William Nezowy v. United States

ADAMS, GARTH, Before HUNTER Judges. Circuit THE COURT OF OPINION GARTH, Judge: Circuit from convictions appeals William false statements making three counts on Immigration Naturalization Ser- 18 U.S.C. 1001 (INS) § in violation of vice Although we F.Supp. (1976).1 erred court district conclude cross-examine a allowing government of her witness about invocation defense against self-in- fifth to be crimination, we this error harm- find therefore affirm. less and sentations, any false or or uses writ- (1976): makes 1. 18 U.S.C. § knowing the same con- document or Whoever, jurisdic- any matter within false, any fictitious or fraudulent state- agency tain any department the Unit- or falsifies, entry, more knowingly willfully fined not than shall be ment or ed States scheme, trick, up any $10,000 imprisoned than five not more or covers or conceals false, fаct, any years, material or makes or device a or both. repre- or or fraudulent statements fictitious was clearly support sufficient evidence to I. trial, these convictions. At Nezowy admit- self-proclaimed acted as “immi- ted for asylum that he filed for a gration consultant” behalf certain nationals, number of Polish Anna including Polish nationals. He associated Knochkowski, Barbara Pas Economopoulos, Konowal, attorney, represent- Louis an who Kotowska, Janina and Marian Grech. Yet ed clients before the INS. they all testified that had not authorized in fluent Polish and would often accompany Indeed, do so. Nezowy to Anna Knochow- clients INS interviews as translator. a ski testified that she Ne- specifically told government charged Nezowy, The zowy political asylum. that she did not want Konowal,-filed application unbeknownst App. at Ms. Economopoulos 322. also testi- with seeking political asylum forms the INS fied told Nezowy that she that she not did clients, clients. alleged, his The it was political asylum. App. 407-08, want at were not aware that was Nezowy seeking did App. Ms. Kotowska. at 654. testi- This political asylum behalf, on their and in fact mony without more is sufficient to a sustain specifically permission had denied Nezowy verdict Nezowy political asylum filed to make such a receiving claim. After com- applications knowledge without the clients’ activities, plaints Nezowy’s about thе INS permission, or and consequently made false for an arranged INS official who under- statements to the INS. Polish stood to conduct an applicant inter- view, present with Nezowy interpret- as an III. er. The INS official trial testified at The issue only requires discussion failed Nezowy accurately to translate on this appeal whether district court client, conversations with his deleting all judge in allowing erred States “political references to asylum,” and there- Attorney to wit- defense cross-examine by hiding the fact that the client did not ness her about invocation of the fifth apply asylum. wish to for such privilege.3 The amended charged indictment applications filed false Nezowy on behalf of A. Knockowski, Lonczak, Anna Anna Barbara part defense consisted in of the testi- Economopoulos, Pas Bozema Jan- Lapinska, Kushnir, mony Nezowy’s of Anna part-time Kotowska, ina and Marian Grech. also secretary. The bulk of Kushnir’s alleged Nezowy, in violation of 18 the office and practices concerned and fiscal 1422 (1976),2 U.S.C. collected § fees for his procedures accounting Nezowy-Ko- permitted services excess of those by law enterprise. nowal Kush- Nezowy offered from all except Nezowy Lonczak. was con- nir’s Konowal’s testi- discredit of filing applications victed false behalf mony of he government on behalf Knochowski, of Economopoulos, Ko- (Konowal) was unaware of activi- Nezowy’s towska. He acquitted was on all other ties and that he fees any never derived counts. from them. Kushnir also stated that she present meeting at a between

