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counts, while leaving the major counts virtually intact.

Mr. Kamiyama's motion to dismiss, was denied.

The significance of these alleged translation

errors is self-evident, in that the precise content of each question and answer is critical to a charge of willful perjury. The allegations of inaccuracy raised in

Mr. Kamiyama's case, however, were never conclusively resolved. Thus, while the trial court appointed its own independent translator (TR. 6541-6542), the independent translator's corrections were never incorporated within a new indictment, nor were the Government's voluntary corrections to the superseding indictment adequate to cure the prejudicial impact of the perjury charges.

In addition to these translation errors, the

Government controlled the Grand Jury investigation in an essentially unfair manner. Thus, although Mr. Kamiyama did not speak English and did not have his own attorney present during his Grand Jury testimony, and although Mr. Kamiyama was asked to testify as to detailed matters which had occurred almost eight years before, the Government intentionally did not provide him with copies of documents for him to verify. (P128-133.) Further, Mr. Kamiyama

testified for a total of three days. On the second day of his testimony, he appeared before a Grand Jury other than the Special Investigating Grand Jury. The transcript of that testimony was subsequently read to the Grand Jury which

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actually issued the superseding indictment. Although the testimony Mr. Kamiyama gave on the second day pertained to significant sections of the perjury counts, the Grand Jury which issued the indictment was not present to observe his demeanor or to make an accurate assessment of his credibility. Significantly, the prosecutor himself stressed the issue of credibility with respect to Mr. Kamiyama's Grand Jury testimony. (TR. 423.) Defense counsel learned at the end of the trial that the prosecutor, Mr. Flumenbaum, was responsible for scheduling Mr. Kamiyama's testimony on the second day. At that time, Mr. Flumenbaum knew that the investigating Grand Jury was not in session. Nevertheless,

Mr. Flumenbaum instructed the foreman to recall Mr. Kamiyama on that date.

More generally, the Government's "bad man" theory 24/

of this case

can be detected in the prosecutor's

questioning of Mr. Kamiyama:

Q: Did Reverend Moon ever write any portion of the checks on the Chase Manhattan account other than his signature?

24/

The following exchange is illustrative:

THE COURT: The picture the jury could draw is that everybody else is working for nothing, just for the benefit of the church, but that the Reverend Moon is running the whole business for his own benefit since he is the only one keeping his salary out of it.

Whether that is a justified inference or an unjustified one, it is a permissible one and it seems to me consistent with the Government's theory of the case.

MR. STILLMAN: Where is the part of this indictment that this ties to other than some kind of bad man theory?

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A: He never wrote anything other than his signature as far as I remember.

Q: So, to your knowledge, he never wrote anything but the signature, is that correct?

A: To the best of my knowledge Reverend Moon never affixed anything, other than the signature in the books, in the check.

This response was alleged to be perjurious under Count Ten, paragraph 31, of the superseding indictment.

In this particular instance, there was no direct evidence that Mr. Kamiyama ever saw Reverend Moon write anything other than his own signature, or that this occurred under circumstances which Mr. Kamiyama would have reasonably been aware of. Despite the fact that the Government had checks which Mr. Kamiyama could have identified, the Government did not show those checks to Mr. Kamiyama. (P133.) It preferred, rather, to question him with regard to events which occurred nearly eight years before, through a Government translator whose subsequent accuracy was subject to serious dispute. More fundamentally, however, a perjurious response must constitute a willful misstatement .of fact. Mr. Kamiyama's qualifing statements, such as, "as far as I remember" and "to the best of my knowledge," should have prevented his responses from being construed as

perjurious.

Similarly, it should be emphasized that the most damaging evidence presented against Mr. Kamiyama in support of the perjury counts, was the testimony of Michael Warder.

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1976

As noted earlier, Mr. Warder's trial testimony directly conflicted with his prior testimony before the Grand Jury. Mr. Warder's statements moreover, could not be confirmed by detailed diary entries which he kept, because his diary for the most relevant year for purposes of the conspiracy prosecution, was not provided to the Government. (TR. 5294.) At no point, moreover, did the Government attempt to locate such evidence. (TR. 5294.) Also detracting from Mr. Warder's credibility, was his inability to recall the name of the interpreter who was present during the conversations with Mr. Kamiyama cited by the Government in support of the perjury counts against Mr. Kamiyama. (TR. 5293.) The Government's zealous use of this discredited testimony stands in sharp contrast to its warnings to the jury concerning the credibility of witnesses "controlled" by Reverend Moon. (TR. 6173, 6498.)

Finally, at the conclusion of the trial, the court advised the jury that because of the nature of simultaneous translation, it could be expected that an interpreter who had several days to prepare translations would have an advantage in terms of accuracy. Nevertheless, the Court stated that the Grand Jury's translator had the benefit of hearing words which were inaudible on the Government's tapes of the Grand Jury proceedings, concluding that although the Court appointed translator's corrected version was available

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to the Grand Jury, the Court would not necessarily recommend The Court thus minimized the very

that they review it.

25/

real problems which had been raised by counsel for

25/

TR. 6541-6543:

. [Llet me mention to you that in the course of ruling on the motions concerning the translation, I had a Court translator appointed and that translator made an official translation for the Court as to what occurred in the grand jury. Needless to say, that is a far more accurate translation than the contemporaneous running translation that was made by an interpreter in the jury.

I think you will understand that somebody sitting down and listening to and studying for a period of time the translation involved can come up with a much more complete and accurate translation than can somebody who is making a simultaneous translation immediately before the jury.

In one regard, however, the interpretation in
the grand jury is better than the Court appointed
translation, and that is that the interpreter on
the scene was able to hear things that on the tape
the Court appointed translator couldn't pick up,
so the Court appointed translator has got some
inaudibles where the translator in the court made
translations.

I should also tell you that translations, particularly from the English to the Japanese and back from Japanese to English, is not an exact science. These are two linguistic systems with uncommon basis. There is a good deal of discretion in going about translating a phrase in order to convey the meaning.

The Court translation is available and should you want to see it, you may ask for it. I do not suggest to you that it necessarily has any importance in the case.