United States v. Sun Myung Moon and Takeru Kamiyama

thоugh even argues that Finally, Astra of the mark registrations

there are over and individual

“ASTRA,” unique mark is its will uniqueness and this

in the medical field It use of the mark. from Beckman’s

suffer have registrations other

contends that the they its mark because already diluted already fields. We have

are in unrelated that, analyzer the Beckman

noted while in the same broad may be products

Astra field, dissimi- there is sufficient

health care the same confusion. For

larity prevent

reasons, dissimilarity there is sufficient registrations If the other dilution.

prevent mark have not uses of the “ASTRA” of As- uniqueness diminished the

already mark, use of it on its ana-

tra’s Beckman’s it, not diminish either. There-

lyzer will

fore, issue of mate- genuine we hold that no trade- relating

rial fact has been raised

mark dilution. conclusion, considering carefully after briefs, and all of the arguments the oral contentions, is

parties’ we hold that there

no issue of material fact genuine the District

would warrant reversal of Accordingly, judg-

Court’s decision.

ment affirmed. of the District Court

Affirmed. America, Appellee,

UNITED STATES of and Takeru Kami-

SUN MYUNG MOON

yama, Defendants-Appellants.

Nos. 766 and Dockets

82-1275, 82-1279, 82-1277, 82-1357

and 82-1387. Appeals, Court of States Circuit. Second 558; also, F.Supp. 93 F.R.D. See 1360; 817; F.2d 301. Argued March 1983. Sept. Decided 1983.

1212 Tribe, Cambridge,

Laurence H. Mass. (Jeanne Baker, Fine, David J. Baker & Fine, Mass., Cambridge, Charles A. Still- Stillman, man, Shaw, P.C., Friedman & Bailor, New York City, Caplin Bernard S. & Chartered, D.C., Drysdale, Washington, counsel), defendant-appellant for Moon. Lawler, (Mau- Andrew M. City New York McDermott, Milton, rice M. Dennis E. Anne Vitale, Lawler, P.C., T. Andrew M. New Fisher, York City, Barry A. Robert C. Moest, Grosz, Moest, David Fisher & Los Cal., Angeles, counsel), for defendant-ap- pellant Kamiyama. Harris,

Jo Ann Asst. Atty., U.S. New City (William York Tendy, Acting M. S.D.N.Y., Atty. Grindler, Gary G. Gerard E. Lynch, Loughlin, Walter P. Asst. U.S. At- tys., Flumenbaum, New York Martin City, Sp. Asst. U.S. New York Atty., City, of counsel), appellee. Ericson, E. Springfield, (Ed-

Samuel Va. Larson, Va., ward Springfield, counsel), for the Religious Center for Law and Free- dom, amicus curiae. Shapiro, City,

Steven R. New York for the American Civil Liberties Union and New Union, York Civil Liberties amicus curiae. Trent, Jr., Pa.,

Earl W. Valley Forge, for Ministries, National American Baptist U.S.A., Churches in the amicus curiae. OAKES, Before CARDAMONE and WINTER, Judges. Circuit CARDAMONE, Judge: Circuit Myung Reverend Sun Moon and Takeru appeal Kamiyama judgments from of con- 16,1982 viction July entered on in the Unit- ed States District Court for the Southern District of New following York six-week Judge trial before Gerard L. Goettel. Moon was with charged basically filing false tax Kamiyama income returns and obstructing investigation with of those returns. of- Kamiyama with substantive charged is not America’s taxes income Paying justice through of But, of obstruction most fenses pastime. national popular

most grand to the of false documents submission part of certainty of taxes accept the 1503,submitting false doc- jury, 18 U.S.C. § fraud prosecu- Tax of modern life. price Justice, 18 of Department to the uments myriad usually present do not tions perjury, five counts and U.S.C. § here. Yet involved problems constitutional separate A indictment 1623. U.S.C. troubling § raises in this the defense case with an additional Kamiyama charged abridg- religious persecution issues of perjury. count of interwoven that are speech ment of free objection grounds other with May the trial on At the conclusion of reducing huge below. judgments verdicts guilty returned 1982 the argu- the veritable avalanche record and on all counts. both defendants against com- hope what we presented ments terms of was sentenced to concurrent form, this opin- have divided prehensible we through Counts One prison 18 months in on major ion into five sections—Denial $25,000 plus Kamiya- costs. Four and fined Evidence, Trial, of the Sufficiency Bench terms of was sentenced to concurrent ma Issues, Instructions, Jury Miscellaneous on all counts of prison six months in issues Most of the Kamiyama’s Claims. $5,000. Both fined he was convicted and Those not dis- raised have been addressed. pending this stayed have been sentences that we consider points cussed are minor appeal. merit.

wholly without 1982 for September Defendants moved Judge in which We the manner trial, commend misconduct. Af- alleging juror a new lengthy issue, presided especially Judge Goettel in this on this holding hearings ter inevitably crept errors as dated trial. Such motion order denied the Goettel unearthed counsel. Of order on skillfully 1982 and issued an October course, “a only parties are entitled to all restraining defendants November perfect communicating fair trial but not a one.” Lutwak from agents and their 604, 619, States, consent of the jurors prior the trial without Defendants these two appeal L.Ed. 593 court. Defendants their con- did receive a fair trial and we affirm well as from their post-trial orders as counts, Kamiya- on all except convictions victions.

