Petition — Nezowy v. United States
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83-1477 een
In The
:
FEB 21 1984
Supreme Court of the United) States. — srevas.
CLERK
eo
_
October Term, 1983
WILLIAM NEZOWY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
STEPHEN ARINSON
Attorney for Petitioner
Suite 1221-24
1700 Wainut Street
Philadelphia, Pennsylvania 19103
(215) 568-5860/564-2626
NATALE F. CARABELLO, JR.
On the Petition
*NJ (201) 257-68S0°NY (212) 840-9494°PA (215) 563-5587
MA (617) 542-1114°DC (202) 783-7288°USA (800) 5 APPEAL
QUESTIONS PRESENTED FOR REVIEW
I. Whether the majority of the United States Court of
Appeals for the Third Circuit, while holding that cross examination
of a defense witness by the Government at trial as to whether
said witness had previously claimed the Fifth Amendment
constitutional right to refuse to testify before the grand jury
proceedings was trial error, erred to the substantial prejudice of
petitioner, by holding that said trial error was subject to the
harmless error determination of United States v. Natale, 526 F.
2d 1160 (2d Cir. 1975), cert. denied, 425 U.S. 950 (1975), in
violation of this Honorable Court’s holding in Grunewald v.
United States, 353 U.S. 391, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957),
which held that it was prejudicial error to permit cross examination
of a witness as to a plea of his Fifth Amendment privilege before
the grand jury, and which did not require a harmless error
determination as enunciated in United States v. Natale, supra,
to establish prejudice.
II. Whether, assuming that the harmless error rule of United
States v. Natale, supra, is applicable to the case at bar, a new
trial is required pursuant to said harmless error rule, as was held
by the Honorable Judge Adams of the United States Court of
Appeals for the Third Circuit in his dissenting opinion at bar.
TABLE OF CONTENTS
Questions Presented for Review .............000e eevee
ee ie ac deces bebeevewanea
Constitutional Provisions and Statutes Involved .........
ES ic oulncs a0 ceewersees
Reasons for Granting the Writ:
The majority of the United States Court of Appeals
for the Third Circuit, while holding that cross
examination of a defense witness by the Government
at trial as to whether said witness had previously
claimed the Fifth Amendment constitutional right to
refuse to testify before the grand jury proceeding was
trial error, erred to the substantial prejudice of the
petitioner, by holding that said trial error was subject
to the harmless error determination of United States
v. Natale, $26 F.2d 1160 (2nd Cir. 1975), cert. denied,
425 U.S. 950 (1976), in violation of this Honorable
Court’s holding in Grunewald v. United States, 353
U.S. 391, 1 L. Ed. 2d 931, 77S. Ct. 963 (1957), which
Page
li
Contents
Page
held that it was prejudicial error to permit cross
examination of a witness as to a plea of his Fifth
Amendment privilege before the grand jury, and which
did not require a harmless error determination as
enunciated in United States v. Natale, supra...... 11
II. Assuming that the harmless error rule of United States
v. Natale, 526 F.2d 1160 (2d Cir. 1975), cert. denied,
425 U.S. 950 (1976) is applicable to the case at bar,
a new trial is sequired pursuant to said harmless error
rule, as was held by the Honorable Judge Adams of
the United States Court of Appeals for the Third
Circuit in his dissenting opinion at bar........... 20
SE, oo kc is uvo'bn cocabab dks e eles Caush caveenees 21
TABLE OF CITATIONS
Cases Cited:
Grunewald v. United States, 353 U.S. 391, 1 L. Ed. 2d 931,
77 S. Ct. 963 (1957) ...... i, 3, 11, 12, 14, 15, 16, 17, 19
United States v. Natale, 526 F. 2d 1160 (2d Cir. 1975), cert.
a £2 S&F... ere err
kn Ube s eas Gace i, 4, 11, 12, 15, 16, 17, 18, 19, 20, 21
United States v. Williams, 454 F. 2d 927 (8th Cir. 1972)
sac ces eedvconesechaecteceneahenncd sbnneeeee 16, 17, 19
iii
Contents
Page
Statutes Cited:
BP RR GUE nbc ncees Guvticsdcvdvocsedcsstuusbu 2, 8, 21
er i Es Uidneb Uonch ovesescsvestaresederecsues 2
Pe EOD sc i cdc viocntetusb can tutabenienteures 2
United States Constitution Cited:
Fifth Amendment........ i, 2, 8, 9, 11, 12, 14, 16, 17, 19, 20
Se EEE 6 obo cekee ct NedcePecnscdvabiencecs ses 2
APPENDIX
Appendix A — Opinion of the Court of Appeals ....... la
Appendix B — Constitutional Provisions, Statutes and
SUED o Daa Kevoscts soins eceeuerekseestnws cuca.
Excerpt of Petitioner Nezowy’s Testimony That He
Informed All Aliens That He Was Filing For Political
ASG GRE TH AMINE, oie cwis sda veal Venicetia
Excerpt of Anna Kushnir’s Testimony Testifying That
She Went Into Law Practice With Nezowy and Konowal
ee eee eee eee ee
26a
27a
27a
iv
Contents
Kushnir’s Testimony Evidencing Nezowy Explained io
Aliens, Showing Habit and Custom of Explaining That
He Was Filing For Political Asylum ...............
Kushnir’s Testimony That Barbara Pas Economopolos
Told Nezowy to Withdraw Political Asylum Claim ..
Trial Judge Instruction to Jury to Disregard Kushnir’s
Testimony That She Had Been Threatened By U.S.
Attorney Before Grand Jury .................0005:
Prosecutor Cross Examination of Kushnir As to Her
Invocation of Fifth Amendment Rights Before Grand
Prosecutor Reading to Trial Jury a Question Before the
Grand Jury Informing Kushnir That the Grand Jury Was
Investigating the Charges of Violation of 28 U.S.C. §1001
“eee eer eee eee
Prosecutor Reading to Trial Jury That Prosecutor Before
Grand Jury Advised Kushnir That She Was a ‘‘Suspect’’
of the Grand Jury Investigation ...................
