38 hear his testimony was made by the foreperson of the original Grand Jury. During the questioning which followed, however, Mr. Flumenbaum was forced to admit that he made the decision requiring Mr. Kamiyama to return on July 16 and that he asked the foreman to instruct Mr. Kamiyama to return on that day: MR. LAWLER: Did you in fact on that date instruct the witness did you in fact ask the foreman to instruct the witness - MR. FLUMENBAUM: That's an important distinction, Mr. Lawler. MR. LAWLER: Will you let me finish the question please, Mr. Flumenbaum? You are a witness now. Was it you who instructed the foreman to instruct the witness to be back here next Thursday, July 16? MR. FLUMENBAUM: I did tell the foreman to instruct the witness as such. MR. LAWLER: You were the one who initially stated July 16; is that correct? MR. FLUMENBAUM: I told the foreman to MR. LAWLER: And is that recorded somewhere? MR. FLUMENBAUM: As you know, the documents that you have only reflect Mr. Kamiyama's appearance before the testimony before the Grand Jury. . . . - MR. LAWLER: Do you have a transcript which reflects that which you have just given us as your recollection? 39 THE COURT:- Sustained. It has nothing to do with materiality. (Emphasis added.) Although Mr. Flumenbaum subsequently admitted that one of the issues that was important to the Grand Jury was Mr. Kamiyama's credibility, he also admitted that he had directed the foreman to request that Mr. Kamiyama appear on a day when he knew the indicting Grand Jury would not be in session. The Court, however, refused to allow Mr. Kamiyama's attorney to question Mr. Flumenbaum with reference to the transcripts which detailed Mr. Flumenbaum's discussion with the Grand Jury on that point. Without such examination, or a review of those transcripts, there is no apparent explanation for the necessity of Mr. Kamiyama's appearances before the substitute Grand Jury on July 16 and July 21, 1981, when the original indicting Grand Jury was available by at least July 21, 1981. C. The Original Interpreter's Rendition of The foregoing discussion is best illuminated by several examples of the Grand Jury interpreter's incompetence and the prosecutor's manipulation of the misinterpreted testimony cited within the indictment. several instances, the prosecutor selectively altered the terms of the indictment in order to support the Government's In 40 predetermined conclusion that Mr. Kamiyama had testified The prosecutor, 40/ falsely before the Grand Jury. moreover, totally ignored the conceededly more accurate 40/ Mr. Sasagawa, in his August 25, 1984 statement, confirmed that the prosecutor was convinced of Mr. Kamiyama's guilt from the outset of the proceedings: A: When I went to the Prosecutor's office the first day, the Prosecutor said that the Interpreter was doing well, but there seems to be a problem in his translation, so please check this part. Q: What exactly does, 'there seems to be a problem' mean? A: Well, probably the translation, I took it that someone was saying it was not accurate, or deceptive, and I thought that he wanted me to check out whether this court interpreter was intentionally making errors in translation. Later, I found out that Mr. Flumenbaum had a certain amount of trust in the court interpreter. So, what Mr. Flumenbaum said in the beginning about the interpretation being a problem, I misheard, and now I think that what he was saying was that from the beginning, this Defendant Kamiyama was guilty of perjury, and wanted to pursue that point thoroughly. Q: Does that mean he wanted to pursue it as a charge of perjury all the way? A: Yes, I think that's right. . . A: he seemed as though he was say, colleagues of Mr. Flumenbaum, they were See Exhibit L, supra at 9, 48. (Emphasis added.) 41 reports of Mr. Sasagawa and the Court-appointed translator, and misled the Grand Jury with respect to Ms. Kosaka, 41/ the nature of the changes to be adopted. 1. Oath A valid oath is a prerequisite to a conviction for perjury. Indeed, the very essence of perjury consists in the witness' violation of his sworn committment to tell the truth. Grand Jury witnesses, accordingly, are routinely adminstered an interrogative type oath, designed to "awaken [their] conscience and impress [their] mind with [the] duty to [testify truthfully]." See, Rule 603, Federal Rules Do you solemnly swear that the testimony you are A witness must knowingly and intelligently assent to this oath in order to be properly sworn. somebody sitting down and listening to and involved can come up with a much more complete and T. 6542. 42 The record of the proceedings in Mr. Kamiyama's case demonstrates that the Grand Jury interpreter consistently misinterpreted the standard oath, altering its interrogative form as well as its imperative to tell the truth. On the first day of Mr. Kamiyama's testimony, for example, the interpreter summarized the oath as follows: As for this case, uh, as for here, as for the Similarly, on the second day of testimony the interpreter characterized the oath in the following manner: At this time before the Grand Jury, OK? We'd like In both of these instances the oath was conveyed as a vague feeling or hope, rather than a concrete question requiring a distinct yes or no answer. The statement rendered by the interpreter, moreover, did not express the solemnity of the witness' undertaking and did not advert to the term "swear." Mr. Kamiyama, consequently, did not 42/ These translations were developed by Professor John Hinds, a linguist on the faculty of the Department of Speech Communications at the Pennsylvania State University, based upon the audio tapes of Mr. Kamiyama's Grand Jury testimony. Professor Hinds' declaration and curriculum vitae are attached hereto as Supplemental Exhibit 1. The translations have been reviewed and confirmed by Mrs. Sato, see Exhibit M, attached hereto; and Mrs. Mitsuko Saito-Fukunaga, see Exhibit 0, attached hereto. Mrs. Saito-Fukunaga's curriculum vitae is attached hereto as Exhibit P. |