Opposition Brief for the United States — Nezowy v. United States

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oe Be RE

No. 83-1477 MAY 29 j9R4

ALEXANDER L. STEVAS

CLERK

Iu the Supreme Court of the Un

OCTOBER TERM, 1983

WILLIAM NEZOWY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

GLORIA C. PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ee — — —

———-

QUESTION PRESENTED

Whether any error in allowing the government’s

cross-examination of a defense witness, which re-

vealed that the witness had invoked her Fifth Amend-

ment privilege before the grand jury, was harmless

in the circumstances of this case.

(1)

TABLE OF CONTENTS

Opinion below

Jurisdiction

TABLE OF AUTHORITIES

Cases:

Chapman V. California, 386 U.S. 18 ..0000.....00..00.... 6,9

Doyle v. Ohio, 426 U.S. 610 9

Fahy v. Connecticut, 375 U.S. 85 6

Grunewald v. United States, 353 U.S. 391 ... 7, 8, 9, 10,

11, 12

United States v. Hasting, No. 81-1463 (May 23,

1983)

United States v. Natale, 526 F.2d 1160, cert. de-

nied, 425 U.S. 950 5, 6, 7, 10

United States v. Williams, 464 F.2d 927

Constitution, statutes and rule:

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(III)

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-1477

WILLIAM NEZOWY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-

25a) is reported at 723 F.2d 1120.

JURISDICTION

The judgment of the court of appeals was entered

on December 21, 1983. The petition for a writ of

certiorari was filed on February 21, 1984. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, peti-

tioner was convicted on three counts of making false

(1)

2

statements to the Immigration and Naturalization

Service, in violation of 18 U.S.C. 1001 (Counts One,

Four and Eight). He was sertenced to a two-year

term of imprisonment with parole eligibility after six

months on Count One, and to two five-year terms of

probation on Counts Four and Eight, all the sen-

tences to run concurrently.’

1. The evidence at trial showed that petitioner was

associated with Louis Konowal, an attorney who rep-

resented clients before the INS. Petitioner acted as

an “immigation consultant” on behalf of Polish na-

tionals and, because he was fluent in Polish, would

often accompany clients to INS interviews as a trans-

lator. Pet. App. la. Unbeknownst to Konowal, peti-

tioner filed political asylum applications with INS in

the name of clients who were unaware of this action

and who specifically had denied petitioner permission

to seek political asylum on their behalf (id. at la-2a,

3a).

In response to complaints about petitioner’s activi-

ties, INS had arranged for a Polish-speaking INS

employee to conduct an applicant interview at which

petitioner acted as interpreter for his client (id. at

2a). The INS employee testified at trial that peti-

tioner translated the questions he had put to the ap-

plicant inaccurately, deleting all references to politi-

1 Petitioner was originally indicted on 11 counts of making

false statements to the INS. He was acquitted by the jury on

three of these counts, the court directed a verdict of acquittal

on a fourth count, and four false statement counts were dis-

missed before trial. Petitioner was also indicted on ten counts

of collecting fees for his services in excess of those permitted

by law, in violation of 18 U.S.C. 1422. Four of these counts

were dismissed before trial, the district court directed a

verdict of acquittal on a fifth count, and petitioner was

acquitted at trial on all of the remaining counts.

8

cal asylum and leading the client to believe that the

questions dealt with establishment of permanent resi-

dence in this country (6 Tr. 21-29).

Petitioner testified on his own behalf, asserting

that all of the aliens had authorized him to seek

asylum. He also called Anna Kushnir, his part-time

secretary, as a defense witness (Pet. App. 3a). The

bulk of Kushnir’s testimony concerned office practices

and accounting procedures employed in petitioner’s

enterprise with Konowal (ibid.). Her testimony was

also offered to discredit Konowal’s testimony, pre-

sented by the government, that he was unaware of

petitioner’s activities and had derived no fees from

them, and to offer an account of portions of inter-

views between petitioner and two different aliens (id.

at 3a-4a). In the latter connection, Kushnir stated

that she had been present when Marian Grech con-

sented to the filing of a political asylum petition and

had heard part of a conversation in which petitioner

had assured Barbara Pas Economopoulos that he had

withdrawn her political asylum application (id. at

4a).

Kushnir also testified that when she appeared be-

fore the grand jury as a possible suspect in the in-

vestigation of this case, an Assistant United States

Attorney had threatened her with denaturalization

and deportation if she did not cooperate (Pet. App.

