11-2636-cr
United States v. Kaluza

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s
Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either
the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a
summary order must serve a copy of it on any party not represented by counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 12th day of June, two thousand twelve.

PRESENT:
          JOSEPH M. MCLAUGHLIN,
          JOSÉ A. CABRANES,
          SUSAN L. CARNEY,
                       Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

                     -v.-                                                                                  No. 11-2636-cr

JOSEPH KALUZA,
           Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                 BRIAN P. COMERFORD, Assistant Federal
                                                                         Public Defender, Western District of New
                                                                         York, Buffalo, NY.

FOR APPELLEE:                                                            STEPHAN J. BACZYNSKI, Assistant United
                                                                         States Attorney, for William J. Hochul, Jr.,
                                                                         United States Attorney for the Western
                                                                         District of New York, Buffalo, NY.


        Appeal from a judgment of conviction of the United States District Court for the Western
District of New York (Richard J. Arcara, Judge) entered June 13, 2011.
     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Joseph Kaluza appeals a judgment of conviction entered on June 13,
2011, following jury trial, of hindering his removal from the United States, in violation of 8 U.S.C.
§ 1253(a)(1)(B), by failing to apply for a Polish passport.

        We assume the parties’ familiarity with the factual history and proceedings below. Briefly,
Kaluza is a citizen of the Republic of Poland who entered the United States as a visitor in 1986 and
never left. In 2004, removal proceedings were commenced, culminating in the entry of a
deportation order on June 9, 2008.

       Deportation Office Joseph T. Koson was assigned responsibility for effecting the removal of
Kaluza back to Poland. To that end, Koson contacted the Polish Consulate to ascertain what
documents Poland would require before allowing Kaluza to reenter. The Consular Officer to whom
Koson spoke advised that Poland would require Kaluza to personally make application for a
passport.

        As an alien subject to a final order of removal, Kaluza was statutorily obligated to apply for
any documents necessary to facilitate his departure from the United States. 8 U.S.C. § 1253(a)(1)(B).
On numerous occasions, however, Kaluza refused to execute the papers necessary to obtain a Polish
passport. As a result, an indictment was returned against Kaluza charging him with a single violation
of 8 U.S.C. § 1253(a)(1)(B) for hindering his removal from the United States.

        To prove its case at trial, the Government called Koson to testify about his conversation
with the Polish Consular Officer for the purpose of establishing the procedures with which Kaluza
was required to comply to be granted reentry to Poland. Kaluza objected, contending that Kosen’s
testimony constituted impermissible hearsay evidence and violated his right to confrontation under
the Sixth Amendment to the U.S. Constitution, see U.S. CONST. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.”). The District Court rejected Kaluza’s argument and allowed Koson to testify about his
discussions with the Polish Consulate.

        On appeal, Kaluza argues that the District Court erred in permitting Koson, who is not a
representative of the Polish Government, to testify at trial that Poland would not readmit Kaluza
unless he applied for a Polish passport, and that permitting this testimony violated Kaluza’s right to
confrontation under the Sixth Amendment.




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                                           DISCUSSION
        We review whether a witness’s testimony violated a defendant’s right to confrontation de
novo. See, e.g., United States v. Mejia, 545 F.3d 179, 198–99 (2d Cir. 2008).

        Following this review, we affirm the judgment of the District Court. The statements of the
Polish Consular Officer to Koson about Poland’s passport issuance procedures were non-
testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). Koson’s primary
purpose in speaking to the Polish Consulate was to ascertain what procedures were necessary to
effect Kaluza’s removal to Poland, rather than to gather evidence for Kaluza’s eventual prosecution.
See Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011); Davis v. Washington, 547 U.S. 813, 827–28 (2006);
Crawford, 541 U.S. at 56 n.7. Accordingly, the District Court’s decision to admit Koson’s testimony
regarding those statements did not violate Kaluza’s Sixth Amendment right to confrontation.

                                          CONCLUSION
        We have considered all of Kaluza’s arguments on appeal and find them to be without merit.
For the reasons stated above, the judgment of the District Court is AFFIRMED.




                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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