Excerpt of Sidebar Conference Where Defense Counsel
Objected to Introduction of Evidence of Kushnir
Invocating Fifth Amendment Right Before Grand Jury
eee eee eee ee eee eee
Page
29a
30a
30a
3la
32a
No.
In The
Supreme Court of the Anited States
»™
October Term, 1983
WILLIAM NEZOWY,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
To the Honorable Chief Justice and the Associate Justices of the
Supreme Court of the United States:
Petitioner prays that a writ of certiorari issue to review the
judgment of the United States Court of Appeals for the Third
Circuit entered on December 21, 1983.
OPINION BELOW
The opinion of the United States Court of Appeals for the
Third Circuit is reported in __. F. 2d ____ (Appendix, infra
at la).
JURISDICTION
The judgment of the panel of the United States Court of
Appeals for the Third Circuit was entered on December 21, 1983.
The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED
The Fifth and Sixth Amendments to the United States
Constitution are involved. The statute involved is 18 U.S.C. §1001,
which is set forth in the Appendix B at 26a.
STATEMENT OF THE CASE
Petitioner was charged with six (6) counts' of making false
statements to the Immigration and Naturalization Service in
violation of 18 U.S.C. §1001 and five (5) counts of collecting
fees for his services in excess of those permitted by law, in violation
of 18 U.S.C. $1422. In a trial by jury, he was convicted of three
(3) of the six (6) counts? of making a false statement of the
Immigration and Naturalization Service, violation of 18 U.S.C.
§1001, and acquitted of the other counts.
1. The petitioner was originally indicted on eleven counts of making false
statements to the Immigration and Naturalization Service in violation of 18 U.S.C.
$1001 and ten counts of collecting fees for his services in excess of those permitted
by law, in violation of 18 U.S.C. §1422. Four counts of violating 18 U.S.C. §1001
were dismissed pretrial and on one count of violation of 18 U.S.C. $1001 the
court directed a verdict of acquittal. Four counts of violating 18 U.S.C. §1422
were dismissed pretrial and the court directed a verdict of acquittal as to one
count of violating 18 U.S.C. $1422. Six counts of violating 18 U.S.C. §1001 were
submitted to the jury. Five counts of violation of 18 U.S.C. §1422 were submitted
to the jury.
2. Petitioner was convicted of three counts of filing a false claim relating
to each of the following aliens: Anna Kowal Knochowski, Barbara Pas
Economopoulos and Janina Kotowska.
After sentencing’ petitioner filed a timely notice of appeal
to the United States Court of Appeals for the Third Circuit. The
Court of Appeals, in a two to one decision, affirmed petitioner’s
conviction.
The United States Court of Appeals for the Third Circuit,
in a two-judge majority opinion, erroneously applying this
Honorable Court’s opinion in Grunewald v. United States, 353
U.S. 391 (1957), held* as follows:
“*TW]e 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.
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 for prejudice did not crystallize into that
degree of prejudice which would compel a reversal
of Nezowy’s conviction.’’
3. The petitioner was sentenced as follows: (a) Count |, imprisonment for
two (2) years with eligibility for parole after serving a term of six (6) months;
(b) Count 4, five (5) years probation with certain terms and conditions; and (c)
Count 8, five (5) years probation with certain terms and conditions.
4. The full text of the opinion of the United States Court of Appeals for
the Third Circuit appears in the Appendix hereto at la-25a.
The majority for the United States Court of Appeals for the
Third Circuit erroneously rested their holding of harmless error
upon the decision of the United States Court of Appeals for the
Second Circuit in United States v. Natale, 526 F. 2d 1160, 1171
(2d Cir. 1975).
The dissenting opinion of the Honorable Judge Adams of
the Third Circuit Court of Appeals held as follows:
**Adams, J. 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 invoication of the privilege at a grand
jury hearing is irrelevant, inflammatory and
invariably prejudicial.
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.
I
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 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 in any 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.’’’
The defense theory of the case was that each and every one
of the three aliens in question, in fact wanted political asylum,
and authorized petitioner to file for political asylum, and knew
that petitioner was filing for political asylum.*
5. The full text of the dissenting opinion of Judge Adams of the United
States Court of Appeals for the Third Circuit appears in the Appendix at 14a-29a.
Sa. See footnote 2, supra.
The petitioner repeatedly testified on direct examination and
on cross examination that all of the aliens had authorized him
to file for political asylum. As to the three aliens, Barbara Pas
Economopoulos, Anna Kowal Knochowski and Janina Kotowska,
in each and every instance, the petitioner testified that said aliens
had authorized him to file for political asylum and that they had
not said to him that they did not want political asylum. The record
reveals, as follows:*
**Q. you testified that Anna Kowal
[Knochowski] was advised by you that you were
filing for political asylum and she assented. Is that
correct? A. That’s correct.
Q. .. .{W]hen you in fact filed for political
asylum for Barbara Pas [Economopoulos] it is your
testimony that Barbara Pas knew that this was
going to happen and went along with that. Is that
correct? A. Absolutely.
Q. And Janina Kotowska ... as you just
testified, that political asy!um was the only option
available to her to stay in this country and she
assented. A. Absolutely.’’
The critical evidence in the defense case, in support of
petitioner’s testimony that Barbara Pas Economopoulos, Anna
Kowal Knochowski and Janina Kotowska in fact wanted political
6. See Appendix at 27a.
asylum, and in fact authorized petitioner to file for political asylum
on behalf of the aliens, was the testimony of Anna Kushnir.’
Anna Kushnir’s testimony was crucial in supporting petition-
er’s testimony in two respects. First, she was a specific fact witness
as to whether or not specific aliens had told petitioner whether
they wanted political asylum.' Second, she was a witness as to
petitioner’s habit, routine or practice of advising aliens as to their
options under the Immigration Act. Her testimony in this regard
was directly relevant to prove that the conduct of petitioner on
particular occasions which she testified to, where petitioner in
fact advised the aliens that he was filing a claim for political asylum
on their behalf and that the alien assented, was in conformity
with his habits, routine and practice on all occasions.’