ma’s conviction on Count which is Seven on bank principally The case focused reversed. name in held in Reverend Moon’s accounts Man- the Park Avenue office Chase

BACKGROUND March 1973 Reverend hattan Bank. On into the Chase branch The main which Rever- Moon walked upon indictment and a checking tried account Kamiyama opened personal end Moon and Mr. a nearly the next conspir- During account. charged savings them in Count One with de- million dollars was federal three over 1.7 acy, years to file false U.S.C. § name, Moon’s returns, 7206(1), to these accounts in posited income tax in U.S.C. § A $200,000 was in cash. justice, obstruct and to all but of which 18 U.S.C. § were trans- of the funds government agen- portion make false statements to substantial deposits Chase time cies, high-yielding a ferred to 18 U.S.C. and to federal § Two, During years in Moon’s name. grand jury, 18 1623. Counts held U.S.C. § more investments earned filing Three and 1973-1975 these charged Four Moon interest, as $100,000 reported 1973,1974 false tax returns for and in than in the years tax returns for 7206(1). violation of 26 Counts income on Moon’s U.S.C. § $50,000 issue was in Also at charged Kamiyama question. Five and with aid- Six in 1973 in to Moon 1974 worth of stock issued abetting filing and of the false or- Inc., corporаtion a returns, Enterprises, The II 7206(2). and 1975 26 U.S.C. § Moon and by York in 1973 remaining (Seven Thirteen) ganized counts in New through of this It was engaged prosecution.” was in busi- motives Kamiyama which a prosecutor’s single Korea. conclusion that fact- importing products ness of stock, an govern- placed this finder would be in “untenable” receipt The of which the dividend, an overriding also and that there was apparently position ment views as a tax in the as well public appearance was not reflected as income on Moon’s interest as trial, which the fact of a fair could be return. government a The only by jury. achieved whether, The issue is as the critical normal and employing insisted this claims, Moon these as- government owned mode of of fact issues preferable disposing in- required pay sets and therefore public in a criminal trial would defuse the and the come taxes on bank interest by that had been leveled Moon. criticism or, urges, value of the stock the defense that, beneficially Moon assets on the merely argues contrary, held these The defense upon or as a for the Church. a trial had the effect trustee Unification insistence entering upon exercising Before a of this of Moon for his First punishing discussion issue, we right pun- central first address of free The speech. contentions Amendment ishment, runs, raised defendants of the by argument as a result so the took the benefit, government’s i.e., refusal to consent defend- Moon denying form of a a trial, ants’ a request for bench trial. that he would otherwise have nonjury underlying been entitled to. The rationale I argument for this is that and his negative had press followers received such OF DENIAL BENCH TRIAL that, regardless protes- of the government’s A. As a of the Denial First Amendment tations, it impossible to obtain a fair Right Speech Free a this trial with and that state of It is the view of the was only by defense affairs exacerbated government’s reason for the de- opposing speech. request fendants’ for a bench is uncon- trial Trial a by jury is constitutional stitutional, judge’s acceptance so in Article III Section 2 of the right provided it was error constitutional dimension Sixth,Amendment guar Constitution. The mandating reversal. The back- factual prosecutions, all criminal antees “[i]n ground may simply stated. a rally At right to a enjoy speedy the accused shall New City’s Foley York Square on October trial, public impartial jury and an following his arraignment, Moon the crime State and district wherein shall made a speech reprint- was pаrtially Nothing have been committed.” ed as a full page advertisement New right guarantees Constitution one 5,1981. York Times of November He stat- the right select his own tribunal or to a