II. Grech in which she heard Grech Marian preliminary matter, asylum As a filing political observe consent to the of a that, contention, contrary Nezowy’s petition. there at Kushnir testi- App. 1185-86. (1976): $5,000 imprisoned 2. 18 U.S.C. five § than or not more than years, or both. demands, knowingly charges, Whoever so- licits, collects, receives, agrees or or appeal. raised two other issues on charge, solicit, collect, any or receive other evidence,' sufficiency challenged He money proceеdings additional fees or relat- judge and he claimed that the trial erred citizenship to naturalization or or the failing on concealment to instruct beyond registry moneys of aliens the fees and We find no merit in either authorization. law, authorized shall be fined not more these two contentions. Q. And in the that was before the same Mr. that she was room fied further Finkelstein who had been badgering he Nezowy when conversation you. Economo- Economopoulos and Ms. Barbara arguably rele- only poulos’ husband. A. Yes. meeting portion vant of that related at App. contends that however, Ms. Economo- Kushnir, was when impeachment mode witness political asylum her poulos-asked “whether unduly prejudicial and thus should result in withdrawn,” to which application had been a reversal his conviction. “Yes, it had been Nezowy replied: B. you your App. after made call.” phone acknowledged that she 1177. Kushnir course, rule, general is that conversation but entire mode of of a is a impeachment it. fragments overheard small committed to matter the discretion of court. E.g., trial United States Caha addition, that, while In testified lane, (3d Cir.1977). F.2d Grune jury possi- the as a appearing grand before States, wald United 77 S.Ct. member investigation, in the suspect ble however, (1957), 1 L.Ed.2d 931 the Su threat- Attorney’s Office had U.S. that preme impermissible Court held it was deporta- ened her with denaturalization the Government to that a demonstrate in investi- сooperate tion if she did not the testimony by defendant’s was inconsistent Government, at The gation. App. the about prior defendant his rebut Nezowy’s objection, sought over invocation of the fifth amendment privi so the that Kushnir had been allegation lege. badgered. ques- It did by harassed and so of her tioning Kushnir about the invocation The defendant in Grünewald testified at day: on fifth amendment that privilege completely trial in manner consistent with The his innocence. Government then Kushnir, the Q. did understand you Miss sought prior cross-examine him about his Mr. Assistant rights Finkelstein [the privilege invocation the fifth of amendment Attorney] you day? read to that U.S. grand jury, contending before the that the very A. I was confused because like defendant’s сlaim of the constitut- privilege said, me we interrogated he before The ed inconsistent statement. Grü- prior in. went however, Court, was newald held that there Q. he rights Did the you understand inconsistency protestations between of you day? read to fifth innocence and invocation of the A. Yes. danger the privilege. amendment Q. in invoke Fifth you your Did fact inferences from jury improper draw Amendment which he ad- led privilegé the invocation of the the Court of you day? vised conclude that the had erred in judge trial allowing A. mode of impeachment.4 Yes. this ' properly part: jury 4. The stated used. If the here Court in followed the instructions, judge’s namely, plea that the of question are not unmindful We the the Fifth Amendment was relevant sufficiently is in- whether a statement given credibility, weight the to be this then jury go to be consistent allowed to to the since, negligible, was less than as evidence usually the of within above, outlined there no true judge. But where discretion the trial involved; inconsistency it could therefore evidentiary grave such matter has constitu- hardly have affected the Government’s case overtones, here, tional it does we feel as seriously completely. to exclude the matter justified exercising supervi- this Court’s hand, danger On other sory pass question. This control to on such a by testimony -impermissible made use of the particularly so because this case plea implicitly equating the Fifth impermissible dangers use of this is, guilt light of сontem- Amendment with outweighed