Anna Kushnir’s credibility was, thus, the bedrock upon which
the defense rested its case, and upon which the defense sought
7. See Appendix at 28a-30a. Anna Kushnir’s testimony revealed that she
was a partner of petitioner William Nezowy and an attorney by the name of
Louis Konowal for the purpose of aiding aliens with their claims before the
Immigration and Naturalization Service.
8. Anna Kushnir testified that she was present when petitioner interviewed
an alien named Grech. She testified that petitioner advised the alien of all of
his options, including political asylum; and that the said alien assented to a filing
of political asylum. This testimony established the custom, practice and habit
of petitioner in advising aliens of their options, including political asylum, and
obtaining their consent before filing for political asylum. See Appendix at 28a-30a.
Anna Kushnir also testified relating to the alien Barbara Pas Economopoulos,
in this regard she testified that she was present when Barbara Pas asked petitioner
to withdraw her claim for political asytum. This testimony was offered in support
of petitioner’s testimony that Barbara Pas had authorized him to file for political
asylum and when Barbara Pas had asked him to withdraw her request for political
asylum he did so on the same day. See Appendix at 29a-30a.
9. Ibid.
to support the testimony of the petitioner, that he advised all the
aliens in question that he was filing for political asylum and that
the aliens wanted political asylum and authorized petitioner to
file for political asylum on their behalf. In short, Anna Kushnir’s
testimony and Anna Kushnir’s credibility were crucial to the
defense efforts to persuade the jury that the petitioner was not
guilty of filing claims for political asylum which the aliens did
not want petitioner to file on their behalf.
The prosecution, in an improper and legally impermissible
stroke, destroyed Anna Kushnir’s credibility, and like a giant tidal
wave, washed away, like grains of sand, the foundation upon
which the petitioner sought to support his testimony and his plea
of innocence.
The prosecution accomplished the destruction of Kushnir’s
testimony and her credibility by improperly eliciting,'* on cross
examination, that Anna Kushnir had been informed, before the
grand jury that she was suspected of committing the same crimes
of which petitioner was convicted, in violation of 18 U.S.C. §1001,
and that Anna Kushnir had invoked her Fifth Amendment
privilege against self incrimination before the grand jury. This
testimony was elicited over repeated and vehement defense
objection.
The United States Attorney argued that the Government
sought to introduce evidence of the witness Kushnir’s invocation
of her Fifth Amendment privilege before the grand jury in order
10. It must be emphasized that the introduction of Kushnir’s prior invocation
of the Fifth Amendment was not inadvertent. The matter was raised at sidebar
after the trial judge had given the instruction excluding the testimony of the threat
made to the witness at the grand jury by the Assistant United States Attorney.
The defense vehemently objected. See footnote 2 of the dissenting opinion of
the United States Court of Appeals for the Third Circuit, Appendix at 19a-20a.
See also, 30a-32a, 33a.
to rebut a prior statement by the witness that she had been
threatened by the Assistant United States Attorney with
deportation. The record reveals that the trial judge specifically
instructed the jury to disregard the witness Kushnir’s testimony
as to any threats. The Government, thus, had no basis to argue
that they sought to impeach the witness by reference to her Fifth
Amendment assertion before the grand jury because there was
no evidence of record to impeach.'' The trial judge instructed
the jury before the Government sought to cross examine Kushnir
as to her assertion of her Fifth Amendment privilege before the
grand jury. The judge instructed the jury, as follows:
‘Members of the jury, Miss Kushnir said
something about she had been threatened by an
Assistant United States Attorney . . . I will instruct
you to disregard her testimony in that regard.’’
(Appendix C, 26a).
The Government prosecutor asked the witness Anna Kushnir
the following questions about her invocation of'’ the privilege
of self incrimination before the grand jury:
“*Q. Did you understand the rights he read
to you that day? A. Yes.
11. The Court of Appeals for the Third Circuit was apparently under the
misapprehension that the evidence of the witness Kushnir’s testimony as to the
threats made against her had not been stricken from the record. The Court of
Appeals considered this as the Government's justification for attempting to
introduce the evidence of the witness Kushnir’s invocation of her Fifth
Amendment privilege before the grand jury. Even on the assumption that the
testimony as to threat was in evidence the Court of Appeals’ majority rejected
this as a proper basis to cross examine as to the witness Kushnir’s invocation
of her Fifth Amendment privilege before the grand jury (Appendix at 7a-8a).
12. See Appendix at 30a.
10
Q. Didn’t you in fact invoke your Fifth
Amendment right that day? A. I’m sorry.
Q. Did you in fact invoke your Fifth
Amendment privilege which he advised you of that
day? A. Yes.’’"
13. The above testimony was put before the jury immediately after the
Government was permitted to read the entire accompanying initial colloquy before
the grand jury, including the following:
“Q. ... I would like to advise you of the following. . . .
That grand jury investigation involves a charge in violation
of Title 18, United States Code, Section 1001, which is false
claims to a federal agency. A. Yes.
Q. ... Ll also advise you, you should consider yourself
a suspect regarding this investigation. Now, Miss Kushnir, are
you represented by counsel? A. No.’’ (Appendix, 31a-32a).
The Court of Appeals for the Third Circuit did not take note of this critical
evidence directly linking the witness’ guilt with the petitioner’s guilt.
1]
REASONS FOR GRANTING THE WRIT
I.
The majority of the United States Court of Appeals for the
Third Circuit, while holding that cross examination of a defense
witness by the Government at trial as to whether said witness had
previously claimed the Fifth Amendment constitutional right to
refuse to testify before the grand jury proceeding was trial error,
erred to the substantial prejudice of the petitioner, by holding
that seid trial error was subject to the harmiess error determination
of United States v. Natale, 526 F . 2d 1160 (2nd Cir. 1975), cert.
denied, 425 U.S. 950 (1976), in violation of this Honorable Court’s
holding in Grunewald v. United States, 353 U.S. 391,.1 L. Ed.
