William Nezowy v. United States

723 F.2d 1120, 1983 U.S. App. LEXIS 14270, 14 Fed. R. Serv. 1424

• Court: Court of Appeals for the Third Circuit
• Decided: December 21, 1983
• Docket: 83-1057
• Status: Published

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge:

William Nezowy appeals from convictions on three counts of making false statements to the Immigration and Naturalization Service (INS) in violation of 18 U.S.C. § 1001 (1976).¹ 553 F.Supp. 773. Although we conclude that the district court erred in allowing the government to cross-examine a defense witness about invocation of her fifth amendment privilege against self-incrimination, we find this error to be harmless and therefore affirm.

I.

Nezowy acted as a self-proclaimed “immigration consultant” on behalf of certain Polish nationals. He was associated with Louis Konowal, an attorney, who represented clients before the INS. Nezowy was fluent in Polish and would often accompany clients to INS interviews as a translator.

The government charged that Nezowy, unbeknownst to Konowal,-filed application forms with the INS seeking political asylum for his clients. The clients, it was alleged, were not aware that Nezowy was seeking political asylum on their behalf, and in fact had specifically denied Nezowy permission to make such a claim. After receiving complaints about Nezowy’s activities, the INS arranged for an INS official who understood Polish to conduct an applicant interview, with Nezowy present as an interpreter. The INS official testified at trial that Nezowy failed to translate accurately the conversations with his client, deleting all references to “political asylum,” and thereby hiding the fact that the client did not wish to apply for such asylum.

The amended indictment charged that Nezowy filed false applications on behalf of Anna Knockowski, Anna Lonczak, Barbara Pas Economopoulos, Bozema Lapinska, Janina Kotowska, and Marian Grech. It also alleged that Nezowy, in violation of 18 U.S.C. § 1422 (1976),² collected fees for his services in excess of those permitted by law from all except Lonczak. Nezowy was convicted of filing false applications on behalf of Knochowski, Economopoulos, and Kotowska. He was acquitted on all other counts.

II.

As a preliminary matter, we observe that, contrary to Nezowy’s contention, there was clearly sufficient evidence to support these convictions. At trial, Nezowy admitted that he had filed for asylum for a number of Polish nationals, including Anna Knochkowski, Barbara Pas Economopoulos, Janina Kotowska, and Marian Grech. Yet all testified that they had not authorized Nezowy to do so. Indeed, Anna Knochowski testified that she specifically told Nezowy that she did not want political asylum. App. at 322. Ms. Economopoulos also testified that she told Nezowy that she did not want political asylum. App. at 407-08, as did Ms. Kotowska. App. at 654. This testimony without more is sufficient to sustain a verdict that Nezowy filed political asylum applications without the clients’ knowledge or permission, and consequently made false statements to the INS.

III.

The only issue which requires discussion on this appeal is whether the district court judge erred in allowing the United States Attorney to cross-examine a defense witness about her invocation of the fifth amendment privilege.³

A.

The defense consisted in part of the testimony of Anna Kushnir, Nezowy’s part-time secretary. The bulk of Kushnir’s testimony concerned the office practices and fiscal and accounting procedures of the Nezowy-Konowal enterprise. Nezowy offered Kushnir’s testimony to discredit Konowal’s testimony on behalf of the government that he (Konowal) was unaware of Nezowy’s activities and that he never derived any fees from them. Kushnir also stated that she was present at a meeting between Nezowy and Marian Grech in which she heard Grech consent to the filing of a political asylum petition. App. at 1185-86. Kushnir testified further that she was in the room with Nezowy when he had a conversation with Barbara Economopoulos and Ms. Economopoulos’ husband. The only arguably relevant portion of that meeting related by Kushnir, however, was when Ms. Economopoulos-asked “whether her political asylum application had been withdrawn,” to which Nezowy replied: “Yes, it had been right after you made your phone call.” App. at 1177. Kushnir acknowledged that she was not a party to the entire conversation but only overheard small fragments of it.

In addition, Kushnir testified that, while appearing before the grand jury as a possible suspect in the investigation, a member of the U.S. Attorney’s Office had threatened her with denaturalization and deportation if she did not cooperate in the investigation. App. at 1187. The Government, over Nezowy’s objection, sought to rebut the allegation that Kushnir had been so harassed and badgered. It did so by questioning Kushnir about the invocation of her fifth amendment privilege on that day:

Q. Miss Kushnir, did you understand the rights Mr. Finkelstein [the Assistant U.S. Attorney] read to you that day?

A. I was very confused because like I said, he interrogated me before we went in.

Q. Did you understand the rights he read to you that day?

A. Yes.

Q. Did you in fact invoke your Fifth Amendment privilege which he advised you of that day?

A. Yes.

Q. And that was before the same Mr. Finkelstein who had been badgering you.

A. Yes.

App. at 1214. Nezowy contends that this mode of impeachment of a witness was unduly prejudicial and thus should result in a reversal of his conviction.