advantage far whatever porary history, negligible. Weigh- far might it if Government have derived from go The Grünewald Court did not so far as little relevance in rebutting any assertion to fashion a blanket rule would al- Moreover, that Kushnir had been harassed. ways admissibility of this form preclude whether Kushnir was harassed or not was Rather, impeachment. pin it chose to its merely tangential itself issue. Whatever facts particular decision on the of Grüne- probative value could have been eked out of case,5 doing wald but in so implied that testimony outweighed is more than great caution must be exercised in accept- potential prejudicial admitting effect of such testimony. testimony regarding a fifth amendment claim of however, jury. before a The dan- government argues, inconsistency ger negligible, actual reflected in Kush- is far from as the Grünewald sharply it, nir’s is more drawn in Court saw that “the jury [would make] Grünewald, this case than in in that Kush- impermissible use the im- nir’s invocation of the fifth amendment plicitly equating plea of the Fifth ” rebuts her directly claim that she guilt.... Amendment with at Attorney harassed during 423-24, Here, as in Grüne- grand jury investigation. govern- wald, we find that the balance tilts convinc- ment contends that Kushnir’s claim priv- ingly inadmissibility. toward ilege is a clear indication that she “was capable of to the standing up government,” present Because of the ever danger and therefore the trial cross-examination that a jury might misunderstand the con proper a direct contradiction to her text in which such fifth ques claim of harassment. We cannot agree. occurs, tioning and because such inquiries, invariably challenged at trial and ques The fact that the Attorney warned appeal tioned on no matter how well-inten Kushnir of her fifth amendment rights tioned, may infect an entire trial which is might perhaps probative be in determining error, otherwise free from and because we whether he badgered” “harassed or her. too find it imagine any difficult to Whether circum Kushnir actually invoked the priv- stance however, where such examination ilege, would be simply is irrelevant to the relevant we appropriate, whether she was hold that in fact ha- by rassed the questioning Government. of a witness the ‍​‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​​‌‍every It is Government bit as badgered conceivable for a as to whether he previously witness claimed the invoke fifth amendment rights out of constitutional right fear to refuse to at a testify as it is to have a non-badgered grand jury proceeding will constitute trial invoke error, out of confident subject defiance. only to a harmless error det The trial cross-examination, therefore, had ermination.6 factors, therefore, honesty these we feel that privilege from invocation of a upon supervisory should power draw our worthy deemed of enshrinement in the Con- over the administration of federal criminal stitution. justice in 425-26, order J., to rule on the matter. (Black, Id. at 77 S.Ct. at 984-985 Grunewald, 423-24, concurring). U.S. at 77 S.Ct. at 983-984. holding, questioning 6. Our i.e. Justices, Black, 5. Four government headed concerning Justice would a witness’ fifth amend- have made the rule grand jury absolute. In Justice ment claim of before a will concurrence, Black’s error, he obviously stated that: constitute trial includes a de- agree non-party I fendant well as a the Court that witness. use of the claim however, emphasize, present- We that the upon issue to reflect [de- error, only not, ed in this case involves was but fendant’s] I do corrective Court, required my non-party, like the rest action when a such as conclusion on the special here, Thus, questioned. contrary Kushnir circumstances of this case. can special think of no (see p. circumstance intimations of would the dissent dissent at justify 1127), use of a constitutional we have no occasion to address person adoption discredit any per or convict a who providing asserts se rule for incongruous it... It seems and indefensible automatic reversal in the event a defendant for courts questioned by which exist and act under the himself is the Government as to ’ Constitution privilege. to draw inferences of lack of his fifth amendment Kotowska, Ms. since Ms. Knochowski