2d 931, 77 S. Ct. 963 (1957), which held that it was prejudicial
error to permit cross examination of a witness as to a plea of
his Fifth Amendment privilege before the grand jury, and which
did not require a harmiess error determination as enunciated in
United States v. Natale, supra.
This case presents squarely for review the issue of whether
this Honorable Court’s landmark decision in Grunewald v. United
States, 353 U.S. 391 (1957), under the ‘‘circumstances of the case’’
at bar, requires reversal of petitioner’s convictions, because the
Government deliberately, on cross examination, elicited, over
defense objection, the fact that a critical defense witness, Anna
Kushnir, had invoked her privilege against self incrimination before
the grand jury.'*
14. This case was a case of first impression before the Court of Appeals
for the Third Circuit (Appendix, 15a). This case is a case of first impression before
this Honorable Court insofar as it involves improper cross examination of a
defense witness rather than improper cross examination of a defendant. The
majority of the Court of Appeals did not rely on this factual distinction in arriving
at its conclusion.
12
This Honorable Court’s decision in Grunewald v. United
States, supra, requires reversal of the instant case. Grunewald
v. United States, supra, does not permit a finding of no prejudice
under the ‘‘circumstances of the case’’ at bar. Grunewald v. United
States, does not hold that the questioning of a witness by the
Government as to the witness invocation of the Fifth Amendment
privilege against self incrimination before the grand jury is subject
to a harmless error determination, as adopted in United States
v. Natale, $26 F. 2d 1160 (2d Cir. 1975), and as adopted by the
two judge majority of the Court of Appeals for the Third Circuit
in the case at bar.'’
In Grunewald v. United States, supra, this Honorable
Supreme Court held that:
‘*{U}nder the circumstances of this case it was
prejudicial error for the trial judge to permit cross
examining of petitioner on his plea of the Fifth
Amendment privilege before the grand jury.’’ 353
U.S. at 424 (Emphasis supplied.)
The ‘‘circumstances of the case’’ to which the quote from
Grunewald v. United States, supra, refers, and upon which this
Honorable Court premised its finding of prejudice, were that the
petitioner in Grunewald, who had been cross examined at trial
by the prosecutor as to his invocation of his Fifth Amendment
privilege against self incrimination before the grand jury; was ‘‘not
a voluntary witness’’ before the grand jury, was ‘‘not represented
by counsel’’ before the grand jury, and was a potential suspect
or defendant before the grand jury. In Grunewald v. United States,
supra, this Honorable Court in referring to the ‘‘circumstances
of the case’’ upon which it based its decision, stated:
15. See Appendix at 9a-i3a.
13
‘First, Halperin repeatedly insisted before the
grand jury that he was innocent and that he
pleaded his Fifth Amendment privilege solely on
the advice of counsel.
Second, the Fifth Amendment claim was made
before a grand jury where Halperin was a
compelled, and not a voluntary, witness; where
he was not represented by counsel; where he could
summon no witnesses; and where he had no
opportunity to cross examine witnesses testifying
against him. These factors are crucial in weighing
whether a plea of the privilege is inconsistent with
later exculpatory testimony on the same questions,
for the nature of the tribunal which subjects the
witness to questioning bears heavily on what
inferences can be drawn from a plea of the Fifth
Amendment. See Griswold, supra, at 62. Innocent
men are more likely to plead the privilege in secret
proceedings, where they testify without advice of
counsel and without opportunity for cross-
examination, than in open court proceedings,
where cross-examination and judically supervised
procedure provide safeguards for the establishing
of the whole, as against the possibility of merely
partial, truth.
Finally, and most important, we cannot deem
Halperin’s plea of the Fifth Amendment to be
inconsistent with his later testimony at the trial
because of the nature of this particular grand-jury
proceeding. For, when Halperin was questioned
before the grand jury, he was quite evidently
already considered a potential defendant.
14
We hold that under the circumstances of this
case it was prejudical error for the trial judge to
permit cross-examination of petitioner on his plea
of the Fifth Amendment privilege before the grand
jury, and that Halperin must therefore be given
a new trial.’’ (Emphasis supplied, Grunewald,
supra, 353 U.S. 422-424.
The two judge majority of the Court of Appeals for the Third
Circuit misconstrued the meaning of the words ‘‘circumstances
of the case’’ as used by this Honorable Court in the above quote
from Grunewald v. United States, supra. The majority of the
Court of Appeals in arriving at its decision did not look to the
quote, ‘‘circumstances of the case’’ mandated by Grunewald, i.e.,
that the witness was not a voluntary witness before the grand
jury, that the witness did not have counsel before the grand jury,
and that the witness was considered a potential suspect or
defendant of the grand jury investigation.'* The majority of the
16. In the case at bar, as in Grunewald, supra, the witness who was
erroneously and improperly cross examined by the Government as to the
invocation of the Fifth Amendment privilege before the grand jury was not a
voluntary witness before the grand jury, was not represented by counsel before
the grand jury, and was considered a potential suspect or defendant at the time
the witness appeared before the grand jury. At bar, as in Grunewald, supra,
the Government was allowed to improperly cross examine the witness over defense
objection. In Grunewald, the judge charged the jury that petitioner’s Fifth
Amendment pleas could only be taken as reflecting on his credibility and that
no inference could be drawn therefrom as to the guilt of petitioner or his co-
defendants. The case at bar is more egregious than Grunewald, since the judge
gave no charge to the jury as in Grunewald, The case is also more egregious
than Grunewald because the prosecutor, immediately prior to cross examining
the defense witness on her invocation of the Fifth Amendment privilege before
the grand jury read from the grand jury to the trial jury, informing the trial
jury that said witness was suspected of committing the very same crimes for which
petitioner was on trial. The jury at bar, even more than the jury in Grunewald
was thus left free to draw the inference of the guilt of the witness and of petitioner.
See footnote 13, supra. See also, footnotes 10 and 11, supra.