B.

The general rule, of course, is that the mode of impeachment of a witness is a matter committed to the discretion of the trial court. E.g., United States v. Cahalane, 560 F.2d 601 (3d Cir.1977). In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), however, the Supreme Court held that it was impermissible for the Government to demonstrate that a defendant’s testimony was inconsistent by questioning the defendant about his prior invocation of the fifth amendment privilege.

The defendant in Grünewald testified at trial in a manner completely consistent with his innocence. The Government then sought to cross-examine him about his prior invocation of the fifth amendment privilege before the grand jury, contending that the defendant’s claim of the privilege constituted a prior inconsistent statement. The Grünewald Court, however, held that there was no inconsistency between protestations of innocence and invocation of the fifth amendment privilege. The danger that the jury would draw improper inferences from the invocation of the privilegé led the Court to conclude that the trial judge had erred in allowing this mode of impeachment.⁴

The Grünewald Court did not go so far as to fashion a blanket rule which would always preclude the admissibility of this form of impeachment. Rather, it chose to pin its decision on the particular facts of Grünewald case,⁵ but in doing so implied that great caution must be exercised in accepting such testimony.

The government argues, however, that the actual inconsistency reflected in Kushnir’s testimony is more sharply drawn in this case than in Grünewald, in that Kushnir’s invocation of the fifth amendment privilege directly rebuts her claim that she was harassed by the U.S. Attorney during the grand jury investigation. The government contends that Kushnir’s claim of privilege is a clear indication that she “was capable of standing up to the government,” and therefore the trial cross-examination was proper as a direct contradiction to her claim of harassment. We cannot agree.

The fact that the U.S. Attorney warned Kushnir of her fifth amendment rights might perhaps be probative in determining whether he “harassed or badgered” her. Whether Kushnir actually invoked the privilege, however, is simply irrelevant to the question of whether she was in fact harassed by the Government. It is every bit as conceivable for a badgered witness to invoke fifth amendment rights out of fear as it is to have a non-badgered witness invoke the right out of confident defiance. The trial cross-examination, therefore, had little relevance in rebutting any assertion that Kushnir had been harassed. Moreover, whether Kushnir was harassed or not was itself merely a tangential issue. Whatever probative value could have been eked out of this testimony is more than outweighed by the potential prejudicial effect of admitting testimony regarding a fifth amendment claim of privilege before a jury. The danger is far from negligible, as the Grünewald Court saw it, that “the jury [would make] impermissible use of the testimony by implicitly equating the plea of the Fifth Amendment with guilt.... ” 353 U.S. at 423-24, 77 S.Ct. at 984. Here, as in Grünewald, we find that the balance tilts convincingly toward inadmissibility.

Because of the ever present danger that a jury might misunderstand the context in which such fifth amendment questioning occurs, and because such inquiries, invariably challenged at trial and questioned on appeal no matter how well-intentioned, may infect an entire trial which is otherwise free from error, and because we too find it difficult to imagine any circumstance where such examination would be relevant and appropriate, we hold that questioning of a witness by the Government as to whether he had previously claimed the constitutional right to refuse to testify at a grand jury proceeding will constitute trial error, subject only to a harmless error determination.⁶

IV.

Although we have concluded that the potential for prejudice required that the Government be precluded from questioning Kushnir on the use of her fifth amendment privilege, a careful examination of the record satisfies us that this potential did not crystallize into that degree of prejudice which would compel a reversal of Nezowy’s conviction.

In United States v. Natale, 526 F.2d 1160 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976), the Second Circuit restated its rule on harmless error which is instructive in this situation. There, the court found that error resulting from fifth amendment cross examination was harmless when (1) the witness’ testimony was remote from the crime charged, and (2) there was no likelihood that the jury would have become confused and would link the defendant (here Nezowy) to the witness’ (here Kushnir’s) assertion of the privilege. Id. at 1171.⁷

In applying the Natale formulation of harmless error here, it first appears that Kushnir’s testimony was remote and far removed from the crimes charged regarding Ms. Knochowski and Ms. Kotowska, since Kushnir made no statements directly concerning either alleged victim. Nezowy also claims, however, that the cross-examination discredited Kushnir’s testimony, which was generally exculpatory since it tended to show that, contrary to the government’s assertion, Nezowy acted with authorization from attorney Konowal. Whether or not Nezowy acted with authorization from Konowal, however, was not related to the actual crime of making a false statement for which Nezowy was charged. If Nezowy in fact made false applications for asylum, then whether Konowal did or did not authorize Nezowy’s acts is irrelevant. The dis-positive inquiry is whether the clients for whom asylum was sought authorized the activity.

