The opinion of the court was delivered by: DITTER
William Nezowy was convicted of three counts of making false statements to the Immigration and Naturalization Service (INS) in violation of title 18, United States Code, section 1001.
His post-trial motions contend there was insufficient evidence to support his conviction, the acts charged do not constitute a crime, and that there was error in pre-trial and trial rulings. For the reasons which follow, his motions must be denied.
Viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), the evidence showed that William Nezowy, fluent in the Polish and Ukranian languages and a self-proclaimed expert in immigration matters, filed political asylum applications on behalf of three aliens who did not authorize him to do so. Through his association with religious groups, Polish-American clubs, and Polish persons in the community, Nezowy came into contact with Polish nationals who had overstayed their visas and desired to remain in the United States permanently.
After speaking with these aliens and explaining that he had expertise in immigration matters, Nezowy would offer his services for a fee of approximately $2000.
Having been convinced that Nezowy could help with immigration problems, an alien would schedule an interview with Nezowy to discuss, inter alia, the alien's immigration status, occupation, and other personal data.
During the interview, Nezowy would delineate the options available to the alien under immigration law to enable him to stay in the United States. One of the options was political asylum. The aliens, in whose names existed fraudulent political asylum applications, testified that they never authorized Nezowy to file for political asylum, and rather, directed Nezowy not to do so because they thought it would prevent their visiting Poland in the future.
Despite these instructions, Nezowy would fill out a political asylum application, submit it to the INS, and await the scheduling of a hearing at which the alien would first reaffirm the responses given on his application and then sign it. Once signed, the application was submitted for further processing, and the alien received an authorization for employment.
The falsity, that a particular alien was requesting political asylum, was compounded by a cover-up scheme devised and effectuated by Nezowy, and carried out by him at the INS hearing. Because each alien spoke little or no English, Nezowy, acting as interpreter, accompanied him to the hearing to translate the examiner's questions into Polish, and the alien's answers into English. In view of the fact that the alien did not know that the purpose of the hearing was to review his application for political asylum, Nezowy's translations to the alien avoided all reference to the word or subject of asylum. Similarly, so as not to contradict the information provided on the application, Nezowy translated the alien's answers to the examiner to show a request for asylum. Having successfully duped the INS examiner and the alien, Nezowy, at the behest of the examiner, directed the alien to sign the application. It can be inferred from the testimony of Edward H. Skerrett, an INS employee and the Government's expert, that Nezowy chose to pursue political asylum on behalf of aliens because it was easy and quick to get, allowed the aliens to work in the United States, and, as a practical matter, was granted as a matter of course to aliens whose former residences were communist bloc nations. N.T. 1:98-99.
After receiving several complaints regarding Nezowy's practices from his alien clients,
the Government summoned Christina Bankovic, a Polish speaking INS employee to act as examiner. Ms. Bankovic testified that at the hearing regarding the political asylum applications of Bozena Lapinska and Anna Lonczak, in May, 1980, Nezowy did not translate any questions put to the aliens to include the words or ideas of asylum or political asylum, although Ms. Bankovic specifically used those words and ideas in her questions. N.T. 6.21 to 6.29. Additionally, Ms. Bankovic testified that at a similar hearing of Khristoff Kwiatowski, Nezowy translated the term political asylum properly. N.T. 6.29. Nezowy's scheme having been uncovered, INS agents set out to interview aliens for whom Nezowy had filed political asylum applications. In several instances, INS agents were told by the aliens that they never authorized Nezowy to file applications for political asylum on their behalfs, and rather, specifically directed him not to do so.