15
Court of Appeals for the Third Circuit looked to the
‘circumstances of the case’’ totally different from those mandated
by Grunewald, supra. Relying on United States v. Natale, 526
F. 2d 1160 (2d Cir. 1975), the Court of Appeals for the Third
Circuit originally adopted the harmless error rule of United States
v. Natale, supra, stating, as follows:
‘*In United States v. Natale, 526 F.2d 1160 (2d
Cir. 1975), cert. denied, 425 U.S. 950 (1976), the
Second Circuit restated its rule on harmiess 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.’’ Jd. at
1171. See Appendix A at 9a.
Clearly, under Grunewald v. United States, supra, the
harmless error rule of United States v. Natale, supra, had no
applicability.
The Circuit Court of Appeals cases relied on by the majority
of the Court of Appeals for the Third Circuit in arriving at a
decision in the instant case clearly supports petitioner’s argument
that Grunewald v. United States, supra, requires reversal of the
conviction without a finding of harmless error as enunciated in
United States v. Natale, supra.
In arriving at its holding that, although the cross examination
of the defense witness at bar, Anna Kushnir, was trial error, and
improper, it was nonetheless harmless error, the two judge
majority of the Court of Appeals for the .hird Circuit relied
16
primarily upon United States v. Natale, supra, and also cited
United States v. Williams, 454 F. 2d 927 (8th Cir. 1972).
Both United States v. Williams, supra, and United States
v. Natale, supra, clearly support petitioner’s argument that
Grunewald v. United States, supra, requires reversal without a
determination of harmless error as enunciated in United States
v. Natale, supra.
In United States v. Williams, supra, the Court of Appeals
for the Eighth Circuit, confronted with a substantially identical
issue to the one at bar, held that it was prejudicial error to cross
examine a defense witness as to whether said witness invoked his
Fifth Amendment privilege against self incrimination before the
grand jury. In so holding the Court of Appeals for the Eighth
Circuit specifically relied on Grunewald and the ‘‘circumstances
of the case’’ of Grunewald, i.e., that said witness was not a
voluntary witness, was not represented by counsel before the grand
jury.'’
United States v. Natale, supra, also supports petitioner’s
argument that Grunewald v. United States, supra, requires reversal
17. At bar, as in Williams, defense counsel objected to the improper cross
examination as to the witness’ invocation of his Fifth Amendment privilege before
the grand jury. At bar, as in Williams, the Government persisted in its efforts
to present this improper evidence to the jury (see footnotes 10-13, supra ). At
bar, as in Williams and Grunewald, supra, the defense witness who was cross
examined was not a voluntary witness before the grand jury and was not
represented by counsel before the grand jury. (See footnote |, supra.) The case
at bar is even more egregious than Williams, in that the prosecution read from
the grand jury transcript informing the trial jury that the defense witness who
was improperly cross examined, was a suspect of the same offenses of which
petitioner was being tried. Thus, the trial jury was free to infer petitioner’s guilt
from the fact that the witness had invoked her Fifth Amendment privilege against
self incrimination before the grand jury.
17
of petitioner’s conviction without a determination of harmless
error. The Court of Appeals for the Second Circuit in Natale,
supra, specifically stated, relying on United States v. Williams,
supra, that it was prejudically erroneous for a prosecutor to directly
ask a defense witness whether that witness had invoked his Fifth
Amendment privilege against self incrimination before the grand
jury. The Court of Appeals in Natale stated, as follows:
‘*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 have tended to
incriminate him, courts have found prejudicial
error and reversed the convictions. See, e.g.,
United States v. Williams, 464 F.2d 927 (8th Cir.
1972); cf. United States v. Glasser, 433 F.2d 994,
1005 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct.
96, 30 L.Ed.2d 95 (1971). Such direct efforts to
impeach a defense witness are improper under
Grunewald v. United States, 353 U.S. 391, 77 S.Ct.
963, 1 L.Ed.2d 931 (1957), where the Supreme
Court reversed a conviction because the prosecutor
had improperly cross-examined a defendant as to
the assertion of his Fifth Amendment privilege
before a grand jury. The salutary ruling of
Grunewald 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. Jd. at 423-24, 77
S.Ct. 963.’’ United States v. Natale, supra, at 1171.
The Court of Appeals in Natale distinguished Grunewald and
applied a harmless error rule because the facts of Natale did not
involve a direct question as to whether the witness therein had
invoked a Fifth Amendment privilege before the grand jury. The
18
facts in Natale involved a question as to whether the witness had
testified before the grand jury under a grant of immunity. The
Court in Natale stated, in pertinent part, as follows:
“This case differs from Grunewald and its
progeny, however, because here the reference to
the constitutional privilege was neither direct nor
clear. This incidental reference to immunity
provided before the grand jury was not itself
framed as a question, but rather was contained
in the question being asked. It was not flagged
before the jury as it was in Grunewald and
Williams. It was not even objected to at trial. The
prosecutor’s naughty words were in effect a
flyspeck on this record, not a blot.
The fact that immunity is provided does not
always imply that a Fifth Amendment refusal to
testify has first 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. Here,
moreover, the trial judge after only three questions
and answers read by the prosecutor from the grand
jury testimony (bearing on Lapin’s representation
of appellants and acquaintance with Conti) struck
the line inquiry altogether.’’ United States v.
Natale, at 1172.
19
At bar, as distinguished from Natale, there was a direct and
clear question as to whether the defense witness had invoked the
Fifth Amendment privilege before the grand jury.'* At bar, as
distinguished from Natale the defense counsel objected to the
improper cross examination. At bar, as distinguished from Natale,
the trial judge did not strike the improper cross examination from
the record.'* At bar, as distinguished from Natale, the prosecution
placed evidence before the trial jury by reading from the grand
jury transcript”* that the defense witness who had invoked her
Fifth Amendment privilege before the grand jury was a suspect
of the very same crime for which petitioner was on trial.