IV. directly Kushnir made statements con- Although we concluded cerning alleged either victim. also required for potential prejudice claims, however, that the cross-examination from be precluded Government testimony, the use of her fifth Kushnir’s which was Kushnir on discredited of the rec examination privilege, a careful it exculpatory since tended to generally this did not potential us that ord satisfies that, contrary government’s to the show degree prejudice into that crystallize assertion, Nezowy acted with authorization Nezowy’s compel which reversal attorney Konowal. Whether or not conviction. from Ko- Nezowy acted authorization Natale, States v. In nowal, however, ac- was not related denied, 950, cert. Cir.1975), (2d a false statement for making tual crime of (1976), 48 L.Ed.2d 193 charged. was If which on harmless restated its rule Second Circuit for asylum, false applications fact made error is instructive in this situation. did then whеther Konowal or did autho- resulting There, the court found that is irrelevant. The dis- Nezowy’s rize acts cross examination from fifth amendment the clients is whether positive inquiry testimo (1) was when the witness’ sought authorized the asylum whom charged, the crime ny remote from activity. (2) was no likelihood there also testified that she heard Ma- link confused and would would have become give Nezowy permission wit to file Nezowy) rian Grech (here the defendant Kushnir’s) privi assertion of the (here ness’ on his political asylum behalf. Unlike Id. at 1171.7 lege. previously mentioned of “au- thorization,” clearly excul- Natale formulation applying indeed, apparently And it did ex- patory. here, appears it first harmless error jury acquitted Nezowy, fоr the him culpate far remote and Kushnir’s full credit charge, apparently giving of that charged regarding crimes removed from the held, prejudice appeals no have subse the court that could At least one other court of Williams, quent position States v. 464 has occurred. Cf. United to Gnmewald taken the Cir.1972), Eighth determination, (8th that, subject F.2d where the Cir 927 to a harmless error be cuit that error could not stated use of fifth amendment about the attempted prosecutor a cases, to discredit impermissible when the privilege is in all whether defense witness. Id. 931. “crucial” be defendant or a disinterested the witness the Natale, in Williams had corroborated defend witness party. F.2d United States v. 526 testimony given had a that hе Cir.1975), denied, [defendant] ant’s 1160, (2d 1171 cert. his criminal record to truthful account of 950, 1724, (1976). 193 See 96 S.Ct. 48 L.Ed.2d pur with the a firearms dealer in connection Williams, 927 464 F.2d also United States Natale, linchpin gun. the a In a chase of Glasser, Cir.1972); (8th 443 United States v. holding error was the court’s of harmless denied, (2d Cir.1971), 404 F.2d 1005 cert. recognition “the that that fact Second Circuit’s 30 92 always imply immunity provided does not Lacouture, United States v. 495 F.2d Cf. testify in a Amendment refusal to has that Fifth Cir.1974), denied, (5th 1240 cert. 419 wholly specula fact occurred.... It would be (1974); Unit 95 S.Ct. L.Ed.2d lay jurors an to under tive attribute to these Johnson, (1st ed States v. F.2d immunity pas standing to en of the reference States, Cir.1973); Bowles v. United description anything than a of the sant as more (D.C.Cir.1970), a all of hold that which Natale, procedure.” grand jury 526 F.2d аt a wit criminal defendant is not entitled call having jury purpose hear ness the for the case, jury In even if the would the instant him “take the Fifth.” recognized her invocation of the have Natale, the privilege In was found harmless when that Kushnir had de- fifth amendment grand questions was whether he “testified before the asked clined answer before preceding grand jury immunity.” jury, a The connection context of the under in the unrelated regarding question implication succeeding questions harass- between that the ment, privilege could not have claim of the invoked his fifth amendment the witness had attenuated, Nezowy’s guilt. testify so been associated with to refuse to was therefore, could testimony, tached to her testimony rejecting Mr. to Kushnir’s author- to the detriment of the testimony own that no such Grech’s worked Nezowy. had been defendant given. ization observed, of Kushnir to the only previously other statements As we have presents concern the conversa- ques- which are directed second Natale criterion Economo- among Barbara Pas Nezowy, tion tion of whether a likelihood of confusion Economopoulos’ husband. poulos, and Ms. jury’s would arise in the mind which would gave respect- Kushnir testimony Whatever link to Kushnir’s fifth amendment conversation, however, supra was rela- ing p. this claim. text at See and note value, since minimal tively probative it a highly implausible jury 7. We find her husband carried Economopoulos and imputed could have Kushnir’s impermissibly at the behest of tape concealed recorders her invocation of fifth amendment recordings these the INS. was from cross-examina- Nezowy. improper was transcript prepar- of the conversation one