ed: impar and fair and speedy public trial I be standing today my would not here if by jury tial judge. right to trial skin my religion were white or were Pres- accused, granted benefit an see Gannett byterian. I am here today only because Co., 368, 380, DePasquale, Inc. my yellow skin is is Uni- my religion (1979), 61 L.Ed.2d 608 things fication Church. The ugliest defendant to waive. power which a has the country beautiful are re- America effective, But before waiver can be ligious bigotry racism. the sanction prosecutor consent In response to defense waive Patton efforts to a of the court must be obtained. See 276, 312, States, trial by jury, prosecutor wrote a letter v. S.Ct. United U.S. to Judge 11,1982 263, dated 253, (1930); Goettel March stat- 74 L.Ed. 854 Fed.R.Crim.P. ing and, her opposition referring to the the benefit 23(a). ability The to waive does above, excerpt quoted opposite. its adding right that defend- not a import claim ants had raised —and stated Supreme circulated world- And the Court has questions about “the of integrity integrity of “confidence in because wide— 23(a) prospective jurors. Application does not dire of See the federal Rule prosecutor, Cohn, (2d Cir.1964). articulate its require that the Government demanding jury a trial at the that a defendant un- insisting reasons for Ordinarily, to a defendant’s time it refuses to consent will does not against a trial his dergo jury Singer v. United proffered waiver.” to due right run afoul of a defendant’s 24, 37, 783, 791, 13 States, 380 85 S.Ct. U.S. Singer a fair trial. process and (1965). L.Ed.2d 630 States, 34-36, 85 at 789- 380 U.S. at S.Ct. recognize, though, we Certainly 790. might as that statement Conclusive the circum- might there be cases where appear, it does not end the matter. For the compelling are so that for court stances held that even Supreme Court has also government’s insistence to countenance government to a though right one has no request on a trial over the defendant’s jury benefit, not may such benefit be denied and alone would by judge deny to be tried a when not be conditioned or granted may Singer trial. v. Unit- defendant a fair See later a reason that an infringes revoked for States, at 791. ed 380 U.S. at 85 S.Ct. rights, especially individual’s constitutional Compelling This is not such a case. circum- See, e.g., First Amendment freedoms. Per ‍‌​‌‌‌‌​‌​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‌‌​‌​​​‌​​​​​‌‌‌​​‌​‌‍ simply are demonstrated stances Sindermann, 593, 597, 92 ry v. 408 U.S. S.Ct. atmosphere poisoned by neg- claims of an (1972); 33 L.Ed.2d 570 Sherbert press. validity ative The of such claims is Verner, 398, 405, 83 S.Ct. U.S. (1963). properly upon prospeс- 10 L.Ed.2d 965 But the shown a voir dire of de court, presented jurors. fendant has no facts on this rec tive The trial wisely recog- government’s ord that convince us that the fol- nizing that was a safer avenue to reason for refusing consent to a bench low order to ascertain whether a fair punish trial was impermissibly Moon for obtained, jury properly could be reserved exercising First rights. Amendment In until after the voir dire its to over- option stead, it appears public prosecutor that the government’s rule the refusal to waive a elected, as right upon was her and based jury trial. the reasons she to have gave, this case tried in the constitutionally preferred manner. Additionally, review of the tran Without the factual predicate support his of the seven script painstaking days argument, the defendant’s claim of error selection, involving interrogation of 63 evaporates. panel out of 200 veniremen for the and 17 positions, the six alternate convinces us

B. As the Denial Right of the to a accuracy finding of the of the trial court’s Fair Trial completed after selection was that “we is, Moon also contends that have prior gotten totally if not bias, the voir dire unacceptable there was an risk free large capable that a fair jury could not be selected putting aside the bias have and decid they therefore that the denial of a bench trial charges.” the case on the merits of the right violated his fair trial.1 This totally ignorant Jurors need not be of a argument, one, like the previous urges that defendant in order to be fair and unbiased. Florida, there was a 282, 302, reasonable likelihood in ad See Dobbert v. 432 U.S. vance public animosity toward Moon (1977); S.Ct. 53 L.Ed.2d 344 religion and his prevent Florida, 794, 798-800, would a fair trial. Murphy v. In our 2031, 2035-2036, 44 view this debatable contention could L.Ed.2d 589 be satisfactorily resolved only upon juror the voir Even a prospective where has formed Appellants subject 1. also contend that the mat- While the trial lasted over six there weeks and prosecution, together introduced, very ter of this tax fraud were hundreds of exhibits few exhibits, complicated jury’s complicated. sheer volume of task them were mesmerizing deciding turned this trial into one of com- own- came down to the basic issue of plexity. ership We believe the case was not so com- of the Chase accounts and the II plex beyond grasp jury. as to be stock.

