U.S. v. Pluta
| Decision Date | 28 April 1999 |
| Docket Number | Docket No. 98-1443 |
| Citation | 176 F.3d 43 |
| Parties | UNITED STATES of America, Appellee, v. Witold PLUTA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
John-Claude Charbonneau, Assistant United States Attorney, Burlington, Vermont (Charles R. Tetzlaff, United States Attorney for the District of Vermont, David V. Kirby, Chief, Criminal Division Burlington, Vermont, on the brief), for Appellee.
Thomas A. Zonay, Rutland, Vermont (Timothy U. Martin, Pratt Vreeland Kennelly & Zonay, Rutland, Vermont, on the brief), for Defendant-Appellant.
Before: KEARSE and SACK, Circuit Judges, and McAVOY, Chief District Judge *.
Defendant Witold Pluta appeals from a judgment entered in the United States District Court for the District of Vermont, convicting him, following a jury trial, on two counts of smuggling aliens into the United States, in violation of 8 U.S.C. § 1324(a)(1)(A), and one count of conspiring to do so, in violation of 18 U.S.C. § 371, and sentencing him principally to eight months' imprisonment. On appeal, Pluta contends that the trial court erred in admitting in evidence the statements and Polish passports of the persons he was accused of smuggling; he also contends that the interpreters who served at his trial were not properly sworn. Finding no basis for reversal, we affirm.
The present prosecution began after Pluta, a permanent resident alien of the United States, was detained by customs and immigration officials when he attempted, in suspicious circumstances, to reenter the United States from Canada. The government's evidence at trial consisted principally of testimony from government agents and from cooperating codefendant Ireneusz Migas. Taken in the light most favorable to the government, the evidence at trial revealed the following.
In late June 1991, Pluta, who lived in New York City, telephoned his friend Migas, who lived in Montreal, Canada, stating that two Polish women wished to enter the United States. Migas informed Pluta that it would be difficult for the women to obtain visas from the American consulate in Montreal. Pluta asked whether Migas knew of someone who could arrange for the women to enter the United States "without having the visa," i.e., "illegally." Migas responded that he did not know of such a person, but he suggested that the women could cross the border into the United States through the woods near a hiking trail called the "Long Trail," which could be approached from the Canadian side of the border and which connected with Highway 105 near Richford, Vermont.
A few days later, Migas met one of the women, Anna Wicijewska, at the Montreal airport after Pluta provided him with her name, description, and flight information. Migas took Wicijewska to the American consulate in Montreal to request a visa for entry into the United States; officials there informed her that a decision would not be made for at least three weeks. Pluta and his friend Andrzej Gawlik drove from New York City to Migas's apartment in Montreal, arriving that night.
On the following day, June 29, 1991, Pluta, Gawlik, and Migas went to the bus station in Montreal to meet and take to Migas's home the second woman, Katarzyha Dyblik, arriving from Toronto. The group decided not to wait the three-week period needed for the women to seek visas authorizing their entry into the United States. On June 30, they placed the women's luggage in the back of Pluta's car; Migas, in his own car, drove the women, with Pluta and Gawlik following in Pluta's car, to the Long Trail near the United States border. Migas, who was paid a total of $1,950 by Pluta and Dyblik, then led the women on foot across the border and left them in a parking lot near Highway 105 in Vermont. Gawlik drove Migas's car into a nearby Canadian town, where Migas could retrieve it later; Pluta and Gawlik then attempted to drive into the United States at Richford, Vermont.
When Pluta and Gawlik presented themselves at the Richford port of entry, a United States Customs Service inspector, noting the large quantity of luggage in the hatchback car, became suspicious when Pluta said he had entered Canada only a "couple of days" earlier and had acquired nothing during his stay. The inspector ordered a "secondary inspection," during which the luggage was searched by United States Immigration and Naturalization Service ("INS") Inspector James E. McMillan. McMillan found that the bags contained women's clothing and personal effects, as well as a number of documents bearing the names Anna Wicijewska and Katarzyha Dyblik, including what appeared to be Polish passports in their names. McMillan thereupon alerted United States border patrol agents to be on the lookout for two Polish women who might be attempting illegal entry.
