The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Pending before the Court is a motion by defendant Joseph Kaluza for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure ("FRCP"). Defendant was convicted on February 9, 2011 of willful failure to make a timely application in good faith for a travel document necessary to his departure, in violation of 8 U.S.C. § 1253(a)(1)(B). Defendant contends that a judgment of acquittal is necessary because the Government failed to meet its burden of proof with respect to establishing willfulness, untimeliness, and the necessity of the travel document in question. The Government opposes the motion, arguing that the jury reasonably could have inferred willfulness and untimeliness from defendant's refusal ever to apply for a travel document. The Government argues further that sufficient evidence emerged at trial to establish the necessity of the travel document.
The Court held oral argument on April 4, 2011. For the reasons below, the Court denies the motion.
This case concerns allegations that defendant is deliberately frustrating a settled order of removal to Poland out of a stated fear of political retribution. Defendant was born in Poland in 1956. Defendant has been a citizen of Poland with no lawful immigration status in the United States. Assuming without deciding the accuracy of his background narrative, defendant was an activist in the antiCommunist Solidarity movement in the early to mid-1980s. After several run-ins with Communist officials that occurred in retaliation for his political actions, defendant left Poland in 1986 and entered the United States as a visitor on July 13, 1986. The visitor visa lasted six months. Even though his visitor visa has long since expired, defendant has remained in the United States. The docket and defendant's immigration file contain some information suggesting that defendant did not draw the attention of immigration officials until a series of drunk-driving convictions early last decade caused him to serve several years of imprisonment in the New York state prison system.
Defendant's efforts to remain in the United States after immigration officials noticed his visa violation laid the foundation for the prosecution of this case. On October 8, 2004, while defendant was in state prison, immigration officials served him with a Notice to Appear, charging him with overstaying his visitor visa without authorization and thus being subject to removal. An immigration judge first ordered defendant removed on January 13, 2005. That order of removal was upheld by the Board of Immigration Appeals ("BIA") on May 10, 2005; defendant made but then withdrew an appeal to the United States Court of Appeals for the Second Circuit. Meanwhile, defendant had applied for asylum on the grounds of fear of political persecution. On June 9, 2008, an immigration judge denied defendant's request for asylum and again ordered him removed. The BIA affirmed the denial of asylum on August 29, 2008. Defendant appealed the denial of asylum to the Second Circuit, which dismissed the appeal as frivolous on March 17, 2009. On March 27, 2009, defendant filed a motion with the BIA to reopen his case, which the BIA denied on April 24, 2009. Defendant appealed the refusal to reopen to the Second Circuit on June 26, 2009. The Second Circuit dismissed this appeal on January 12, 2010 and issued the corresponding mandate on February 2, 2010. Defendant's removability became final as of this date.
Even after defendant's removability was definitively resolved, however, the last logistical step in completing his removal was that he had to apply to the Polish Consulate for a travel document that would allow him to re-enter Poland. Four times-on February 4, March 3, April 30, and June 10, 2010-the Government gave defendant 30 days to apply for the travel document. Four times, defendant refused and let the deadlines pass, citing fear of political retribution if he ever returned to Poland. To date, defendant has yet to apply for a travel document, knowing that he cannot be removed to Poland if he never makes that application. From November 10, 2005, when he was released from state custody, to December 30, 2010, defendant was in continuous immigration custody. Since December 30, 2010, defendant has been in the custody of the United States Marshals because of the criminal charge in this case.
The Government criminally prosecuted this case in response to defendant's refusal to apply for a travel document. On December 22, 2010, the Government filed a one-count indictment charging defendant with willful refusal to make a timely application in good faith for a travel document, in violation of 8 U.S.C. § 1253(a)(1)(B). On February 8, 2011, the Court granted the Government's motion in limine to preclude defendant from re-litigating his immigration case by telling the jury what he feared might happen to him if he returned to Poland.*fn1 On February 9, 2011, the Court held a one-day trial after which the jury found defendant guilty of the count in the indictment.
Through the pending motion, defendant now attacks the jury verdict as unsupported by sufficient evidence. Specifically, defendant contends that the Government did not meet its burden of proof with respect to the third and fourth elements of the offense. The third element required the Government to prove that defendant willfully failed or refused to make timely application in good faith for a travel document. According to defendant, the Government could not have established untimeliness where the word "timely" was not defined in the statute and where the four extensions of the deadline to apply for a travel document made the issue of timeliness confusing. Because the issue of timeliness was confusing, the Government also could not establish that defendant failed to make a timely application willfully. The Government opposes this argument by noting that it is academic, since defendant has not applied for a travel document even through the present time. The fourth element required the Government to prove that the travel document in question was necessary for defendant's removal. According to defendant, the testimony of immigration agents Joseph Koson ("Koson") and Daniel Henderson ("Henderson") was not enough to establish that Poland will not accept defendant without a travel document. The Government disagrees and contends that the jury reasonably relied on the testimony that the agents gave based on their experience with immigration cases, including cases concerning the Polish Consulate.
"If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." FRCP 29(c). "The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter." Curley v. U.S., 160 F.2d 229, 232--33 (D.C. Cir. 1947) (footnote omitted). The Court will assess defendant's arguments under the well ...