Nezowy's contentions are meritless and demonstrate that he completely ignores the gist of the falsity with which he was charged. The falsity proved by the Government was Nezowy's representation that a particular alien was seeking political asylum, which Nezowy knew was untrue, and that the alien intended that the application he was filing was for political asylum, which Nezowy also knew was untrue. Therefore, the fact the applications contained some true information and that the aliens actually qualified for political asylum is irrelevant. The falsity here was the unauthorized request for asylum itself. Furthermore, Nezowy's contention that he filed the applications under a broad grant of authority from the aliens was a question of fact resolved by the jury in Nezowy's favor as to certain aliens and against him as to others. The circumstances of this case are similar to Gilbert v. United States, 359 F.2d 285 (9th Cir.), cert. denied, 385 U.S. 882, 17 L. Ed. 2d 109, 87 S. Ct. 169 (1966), where the defendant, an accountant who acted for others in federal income tax matters, was charged with violating 18 U.S.C. § 1001 because he forged endorsements on tax refund checks of his clients with the client's name "by R. Milo Gilbert, Trustee." Arguing that his conviction could not stand, Gilbert asserted that no falsity was involved because the endorsements were precisely what they purported to be. Rejecting Gilbert's contention and upholding his conviction, the United States Court of Appeals for the Ninth Circuit stated the falsity involved was that defendant's "endorsements themselves constituted representations that he was duly authorized to make them." Id. at 286. Similarly, here, Nezowy's filing of the political asylum applications on behalf of various aliens constituted representations that he was authorized to do so and the aliens desired political asylum. Because each alien on whose behalf Nezowy filed a fraudulent political asylum application testified that she did not authorize him to do so and that until the INS informed her that such an application existed she had no knowledge of it, the jury doubtless concluded that Nezowy acted without the aliens' authority. Nezowy's falsehoods, therefore, were that he had authority when in fact he did not, and that the aliens wanted political asylum when in fact they did not. Nezowy's conviction cannot be disturbed.
Nezowy's legal arguments that his conviction cannot stand due to the absence of verbatim transcripts of the INS hearings and because the INS examiner to whom the alleged false statements were made did not have final authority to act on the political asylum applications, similarly are without merit. United States v. Ehrlichman, 379 F. Supp. 291 (D.D.C. 1974) and United States v. Levin, 133 F. Supp. 88 (D. Col. 1953), cited by Nezowy in support of his argument, are inapposite. The facts of both cases involved alleged oral false statements to F.B.I. agents who were conducting criminal investigations. In each case, no violation of 18 U.S.C. § 1001 was found because the circumstances of the false statement were that the defendant was not under oath, was under no legal obligation to speak, and was not sufficiently alerted to the danger that the false statement could lead to prosecution. Ehrlichman, supra, 379 F. Supp. at 292. The cases held that in order to prosecute a person under 18 U.S.C. successfully for false statements under those circumstances, there must be a verbatim transcript of the interview and the statement must be made to a government officer with final authority to dispose of the matter being investigated.
Ehrlichman, supra; Levin, supra, 133 F. Supp. at 91. As stated above, the circumstances and the false statements in this case are totally different from Ehrlichman and Levin. First, this case does not involve a false statement made to someone conducting an investigation but a false statement made to an agency of the United States in conjunction with an affirmative application to that agency. Second, the whole purpose of the application procedure was to establish the truth of certain facts on the basis of which an alien would be allowed or would be denied permission to stay in the United States. No one could have reasonably supposed that truth was not the essence of the application procedure. Third, Nezowy was not prosecuted for making false statements at the INS hearings but because he misrepresented what aliens wanted and were trying to accomplish. Finally, if the Ehrlichman and Levin doctrine was found to control agency proceedings like those of the INS, or countless other agencies and the multitudes with whom they deal, government, as we know it, simply could not function with any semblance of efficiency, dispatch, or integrity. United States v. Stanford, 589 F.2d 285, 297 (7th Cir. 1978), cert. denied, 440 U.S. 983, 60 L. Ed. 2d 244, 99 S. Ct. 1794 (1979); United States v. Rose, 570 F.2d 1358, 1363 (9th Cir. 1978); United States v. Krause, 507 F.2d 113, 117-18 (5th Cir. 1975); United States v. Bedore, 455 F.2d 1109, 1111 (9th Cir. 1972). Accordingly, neither a verbatim transcript of the INS hearings, nor a statement to an officer with final authority was necessary here.
For the reasons stated above, Nezowy's post-trial motions must be denied.
AND NOW, this 17th day of December, 1982, for the reasons expressed in the accompanying opinion, defendant's post trial motions are denied. William Nezowy is ordered to report for sentence on January 14, 1983, at 9:30 A.M. in Courtroom 6A, United ...