In the meantime, Migas, after leaving Wicijewska and Dyblik, walked into Richford, hoping to get a ride back to Canada. In Richford he was stopped by United States Border Patrol Agent James Backhaus, who had received word of the alert issued by McMillan. Migas, after being questioned, led Backhaus to the women, who were found hiding in the brush near the parking lot in which Migas had left them. Backhaus asked the women who they were. They identified themselves as Anna Wicijewska and Katarzyha Dyblik; each stated that she was a Polish citizen.
To the extent pertinent here, Pluta, Migas, and Gawlik were indicted on two counts of smuggling aliens into the United States, in violation of 8 U.S.C. § 1324(a)(1)(A) and 18 U.S.C. § 2, and one count of conspiring to do so, in violation of 18 U.S.C. § 371. Migas and Gawlik entered into plea agreements and testified against Pluta. Following a jury trial in 1992, Pluta was found guilty on those three counts. Pluta failed to appear for sentencing and remained a fugitive for some six years; he finally surrendered in 1998 and was sentenced principally to eight months' imprisonment. This appeal followed.
On appeal, Pluta contends that he is entitled to a new trial on the grounds that the district court erred in allowing the government to introduce in evidence the statements and passports of Wicijewska and Dyblik as to their citizenship, and that the court failed to administer proper oaths to the interpreters who served at trial. Given the record in this case, these contentions provide no basis for reversal.
A. The Issue as to Alienage
Pluta's principal substantive contention is that the district court erred in receiving hearsay evidence as to the citizenship of Wicijewska and Dyblik. He states that
[a]t trial the government had the burden of proving that the two women were aliens. There were no witnesses called by the government who had actual knowledge of the women's citizenship. Rather, the only source of that evidence at trial was the women's statements made to third parties and their passports.
(Pluta brief on appeal at 19.) He argues that "[i]n allowing the government to introduce the hearsay statements" of Wicijewska and Dyblik, the district court erred because the government did not establish, as required by Fed.R.Evid. 804(b)(4), that the women were unavailable to testify. (Pluta brief on appeal at 19.) We find in this argument no basis for reversal.
We begin by noting that the principal premise of Pluta's argument, i.e., that as to the status of Wicijewska and Dyblik as aliens "the only source of ... evidence at trial was the women's statements made to third parties and their passports," is squarely contradicted by the record. At trial, Migas testified to his initial June 1991 conversation with Pluta, in which Pluta himself stated that the women were Polish. Migas began:
[H]e told me that his friend [sic ] have problem [sic ] concerning their relatives. In one case this was the wife of his friend, and the other case was the niece of his friend. And the problem was that they were--they wanted to enter the United States.
(March 24 Tr. 53-54.) Although at this point Pluta's counsel initially interposed a hearsay objection, she quickly withdrew it, recognizing that Pluta's own out-of-court statements offered against him are, by definition, not hearsay, see Fed.R.Evid. 801(d)(2)(A) (). Migas continued his description of Pluta's statements as follows:
And so he--he wanted somehow--or asked me if I know any way for them to enter the United States, because they will be in Canada or come into Canada, so the question was how to go about coming from Canada to the United States, being a Polish citizen without the visa to enter to the United States.
(March 24 Tr. 54 (emphasis added).) Whether or not Pluta himself had actual, first-hand knowledge of the women's Polish citizenship, his statement to Migas was evidence of that citizenship.
Further, the record established beyond cavil that the two Polish women Pluta discussed with Migas were Wicijewska and Dyblik. Migas testified that in that first conversation, Pluta told him one of the women would be arriving by airplane in a few days and asked him to accommodate her at Migas's home until she could enter the United States. In the same conversation, Pluta said the second woman would be arriving later from Toronto. In a subsequent conversation, Pluta gave Migas Wicijewska's name, description, and arrival information, and asked Migas to meet Wicijewska's "plane which was coming from Poland." (March 24 Tr. 57-58.) Migas proceeded to meet Wicijewska at the airport, take her home with him, and take her to the American Consulate to apply for a United States visa. Dyblik arrived a day later from Toronto and was met by Migas, Gawlik, and Pluta. When Migas was shown at trial photographs that Backhaus had taken of Wicijewska and Dyblik following their...
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