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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:

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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
instruct him to be there July 16.
It is my
recollection that it had been discussed with the
Grand Jury in Mr. Kamiyama's absence about his
returning on July 16 and the fact that they were
not going to be there.

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?

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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
Mr. Kamiyama's Testimony Was Substantively
Inaccurate and Inconsistent With Other
Translations Prepared for the Government and
the Court.

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

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predetermined conclusion that Mr. Kamiyama had testified The prosecutor,

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falsely before the Grand Jury.

moreover, totally ignored the conceededly more accurate

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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
confident that Mr. Kamiyama had committed perjury.
When I was talking with other
what shall I

say, colleagues of Mr. Flumenbaum, they were
saying this, (that) he firmly believed that.

See Exhibit L, supra at 9, 48. (Emphasis added.)

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reports of Mr. Sasagawa and the Court-appointed translator, and misled the Grand Jury with respect to

Ms. Kosaka,

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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

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Do you solemnly swear that the testimony you are
about to give this Grand Jury in the matter now
pending before it, shall be the truth, the whole
truth, and nothing but the truth, so help you God?

A witness must knowingly and intelligently assent to this oath in order to be properly sworn.

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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.

T. 6542.

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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
truth, all, uh, we (I) think we (I) would,like to
have you kindly convey only the truth.

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
to have you give a statement as a reference and as
for this, uh, everything we'd like to have you
convey only the truth.

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

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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.

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