Nezowy v. U.S.

• Decision Date: 21 December 1983
• Docket Number: No. 83-1057,83-1057
• Citation: Nezowy v. U.S., 723 F.2d 1120 (3rd Cir. 1983)
• Parties: 14 Fed. R. Evid. Serv. 1424 William NEZOWY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 1120

723 F.2d 1120

14 Fed. R. Evid. Serv. 1424

William NEZOWY, Appellant, v. UNITED STATES of America, Appellee.

No. 83-1057.

United States Court of Appeals Third Circuit.

Argued Sept. 14, 1983.

Decided Dec. 21, 1983.

John Rogers Carroll (Argued), Carroll & Carroll, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Chief of Appeals, Elizabeth K. Ainslie (Argued), Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Before ADAMS, HUNTER and GARTH, Circuit Judges.

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. Sec. 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. Sec. 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 Grunewald 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 Grunewald 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 privilege led the Court to conclude that the trial judge had erred in allowing this mode of impeachment. ⁴

The Grunewald 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 Grunewald 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 Grunewald, 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 Grunewald 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 Grunewald, 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...