ex- was a momentary and, jury tape, ed. The listened to the trial. change day in midst of nine been having copies furnished employee Kushnir was low level who transcript, transcript tape read the position. worked in a clerical part-time Therefore, well. Kushnir’s version trial suggestion during There was superfluous. Moreover, conversation was Nezowy’s was in implicated she a partic- admitted that she was not Judge writ- scheme. words-of Oakes shе ipant in conversation and that Natale, “the for the Second Circuit portions it. overheard small prosecutor’s naughty words were in effect record, Natale, flyspeck on not a blot.” It is therefore to us that Kush- apparent 526 F.2d at 1172. therefore We conclude testimony given either credit nir’s was full that no been adverse inferences could have or else so exculpatory, when remote passing exchange drawn from this which charged against Nezowy from the crimes in any way could link Kushnir’s invocation first Natale criterion rule Nezowy’s of her privilege guilt. fully Even in the unlikely satisfied. event that a credit Kushnir’s V. one instance but discredit it in another because of her invocation of the We are satisfiеd that no substantial grand fifth amendment before of the defendant was affected jury, tangential her was at best Kush- improper cross-examination of case, Thus, except the relevant issues nir.8 the cross-examination Government’, error, it extent concerned Marian while was harmless. Grech —the count See 52. As with the other Fed.R.Crim.P. arguable supra taint made acquitted. appeal, Whatever at- contentions on this see Nezowy’s course, Nezowy ques- Judge test ADAMS would convic- himself was never Chap- respect any privilege. the harmless error standard of tioned claim California, 18, 824, man U.S. v. 386 87 S.Ct. 17 Although Judge sought ADAMS has Connecticut, Fahy (1967) v. 705 and L.Ed.2d equate the defendant’s standard 85, 229, (1963) 375 U.S. 84 11 171 S.Ct. L.Ed.2d Chapman party error found in with a third (cоnstitutional beyond error must be ‍​‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​​‌‍harmless standard, witness, satis- non-defendant we are doubt). point a reasonable We out that both that, Chapman fied even if the were standard Chapman Fahy, fashioning guidelines and apply, proposition have we determining whether errors constitutional are question, substantial is no we find that there harmless, involved instances where it was the possibility questioning of reasonable rights of the defendant himself might have contributed to the convic- Chapman, 18, been Fahy, 86-87, that had violated. 386 U.S. tion. See 375 84 S.Ct. at 824, (prosecutor Chapman Because, 87 S.Ct. 17 L.Ed.2d 705 com- under 230-231. even testify); Fahy, standard, on complained mented defendant’s failure to harm- the error of was (evi- less, 84 375 U.S. 11 L.Ed.2d 171 S.Ct. or dis- have occasion formulate witness, dence admitted which was seized in violation of cuss a non-defendant stan- Here, rights). defendant’s fourth dard this case. error is before lege prejudicial contention of reversible constitutes 3, we find this note fifth amendment involving Kushnir’s error this Court for the first time. Second merit as well. to be without have held that Eighth ques- and Circuits point on this is tioning defense witnesses will be affirmed. judgment may require and reversal of inappropriate ADAMS, Judge, dissenting. Circuit ensuing convictions. United States any Williams, (8th Cir.1972), v. 464 F.2d not served justice aims of are the court declared: Whatever popular wisdom. disregarding given construction may precise legal be the through his prosecutor, We hold that the self- privilege against to the constitutional argument relating [key and incrimination, “taking the fаct remains invocation of the defense Harris’ witness] “refusing to answer” the Fifth” and Amendment, injected prejudicial Fifth synonyms idiom as everyday entered the reversal. requiring error from the com- guilt. jury Before a drawn Circuit U.S. v. Na Similarly, Second concern- the admission of evidence munity, tale announced the rule that: grand at a invocation of the asks a de prosecutor directly Where a irrelevant, inflammatory jury hearing whether the witness fense witness at trial prejudicial. invariably at the questions grand refused to answer it con majority’s opinion, As I read the answers jury proceedings because Fifth concerning cedes that him, tend to incriminate courts might grand jury before a Amendment claim error and reversed prejudicial have found v. Relying inadmissible. on Grunewald direct efforts the convictions .... Such 963, 1 States, 391, 77 United S.Ct. witness are impeach improp a defense (1957), first con majority States, v. United . . . er under Grunewald questioning cludes that a defendant about that view was based on creates an the invocation of this [which] overwhelming presumption prejudice question prejudiced cannot be sanctioned. The Court sufficiently bearing therefore without defendant non-party holds that de next testimony given he had the truth regarding fense witness Fifth Amendment at trial. a trial sub impropriety, claims constitutes Cir.1975). (2d See also 526 F.2d