4a). To rebut the claim that Kushnir had been badg-

ered and harassed, the government cross-examined

Kushnir about her appearance before the grand jury

(ibid.; 7 Tr. 186). The prosecutor read from the

grand jury transcript a passage in which Kushnir

was informed of (1) the object of the grand jury’s

investigation, (2) her right to refuse to cooperate if

to do so might be incriminating, (3) the uses the

4

grand jury could make of her testimony, (4) her

right to counsel, and (5) her status as a suspect in,

but not a target of, the investigation (7 Tr. 183-

184). Kushnir then acknowledged that she had been

so advised (id. at 185).

To show further that Kushnir’s will had not been

overborne, as implied by her testimony, and that she

had understood her rights and was “perfectly capa-

ble of standing up to the [g]overnment,” the govern-

ment sought to show taat Kushnir had heeded the

Assistant United States Attorney’s advice of rights

and had invoked her Fifth Amendment privilege (7

Tr. 188). The district court allowed the testimony

for that limited purpose. To confine the inquiry to

the invocation of the privilege—to the exclusion of

the question that provoked it—the court directed the

government not to read the exchange from the tran-

script of the grand jury proceedings, but simply to

ask Kushnir whether she had invoked her Fifth

Amendment privilege on the day she appeared before

the grand jury. Jd. at 189. Petitioner’s counsel ob-

jected to the question but did not request any limit-

ing instruction, either then or as part of the general

instructions to the jury. When questioning resumed,

Kushnir testified that she had understood the rights

of which she had been informed and confirmed that

she had invoked her Fifth Amendment privilege (id.

at 190).

The government did not advert to the subject again.

On redirect examination, however, petitioner’s coun-

sel returned to the subject and elicited again from

Kushnir that she had invoked her Fifth Amendment

privilege (7 Tr. 198). In the ensuing examination,

Kushnir testified that she had told the Assistant

United States Attorney assisting the grand jury that

5

she “wasn’t going to take his threats anymore” (id.

at 200), had asked for an attorney (ibid.), and had

informed the magistrate who appointed an attorney

for her about the threats that she said had been made

(id. at 201).

2. On appeal, a divided panel of the court of ap-

peals affirmed. At the outset, the panel majority ob-

served that “there was clearly sufficient evidence to

support [petitioner’s] convictions” (Pet. App. 2a).?

The court then turned to the alleged trial error in-

volving Kushnir’s cross-examination. The court of

appeals held that the government’s questioning of a

defense trial witness as to whether she had claimed

the privilege against self-incrimination in the grand

jury proceedings constitutes trial error, subject only

to application of the harmless error rule (Pet. App.

8a). “[A] careful examination of the record satis-

fie[d]” the court, however, that the potential for prej-

udice to a defendant from such questioning had “not

erystallize[d] into that degree of prejudice which

* * * would compel a reversal of [petitioner’s] con-

viction” (id. at 9a).

In making the harmless error determination, the

court of appeals applied the test of United States v.

Natale, 526 F.2d 1160, 1171 (2d Cir. 1975), cert.

denied, 425 U.S. 950 (1976), which requires a court

to evaluate both the remoteness of the witness’s testi-

mony to the crime charged and the likelihood that

the jury became confused and associated a defendant

with a witness’ assertion of the privilege (ibid.).

The court observed that ‘“Kushnir’s testimony was

2 The court of appeals also rejected petitioner’s claim that

the trial judge erroneously failed to instruct the jury on con-

cealment and authorization (Pet. App. 8a n.3).

6

either given full credit when exculpatory, or else was

so remote from the crimes charged * * * that the first

criterion of the Natale rule was fully satisfied” (id.

at lla). As for the second prong of the Natale rule,

the court found it “highly implausible that a jury

could have impermissibly imputed Kushnir’s invoca-

tion of her fifth amendment privilege to [peti-

tioner]”’ in light of her insignificant position in the

office structure, the absence of any suggestion at trial

that she was implicated in petitioner’s scheme and

the brevity of the disputed cross-examination in the

midst of a nine-day trial (id. at 12a).