1219 preconceived opinion guilt (1) some as to the Falsity juror accused in the сase on trial the is (a) Moon’s Financial Picture sufficiently impartial if he or she can set We examine first the regarding opinion aside that and render a verdict falsity. In order to do so we sketch briefly on the evidence in the case. Murphy based defendants’ financial picture. November Florida, 799-800, 421 at at U.S. 95 S.Ct. 1972 when Reverend Moon visited the Unit- 2035-2036; Dowd, 717, Irvin v. 366 U.S. ed he was a successful already States busi- 722-23, 1639, 1642-43, 81 6 S.Ct. L.Ed.2d nessman, being founder and chairman of (1961); Murray, United States v. 618 the boards of eight publishing and manu- 892, (2d Cir.1980). F.2d Significantly, facturing companies in his native Korea. defense only challenged counsel one of the The Unification Church of New York had jurors cause, for and the denial of that begun purchasing and importing ginseng challenge appeal. not raised on Beck See tea and marble vases from some of Moon’s 541, 557-58, v. Washington, 369 U.S. companies. Korean In June 1973 Kamiya- (1962) (failure S.Ct. 8 L.Ed.2d 98 Enterprises ma II in incorporated Tong challenge for cause prospective jurors is New York which purchased and sold these strong jurors evidence defendant considered items. Moon subscribed to 500 shares for biased). Absent a clear abuse $50,000 which, according to some of the discretion, trial court’s one that results in records, corporation’s he for. His paid wife defendants, manifest prejudice $20,000 the find subscribed to 200 shares for and judge Kamiyama made the trial subscribed to 100 shares for $10,000, all original from an issue of 1005 was fair and unbiased must be upheld. See Thus, shares. Moon and his wife had 70 Brown, States F.2d percent company control of the and Moon (2d Cir.), denied, cert. was elected chairman of its board. Al- 70 L.Ed.2d 195 Moon, though 500 shares were issued to he them, did not actually pay for as he had II originally obligated himself to do. Instead the stock pay- was issued to him without SUFFICIENCY OF THE EVIDENCE ment apparently exchange various assets transferred to II A. Counts Two Through Six corporations other which Moon controlled. Defendants argue the evidence In the spring began drawing 1974 Moon presented was insufficient to find them from this as a salary enterprise “business guilty beyond a reasonable doubt on the consultant” opened the same time substantive tax offenses charged in Counts account, checking known as the “household Two through account,” Six. To find defendants in the Chase Manhattan Bank guilty of fraud in the into filing salary deposited. of Moon’s in- which his returns, come tax the jury had to find that noted, earlier, As year about a Moon had statements contained in the returns which opened a personal checking different false, verified as true were in fact (“checking account”) account and an indi- these false statements were willfully vidual savings account at the Chase Man- made. Viewing the evidence in light hattan Subsequently, April Bank. on most favorable to the government and con- $100,000 Moon personally deposited sidering that all questions of credibility are checking into the account. During within the exclusive province of the jury, three-year relationship course of his there ample evidence to find that Moon $1,724,774 approximately bank was de- willfully filed false tax returns for the posited into Moon’svarious accounts. Com- years 1973-75 and that Kamiyama willfully mencing late 1973 he transferred from aided and abetted in the false 1974 and 1975 accounts, checking savings and di- filings. rectly deposited, portion a substantial high-yielding million in Chase time de- earned on the Chase Manhattan Bank $1.7 posits. deposits These time were also held accounts that he purportedly owned and name, in Moon’s and on his instructions recognized income as a result of a distribu- with the interest they, together earned on Tong tion of II stock to him at no cost.2 them, were rolled-over. The total interest Appellants’ principal contentions at trial earned all the on Chase accounts the were that the Chase accounts Tong and II 1973-75, relevant years, approximately Church, belonged stock to the that Moon $106,650. nominee, merely held these assets as the living With the respect expenses, Church, agent, and/or trustee of the and by household account at Chase was used that therefore he not taxable on either pay private the primarily school interest or II stock distribu- Tong the Chase expenses of his children. Ordinary personal tion. and expenses paid by household for Holy Spirit the Association for Unification concluding In properly (HSA-UWC), World Christianity incorpo- Tong accounts and II found Chase stock rated in California in 1961 as the American to be personal property, we start branch of the Unification Church. first with the fact that the Chase accounts II Tong outlined the stock and Having Tong and II securities were maintained in transactions, Chase complete accounts we Moon’s name him. controlled picture Moon’s financial by describing the Second, some funds clearly destined for real estate dealings pertinent to this case. put existing Church entities were Church A month before Moon’s November 1972 ar- bank accounts which were owned and con- rival in the рur- United States HSA-UWC Third, trolled corporations. Church “Belvedere,” chased the 20 acre Bronfman from his handling of the Chase accounts York, $750,- estate in Tarrytown, New for Tong II stock Moon seemingly regarded $550,000 000. The seller took back mort- own, them belonging as his not as to the gage $200,000 balance was paid by Fourth, Church. high ranking members of HSA-UWC. When Moon came in 1972 he the Church were told that the Chase funds occupied the main house on this estate. In “Father,” belonged to not to the Church. the fall of 1973 an adjoining estate became purchased available. It was that October in government The introduced evidence that $631,827. name of HSA-UWC for To Moon actually considered the Chase complete purchase Moon loaned HSA- accounts to be his property own rather than $361,827 UWC checking account Church’s, and that he used funds from at Chase. He also issued his personal check expenditures accounts for which the to Sotheby $51,160 Park Bernet for to pay jury could have personal concluded were for furnishings estate, which he nature. examples Several will suffice. named “East Garden.” In late 1973 Moon’s September 1975 Kamiyama pur- Moon and family came from Korea. He and his staff bank, Diplomat chased shares in a new Na- and, moved out of together Belvedere D.C., $80,000 tional Bank in Washington, his family, up took residence in East Gar- $75,000 worth of stock den. for Moon and Kamiyama. The pay funds used to for the (b) Evidence stock were derived from one of Moon’s time government’s deposits Under the Chase and transferred into the theory case, Moon failed to report interest income account, household and later a check drawn only argument II, 2. Since regard- gift Tong gift defendant’s to him from of course Tong II belonged stock is that it subject would not to the federal income tax. Moon, appears Church rather than to it that he could well have found that the whole taxability concedes the of the distribution if in transaction amounted to an indirect dividend to belonged fact personally. stock to Moon companies Moon from the under his control The defendant did not assert below and does which transferred assets to II. not assert now that the distribution constituted $361,827 outstanding an loan of posits, made payable that account was on National Bank. made in connection with the Diplomat HSA-UWC Garden, $50,000 $4,000 of East purchase purchased when HSA-UWC checking savings in his accounts Chase Garden, East Moon loaned HSA-UWC II respectively $50,000 Tong worth of to com- $361,827 checking from the account $51,160 worth of stock. East Garden had $631,827 transfer purchase. This plete Sothebys. from furnishings purchased as a was carried on HSA-UWC’s books of a These had a value in excess Later, when assets loan from Moon. personal the leaders of mortgage point was unable to meet million dollars. At HSA-UWC $500,000 mortgage on the on payments Washington a law consulted HSA-UWC “Belvedere,” broke a time de- Chase number of business and regarding firm $175,000 posit and loaned the Church matters, the transfer of including financial organization. repaid Moon HSA-UWC name. The East Garden into Moon’s own loan, $105,000 $70,000 off the writing of this keep leaders were advised counsel personal balance as a contribution from separate Moon’s assets from those well have inferred jury might Moon. The Church, to file a personal that Moon had entries bookkeeping concerning from the return, income tax that as a resident alien con- these transactions HSA-UWC he was taxable on all income to him sidered the funds Moon’s exclusive Chase source, whatever and that the custom of property. to Reverend providing gifts substantial In November 1973 Moon directed that Moon in kind or cash should be terminated. title to East be transferred to him Garden and account- meeting lawyers After because he had of its supplied pur- most 3 and 1974 it was decid- January ants on funds, i.e., the price personal chase from his handle professionals ed not to have these Chase accounts. But before Moon’s subor- Instead, Kamiya- return. Moon’s 1973 tax complete they dinates could this transfer the re- charge, preparing ma was were informed lawyers Church Records turn under Moon’s instructions. pay Moon would have to the estate’s fair 1.8 nearly were account for the produced to $700,000 market value of in order to avoid into the Chase deposited million dollars consequences adverse tax for himself and to show these as the Manhattan Bank and $700,000 the Church. To create this consid- Moon’s. Three Church’s assets rather than eration, loans to from Moon HSA-UWC dollars was fifty hundred and thousand $361,827 amounting falsely in- from leaders of accounted for as “loans” $700,000. creased on the Church books to England, organizations Unification signed Moon then a Release and Cancella- France, and the Nether- Germany, Italy Agreement tion of Indebtedness covering loan, Kamiyama, signed by lands. Each $700,000 purchase price for East Gar- matched, bore a date аnd amount though den. Even this document was never used, matched, it Moon into the actually by signing implicitly deposit in combination $361,827 that the acknowledged pay used to 1973. Another 1.2 million Chase account in for the come from the property, which had was accounted of cash into Chase deposited accounts, was his Chase own. who, it church by Japanese members said, money carried this into Finally, given by the documents the de- or four thousand in amounts of three States Department sup- fendants to the Justice Japa- ledger kept dollars each. A port theory their that Moon held the Chase —the hundreds Family Ledger nese Fund funds and II stock other than individ- —with name, date of contri- showing of entries ually were revealed to be fraudulently also ledger and amount. bution backdated. To understand how this came “donations” showed disbursements labelled helpful capsulize about it is Moon’s fi- into deposits precisely which matched beginning nances at the of 1974. At that $556,000 time accounts. Moon had in Chase time de- the Chase respect With to the loans from the Euro- reported should have the interest and stock pean ostensibly leaders made and entered distribution income on his tax returns. into ledger a loan a watermark so, he failed to do his 1973-75 returns Since expert at trial paper established that the on were false. which these 1973 transactions occurred had