Kushnir also testified that she heard Marian Grech give Nezowy permission to file for political asylum on his behalf. Unlike the previously mentioned testimony of “authorization,” this evidence is clearly exculpatory. And indeed, it apparently did exculpate Nezowy, for the jury acquitted him of that charge, apparently giving full credit to Kushnir’s testimony and rejecting Mr. Grech’s own testimony that no such authorization had been given.

The only other statements of Kushnir to which we are directed concern the conversation among Nezowy, Barbara Pas Economopoulos, and Ms. Economopoulos’ husband. Whatever testimony Kushnir gave respecting this conversation, however, was of relatively minimal probative value, since both Economopoulos and her husband carried concealed tape recorders at the behest of the INS. It was from these recordings that a transcript of the conversation was prepared. The jury listened to the tape, and, having been furnished with copies of the transcript, read the transcript of the tape as well. Therefore, Kushnir’s version of the conversation was superfluous. Moreover, Kushnir admitted that she was not a participant in the conversation and that she had overheard only small portions of it.

It is therefore apparent to us that Kushnir’s testimony was either given full credit when exculpatory, or else was so remote from the crimes charged against Nezowy that the first criterion of the Natale rule was fully satisfied. Even in the unlikely event that a jury would credit Kushnir’s testimony in one instance but discredit it in another because of her invocation of the fifth amendment privilege before the grand jury, her testimony was at best tangential to the relevant issues in the case, except to the extent that it concerned Marian Grech — the count on which Nezowy was acquitted. Whatever arguable taint attached to her testimony, therefore, could not have worked to the detriment of the defendant Nezowy.

As we have previously observed, the second Natale criterion presents the question of whether a likelihood of confusion would arise in the jury’s mind which would link Nezowy to Kushnir’s fifth amendment claim. See supra text at p. 1126 and note 7. We find it highly implausible that a jury could have impermissibly imputed Kushnir’s invocation of her fifth amendment privilege to Nezowy. The improper cross-examination was a momentary one question exchange in the midst of a nine day trial. Kushnir was a low level employee who worked part-time in a clerical position. There was no suggestion during the trial that she was implicated in Nezowy’s scheme. In the words-of Judge Oakes writing for the Second Circuit in Natale, “the prosecutor’s naughty words were in effect a flyspeck on this record, not a blot.” Natale, 526 F.2d at 1172. We therefore conclude that no adverse inferences could have been drawn from this passing exchange which could in any way link Kushnir’s invocation of her privilege to Nezowy’s guilt.

V.

We are satisfied that no substantial right of the defendant Nezowy was affected by the improper cross-examination of Kushnir.⁸ Thus, the cross-examination by the Government’, while error, was harmless. See Fed.R.Crim.P. 52. As with the other contentions made on this appeal, see supra note 3, we find this contention of reversible error involving Kushnir’s fifth amendment privilege to be without merit as well.

The judgment will be affirmed.

1 . 18 U.S.C. § 1001 (1976):

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

2 . 18 U.S.C. § 1422 (1976):

Whoever knowingly demands, charges, solicits, collects, or receives, or agrees to charge, solicit, collect, or receive any other additional fees or money in proceedings relating to naturalization or citizenship or the registry of aliens beyond the fees and moneys authorized by law, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

3 . Nezowy raised two other issues on appeal. He challenged the sufficiency of the evidence,' and he claimed that the trial judge erred in failing to instruct the jury on concealment and authorization. We find no merit in either of these two contentions.