ject to a harmless error determination. Glasser, States case, majori Applied to the facts of this denied, Cir.1971), (2d cеrt. Anna Kush holds that defense witness ty 30 L.Ed.2d nir’s was either “remote” rejecting prosecutori- categorically While event charged any the crimes or was privilege, Fifth Améndment inquiry al into any credit” so that “given se rule of adopt per Natale does at trial was harmless. committed Rather, ensuing convictions. reversing all require majority To the extent the judge prose- such Circuit would Second examina- following of a conviction reversal 1) if harmless error cutorial misconduct a defendant about the self-incrimi- tion of re- concerned events witness’s How- join ruling. in that privilegé, nation 2) there charged the crime mote from ever, I have serious reservations because jury’s in the of confusion was no likelihood by аdopted the harmless error rule about the privi- invocation of between the mind de- non-party in the case of majority the and the defendant’s the witness lege by majority’s as well as the fense witnesses majority 1171. The 526 F.2d at conduct. record, dissent. respectfully the I reading of the adopts case present in the opinion

I rule, relies but then Natale Circuit’s Second view of its expansive upon an into the question inquiry The whether exception. privi- of the Fifth Amendment invocation 1128 between defendants guidelines appear do not suf this distinction

The Natale right question a defendant’s to a does not settle the guarantee ficient non-defendants prejudice. Chapman/Fahy ap- trial free of the stаndard whether Instead, against present self-incrimination case. I believe protected plies is, course, Fifth Amendment of constitu independent arguments may that two be pro Its function is “to magnitude. tional invoking advanced for stricter constitution- Grunewald, [persons],” tect innocent 353 in which al standards cases 421, 982, 77 at and its invoca U.S. at S.Ct. is concerning privileges Fifth Amendment consistent with perfectly tion is therefore at trial. introduced innocence. ‍​‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​​‌‍either the or majority Under First, majority position provides Grünewald,1 view in the line of minority distinguishing reason for defendant prose followed non-party for constitu- place proceeding. cution has no in a criminal purposes. is correct as a basic tional Court, however, not ad Grünewald did proposition “[o]rdinarily, may one possibility dress the of a harmless error standing in this to vindicate the claim Court exception holding to its constitutional since rights party.” of some majority minority agreed both the Jackson, 249, 255, 73 Barrows v. 346 U.S. resulting prejudice required reversal 1031, 1034, (1953). 97 L.Ed. 1586 This S.Ct. the convictions. consideration, however, general may be I am reluctant accept, as does ... “outweighed by protect the need to majority, simple that a harmless error stan 257, rights,” id. at 73 at fundamental S.Ct. dard is adequate protect defendant’s 1035, .rigid and is therefore not amenable Rather, fair assuming to a trial. application. fact, different standards per se reversible error rule is nоt more assertion adopted have been for third appropriate, strong argu believe that a depending of constitutional on the rights upon ment can be advanced for placing rights Compare nature of the themselves. prosecution the proving burden of that the States, 165, Alderman v. 394 United question error in beyond “harmless (1969) (no 22 176 89 S.Ct. L.Ed.2d California, reasonable Chapman doubt.” v. raising vicarious of Fourth Amendment 18, 24, 824, 828, 17 386 U.S. 87 L.Ed.2d S.Ct. illegally of others to seized rights suppress (1967). Supreme As the Court declared evidence) Alabama, 357 with NAACP v. Connecticut, 85, 86-87, Fahy 375 U.S. 2 L.Ed.2d 1488 S.Ct. 229, 230, S.Ct. (civil (1958) rights organization permitted to assert First and Fourteenth Amendment whether there is a reason- members). its possibility rights able com- evidence plained might have contributed to thе Although significant body of case law conviction. developed has claims criminal concerning true, out, It is as the majority points defendants the Fourth Amendment Chapman and Fahy rights parties, e.g., involved violation of third see of a right. Salvucci, defendant’s constitutional But States v. S.Ct. majority case, prior present judge Grünewald 1. The found that the In the the trial made no preliminary inquiry required by invocation of the Fifth Amendment could be the Grüne- only admitted into if there were a majority. wald preliminary inquiry by judge: threshold Grünewald, the trial Justice Black’s concurrence [Pjrior may impeach Justices, statements be used to joined by step three other went one of a criminal defendant or an beyond majority adopted per se rule: ordinary witness. But this can be done special I can think of no circumstances judge if the is satisfied that state- justify use of a constitutional ments are in fact inconsistent. person who asserts to discredit or convict a 353 U.S. at at 981. Because S.Ct. it. asserting with inno- consistent J., (Black, Id. at 984 concur- cence, heavy presumption Grünewald creates a ring). against any point. cross-examination on this