not been manufactured until 1974. The (2) Willfulness Japanese Fund Family Ledger was also We turn to the evidence that Moon will- shown to be manufactured after the fact. fully filed income tax returns for the 1973- Because some of deposits the bank consisted 75 tax years knowing that these returns not of cash but of checks from sources other contained false information and that Kami- donors, Japanese than the government was yama willfully aided and abetted the 1974 falsity able to demonstrate the ledg- filings. and 1975 er. A Willfulness in tax fraud comparison of Chase deposit slips, faith, equated cases has become with bad included checks not reflected in the ledger, justification with the want of Japanese knowledge Fund or that the Family Ledger revealed “donation” taxpayer disbursements should have more income reported on the same date in the exact amount of than he did. v. Bishop, See United States each deposit. Chase A discrepancy ap- 346, 360, U.S. 93 S.Ct. peared because ledger disbursement in- (1973). Supreme L.Ed.2d 941 The Court dicated that the entire deposit in the same collected the formulations cited in Bishop cash, amount as the deposit slip was while and reduced them to the statement proof trial demonstrated that the willfulness in the context filing a false deposit was partly checks. Thus unra- income “simply tax return means a volun- velled appeared aide, it that Kamiyama’s tary, intentional violation legal of a known Matsumura, Yukiko had constructed the duty.” United States v. Pomponio, ledger simply by working backwards from 10, 12, 50 L.Ed.2d 12 Moon’s bank statements and deposit slips to create fictitious cash sources to account for The presented on this is all of the deposits at Chase. she Since sue, although circumstantial, was sufficient mistakenly thought deposit each was all to sustain the jury’s verdict. The salient cash ledger entries and the total points follow. signed his 1974 and amount deposited into the bank accounts returns, acknowledging that he had matched perfectly. When checks were in- read accurate, them and that they were and totals, cluded in however, the fraudu- signed he an form giving RSC-12 similar lently backdated nature of the ledger was return; assurances as to his 1973 Moon and clearly revealed. Kamiyama both knew of Moon’s interest income at Chase and income from the distri In sum the government presented stock; Tong bution of II Moon actively evidence at trial that Moon controlled the supervised all of his personal Chase accounts financial mat Tong stock, II held ters and never name, signed anything them in until he his own considered the Chase it; own, understood Moon’s 1973 in “personal accounts his used the accounts in a come tax matters being handled un seemingly personal manner, and was re [were] der garded his instructions by by Kamiyama” other Church Mr. figures as owning (quoting the assets from a wire communication sent personally. Additionally, by documents produced official); Unification Church Kamiya defendants to show that ma participated the assets in the completion were in fact of Moon’s Church property proved to be backdated returns directly; public and false. and the Viewing this evidence in light accounting prepared most firm that government, favorable to the it is and 1975 sufficient returns was with false provided to establish that Moon owned the Chase information fraudulently backdated personal accounts and II stock in a documents. As example an of this last capacity. assets, Because he owned the he point, preparers of the 1974 return were ledger

