30

Mr. Kamiyama on several occasions, Mr. Flumenbaum objected to any procedures which might have remedied the situation.

2.

The Translation of Mr. Kamiyama's
Testimony Prepared by the Court-
Appointed Translator Put Mr. Flumenbaum
on Notice That Mr. Mochizuki's
Interpretation Was Inadequate.

In response to Mr. Kamiyama's Motion to Dismiss the Indictment, the Government stated that it would not object to the use of a court-appointed "independent" Japanese translator to resolve issues pertaining to the disputed portions of Mr. Mochizuki's interpretation. Mr. Flumenbaum noted that it was "not the intention of the Government to prosecute Mr. Kamiyama for something which he, in fact, did not say. ..." Affidavit of Martin Flumenbaum, January 1982 (A. 555). Ms. Kosaka's subsequent translation of Mr. Kamiyama's testimony revealed that Mr. Mochizuki's interpretation contained numerous errors, omissions and deletions. 9 Thus, following a discussion of these mistakes during the hearing on Mr. Kamiyama's Motion to Dismiss the Indictment, the prosecutor agreed that the court-appointed translator's version of Mr. Kamiyama's testimony "would be put in the part (sic) as the

Government's case on the perjury count." 307 Ms. Kosaka's translation, however, was never presented to the jury as agreed.

Despite Mr. Flumenbaum's representation to the Court that he would accept the Kosaka translation as the basis for the presentation of the false swearing counts to the trial jury, Mr. Lawler's effort at the end of the trial to have the court-appointed translator's reconstruction considered by the jury, was opposed by the prosecution:

MR. FLUMENBAUM: My understanding of that
conference and decision was that your Honor for
purposes of that motion took the Court
interpreter's version as being a standard upon
which we could compare what took place in the
grand jury. Your Honor, then made a legal
determination as to whether the word changes were
of any material variance.

THE COURT: All that is correct. But then I went a further step and said what are you going to do at trial? ... I asked you whether you agreed

36/

THE COURT: But I am still asking you what are we going to do with the official court translator's translation? Is either side going to use it, and if so, how?

MR. LAWLER: We have indicated that for the purposes of this motion, we are prepared to accept that translation. ... I guess my interpretation was that by agreeing for purposes of this motion that I was also agreeing that that would be the translation which would be put in the part as the Government's case on the perjury count.

THE COURT: Do you agree with that?

MR. FLUMENBAUM: That's right, your Honor. P. 302-303. (Emphasis added.)

with that, and you said that's right but you didn't
do that.

MR. FLUMENBAUM: There certainly would not be
any indication that we would put in as part of the
court-appointed translator's items which were not
part of the indictment. I can't believe that that
could have been Mr. Lawler's understanding. We
are only talking in terms of what was in the
indictment. The reason that that was taken out
was because Mr. Lawler had originally challenged
the original indictment because of the fact that
there was a difference in the translations.

T. 6091. Shortly thereafter, another prosecution attorney, Ms. Jo Ann Harris ("Ms. Harris"), also objected to the use

of Ms. Kosaka's translation:

MS. HARRIS: Your Honor, at this point we
object, I mean we laid out exactly how we were
going to present this to the jury in our case. I
walked over there -- I read -- I was using the
indictment that Mr. Lawler had agreed that I could
use the indictment to do it. ... I had already
warned everybody that I was going to say that and
I read it. If there was going to be an issue at
all I should think that it ought to have been
brought into the case when Mr. Lawler had his
chance and that he really ought to be precluded
from doing it now. It just fogs up this record
for no good reason at all. (Emphasis added.)

Mr. Kamiyama's attorney subsequently reiterated his request that the more accurate translation be placed before the jury:

MR. LAWLER: I want the more accurate translation before this jury. The whole purpose of the court-appointed translator and the subject

See, note 35, supra.

of the proposed hearing was to get the most
accurate version and that is what I thought we had
agreed upon to avoid the hearing that both sides
were in agreement that this was the translation
that would be used. (Emphasis added.)

THE COURT: If we get to the point of giving
them the official court translation and explain to
them why it was done, then I will explain why the
additional indictment resulted, because it is
based upon a more accurate translation. That will
cover that.

T. 6153.

After Mr. Flumenbaum objected to including Ms. Kosaka's translation with the indictment that would go to the jury, Mr. Kamiyama's attorney asked the Court how it would instruct the jury on the question of the court-authorized translation:

THE COURT: I am going to tell them how it came to exist and why it exists and the fact that it is available to look at if they wish to.

Subsequently in his instructions to the jury on Count Ten, Judge Goettel read directly from the superseding indictment, omitting those questions and answers which would have explained other statements made by Mr. Kamiyama. 20 As discussed earlier, in his instructions to the jury, Judge

so E.g., that Mr. Kamiyama did not personally prepare all of Reverend Moon's checks himself. (T. 6621-6623.) Judge Goettel also read Mr. Flumenbaum's question: "Did you prepare all the checks," rather than Ms. Kosaka's correct translation: "... you wrote out everything in other portions so that Reverend Moon can sign. ..." See discussion infra at Section C.

Goettel stated that the official translation by the Court was more accurate because of the ability of the translator to study the transcript rather than rendering a "simultaneous" interpretation immediately before the jury. He further pointed out, however, that the interpretation prepared during the Grand Jury hearings was better than that of the court-appointed translator, because the interpreter could hear words that were not audible on the tape reviewed by the court-appointed translator. Judge Goettel thus concluded by stating:

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.

T. 6543. (Emphasis added.) The jury, as recommended by the Court, did not request a copy of Ms. Kosaka's translation.

3.

The Government's Intentional Use of a
Second Grand Jury to Hear A Significant
Portion of Mr. Kamiyama's Testimony
Precluded a Meaningful Decision by the
Indicting Grand Jury Regarding
Mr. Kamiyama's Credibility.

The difficulties posed by the misinterpretation of Mr. Kamiyama's Grand Jury testimony were compounded by Mr. Flumenbaum's simultaneous use of different Grand Juries. While an accurate word-for-word translation of a witness' testimony is critical in a perjury prosecution, the witness' appearance before the Grand Jury is also critical to the extent that it allows the Grand Jury to make a reasoned