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retained only after Mr. Kamiyama's December 7, 1981 Motion to Dismiss the Indictment, he had less than seven days to review the tapes prior to his Grand Jury appearance. Obviously, due to the time constraints imposed upon him by the Government, he could not have completed a comprehensive translation analysis prior to his testimony. The Government thus compounded its initial error of proceeding with Mr. Kamiyama's prosecution without first confirming the accuracy of the Grand Jury interpretation.
On the basis of Mr. Sasagawa's partial review of the Grand Jury tapes, the Government deleted certain specifications contained within the perjury counts and altered others in order to form a super seding indictment, which was returned on December 15, 1981. The prosecutor, however, did not present all of Mr. Sasagawa's evidence concerning material interpretation errors to the Grand Jury. The Grand Jury, consequently, was not informed that the testimony which it observed, and especially that which was read to it -- where it did not have an opportunity to observe Mr. Kamiyama's demeanor -- was incorrect. The superseding indictment, moreover, failed to reflect many of the changes which the prosecutor told the Grand Jury he would make, and where it did so reflect such promised changes, the net effect was to render Mr. Kamiyama's statements ambiguous or inaccurate by removing them from their natural context. Significantly though, the prosecutor
repeatedly told the Grand Jury on December 15, 1981 that the
original interpreter had performed competently and that his
interpretation had been substantively correct.
Essentially then, in an area of criminal law where
exacting precision is required, Mr. Kamiyama was indicted for false swearing on the basis of a grossly inaccurate
performed an extensive analysis of the audio tapes, and prepared a written report for the prosecutor, detailing various errors which he detected in the original
interpretation of Mr. Kamiyama's Grand Jury testimony. The interpretation anomalies cited by Mr. Sasagawa, like those detected by Mr. Kamiyama's independent analyst, were numerous and material, and reflected an inaccurate and
oft-times incomprehensible rendition of the parties'
In particular, Mr. Sasagawa informed the
prosecution that a valid oath had not been administered to
because of the severe translation er
introducted by the Grand Jury interpreter. 107 However,
The blatant inadequacy of the alterations to the perjury counts contained within the December 15, 1981 superseding indictment is reflected in the Trial Court's Order of March 12, 1982, dismissing three specifications under Count Twelve, on the ground that the English statements set forth in the indictment varied substantially from Mr. Kamiyama's actual testimony in Japanese. This
> Significantly, a false swearing conviction may not be sustained in the absence of a valid oath. United States v. Whimpy, 531 F.2d 768, 770 (10th Cir. 1978). One cannot give testimony, much less false testimony, unless properly sworn as a witness. United States v. Fiore, 443 F.2d 112, 115 (28 Cir. 1971). 111 — The prosecutor's determination to pursue criminal proceedings against Reverend Moon and Mr. Kamiyama is reflected in certain comments to Justice Department colleagues:
" (Mr.) Mark Pomerantz (an Assistant United States
See, American Lawyer, November, 1982.
action was based upon a translation prepared for the court
by Ms. Michiko Kosaka ("Ms. Kosaka").
The Court ordered
alterations to the superseding indictment, however, were far from adequate in light of the pervasive misinterpretation of Mr. Kamiyama's testimony revealed by Ms. Kosaka's
translation and Mr. Sasagawa's report.
Count Twelve, in
fact, should have been dismissed in its entirety, as should
have the remainder of the perjury counts.
As a result of
the Sasagawa and Kosaka reports, the basis for the
prosecutor's frequent assertions before the Grand Jury that Mr. Mochizuki was qualified, was itself completely undermined. The Government, however, proceeded with its
prosecution of Mr. Kamiyama, knowing that it was based upon a grossly incompetent and inadequate interpretation; that Mr. Kamiyama, accordingly, did not testify falsely; and that
Mr. Kamiyama was not properly sworn.
It should also be noted in this regard that the
prosecution initially agreed to accept Ms. Kosaka's
translation as the basis for its presentation to the trial
Near the end of the trial, however, the Government
reneged on its commitment and read the original inaccurate
12/ consecutive interpretation to the jury.
Thus, as discussed more fully below, Mr. Kamiyama did not testify falsely before the Grand Jury in violation of 18 U.S.c. $1623. The Government, rather, invited error and misunderstanding as a result of its selection of a patently unqualified interpreter. When such misunderstanding inevitably occurred, the Government characterized the subject testimony as perjurious and utilized such charges as a pretext for the assertion of a conspiracy count against both Reverend Moon and Mr. Kamiyama, through which the prosecution brought highly prejudicial "evidence" of the religious practices of the Unification Church before the trial jury. The prosecutor had actual notice long before trial that the interpretation which served as the foundation for the indictment was substantively incorrect. No action was taken to protect Mr. Kamiyama's rights, however, and indeed, the Grand Jury, Court and trial jury were misled in turn with respect to the quality of the evidence supporting the charges against Mr. Kamiyama. These contrived charges against Mr. Kamiyama, moreover, in addition to charges of obstruction of justice, based upon certain allegedly false documents which had been submitted to the Justice Department, 137 were the decisive
= See, Section E, infra. The Government never introduced evidence to the effect that these documents were substantively incorrect or misleading. The prosecution