shown the “loans” of transactions same time evinced his willingness sign from the Church leaders to Kami- European escape personal false document income $200,000. These “loans” amounted to yama. tax liability. ledger Kamiyama

The then reflected that (backdated made to Moon and signed a loan (Count B. The Conspiracy One) Count $200,000. defendants) both for the argues govern Moon next that the accountants were advised that these loan ment presented person no evidence that he agreements the fact evidenced entered into or ally participated conspi deposit funds on the Chase Manhattan agreement ratorial to file false tax returns Bank earning interest in Moon’s name were investigation obstruct the tax fraud funds, not his but were held himby only as against him. The facts adduced at trial nominee for the Church. Noteworthy ample contained evidence that several sub fact appellants’ initial tax attorneys engaged continuing ordinates of Moon in a informed prior HSA-UWC leaders agreed course of upon conduct amount filing of Moon’s 1973 return that he would ing to a to file false conspiracy returns and have to taxes pay on all of his United justice. obstruct Included among these was income, States from whatever source it was whose Kamiyama, participation in the prep derived. No interest income was declared aration of the 1973 return and whose part return, on the 1973 only and small amounts false backdated “loan” agree the two succeeding years. For example, ments submitted to the accountants for $14,458 Moon’s 1973 return declared income preparation of the 1974 and 1975 returns from the Unification Church of New York already has been recounted. in Viewed earned, and no interest there although was light government, most favorable to the $3,208 earned interest of on the Chase argument Moon’s of lack of involvement is return, accounts. reported On in- unpersuasive. only Not was Moon the per $20,520 come was II and $254 greatest personal son with the stake in the earned, interest although the deposits at question, success of the acts in but there $59,079. Chase earned On the 1975 return proof was that he exerted scrutiny close $37,080 Tong II income was reported over his own personal affairs and was $267, interest of although the accounts at aware of the information contained in his $43,841. Chase earned Moon apparently tax signed postdat returns. He one of the knew that the reported interest he in 1974 $200,000 agreements (the ed loan loan from and 1975 on the small savings account at Moon) Kamiyama to which was later him; sub Chase was income to thus it seems mitted to the IRS connection with the reasonable for the jury to conclude that he audit Finally, of his returns. Moon and his also knew that the interest on his time associates, deposits bank, through personal at the law same which came from submitted to the yers, Department withdrawals from the Justice checking and savings accounts, falsely was also income in 1981 the same backdated to him. We are docu unable to accept defendants’ ments that had earlier been argument that submitted to as new residents of the United and to they States IRS Moon’s accountants. In were short, unfamiliar with tax only law. Not there was ample for the are both sophisticated defendants jury business- to find that Moon participated in a men, but they had at their disposal a small conspiracy to file false tax returns and/or army of tax attorneys and accountants justice. obstruct advice, whose unfortunately, was not suffi-

ciently heeded. Ill Finally, Moon’s signing of the aborted JURY INSTRUCTIONS Release of Indebtedness on the East Garden transfer, earlier, discussed objects an acknowl- Moon to the trial court’s instruc- edgment by him that the Chase accounts in tions to the particular three areas. his name were actually his funds and at the First he contends that the instructions on beyond and incom- a that Moon the law of trusts erroneous reasonable doubt Second, plete. argues he that certain in- “owned” assets. structions violated the First Amendment’s evidence, A careful review of the he Religion questions And third Clauses. however, no proof reveals actual Although specif- on instructions intent. subject ly held the funds in trust. order extent, ic objections overlap to some we will trusteeship, defense of de to establish the deal separately. with them produce have evi fendants would had to dence of the donors’intent to create trust. Charge A. on Trusts remotely Yet the even touch only evidence the most area Perhaps crucial concerns testimony on this issue was the judge’s charge trial on the law of trusts. Church members Matsumura Porter not, fact that Despite the Moon did until and German Unification Church leader trial, late in clearly raise the claim that simply they gave Werner who stated that holding he was in question assets Moon, money intending it as donation

