William Nezowy, Appellant, v. United States of America, Appellee, 723 F.2d 1120 (3d Cir. 1983)

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.

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.

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 

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.

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 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 dispositive 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.

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.

ADAMS, Circuit Judge, dissenting.

The aims of justice are not served by disregarding popular wisdom. Whatever may be the precise legal construction given to the constitutional privilege against self-incrimination, the fact remains that "taking the Fifth" and "refusing to answer" have entered the everyday idiom as synonyms for guilt. Before a jury drawn from the community, the admission of evidence concerning invocation of the privilege at a grand jury hearing is irrelevant, inflammatory and invariably prejudicial.

As I read the majority's opinion, it concedes that evidence concerning a Fifth Amendment claim before a grand jury is inadmissible. Relying on Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957), the majority first concludes that questioning a defendant about the invocation of this privilege creates an overwhelming presumption of prejudice and therefore cannot be sanctioned. The Court next holds that questioning a non-party defense witness regarding Fifth Amendment claims constitutes a trial impropriety, subject only to a harmless error determination. Applied to the facts of this case, the majority holds that defense witness Anna Kushnir's testimony was either "remote" from the crimes charged or was in any event "given credit" by the jury so that any error committed at trial was harmless.

To the extent the majority would require reversal of a conviction following examination of a defendant about the self-incrimination privilege, I join in that ruling. However, because I have serious reservations about the harmless error rule adopted by the majority in the case of non-party defense witnesses as well as the majority's reading of the record, I respectfully dissent.

* The question whether inquiry into the invocation of the Fifth Amendment privilege constitutes prejudicial error is before this Court for the first time. The Second and Eighth Circuits have held that questioning defense witnesses on this point is inappropriate and may require reversal of any ensuing convictions. In United States v. Williams, 464 F.2d 927, 930 (8th Cir. 1972), the court declared:

We hold that the prosecutor, through his question and argument relating to [key defense witness] Harris' invocation of the Fifth Amendment, injected prejudicial error requiring reversal.

Similarly, the Second Circuit in U.S. v. Natale announced the rule that:

Where a prosecutor directly asks a defense witness at trial whether the witness refused to answer questions at the grand jury proceedings because the answers might tend to incriminate him, courts have found prejudicial error and reversed the convictions .... Such direct efforts to impeach a defense witness are improper under Grunewald v. United States, ... [which] was based on that view that the question prejudiced the credibility of the defendant without sufficiently bearing on the truth of the testimony he had given at trial.

526 F.2d 1160, 1171 (2d Cir. 1975). See also 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).

While categorically rejecting prosecutorial inquiry into Fifth Amendment privilege, Natale does not adopt a per se rule of reversing all ensuing convictions. Rather, the Second Circuit would judge such prosecutorial misconduct harmless error if 1) the witness's testimony concerned events remote from the crime charged and 2) there was no likelihood of confusion in the jury's mind between the invocation of the privilege by the witness and the defendant's conduct. 526 F.2d at 1171. The majority opinion in the present case adopts the Second Circuit's Natale rule, but then relies upon an expansive view of its harmless error exception.

The Natale guidelines do not appear sufficient to guarantee a defendant's right to a trial free of prejudice. The privilege against self-incrimination protected by the Fifth Amendment is, of course, of constitutional magnitude. Its function is "to protect innocent [persons]," Grunewald, 353 U.S. at 421, 77 S. Ct. at 982, and its invocation is therefore perfectly consistent with innocence. Under either the majority or minority view in Grunewald,¹  the line of questioning followed by the Nezowy prosecution has no place in a criminal proceeding. The Grunewald Court, however, did not address the possibility of a harmless error exception to its constitutional holding since both the majority and minority agreed that the resulting prejudice required reversal of the convictions.

I am reluctant to accept, as does the majority, that a simple harmless error standard is adequate to protect the defendant's right to a fair trial. Rather, assuming that a per se reversible error rule is not more appropriate, I believe that a strong argument can be advanced for placing upon the prosecution the burden of proving that the error in question was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). As the Supreme Court declared in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171 (1963).

The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.

It is true, as the majority points out, that both Chapman and Fahy involved violation of a defendant's constitutional right. But this distinction between defendants and non-defendants does not settle the question whether the Chapman/Fahy standard applies to the present case. Instead, I believe that two independent arguments may be advanced for invoking stricter constitutional standards in cases in which testimony concerning Fifth Amendment privileges is introduced at trial.

First, the majority position provides no reason for distinguishing defendant from non-party witness testimony for constitutional purposes. It is correct as a basic proposition that " [o]rdinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party." Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586 (1953). This general consideration, however, may be "outweighed by the need to protect ... fundamental rights," id. at 257, 73 S. Ct. at 1035, and is therefore not amenable to rigid application. In fact, different standards have been adopted for third party assertion of constitutional rights depending on the nature of the rights themselves. Compare Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) (no vicarious raising of Fourth Amendment rights of others to suppress illegally seized evidence) with NAACP v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) (civil rights organization permitted to assert First and Fourteenth Amendment rights of its members).

Although a significant body of case law has developed concerning claims by criminal defendants of the Fourth Amendment rights of third parties, see e.g., United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), there is no controlling body of precedent for the Fifth Amendment. What cases do exist turn on combined Fourth and Fifth Amendment claims for the suppression of evidence obtained as a result of interrogations without Miranda warnings or trial examinations of non-party witnesses who could have raised the Fifth Amendment privilege. See, e.g., United States v. Fredericks, 586 F.2d 470, 480-81 (5th Cir. 1978); United States v. Skolek, 474 F.2d 582, 585 (10th Cir. 1973); Bryson v. United States, 419 F.2d 695, 698 (D.C. Cir. 1969). These decisions are not applicable to the case at bar since our concern is not with the evidentiary fruits of potentially privileged testimony but the infection of the trial process itself by the extraneous interjection of prejudicial testimony concerning the invocation of the Fifth Amendment.²  The sole case addressing this precise point, United States v. Colyer, 571 F.2d 941, 946 (5th Cir. 1978) cert. denied, 439 U.S. 933, 99 S. Ct. 325, 58 L. Ed. 2d 328 (1978), assumes the applicability of the Chapman standard without further discussion.