Patently, United States v. Nataie, supra, is both legally and
factually distinguishable from the case at bar. Equally as patent,
is the conclusion that Grunewald v. United States, supra; United
States v. Williams, supra, and United States v. Natale, supra,
require reversal of petitioner’s conviction without reference to
the harmless error rule enunciated in Natale.
18. See footnotes 12 and 13 and accompanying text, supra.
19. See footnote 2, Appendix at 19a-20a.
20. See footnote 13, supra.
20
Assuming that the harmless error rule of United States v.
Natale, 526 F.2d 1160 (2d Cir. 1975), cert. denied, 425 U.S. 950
(1976) is applicable to the case at bar, a new trial is required
pursuant to said harmless error rule, as was held by the Honorable
Judge Adams of the United States Court of Appeals for the Third
Circuit in his dissenting opinion at bar.
In a well reasoned and articulate dissent the Honorable Judge
Adams of the Court of Appeals for the Third Circuit, in applying
the harmless error rule of United States v. Natale, supra, concluded
that the trial jury would have imputed wrongdoing to the petitioner
as a result of having the evidence of the defense witness’ invocation
of her Fifth Amendment privilege against self incrimination before
the grand jury placed before them by the prosecutor.
Petitioner adopts all of the legal arguments and factual
analysis of the dissenting opinion of the Honorable Judge Adams,
and prays that this Honorable Supreme Court grant a writ of
certiorari.
The petitioner respectfully points out to this Honorable Court
in urging that petitioner be granted the writ of certiorari; that
both the majority and dissenting opinion of the Court of Appeals
for the Third Circuit overlooked a most crucial and critical fact
in reaching their respective opposite conclusions, as to the presence
of prejudicial error at bar under the test as enunciated in United
States v. Natale, supra.
Both the majority decision and dissenting opinion overlook
the fact that the prosecutor immediately before asking the defense
witness whether the witness had invoked the privilege for self
incrimination before the grand jury, was allowed to read from
the grand jury transcript and inform the trial jury that the said
21
witness was a suspect involving violations of 18 U.S.C. §1001,
false claims to a federal agency.*' The trial jury was thus informed
that the defense witness was a suspect of the same crime for which
petitioner was on trial.
Under the test enunciated in Natale the witness’ testimony
could not be considered remote from the crime charged when
the jury was informed that the witness was a suspect of committing
the very same crimes as petitioner. Further, there could be no
doubt, with the jury’s knowledge of said fact that the jury did
become confused and link the assertion of the privilege by the
witness with petitioner’s guilt. It is clear beyond peradventure
that the jury in the case at bar did in fact find that the petitioner
was guilty by linking petitioner to the witness’ assertion of the
right against self incrimination.
It is respectfully submitted that a writ of certiorari should
be granted in the case at bar.
CONCLUSION
For all of the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
STEPHEN ARINSON
Attorney for Petitioner
NATALE F. CARABELLO, JR.
On the Petition
21. See footnote 13, supra.
APPENDIX A—OPINION OF THE COURT OF APPEALS
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).' 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.
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
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.
2a
Appendix A
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),’ 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
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.
Ja
Appendix A
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.’
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. KusAnir
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.
ta
Appendix A
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.
Sa
Appendix A
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 (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 Court stated in part:
We are not unmindful that the question whether a prior
statement is sufficiently inconsistent to be allowed to go to
(Cont'd)
6a
Appendix A
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,’ 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
(Cont'd)
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.
5. Four Justices, headed by Justice Black, would have made the rule
absolute. In Justice Black's concurrence, he stated that:
(Cont'd)
7a
Appendix A
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 Kusnir 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
Kusnir was harassed or not was itself merely a tangential issue.
Whatever probative value could have been eked out of this
(Cont'd)
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. | 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 (Black, J., concurring).
8a
Appendix A
testimony is more than outweighed by the potential prejudical
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.
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. Our holding, i.c. 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 typescript at pp.
1-2), 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 Grunewald has taken the
position that, subject to a harmiess error determinatiun, questioning about use
(Cont'd)
9a
Appendix A
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 degree 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 (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. Jd. at 1171.’
(Cont'd)
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 (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.), cert. denied, 404 U.S. 854 (1971).
Cf. United States v. Lacouture, 495 F.2d 1237, 1240 (Sth Cir.), cert. denied,
419 U.S. 1053 (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 jury under immunity.’’ The connection between that
question and the that the witness had invoked his fifth amendment
privilege to to testify was so attenuated, the court held, that no prejudice
could Cf. United States v. Williams, 464 F.2d 927 (8th Cir. 1972),
where the Eighth Circuit stated that error could not be harmiess when the
10a
Appendix A
In applying the Nata/e 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
cor cerning 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
(Cont'd)
prosecutor attempted to discredit a ‘‘crucial’’ defense witness. /d. 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.
»-,
lla
Appendix A
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.
2a
Appendix A
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. 12 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,
$26 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.
l3a
Appendix A
V.
We are satisfied that no substantial right of the defendant
Nezowy was affected by the improper cross-examination of
Kushnir.' 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.
8. Judge ADAMS would test Nezowy’s conviction by the harmless error
standard of Chapman v. California, 386 U.S. 18 (1967) and Fahy v. Connecticut,
375 U.S. 85 (1967) (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 (prosecutor commented on defendant’s failure to
testify): Fahy, 375 U.S. 85 (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.
Aithough 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. 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.
l4a
Appendix A
ADAMS, J., 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 everday 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 (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.
1Sa
Appendix A
I
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:
[w]here 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.
$26 F.2d 1160, 1171 (2d Cir. 1975). See also United States v.
Glasser, 443 F.2d 994, 1005 (2d Cir.), cert. denied, 404 U.S. 854
(1971).
l6a
Appendix A
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, and its invocation is
therefore perfectly consistent with innocence. Under either the
majority or minority view in Grunewald,' the line of questioning
1. The Grunewald majority found that the prior invocation of the Fifth
Amendment could be admitted into evidence only if there were a threshold
preliminary inquiry by the trial judge:
(P]rior statements may be used to impeach the credibility of
a criminal defendant or an ordinary witness. But this can be
done only if the judge is satisfied that the prior statements
are in fact inconsistent.