1129 The sole case address Fifth Amendment.2 (1980), there is no 2547, 619 65 L.Ed.2d United v. Co the Fifth States point, of controlling body precedent ing precise exist turn What cases do cert. (5th Cir.1978) Amendment. lyer, 571 F.2d 946 Fifth Amendment Fourth and combined denied, of evidence suppression claims (1978), applicabili assumes interrogations with- as a result of obtained Chapman standard without fur ty examinations out Miranda warnings or trial ther discussion. who could have witnesses non-party of it, question whether As I see privilege. Fifth Amendment raised the of Kushnir cross-examination prosecution’s Fredericks, See, v. e.g., United States protec- stricter standard of necessitates Cir.1978); (5th 480-81 F.2d is closely error given to constitutional Skolek, (10th States third-party standing. of akin to the States, Cir.1973); Bryson v. United tertii, jus governing the case law Under (D.C.Cir.1969). These deci- F.2d constitutional claims may assert litigant the case at bar applicable are not to sions her own when the same than his or other not with the evidentia- our concern is since act, imping- injures litigant] “both [the testimony privileged ry potentially fruits of rights оf third the constitutional upon es itself process the infection of the trial but analogy, a criminal defend- By persons.”3 interjection prejudicial the extraneous assert a third con- may properly ant concerning the invocation testimony emphasized that she invoked her Fifth Amendment that the introduction It must be it, way privileges of the Fifth and I think the better do of Kushnir’s invocation statement, not inadvertent. The matter Amendment was to read it from the rather than and resolved as follows: permit was raised at side bar I will be to ask her and would question. Attorney] Your Hon- to ask her that MS. SPEARING: Government [U.S. or, inquire into I would like to MRS. AINSLIE: Fine. [Kushnir’s] grand taking my objection. Amendment in the the Fifth Note MR. CARABELLO: you answered truth- Why objecting? as to whether or not she THE аre COURT: fully grand jury.... prejudicial, in the I it’s MR. CARABELLO: think Honor, go if we could back to rea- Your your Honor. because we son asked for the side bar App. 1209-13. whether she wanted to ask Miss Kushnir questions Note, Standing or whether she in fact answered Jus Assert Constitutional Tertii, so as her Fifth Amendment invoked 88 Harv.L.Rev. While and so on she understood the advice usually bringing to show standing issue arises in the controversy Attorney] giving Mr. Finkelstein was (as [U.S. in First Amendment to court standing up perfectly capable her and is cases), ably analyzes this Note overbreadth Government, contrary implication, to the surrounding third-party doctrinal confusion simply I did not want to create reversible claims: bringing any out somehow exceptions, upon patchwork based respeсt privilege in to Fifth Amendment with questionable force rele- considerations of improper an context. I don’t believe that it’s vance, seems to indicate dissatisfaction improper, like the to rule but would Court against presumption assertion and a on that. guide doctrine to the court lack coherent Attorney] MR. CARABELLO: It’s [Defense jus practice adjudicating tertii claims. A my point what I in- contention at this —and jus permitting claimants to assert tertii ruling immediately get a tend to do so we can injury they complain of which also when the made, is, according ruling you to the parties rights deprives of constitutional Honor, concerning your necessary rights ensure that such are she would— inject practice fully protected. Such a would impeach How does that her THE COURT: consistency degree greater of candor and credibility? engendered than decisions into Court one, MR. Number I asked CARABELLO: honored in the breach. Fi- most often rule her— permit suggested practice nally, the you I know what asked her. THE COURT: jus to turn its attention tertii the Court How does what she has been asked so far claims cases to the substantive impeach credibility? her .... confusing risk of presented without the right, thing All that’s before me now is questions standing. procedural merits go whether the can on and read Government at 443. Id. bring by question- her the out claim, therefore fall within dispel implications guilt. stitutional ment or to Chapman stricter stan Brink’s, York, ambit of the Inc. City v. of New See dard, if claim raised is the constitutional (2d Cir., J., 1983) (Winter, F.2d is committed. valid and"trial error Under Thus, dissenting). the prosecution’s .ques- circumstances, the of a consti validity these of Kushnir tioning infringed upon impor- governed by be this tutional claim would rights tant Sixth Amendment of the de- set forth in Bowman two-part Court’s test Regardless fendant himself. of whether Wilson, (3d v. 1152-53 Cir. claim, can assert a party 1982): infringement of the Amendment in- Sixth person allege inju- For a who himself can dependently standing him provides permitted to assert the ry fact to be applica- appear require would therefore another, rights thereby beyond Chapman of the seeking his own injury redress test. reasonable doubt party, require- and that of the third two test, Chapman apply If we were to First, ments must be satisfied. not withstand Nezowy’s conviction could must there be a close relationship be- scrutiny. previously As this Court held in the litigant person tween and the whose Yeager, ex rel. Macon v. States right asserting, activity he is but the (3d Cir.1973), F.2d a conviction litigant pursue proposes must be inex- portions cannot be sustained when critical tricably up bound with the constitutional disputed of the evidence are and the case is right person of the whom the overwhelming not so can Court Wulff, Singleton drawn. See beyond conclude a reasonable doubt that 114-15 2874- S.Ct. [96 the constitutional error did not contribute (1976) 49 L.Ed.2d (plurality). 826] not, however, to the conviction. I do reach Second, there must exist some obstacle to application ultimate party asserting the third his or her own Chapman analysis standard because an rights. at 115-16 Id. at 2874- [96 of the record establishes that even under met, requirements If both are 2875]. majority’s harmless error test a new injured who is by the conduct of trial is required. another beneficiary not the but constitutional right proscribing that con- duct can nonetheless complain of that II injury by asserting the the in- right of Nezowy was charged falsifying asy- jured third party. applications lum for six Polish nationals. (footnotes omitted). appear He was convicted on three of the eleven Nezowy’s assertion of Kushnir’s Fifth face, its counts. On this division between Amendment prongs satisfies both convictions and acquittals suggests inquiry. the Bowman in- and detailed factual second, A independent applying basis for quiries significance. majority were of the Chapman/Fahy standard is found not in that the testimony key contends defense Amendment,