As I see it, the question whether the prosecution's cross-examination of Kushnir necessitates the stricter standard of protection given to constitutional error is closely akin to the question of third-party standing. Under the case law governing jus tertii, a litigant may assert constitutional claims other than his or her own when the same act, "both injures [the litigant] and impinges upon the constitutional rights of third persons."³  By analogy, a criminal defendant may properly assert a third party constitutional claim, and therefore fall within the ambit of the stricterChapman standard, if the constitutional claim raised is valid and trial error is committed. Under these circumstances, the validity of a constitutional claim would be governed by this Court's two-part test set forth in Bowman v. Wilson, 672 F.2d 1145, 1152-53 (3d Cir. 1982):

For a person who himself can allege injury in fact to be permitted to assert the constitutional rights of another, thereby seeking redress of both his own injury and that of the third party, two requirements must be satisfied. First, not only must there be a close relationship between the litigant and the person whose right he is asserting, but the activity the litigant proposes to pursue must be inextricably bound up with the constitutional right of the person from whom the right is drawn. See Singleton v. Wulff, 428 U.S. 106, 114-15 [96 S. Ct. 2868, 2874-2875, 49 L. Ed. 2d 826] (1976) (plurality). Second, there must exist some obstacle to the third party asserting his or her own rights. Id. at 115-16 [96 S. Ct. at 2874-2875]. If both requirements are met, a party who is injured by the conduct of another but is not the beneficiary of the constitutional right proscribing that conduct can nonetheless complain of that injury by asserting the right of the injured third party.

(footnotes omitted). It would appear that Nezowy's assertion of Kushnir's Fifth Amendment privilege satisfies both prongs of the Bowman inquiry.

A second, independent basis for applying the Chapman/Fahy standard is found not in the Fifth Amendment, but in the Sixth. Under the Sixth Amendment, a defendant must be able to confront witnesses or to introduce testimony to rebut evidence or inferences that could lead to a conviction. Allowing inquiry into a defense witness's assertion of the self-incrimination privilege effectively deprives a criminal defendant of these Sixth Amendment rights. An inference of guilt cannot be rebutted since the witness may not be forced to explain the basis for having invoked the Fifth Amendment or to dispel the implications of guilt. See Brink's, Inc. v. City of New York, 717 F.2d 700, 716 (2d Cir., 1983) (Winter, J., dissenting). Thus, the prosecution's questioning of Kushnir infringed upon important Sixth Amendment rights of the defendant himself. Regardless of whether Nezowy can assert a third party claim, this infringement of the Sixth Amendment independently provides him standing and would therefore appear to require application of the Chapman harmless beyond a reasonable doubt test.

If we were to apply the Chapman test, Nezowy's conviction could not withstand scrutiny. As this Court previously held in United States ex rel. Macon v. Yeager, 476 F.2d 613, 616 (3d Cir. 1973), a conviction cannot be sustained when critical portions of the evidence are disputed and the case is not so overwhelming that the Court can conclude beyond a reasonable doubt that the constitutional error did not contribute to the conviction. I do not, however, reach the ultimate question of the application of the Chapman standard because an analysis of the record establishes that even under the majority's harmless error test a new trial is required.

II

Nezowy was charged with falsifying asylum applications for six Polish nationals. He was convicted on three of the eleven counts. On its face, this division between convictions and acquittals suggests that witness credibility and detailed factual inquiries were of significance. The majority contends that the testimony of key defense witness Kushnir was "remote and far removed," at 1125, from the crimes charged. I cannot agree.

Kushnir testified that she was a business associate of Nezowy from 1972-78. She stated that she participated in interviews with Polish nationals seeking asylum while she was working as a paralegal and secretary with Nezowy and his associate, attorney Louis Konowal. App. at 1175. Ms. Kushnir further testified that she is fluent in Polish and was fully able to follow the conversations regarding the applications for altered immigration status. App. at 1180-81. She gave general exculpatory testimony concerning the business practices of Nezowy based upon her having been a party to a number of the allegedly criminal transactions. Moreover, she gave specific testimony regarding the events surrounding the asylum applications of Pas and Grech; Nezowy was charged with having falsified both applications.

While Nezowy was acquitted on the charge of falsifying Grech's application, he was convicted on a similar charge with regard to Pas. The majority opinion seeks to minimize the value of Kushnir's testimony concerning what transpired with Pas. The record, however, reveals that Kushnir was familiar with Pas's file and that she testified that Pas had applied for asylum prior to meeting with Nezowy. App. at 1175-76. She further testified that Pas's first meeting was with Konowal, not Nezowy, and that at the one meeting she attended where Nezowy was present with Pas, Nezowy declared that Pas's asylum application had been withdrawn pursuant to her request. App. at 1174-77. Were the jury to have believed Kushnir regarding Pas's immigration application, Nezowy could not have been convicted of falsifying her asylum request.

The record thus demonstrates that Kushnir was indeed a critical defense witness. Her close business association with Nezowy, in particular her attendance at meetings which Nezowy had with some of the Polish nationals, also establishes that she was a likely participant of the activities referred to in the indictments. Under these circumstances, I am unable to say that the jury could not have imputed wrongdoing to Nezowy as a result of having been informed of Kushnir's Fifth Amendment plea.

III

For the foregoing reasons, I respectfully dissent.