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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.
The Interpreter Selected by the Prosecutor
During Mr. Kamiyama's July, 1981 appearances
before the Grand Jury, his testimony, as noted above, was interpreted by Mr. John Mochizuki ("Mr. Mochizuki"),
Japanese-English interpreter retained by the Office of the
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.
Mr. Kamiyama primarily concerned events which had transpired
almost eight years before.
Based on the Mochizuki interpretation of
Mr. Kamiyama's testimony, the Grand Jury returned an indictment which charged Mr. Kamiyama with several counts of perjury. Each of the perjury counts in the indictment contained extracts from Mr. Kamiyama's testimony, with the prosecutor's questions and Mr. Kamiyama's responses quoted in each specification. The statements which the Government alleged to be perjurious were underscored in the indictment.
A review of Mr. Mochizuki's interpretation of Mr. Kamiyama's Grand Jury testimony, which, as discussed below,
was replete with errors, supports the conclusion that this interpreter, selected by the Government, was not qualified to interpret testimony in a formal Grand Jury
Because Mr. Kamiyama was a subject of the Grand
Jury's investigation at the time he testified, moreover, and because the interpretation of his testimony was subsequently used as the basis for a perjury indictment, Mr. Mochizuki's fitness for interpretation under the formal conditions of a
16/ Grand Jury proceeding was a matter of vital importance.
See, Section C, infra. 16/
Mr. Kamiyama was notified in March, 1981, that he was target of the Grand Jury investigation.
The conclusion that Mr. Mochizuki, was not qualified to perform interpretation in a formal Grand Jury proceeding where witnesses are under investigation, is warranted in view of the qualifications required for interpreters used in judicial proceedings under the Court Interpreters Act, Pub. L. No. 95-539, 92 Stat. 2040 (1978), 28 u.s.c. 1827 et seg. ("the Act"). Although the Act was adopted in 1978 in order to establish a program to facilitate the use of interpreters in Federal court, 28 U.S.C 1827(a), and to ensure that only qualified
See, Exhibit A. Neither the language of the Act itself nor its legislative history clearly indicate whether the Court Interpreters Act was intended to apply to Grand Jury proceedings. However, to the extent that Grand Jury proceedings are clearly subject to the supervision of the Court, and have been held to be an appendage of the Court, rather than a part of the Executive Department, it can properly be argued that Grand Jury proceedings were intended to be subject to the provisions of the Act. The ability of the Grand Jury to issue an indictment allowing the Government to prosecute a defendant, together with the requirement that a Grand Jury interpreter be selected by the prosecutor rather than a potential defendant, are important factors which weigh in favor of a liberal construction of the Act. In view of these factors and the express remedial purpose of the Act, a potential defendant appearing before a Grand Jury who cannot speak English should be accorded the right to have his testimony translated by an interpreter who would be qualified to perform during any subsequent trial. A contrary interpretation of the Act would subject non-English speaking persons to "an open and public accusation of crime, and (to) the trouble, expense, and anxiety of a public trial before ... probable cause is established by presentment and indictment." Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857). See, legislative history of the Court Interpreters Act of 1978 at 1978 U.S. Code Congressional and Administrative News, P. 4655, attached hereto as Exhibit B.
interpreters are used in judicial proceedings initiated by the Government (H.R. Rep. No. 1687, 95th Cong., 28 Sess, 4 (1978), a program to certify Japanese language interpreters had not been implemented at the time of Mr. Kamiyama's Grand Jury appearances in 1981. Such a certification program, moreover, has not yet been implemented today, almost six years after passage of the Act. The only certification
program which has been established to date is that for
Spanish language interpreters, under a test developed
18/ shortly after passage of the Act.
Certification under the program adopted by the Administrative Office of the United States Courts requires that interpreters for non-English speaking witnesses be capable of performing both consecutive and simultaneous interpretation. The interpretation capacity required under the Court Interpreters Act is thus most comparable to the qualifications mandated for "conference" level interpreters
19/ by the State Department. Mr. Mochizuki, however, was
not qualified to perform conference level interpretation and would not have been qualified as an interpreter for judicial
The Court Interpreter's Act, for that matter, is still administered under "temporary" regulations first promulgated on January 22, 1979. 19/
See, pp. 16-17, infra. See also, Affidavit of Robert E: Heggestad detailing an interview with Mr. J. Leeth of the Administrative Office of the United States Courts, attached hereto as Exhibit C.
proceedings in accordance with the standards implemented
under the Act.
Mr. Mochizuki's was certified as an "escort" level interpreter by the State Department on November 1, 1977. 207 The difference between the State Department's standards for "escort" level interpreters such as Mr. Mochizuki, and "conference" level interpreters, is quite significant in the context of judicial or legal proceedings. The test administered by the State Department for conference level interpretation requires an aptitude for simultaneous interpretation. Because simultaneous interpretation is performed as the words are spoken, the test for conference level interpretation is far more difficult than the test for escort level interpretation. Conference level interpretation, as the name implies, is used primarily during important international negotiations, conferences and seminars. Thus, unlike escort level interpretation,
20 The State Department classifies interpreters according to three levels of demonstrated competence: "tour guide" interpretation; "escort" interpretation; and "conference" interpretation. Within this gradation, "conference" level interpretation is by far the the most sophisticated and difficult. See Affidavit of Robert E. Heggestad, attached hereto as Exhibit D, detailing an interview with Mr. Manabu Fukuda, a Japanese-English interpreter employed by the Interpreting Branch of the Language Services Division of the United States Department of State.