electronic Evidence/Digital Evidence

Procedural Information

Legal System:
Common Law
Type of Proceeding:
Criminal

The defendant, Dr. Nakib, in his Plea Agreement, plead guilty for the Conspiracy to defraud the United States and the Conspiracy to encourage and Induce Aliens to Come to the United States for Profit, however, objects to the application of playing an aggravating role in the criminal activity as an organizer or leader thereof. The defendant claims that his co-conspirators were in no hierarchical relationship to him and that he did not exercise any authority over the decisions of his co-conspirators.

Based on the evidence provided by the United States Agency on Homeland Security, the migrants smuggled by the defendant were able to identify at least two to three people that worked directly under the defendant's supervision, responding to his orders and requests. Through further investigations, U.S. agents were able to identify several payments made through the Western Union by the defendant to co-conspirators, suggesting a hierarchical modus operando in the defendant's role in criminal activity and function. Finally, the investigation of the United States Government presented the Court with WhatsApp Messenger text messages which provided evidence for a continuous communication throughout the smuggling route between the defendant, his co-conspirators and the migrants. Clear task division, testimony on the defendant taking away travel documents of the smuggled migrants before their journey, monetary exchange for performing requested tasks throughout the smuggling route, and continuous transnational communication in completing the conspiracy provided the Court with sufficient evidence needed to conclude their judgement on sentencing.  The Court concludes that the defendant, is a primary organizer and leader, as he "exercised substantial decision-making authority, recruited co-conspirators to assist in the conspiracy by either facilitating the unauthorized aliens' travel or securing additional clients and controlled every aspect of the unauthorized aliens' journey from Brazil to the United States."

Additionally, the U.S. Government presents evidence as to how the smuggled migrants were subjected to harsh conditions that caused a substantial risk of severe bodily injury or death during the voyage from Brazil through South and Central America.

The Court finds the defendant guilty of violating 18 U.S.C. § 371, the Conspiracy to Defraud the United States. In conjunction with the defendant's pleas agreement and the application of aggravating circumstances, the Court sentences the defendant to 31 months' imprisonment and orders upon release a supervised release term of three years as well as his deportation back to Pakistan after release.

 
 

Defendants / Respondents in the first instance

Number of other accused:
1
Defendant:
Alias Dr. Nakib
Gender:
Male
Nationality:
Pakistani
Age:
32
Born:
1985
US Criminal History Score of Zero. Pakistani national, who, at all relevant times to the crimes committed in this case, was living in Brasilia, Brazil as a permanent legal resident

Charges / Claims / Decisions

Defendant:
Alias Dr. Nakib
Charge details:

Conspiracy to Defraud the United States
From on/about March 2014 to May 2016, the defendant conspired with others to commit the above cited crime. As part of the conspiracy, the Court finds the defendant guilty for facilitating the travel of between twenty-five and ninety-nine different aliens for illegal entry into the United States.

The defendant is found guilty in the conspiracy “to defraud the United States by interfering with and obstructing a lawful government function, that is the enforcement of the immigration laws of the United States by deceit, craft, trickery, and dishonest means” along with at least three others known and unknown to the Grand Jury.

The defendant pleaded guilty to the crime under 18 U.S.C. § 371. However, the defendant disagrees with the the United States Government, in terms of the propriety of imposing a sentencing enhancement for the defendant’s purported aggravated role as an organizer or leader in the conspiracy of committing this crime. (See sentencing section for further details)

Verdict:
Guilty
Legislation / Statute / Code:

8 U.S.C. § l324(a)(l)(A)(iv) and (a)(1)(B)(i)
Here is a link to the relevant legislation online:
https://www.law.cornell.edu/uscode/text/8/1324

Charge details:
Conspiracy to encourage and Induce Aliens to Come to the United States for Profit
Based on the above-mentioned facts of the criminal activity and in conjunction with the first Charge, the defendant is found guilty in the conspiracy “to commit offenses against the United States, that is, to knowingly encourage and induce aliens to come to enter. and reside in the United States, knowing and in reckless disregard of the fact that such coming to, entry. and residence was and would be in violation of law, the purpose of commercial advantage and private financial gain.”
The defendant pleaded guilty to the crime under 18 U.S.C. § 371. However, the defendant disagrees with the Respondent, the United States Government, in terms of the propriety of imposing a sentencing enhancement for the defendant’s purported aggravated role as an organizer or leader in the conspiracy of committing this crime. (See sentencing section for further details)

 

Verdict:
Guilty
Term of Imprisonment:
2 years 7 Months
The United States Government, as the respondent to this case, requests that the Court sentences Dr. Nakib, the defendant, to 37 months' imprisonment. Under U.S.S.G. §3B1. 1 (a), the United States Commission on Sentencing Guidelines dictating the element considered to constitute an aggravating circumstance, the Government submits that the defendant was an organizer or leader in the conspiracy in this case. Hence, the Government proposes that the defendant should be sentenced in adjustment for an aggravating role. The parties to this case disagree on particularly the issue of the aggravating element. For clarification, in the United States judicial system, the application of the aggravating role enhancement under U.S.S.G. §3B1. 1 (a) results in a 4-point increase in the defendant's offence level, and hence, a sentence ordering more extended imprisonment.  

Fine / Payment to State:
Dr. Nakib, the defendant, pursuant to 18 U.S.C. Section 982(a)(6)(A)(i) must forfeit the United States Government all property involved in the conspiracy. The defendant must also forfeit all traceable proceeds obtained from the conspiracy.

Court

The United States District Court for the District of Columbia