Judge Adams dissented (Pet. App. 14a-24a). Ini-

tially, he suggested (without deciding) that the harm-

less error inquiry here is subject to the standard of

Chapman v. California, 386 U.S. 18 (1967), and

Fahy v. Connecticut, 375 U.S. 85 (1963), and that

petitioner’s conviction could not survive scrutiny un-

der that standard (Pet. App. 17a-23a). (The panel

majority responded that, even under Chapman and

Fahy, the error found here was harmless because

there was “no reasonable possibility that the question-

ing of Kushnir might have contributed to the con-

viction” (Pet. App. 13a n.8).) Judge Adams rested

his dissent upon his divergent assessment of the im-

pact of Kushnir’s testimony and the likelihood that

the jury inferred petitioner’s guilt from Kushnir’s

invocation of her privilege against self-incrimination

(id. at 23a-24a).

7

ARGUMENT

1. Petitioner contends (Pet. 11-19) that the court

of appeals improperly failed to apply a per se rule

that prosecutorial questioning at trial of a defense

witness about an assertion of Fifth Amendment priv-

ilege during the grand jury proceedings is reversible

error. He maintains that such a per se rule is re-

quired by this Court’s decision in Grunewald v.

United States, 353 U.S. 391 (1957), and that the

court of appeals’ adoption of the harmless error an-

alysis of United States v. Natale, 526 F.2d 1160 (2d

Cir. 1975), cert. denied, 425 U.S. 950 (1976), was

improper. Petitioner also claims that the circum-

stances of this case mirror those in Grunewald and

require reversal of his conviction. These arguments

are wholly without merit.

a. In Grunewald, defendant Halperin appeared

before the grand jury and declined to answer any

questions on the ground that the answers would tend

to incriminate him. He insisted on his innocence,

however, and stated that he refused to answer only

on the advice of counsel that answers might furnish

evidence that could be used against him. 353 U.S.

at 416. At trial, some of these same questions were

put to him, and he answered in a manner consistent

with innocence. Over objection, the government was

then permitted to show that the defendant had as-

serted his privilege in answer to these questions dur-

ing the grand jury proceedings. 353 U.S. at 416-417.

The court later instructed the jury that the defend-

ant’s invocation of the Fifth Amendment could be

considered only insofar as it reflected upon the credi-

bility of his trial testimony and could not be used to

support an inference of guilt or innocence. 353 U.S.

at 417.

8

This Court held the cross-examination impermissi-

ble in ‘“‘the circumstances of th[e] case” (353 U.S.

at 424). What made it impermissible was the dis-

trict court’s failure to consider whether Halperin’s

prior assertion of the Fifth Amendment could prop-

erly be viewed as a prior inconsistent statement, and

thus a proper basis for impeachment. Deciding that

Halperin’s invocation of the privilege was “wholly

consistent with innocence” (353 U.S. at 421), this

Court found no inconsistency in Halperin’s testimony

before the grand and petit juries, and concluded that

the cross-examination was improper. 353 U.S. at

420-422. Because the cross-examination was not pro-

bative on the issue of credibility, the only basis on

which it had been allowed, and because there was

an unacceptable likelihood that the jury might im-

properly have treated the assertion of the privilege as

an admission of guilt, this Court reversed the con-

viction on the basis of an evidentiary ruling that or-

dinarily would be left to the trial court’s discretion.

353 U.S. at 423-424.

Plainly Grunewald itself does not support peti-

tioner’s contention (Pet. 12) that cross-examination

with respect to a witness’ invocation of Fifth Amend-

ment privilege can never be harmless error. The

Court repeatedly emphasized that its decision rested

upon the “particular circumstances” of the case be-

fore it. 353 U.S. at 420, 421, 424. Moreover, the

Court’s analysis, which focuses upon the fact-bound

question whether the contested cross-examination re-

vealed a prior inconsistency reflecting upon the de-

fendant’s credibility, essentially establishes a rule of

evidence that is appropriately subject to the harmless

error rule. See 28 U.S.C. 2111. The Court also

took considerable care to detail the facts of the case

that accounted for its conclusion that the cross-

examination in Grunewald was prejudicial error.

