33 of the proposed hearing was to get the most T. 6149. The Court reached the following decision: 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 38/ have explained other statements made by Mr. Kamiyama. As discussed earlier, in his instructions to the jury, Judge 38/ 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. . discussion infra at Section C. See 34 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. The court translation is available and should you T. 6543. (Emphasis added.) The jury, as recommended by the 3. The Government's Intentional Use of a 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 35 evaluation of the witness's credibility. Despite this fact, the testimony which was used to support several of the perjury counts against Mr. Kamiyama was presented to a different Grand Jury than that which actually returned the indictment. The injustice of using different Grand Juries was raised by Mr. Kamiyama and objected to during pretrial proceedings before the Court. The Government responded that the decision to use a substitute Grand Jury was made by the foreperson of the indicting Grand Jury. According to the Government, following Mr. Kamiyama's testimony on July 9, 1981, the foreperson directed Mr. Kamiyama to appear again on July 16, 1981. Because the indicting Grand Jury had planned a vacation for the week of July 13, 1981, however, Mr. Kamiyama's appearance on July 16, 1981 was scheduled before a substitute Grand Jury. Following Mr. Kamiyama's testimony on July 16, 1981, the Government claimed that the foreperson of the substituting Grand Jury directed Mr. Kamiyama to appear again on July 21, 1981. Mr. Kamiyama appeared on that date and again testified before the morning session of the substitute Grand Jury. When he was directed to return the following week, Mr. Kamiyama asked if he could complete his testimony that day. Because the substitute Grand Jury was not available in the afternoon session, the Government allowed Mr. Kamiyama to complete his testimony during the 36 afternoon of July 21, 1981 before the original indicting Grand Jury. The Government explained that the indicting See Grand Jury "had just returned from its vacation." ability of the indicting Grand Jury to assess his It was only after the close of the Government's case that Mr. Kamiyama learned of the actual circumstances surrounding his testimony before the substitute Grand Jury. 39/ As discussed infra at Section C, the issue of substituting Grand Juries arose again following the Court's deletion of several perjury specifications based on the court-appointed translator's conclusions. The Government simply placed the deleted specifications, as corrected, in a supplemental one count indictment which was presented to yet another Grand Jury on March 9, 1982. Although this Grand Jury had absolutely no previous experience with this complicated case, it agreed to return the indictment on the same day that it was presented. Mr. Kamiyama's efforts to obtain a copy of this Grand Jury transcript were opposed by the Government and subsequently refused by the Court. Endorsement, December 13, 1982. See, 37 At this time, Mr. Flumenbaum testified with respect to the scope of the Grand Jury investigation as it affected the issue of the materiality of the perjury counts. During the cross-examination of Mr. Flumenbaum by counsel for Mr. Kamiyama, the following exchange took place: MR. LAWLER: Now, Mr. Kamiyama was asked to testify on the 16th of July? MR. FLUMENBAUM: That's correct. MR. LAWLER: Even though the Grand Jury that was conducting the investigation was not going to be in session on that day? MR. FLUMENBAUM: The Grand Jury that was conducting the session, the foreperson directed Mr. Kamiyama to appear on the 16th, knowing that he would appear before another Grand Jury, and knowing that MR. LAWLER: Do you mean to tell us that the transcript reveals that the foreperson of the Grand Jury stated on the record that you are to return on the 16th before a different Grand Jury? MR. FLUMENBAUM: I am sure Mr. Kamiyama wasn't told that, but - I am not saying one way or the other. I am (Emphasis added.) Mr. Flumenbaum's original testimony suggested that the decision to ask Mr. Kamiyama to return on a day when a substitute Grand Jury would be scheduled to |