On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, Hunter and Garth, Circuit Judges. Adams, J., dissenting.
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).*fn1 553 F. Supp. 773 (E.D. Pa. 1982). 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 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),*fn2 collected fees for his services in excess of those permitted by law from all except Lonczak. Nezowy was convicted of filing false applications on behalf of Knochowski, Economopoulos, and Kotowska. He was acquitted on all other counts.
As a preliminary matter, we observe that, contrary to Nezowy's contention, there was clearly sufficient evidence to support these convictions. At trial, Nezowy admitted that he had filed for asylum for a number of Polish nationals, including Anna Knochkowski, Barbara Pas Economopoulos, Janina Kotowska, and Marian Grech. Yet all testified that they had not authorized Nezowy to do so. Indeed, Anna Knochowski testified that she specifically told Nezowy that she did not want political asylum. App. at 322. Ms. Economopoulos also testified that she told Nezowy that she did not want political asylum.App. at 407-08, as did Ms. Kotowska. App. at 654. This testimony without more is sufficient to sustain a verdict that Nezowy filed political asylum applications without the clients' knowledge or permission, and consequently made false statements to the INS.
The only issue which requires discussion on this appeal is whether the district court judge erred in allowing the United States Attorney to cross-examine a defense witness about her invocation of the fifth amendment privilege.*fn3
The defense consisted in part of the testimony of Anna Kushnir, Nezowy's part-time secretary. The bulk of Kushnir's testimony concerned the office practices and fiscal and accounting procedures of the Nezowy -- Konowal enterprise. Nezowy offered Kushnir's testimony to discredit Konowal's testimony on behalf of the government that he (Konowal) was unaware of Nezowy's activities and that he never derived any fees from them. Kushnir also stated that she was present at a meeting between Nezowy and Marian Grech in which she heard Grech consent to the filing of a political asylum petition. App. at 1185-86. Kushnir testified further that she was in the room with Nezowy when he had a conversation with Barbara Economopoulos and Ms. Economopoulos' husband. The only arguably relevant portion of that meeting related by Kushnir, however, was when Ms. Economopoulos asked "whether her political asylum application had been withdrawn," to which Nezowy replied: "Yes, it had been right after you made your phone call." App. at 1177. Kushnir acknowledged that she was not a party to the entire conversation but only overheard small fragments of it.
In addition, Kushnir testified that, while appearing before the grand jury as a possible suspect in the investigation, a member of the U.S. Attorney's Office had threatened her with denaturalization and deportation if she did not cooperate in the investigation. App. at 1187. The Government, over Nezowy's objection, sought to rebut the allegation that Kushnir had been so harassed and badgered. It did so by questioning Kushnir about the invocation of her fifth amendment privilege on that day:
Q. Miss Kushnir, did you understand the rights Mr. Finkelstein [the Assistant U.S. Attorney] read to you that day?
A. I was very confused because like I said, he interrogated me before we went in.
Q. Did you understand the rights he read to you that day?
Q. Did you in fact invoke your Fifth Amendment privilege which he ...