Thus Grunewald assuredly does not establish an

ironclad rule requiring reversal of a conviction be-

cause of cross-examination of a witness as to his in-

vocation of the privilege against self-incrimination.*

In any event, in light of Chapman v. California,

386 U.S. 18 (1967), which holds that even prosecu-

torial comment upon the failure of the defendant

himself to testify, in derogation of the defendant’s

Fifth Amendment privilege, could be assessed as

harmless error under an appropriate standard (see

note 4, infra), the contention that Grunewald ad-

mits of no harmless error exception is frivolous. See

also United States v. Hasting, No. 81-1463 (May 23,

1983); cf. Doyle v. Ohio, 426 U.S. 610, 619-620

(1967) (implying that a harmless error rule may

qualify the court’s decision that use of a defendant’s

post-arrest silence to impeach his trial testimony vio-

lates due process) .*

3 Indeed Justice Black, joined by Chief Justice Warren, and

Justices Douglas and Brennan, wrote separately in Grunewald

precisely because he was disinclined to “rest [his] conclusion

on the special circumstances of this case.” 353 U.S. at 4265.

Even the separate opinion does not purport to preclude appli-

cation of a harmless error rule, however. Moreover, because

the cross-examination at issue in the instant case was not

directed at the defendant, Justice Black’s conclusion, “I can

think of no special circumstances that would justify use of a

constitutional privilege to discredit or convict a person who

asserts it” (353 U.S. at 425), is simply inapplicable. See page

12, infra.

* We note that petitioner does not press Judge Adams’ sug-

gestion that the constitutional harmless error standard of

Chapman should have been applied here. Nor did petitioner

so argue in the court of appeals (see Pet. C.A. Br. 25-30).

We think it clear that there is no basis for applying the

constitutional harmless error standard here. The Court’s

10

Nor, contrary to petitioner’s submission (Pet. 16-

19), is the decision below contrary to United States

v. Natale, 526 F.2d 1160 (2d Cir. 1975), cert. denied,

425 U.S. 950 (1976), or United States v. Williams,

464 F.2d 927 (8th Cir. 1972). Each of the cited

cases recognized the possibility that a Grunewald er-

ror may be harmless. Indeed, as noted above (page

5), the court below applied the standard for harm-

less error employed in Natale.® And although the

error in Williams was adjudged prejudicial, there is

no suggestion in the Eighth Circuit’s opinion that it

had adopted the per se rule advocated by petitioner.

b. Also untenable are petitioner’s alternative con-

tentions (Pet. 12-15) that this case is factually in-

distinguishable from Grunewald and that the court

of appeals misapplied Grunewald by failing to con-

sider in its harmless error analysis the particular

decision in Grunewald rests essentially upon the conclusion

that the defendant’s invocation of his privilege against self-

incrimination was irrelevant because it was not inconsistent

with his later avowals of innocence (see 358 U.S. at 421-423),

not upon any view that the cross-examination of the defendant

impermissibly burdened the Fifth Amendment privilege. Com-

pare pages 8-9, supra. And as previously noted, even if

Grunewald were regarded as grounded on the constitutional

rights of defendants, no basis for application of a constitu-

tional harmless error rule would exist in a case such as this,

where the only arguable infringement of constitutional privi-

lege was suffered by a non-defendant witness. As to the

defendant, the issue is plainly one to be determined by

conventional evidentiary standards of harmless error.

5 Petitioner’s assertion (Pet. 17-19) that the Natale test for

harmless error was misapplied rests upon his failure to dis-

tinguish between two distinct questions addressed separately

in Natale: whether examination of a witness is impermis-

sible under Grunewald; and whether any error is harmless.

See 526 F.2d at 1171.

11

circumstances that led the Grunewald Court to find

that the cross-examination in that case was imper-

missible. Petitioner’s rendition of those factors is

highly selective and incomplete. Compare Pet. 13-

14 with 353 U.S. at 421-423 (see pages 7-8, supra).

More to the point, however, is that the Court did not

purport in Grunewald to explore the factors perti-

nent to an assessment of harmless error; the factual

considerations emphasized were relevant to the

threshold evidentiary question whether the contested

cross-examination disclosed a prior inconsistent state-

ment, and, if so, whether the potential for prejudice

outweighed any probative value in the examination.

353 U.S. at 420, 424; ef. Fed. R. Evid. 403. By con-

trast, the inquiry under a harmless error analysis is

whether, notwithstanding the conclusion that a trial

error occurred, the conviction should stand because

the error can be said, with an appropriate degree of

confidence, to have made no difference in the outcome.