4 . The Court stated in part: '

We are not unmindful that the question whether a prior statement is sufficiently inconsistent to be allowed to go to the jury on the question of credibility is usually within the discretion of the trial judge. But where such evidentiary matter has grave constitutional overtones, as it does here, we feel justified in exercising this Court’s supervisory control to pass on such a question. This is particularly so because in this case the dangers of impermissible use of this evidence far outweighed whatever advantage the Government might have derived from it if properly used. If the jury here followed the judge’s instructions, namely, that the plea of the Fifth Amendment was relevant only to credibility, then the weight to be given this evidence was less than negligible, since, as we have outlined above, there was no true inconsistency involved; it could therefore hardly have affected the Government’s case seriously to exclude the matter completely. On the other hand, the danger that the jury made -impermissible use of the testimony by implicitly equating the plea of the Fifth Amendment with guilt is, in light of contemporary history, far from negligible. Weighing these factors, therefore, we feel that we should draw upon our supervisory power over the administration of federal criminal justice in order to rule on the matter.

Grunewald, 353 U.S. at 423-24, 77 S.Ct. at 983-984.

5 . Four Justices, headed by Justice Black, would have made the rule absolute. In Justice Black’s concurrence, he stated that:

I agree with the Court that use of the claim of constitutional privilege to reflect upon [defendant’s] credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstance that would justify use of a constitutional privilege to discredit or convict a person who asserts it... It seems incongruous and indefensible for courts which exist and act only under the ’ Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.

Id. at 425-26, 77 S.Ct. at 984-985 (Black, J., concurring).

6 . Our holding, i.e. that questioning by the government concerning a witness’ fifth amendment claim of privilege before a grand jury will constitute trial error, obviously includes a defendant party as well as a non-party witness. We emphasize, however, that the issue presented in this case involves only the corrective action required when a non-party, such as Kushnir here, is questioned. Thus, contrary to the intimations of the dissent (see dissent at p. 1127), we have no occasion to address the adoption of any per se rule providing for automatic reversal in the event a defendant himself is questioned by the Government as to his fifth amendment privilege.

At least one other court of appeals subsequent to Gnmewald has taken the position that, subject to a harmless error determination, questioning about use of the fifth amendment privilege is impermissible in all cases, whether the witness be the defendant or a disinterested third party. United States v. Natale, 526 F.2d 1160, 1171 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976). See also United States v. Williams, 464 F.2d 927 (8th Cir.1972); United States v. Glasser, 443 F.2d 994, 1005 (2d Cir.1971), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971).

Cf. United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.1974), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973); Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), all of which hold that a criminal defendant is not entitled to call a witness for the purpose of having the jury hear him “take the Fifth.”

7 . In Natale, error was found harmless when the witness was asked whether he “testified before a grand jury under immunity.” The connection between that question and the implication that the witness had invoked his fifth amendment privilege to refuse to testify was so attenuated, the court held, that no prejudice could have occurred. Cf. United States v. Williams, 464 F.2d 927 (8th Cir.1972), where the Eighth Circuit stated that error could not be harmless when the prosecutor attempted to discredit a “crucial” defense witness. Id. at 931. The witness in Williams had corroborated defendant’s testimony that he [defendant] had given a truthful account of his prior criminal record to a firearms dealer in connection with the purchase of a gun. In Natale, a linchpin of the court’s holding of harmless error was the Second Circuit’s recognition that “the fact that immunity is provided does not always imply that a Fifth Amendment refusal to testify has in fact occurred.... It would be wholly speculative to attribute to these lay jurors an understanding of the reference to immunity en passant as anything more than a description of the grand jury procedure.” Natale, 526 F.2d at 1172.

In the instant case, even if the jury would have recognized from her invocation of the fifth amendment privilege that Kushnir had declined to answer questions before the grand jury, in the unrelated context of the preceding and succeeding questions regarding harassment, the claim of privilege could not have been associated with Nezowy’s guilt.

8 . Judge ADAMS would test Nezowy’s conviction by the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) (constitutional error must be harmless beyond a reasonable doubt). We point out that both Chapman and Fahy, fashioning guidelines for determining whether constitutional errors are harmless, involved instances where it was the constitutional rights of the defendant himself that had been violated. Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (prosecutor commented on defendant’s failure to testify); Fahy, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (evidence admitted which was seized in violation of defendant’s fourth amendment rights). Here, of course, Nezowy himself was never questioned with respect to any claim of privilege.

Although Judge ADAMS has sought to equate the defendant’s standard of harmless error found in Chapman with a third party witness, non-defendant standard, we are satisfied that, even if the Chapman standard were to apply, a proposition with which we have substantial question, we find that there is no reasonable possibility that the questioning of Kushnir might have contributed to the conviction. See Fahy, 375 U.S. at 86-87, 84 S.Ct. at 230-231. Because, even under the Chapman standard, the error complained of was harmless, we have no occasion to formulate or discuss a third party witness, non-defendant standard in this case.