9

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 interpretation. The Government, moreover, actively misled

the Grand Jury by deleting statements favorable to

Mr. Kamiyama from the indictment and leaving statements favorable to the prosecution intact. Thus, the superseding indictment was returned by a misinformed Grand Jury and incorporated numerous substantive errors which remained uncorrected.

The

Subsequent to December 15, 1981, Mr. Sasagawa 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. 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' statements. In particular, Mr. Sasagawa informed the prosecution that a valid oath had not been administered to Mr. Kamiyama because of the severe translation errors

10

introducted by the Grand Jury interpreter.

10/

However,

even when confronted with the utter incompetence of its interpreter, manifestly demonstrated by Mr. Sasagawa's report, the Government withheld this evidence from

Mr. Kamiyama, the Grand Jury and the trial jury.

11/

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

10/

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 (2d Cir. 1971).

11/

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
attorney] remembers that when the prosecutors
returned from a trip to the Justice Department in
Washington to argue for authorization on the Moon
indictment, Flumenbaum turned down a ride back to
the New York courthouse from the airport this way:
"If they don't want to authorize prosecution, I'll
take the subway back to Paul, Weiss." [I.e., his
prior employer.]

See, American Lawyer, November, 1982.

11

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 jury. Near the end of the trial, however, the Government reneged on its commitment and read the original inaccurate 12/

consecutive interpretation to the jury.

12

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 13/ submitted to the Justice Department,

were the decisive

13/ See, Section E, infra. The Government never introduced evidence to the effect that these documents were substantively incorrect or misleading. The prosecution (Footnote Continued)

13

factor in the Government's decision to prosecute Reverend Moon after senior Justice Department officials had decided against prosecution. Needless to say, such conduct cannot

be condoned by any society devoted to the rule of law.

14/

A. The Interpreter Selected by the Prosecutor
Was Not Qualified to Interpret Testimony
Presented in Formal Grand Jury Proceedings.

During Mr. Kamiyama's July, 1981 appearances

before the Grand Jury, his testimony, as noted above, was interpreted by Mr. John Mochizuki ("Mr. Mochizuki"), a Japanese-English interpreter retained by the Office of the Prosecutor. Mr. Mochizuki interpreted the prosecutor's questions into Japanese and Mr. Kamiyama's responses from Japanese into English. Mr. Kamiyama, however, was not permitted to have his own personal interpreter, or his attorney present in the Grand Jury room during his testimony. Significantly, the questions posed to

(Footnote Continued)

merely presented evidence demonstrating that the documents were backdated. The defendant's openly acknowledged, however, that the materials were reconstructed. Indeed, Mr. Kamiyama acknowledged before the Grand Jury that certain documents were backdated. The Government did not dispute the fact, moreover, that the events memoralized by the documents did in fact occur.

14/ As noted by Mr. Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 479 (1929): "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Indeed, this case has been characterized as "politically charged." See, U.S. News & World Report, Nov. 12, 1984 at 25.