In any event, this case is readily distinguishable

from Grunewald. Grunewald teaches that invocation

of the privilege against self-incrimination is not in-

consistent with a defendant’s testimony at trial

asserting innocence. Here, however, the witness’s

acknowledgement that she had invoked her Fifth

Amendment privilege was not employed to impeach

trial testimony bearing on guilt or innocence, but to

rebut the witness’s suggestion that she had been brow-

beaten by the prosecutor. The testimony elicite’ here

thus appears in fact to have been relevant to the

point in support of which it was adduced, and it is

in our view doubtful that any error was committed.

Cf. United States v. Hasting, slip op. 2-4 (Stevens,

J., concurring). While the court of appeals neverthe-

less concluded that the probative value of the disputed

12

cross examination was limited and that it was out-

weighed by the potential for prejudice to the defend-

ant (Pet. App. 7a-8a), it is at least clear that

Grunewald is not controlling here.

Moreover, the court of appeals appears to have

overlooked, in this branch of its analysis, the fact

that the challenged cross-examination was not of the

defendant and that the potential for prejudice here

accordingly is significantly less than that in Grune-

wald; it is highly unlikely that a jury would infer

from a witness’s invocation of the Fifth Amendment

that the defendant is guilty. Compare 353 U.S. at

423-424. Thus, it is far from clear that any error

was made by the district court; assuredly then Grune-

wald does not preclude a finding of harmless error

here.*

2. Petitioner also argues (Pet. 20-21) that the ad-

mission of the evidence in question was not in fact

harmless. He relies for this contention on the factual

analysis of the dissenting court of appeals judge.

This is a fact-bound question that merits no further

review by this Court.

In any case, the harmless error finding is clearly

supported by the record. Petitioner was acquitted on

all counts of accepting fees beyond the legal limit for

his services and on three of six counts of making false

statements to the INS. As the court of appeals noted,

the “dispositive inquiry” on the false statement

counts was “whether the clients for whom asylum

* Although the court of appeals concluded that it was error

to allow the disputed question on cross-examination, its harm-

less error ruling rests in part upon much the same consider-

ations as those adduced in text to distinguish Grunewald

(see Pet. App. 9a-12a).

13

was sought authorized the activity.” Pet. App. 10a

(emphasis in original). Kushnir gave relevant testi-

mony regarding the statements of only two clients—

Marian Grech and Barbara Pas Economopoulos.

Kushnir testified that Grech gave petitioner permis-

sion to file for political asylum on his behalf, and the

jury acquitted him on that count (id. at 10a-lla) .

Kushnir also testified that she heard [petitioner]

assure Economopoulos that he had withdrawn her po-

litical asylum application (Pet. App. 4a). Although

petitioner was convicted on that count, the record

makes clear that any impeachment of Kushnir could

not have been critical to this outcome. First, Kush-

nir’s testimony was not wholly exculpatory; that peti-

tioner had withdrawn Economopoulos’s application

did not overcome the fact that he had filed it con-

trary to her instructions. In fact, petitioner with-

drew the political asylum application only after

Economopoulos made complaints about his activities

to the INS. Second, the conversation Kushnir claimed

to have overheard among petitioner, Ms. Economopo-

ulos and her husband was tape recorded by the

Economopouloses, and the jury was accordingly able

to assess the import of that conversation based on

highly reliable independent evidence. Kushnir’s testi-

mony was, in this respect, superfluous. Finally, Kush-

nir’s testimony that Ms. Economopoulos met initially

with Konowal rather than petitioner (set Pet. App.

24a) was not necessarily exculpatory and was con-

tradicted by Ms. Economopoulos (2 Tr. 82-83) and

by the testimony that Konowal spoke no Russian or

Polish and Economopoulos spoke very poor English.

Thus, as the court of appeals observed, the only

genuinely exculpatory testimony that Kushnir pro-

vided was fully credited, the remainder of her testi-

14

mony was “at best tangential to the relevant issues,”

and any taint on her credibility “could not have

worked to the detriment of [petitioner]” (Pet. App.

lla). Moreover, it is highly unlikely that the jury

linked Kushnir’s invocation of her Fifth Amendment

privilege before the grand jury to petitioner in the

absence of any suggestion at trial that she was impli-

cated in his scheme, especially given the brevity of

the challenged cross-examination in the setting of a

nine-day trial, and the lack of any connection between

Kushnir’s assertion of privilege and any testimony

she gave bearing upon petitioner’s guilt or innocence.

See Pet. App. 12a. The court of appeals’ conclusion

that any error was harmless in this case accordingly

is clearly correct.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

GLORIA C, PHARES

Attorney

May 1984

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