353 U.S. at 418. Because asserting the privilege is consistent with innocence.
Grunewaid creates a heavy presumption against any cross-examination on this
point. In the present case, the trial judge made no preliminary inquiry as required
by the Grunewald majority.
Justice Black’s concurrence in Grunewald, joined by three other Justices, went
one step beyond the majority and adopted a per se rule:
(Cont'd)
17a
Appendix A
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 (1967).
As the Supreme Court declared in Fahy v. Connecticut, 375 U.S.
85, 86-87 (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
(Cont’d)
I can think of no special circumstances that would justify use
of a constitutional privilege to discredit or convict a person
who asserts it.
Id. at 425 (Black, J., concurring).
18a
Appendix A
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
**fojrdinarily, one may not claim standing in this court to vindicate
the constitutional rights of some third party.’’ Barrows v. Jackson,
341 U.S. 249, 255 (1953). This general consideration, however,
may be ‘‘outweighed by the need to protect . . . fundamental
rights,’’ id. at 257, 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 (1969) (no vicarious raising of Fourth
Amendment rights of others to suppress illegally seized evidence)
with NAACP v. Alabama, 357 U.S. 449 (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, 443 U.S. 83 (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, $86 F.2d 470, 480-81 (Sth
Cir. 1978); United States v. Skolek, 474 F.2d 582, $85 (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
19a
Appendix A
concern is not with the evidentiary fruits of potentially privileged
testimony but the infection of the triple process itself by the
extraneous interjection of prejudicial testimony concerning the
invocation of the Fifth Amendment.’ The sole case addressing
2. It must be emphasized that the introduction of Kushnir’s prior invocation
of the Fifth Amendment was not inadvertent. The matter was raised at side bar
and resolved as follows:
(U.S. Attorney] MS. SPEARING: Your Honor, I would like
to inquire into [Kushnir’s] taking the Fifth Amendment in the
grand jury as to whether or not she answered truthfully in the
Your Honor, if we could go back to the reason we asked for
the side bar because we wanted to ask Miss Kushnir whether
she answered questions or whether she in fact invoked her Fifth
Amendment privilege so as to show she understood the advice
and so on [U.S. Attorney] Mr. Finkelstein was giving her and
is perfectly capable of standing up to the Government,
contrary to the implication, and I simply did not want to create
reversible error by somehow bringing out any evidence with
respect to Fifth Amendment privilege in an improper context.
I don’t believe that it’s improper, but I would like the Court
to rule on that.
(Defense Attorney] MR. CARABELLO: It’s my contention
at this point — and what | intend to do so we can get a ruling
immediately is, according to the ruling that you made, your
Honor, concerning the testimony that she would —
THE COURT: How does that impeach her credibility?
MR. CARABELLO: Number one, I asked her —
THE COURT: I know what you asked her. How does what
she has been asked so far impeach her credibility? . . .
(Cont'd)
20a
Appendix A
this precise point, United States v. Colyer, 571 F.2d 941, 946 (Sth
Cir.), cert. denied, 439 U.S. 933 (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.’’’
(Cont'd)
All right, the thing that’s before me now is whether the
Government can go on and read to her the testimony to bring
out by questioning that she invoked her Fifth Amendment
privileges and I think the better way to do it, rather than to
read it from the statement, would be to ask her and | will
permit the Government to ask her that question.
MRS. AINSLIE: Fine.
MR. CARABELLO: Note my objection.
THE COURT: Why are you objecting?
MR. CARABELLO: | think it’s prejudicial, your Honor.
App. 1209-13.
3. Note, Standing to Assert Constitutional Jus Tertii. 88 Harv. L. Rev. 423,
424 (1974). While the standing issue usually arises in bringing a controversy to
court (as in First Amendment overbreadth causes), this Note ably analyzes the
doctrinal confusion surrounding third-party claims:
(Cont'd)
By analogy, a criminal defendant may properly assert a third party
constitutional claim, and therefore fall within the ambit of the
stricter Chapman 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
2la
Appendix A
1145, 1152-53 (3d Cir. 1982):
For a peson 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
(Cont'd)
The patchwork of exceptions, based upon considerations of
questionable force and relevance, seems to indicate both
dissatisfaction with the presumption against assertion and a
lack of coherent doctrine to guide the court in adjudicating
jus tertii claims. A practice of permitting claimants to assert
jus tertii when the injury of which they compiain also deprives
third parties of constitutional rights is necessary to ensure that
such rights are fully protected. Such a practice would inject
a greater degree of candor and conmstency into Court decisions
than is engendered by a rule most often honored in the breach.
Finally, the suggested practice would permit the Court to turn
its attention in jus tertii cases to the substantive constitutional
claims presented without the risk of confusing the merits with
procedural questions of standing.
Id. at 443.
Z2a
Appendix A
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 (1976)
(plurality). Second, there must exist some obstacle
to the third party asserting his or her own rights.
Id. at 115-16. 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, Nos. 82-7782, 82-7788, slip op. at 6424
(2d Cir., Sept. 6, 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.
23a
Appendix A
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 aslyum 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,”’ typescript
at 12, 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
24a
Appendix A
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 immigraton
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 in any 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.
Ill
For the foregoing reasons, I respectfully dissent.
25a
Appendix A
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit
26a
APPENDIX B — CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES
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.
27a
APPENDIX C — EXCERPTS OF TRANSCRIPT OF
PROCEEDINGS
Excerpt of Petitioner Nezowy’s testimony that he informed all
aliens that he was filing for political asylum and they agreed:
{Cross Examination of Petitioner William Nezowy commencing
at p. 8.80]
Do I understand correctly, Mr. Nezowy, you
say that you did file for political asylum on behalf
of Anna Kowal, Barbara Pas, Marian Grech,
Bozena Lapinska, and Anna Lonczak. A. Yes.
Q. You testified that Anna Kowal was
advised by you that you were filing for political
asylum and she assented.