the Fifth but in the Sixth. witness Kushnir was “remote and far re- Amendment, Under the Sixth a defendant moved,” charged. from the crimes must be able to confront witnesses or to agree. I cannot introduce testimony to rebut evidence or testified that she was a business inferences that could lead to a conviction. associate of from 1972-78. She Allowing into a inquiry defense witness’s stated that in interviews participated she assertion of the self-incrimination seeking with Polish nationals while asylum effectively deprives a criminal defendant of and secre- working paralegal these Amendment she was as a rights. Sixth An infer- guilt associate, ence of cannot be rebutted and his attor- tary since the witness may not be forced to explain ney App. Louis Konowal. at 1175. Ms. basis for invoked the having Fifth further fluent Amend- Kushnir testified that she is fully able follow

in Polish applications regarding conversations E. and Sarah D. Martha SHELNUTT App. 1180- immigration Shelnutt, status. at Appellants, altered general exculpatory testimo- gave 81. She of Ne- concerning practices the business ny HECKLER, Margaret Secretary of M. been a upon having her zowy based and Human Health Services. criminal transac- allegedly a number specific testimo- Moreover, ‍​‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​​‌‍gave she tions. No. 83-1138. surrounding the the events ny regarding Grеch; applications of Pas Ne- asylum Appeals, Court of United States having with falsified zowy charged Third Circuit. applications. Sept. Argued acquitted Nezowy While Dec. Decided he application, Grech’s charge falsifying charge re- on a similar with was convicted opinion majority to Pas. The seeks

gard Kushnir’s the value of

minimize with Pas. The

concerning transpired what

record, however, that Kushnir was reveals testi- with file and she

familiar Pas’s asylum applied

fied that Pas had meeting Nezowy. App. 1175-76. with that Pas’s first meet- further testified

She Konowal, Nezowy, with

ing*was where meeting

that at the one she attended Pas, Nezowy de- present asylum application

clared that Pas’s to her request.

been withdrawn pursuant jury

App. at 1174-77. Were Pas’s regarding immigra-

believed could not have application, her falsifying asylum convicted re-

been

quest. Kush-

The record thus demonstrates that

nir was indeed a critical defense witness. Nezowy,

Her close business association at meetings attendance particular her some of the Polish had with

nationals, that she was a also establishes ‍​‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​​‌‍the activities referred

likely participant of these circum-

to in the indictments. Under

stances, say I am that the unable wrongdoing not have Ne- imputed

could having been informed of

zowy result of plea.

Kushnir’s Fifth Amendment

Ill reasons, I foregoing respectfully

For the

dissent.

Case Details

Case Name: William Nezowy v. United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 21, 1983

Citation: 723 F.2d 1120

Docket Number: 83-1057

Court Abbreviation: 3rd Cir.