trust International Unification They to their church. never mentioned the movement, Church court district saw fit or, more importantly, gave word “trust” to instruct the on this defense theory. they indication that intended create The defendant now objects what he relationship. Accordingly, a trust this evi claims are errors and omissions in this only dence demonstrated the charitable in charge. We believe that defendant’s con- contributors, tent of the clear ex not the fail, first, tentions because trial court pression to create necessary of intent required charge jury on the trust. and, event, trust issue in any because the trust instructions were neither erroneous law, Under New which gov York nor prejudicial. erns the issue of it well settled ownership, that a donor’s intent to a trust must create matter, As a preliminary it is be unequivocal. clear and This rule is not inquire essential to as to had who the bur trusts, limited to private as defendant den proof of on the course, trust issue. Of claims, since the creation a charitable of government the prove every must element expression trust also requires a clear of charged offense a beyond reasonable See, County intent. of Suffolk Greater doubt. ofOne those is that elements Councils, America, New of Boy York Scouts had income from the Chase accounts and 830, 832-33, 424, N.Y.2d 433 N.Y.S.2d II stock that he distribution failed (1980); 413 N.E.2d Lefkowitz Cornell report. Defendant may present then an University, 35 A.D.2d 316 N.Y.S.2d defense,” “affirmative one which does not (4th 1970) (while particular Dep’t no rebut crime, an element of the or some required words are to create charitable other defense which rebuts an element of trust, upon the words relied to create such a crime. If defendant asserts an affirmative aff’d, trust must unequivocal), N.Y.2d defense he proof bears burden on it. 322 N.Y.S.2d 271 N.E.2d 552 Here, since theory defense that Moon (1971); 4 on Scott Trusts 2769-70 § was acting only as a trustee rebuts the (3d trust, 1967)(as ed. with a private person element “ownership” of the crime charged, creating a charitable trust must manifest it was not an Hence, affirmative defense. by his words conduct an intention to the only burden on present Moon was to it); create (Second Trusts) Restatement prima facie case that he held the assets in § trust. If defense had successfully intro duced into evidence this prima dissenting facie rebut opinion,unfortunately, ob- tal of the element of ownership, the trial scures the requirement, focusing intent in- court have would been obliged to instruct totally and, purposes stead on a distinct jury on law of trusts and the analysis, inapposite this issue—the pоlicy government would still have had to prove of upholding charitable trusts whenever possible by construing liberally. their terms consider in determining whether a trust proposition, For this the dissent cites In re existed. He now asserts that important Will, Price’s 264 A.D. N.Y.S.2d list, factors were omitted the vital (1942), aff’d 289 N.Y. 46 N.E.2d 354 issues of source of funds and donor’s intent Estate, re Durbrow’s 245 N.Y. list, were buried in this extensive and some (1927), 157 N.E. 747 neither of which con- misleading. factors were trols here. Each of these cases involved a The claim of omissions is spurious, all written will which plainly expressed the alleged factors to be omitted were testator’s intent to create a trust. More clearly charged. In connection with the specifically, Price’s Will applied cy pres i.e., factors, first of these whether the In- doctrine and held that a trust charitable ternational Unification Church movement already in existence survived even after its structure, “had a specific organizational primary had purpose terminated. Similar- constitution,” written charter or the dissent ly, Durbrow’s Estate held that a charitable believes Judge Goettel should have trust will not fail for want of a definite specific said that a organizational structure true, therefore, beneficiary. It is that both not a prerequisite to the existence of a support of these cases policy uphold- But, charitable trust. the record reveals trusts; however, charitable neither the list immediately following of fac- proposition stands for the that a charitable tors, Judge charge Goettel did so trust comes being clearly into absent the following language: expressed intent to create it. Since intent to create clearly such a trust was mentioned, As I have you may consider indicated by written wills in Price’s Will whether the International Unification Estate, and Durbrow’s question of in- Church a specific organi- Movement had tent to create a charitable trust was not in zational making your structure in deci- issue. However, sion. the lack of a formal cor- poration prevent religious does not Contrast these cases with the being movement from pow- beneficial present Here, one. there is no evidence of property er of held in the name of anoth- trust, intent to create a only the vague (emphasis er supplied). testimony of three witnesses establishing that a charitable gift had been made It appellate ill-behooves an court to engage Church. Although agree we with the dis of a word-by-word parsing jury charge, sent’s аssertion that charitable trusts must 141, 146-47, Cupp Naughten, 414 94 U.S. be liberally upheld, there is no rule of law 396, 400, (1973), S.Ct. 38 L.Ed.2d substitut- presumes simply from a gift charitable ing its own equally appro- choice for those the donor’s intent to create a trust. priate words in already charge. With Thus, since defendants failed to make a regard to the objections, last two the dis- prima facie case that Moon held the Chase senting opinion is also critical of the trial trust, accounts and II stock in court, charge not for its failure to correctly, trust issue was one that need not have been but for its failure to instruct the jury charged to the jury the first instance. greatest weight accord the em- thereby Any purported errors or omissions in the phasize the factor of the “intent of the instructions were therefore harmless.3 parties” gave property who to Moon. Each event, In any we of the correctly find that factors referred to was defend- objections ant’s to the trust stated the trial court instructions are and all of them without challenges merit. Moon equally jury’s the use of were relevant to the determi- what he terms a “laundry list” of emphasis factors nation. Undue on was not which the trial court jury instructed the one required. slightly The “list” was over 3. charge. Therefore, The instructions though on the law of trusts were even these instruc- essentially correct, infra, required, as discussed and oc- tions were not their inclusion could cupied only very portion jury jury. small not have confused or misled the 1226 indicted, it was extensive and no page; hardly

half Moon was tried and convicted for important factor was buried. report his false and fraudulent failure to Further, response taxable income. to the object Moon and the dissent also trial, trust defense raised at the court did language following “if-then” instruc- properly partial instruct on diver- ground impermissibly tion on the it proof charged shifts the burden of to the defense to sion when it that the funds divert- show that the interest on the personal Chase ed to use became taxable accounts was not taxable to him: Obviously, “to the extent so diverted.” you