Is that correct? A. That’s correct.
[8.81] Q. All right, but at whatever time this
took place when you in fact filed for political
asylum for Barbara Pas it is your testimony that
Barbara Pas knew that this was going to happen
and went along with that.
Is that correct? A. Absolutely.
28a
Appendix C
Excerpt of Anna Kushnir’s testimony tes.jfying that she went into
law practice with Nezowy and Konowal:
{Direct Examination of Anna Kushnir commencing at p. 7.129]
Q. And what was the basis of this
relationship? A. Mr. Konowal, Mr. Nezowy and
myself got together and were going to go into a
law practice.
Kushnir’s testimony evidencing Nezowy explained to aliens,
showing habit and custom of explaining that he was filing for
political asylum:
[Direct Examination of Anna Kushnir commencing at p. 7.159]
Q. Did he explain the various options that
may have been opened to Mr. Grech at that
time? A. Yes, he did. He went down the line by
saying, ‘‘Do you have a relative here, mother,
father, brother, sister? You said you were an auto
mechanic, but right now I can’t remember exactly
how long you said. How long have you been doing
this type of work?’’
29a
Appendix C
[7.160] Q. Did Mr. Nezowy discuss anything
else with him that you recall? Did he discuss the
options, you say? A. Yes, he did discuss the
options.
Q. Then what did he say? A. He said,
**Well, there is political asylum, you know.”’
Q. Now did Mr. Grech understand what Mr.
Nezowy was talking about?
* * *
[7.161] BY MR. CARABELLO:
Q. Did Mr. Nezowy tell him the only option
was political asylum? A. Yes, he did.
Kushnir’s testimony that Barbara Pas Economopolos told Nezowy
to withdraw political asylum claim:
[Cross Examination of Anna Kushnir commencing at p. 7.194]
Q. Isn’t it a fact that during that conversation
Barbara Pas told Mr. Nezowy that he had never
Wa
Appendix C
wanted nor authorized him to file for political
asylum? A. I was working at my desk. I only
remember her asking was the political asylum
withdrawn and her husband jumping in the
conversation back and forth constantly.
s . *
Trial judge instruction to jury to disregard Kushnir’s testimony
that she had been threatened by U.S. attorney before grand jury:
[Court Charge commencing at p. 7.175]
THE COURT: Members of the jury, just
before we recessed Miss Kushnir said something
about she had been threatened by an Assistant
United States Attorney by the name of Howard
Finkelstein. I will instruct you to disregard her
testimony in that regard.
Prosecutor cross examination of Kushnir as to her invocation of
Fifth Amendment rights before grand jury:
[Cross Examination of Anna Kushnir commencing at p. 7.190]
BY MS. SPEARING:
3la
Appendix C
Q. Miss Kushnir, did you understand the
rights Mr. Finkelstein 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. Didn’t you in fact invoke your Fifth
Amendment right that day? A. I’m sorry.
Q. Did you in fact invoke your Fifth
Amendment privilege which he advised you of that
day? A. Yes.
Prosecutor reading to trial jury a question before the grand jury
informing Kushnir that the grand jury was investigating the charges
of violation of 28 U.S.C. §1001:
[Commencing at p. 7.182]
**Question: Miss Kushnir, before we proceed
to your testimony, I would like to advise you of
the following. The purpose of your testimony
today is so you can provide truthful, honest and
complete answers to the questions relevant to a
grand jury investigation, which is presently being
conducted. That grand jury investigation involves
a charge in violation of Title 18, United States
32a
Appendix C
Code, Section 1001, which is false claims to a
federal agency. The particulars of the investigation
are that an individual — the government believes
that an individual has been making false claims
to the Immigration and Naturalization Service, a
federal agency, in matters of importance to the
Immigration and Naturalization Service. In
particular, regarding the filing of various political
asylum applications on behalf of individuals of the
Polish descent, who are residing in the United
States as visitors on a B2 Visitor’s Visa.’’
Prosecutor reading to trial jury that prosecutor before grand jury
advised Kushnir that she was a ‘‘suspect’’ of the grand jury
investigation:
[Commencing at p. 7.184]
**. .. I also advised you, you should consider
yourself a suspect regarding this investigation.
Now, Miss Kushnir, are you represented by
counsel?
Answer: No.’’
33a
Appendix C
Excerpt of sidebar conference where defense counsel objected to
introduction of evidence of Kushnir invocating Fifth Amendment
right before grand jury:
(U.S. Attorney] MS. SPEARING: Your Honor.
I would like to inquire into [Kushnir’s] taking the
Fifth Amendment in the grand jury as to whether
or not she answered truthfully in the grand
a
Your Honor, if we could go back to the reason
we asked for the side bar because we wanted to
ask Miss Kushnir whether she answered questions
or whether she in fact invoked her Fifth
Amendment privilege so as to show she understood
the advice and so on [U.S. Attorney] Mr.
Finkelstein was giving her and is perfectly capable
of standing up to the Government, contrary to the
implication, and I simply did not want to create
reversible error by somehow bringing out any
evidence with respect to Fifth Amendment privilege
in an improper context. I don’t believe that it’s
improper, but I would like the Court to rule on
that.
[Defense Attorney] MR. CARABELLO: It’s my
contention at this point — and what I intend to
do so we can get a ruling immediately is, according
to the ruling that you made, your Honor,
concerning the testimony that she would —
34a
Appendix C
THE COURT: How does that impeach her
credibility?
MR. CARABELLO: Number one, I asked her —
THE COURT: I know what you asked her. How
does what she has been asked so far impeach her
credibility? ...
All right, the thing that’s before me now is whether
the Government can go on and read to her the
testimony to bring out by questioning that she
invoked her Fifth Amendment privileges and I
think the better way to do it, rather than to read
it from the statement, would be to ask her and
I will permit the Government to ask her that
question.
MRS. AINSLIE: Fine.
MR. CARABELLO: Note my objection.
THE COURT: Why are you objecting?
MR. CARABELLO: I think it’s prejudicial, your
Honor. :
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.