If find that word is in common use and enough the funds in the Chase “divert” accounts were the property of Interna- so by ordinary jurors, understandable as to tional Unification Church Movement or require charge. no Cf. United explanatory were held in trust Moon for the Inter- Valencia, (2d States v. 1167 national Unification Church Movement Cir.1980) (term “hesitation” did not need to and used for church purposes and that clarified). the interеst on belonged those funds also Finally, judge the trial properly to the International Unification Church charged person that “there is no trust if the Movement it, and were used for then that who receives the money is free to use it for interest ‍‌​‌‌‌‌​‌​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‌‌​‌​​​‌​​​​​‌‌‌​​‌​‌‍would not be taxable income to his own benefit.” This instruction inwas Moon. accord with familiar law per that the same This “if-then” formulation did not shift the may son not at one and the same time be burden of proof to defendants prove the sole trustee beneficiary and sole of a First, their innocence. charge con Phipps, trust. In re N.Y.2d tained 30 separate instances properly stat 14, 138 (1956); N.Y.S.2d N.E.2d N.Y. ing the burden proof, and read as a Jur., (1968); Trusts at 395 Restate § context, whole and in charge on this (Second) 341(1) ment (1959). of Trusts § particular clearly issue states the correct Second, burden. the implication, any, if

even stronger Moon’s own Objections written re B. Clauses Religion quest to the trial judge4 contained, objects to instructions that permit- in addition to this subject, five other “if- ted the used the jury to find if he then” Third, formulations. objec since no Chase funds for his own business invest- tion was made to the trial charge court’s personal ments or ends —that is for other given, it was waived. See United States than in- religious purposes use would —such Praetorius, (2d F.2d 1061-62 Cir. relationship. dicate the lack of a trust 1979), denied, cert. defense urges this instruction violated 162, 66 L.Ed.2d This belated Religion the First Amendment Clauses be- argument is thus totally without merit. obligated cause the trial court was Moreover, we find no error in that the charge accept must as conclu- the charge that trust property diverted is sive the Unification Church’s definition of taxable to the extent objec diverted. The what religious purpose. it considered a Un- tions raised are that this theory “diversion” der the definition now advanced as the was not contained indictment, no Church’s, any use of these Rever- by funds instruction given diversion, partial on end Moon was for religious purposes. and there was explanation no by the trial judge argument of what This overstates the “diversion” means. Since diversion was not scope protections an element the by of the crime afforded charged, it was not required Religion to be Clauses. The term “religion” included in the indictment. The point crucial is that Supreme nearly defined the Court 100 you 4. If deposits find that the Chase time the exclusion from Rev. Moon’s tax returns of Tong property II deposits stock were in fact the the interest earned the time and the Movement, proper, internationаl Church rather II stock was and did not make personal Moon, property than the of Rev. then those returns false.

1227 333, Beason, mean that there are no restraints or limita ago in Davis v. 133 U.S. years 342, 10 (1980) as on church activities. Christian 33 L.Ed. 637 tions See S.Ct. National Inc. v. United person’s Ministry, reference to a views of his Echoes having States, 849, Cir.), (10th This definition 856 cert. relations to his Creator. denied, In reli 38 L.Ed.2d unduly today. every seems narrow U.S. S.Ct. (1973). The “free exercise” of is religion there is an awareness of what is called gion to that 7 not unfettered. The First Amendment response divinity. divine and a so or its members Encyclopedia Philosophy (1972). The does not insulate church But, religions posi judicial inquiry charge there are which do not when a is made God, tively require assumption penal of a their activities violate a statute. example, Consequently, proceeding the Unitarian in this criminal Buddhism Hence, accept Church. a broader definition of the was not bound to the Unifi religion word which we think more cation Church’s definition of what consti —one accurately captures purpose. its essence —is that for tutes a use or religious mulated by pre-eminent phi American v. Tax Holy Spirit Association Commis- James, losopher, William who said religion sion, 55 N.Y.2d 450 N.Y.S.2d acts, feelings, means: “the and experiences (1982), inapposite. 435 N.E.2d 662 is That solitude, of individual men in their so far as inquiry may case dealt with the that a court they apprehend themselves in to stand rela conduct when whether a reli- determining tion to whatever they may consider the is entitled to a real gious organization prop- James, divine.” W. The Varieties of Reli erty exemption tax under New York law. gious Experience referring upon there enunciated principles an individual’s relation to what he considers in appellant relies are relevant that context divine, Professor James used the word not serve as precedent and do federal “divine” in its broadest sense denoting prosecution. criminal tax any object that godlike, whether it is or is argues Moon also that an omission from Therefore, specific not a Id. at 34. deity. charge so-called “Messiah” de- —the Religion Clauses, under the everyone is en permitted to look at fense — titled to entertain respecting such view his name “secularly,” assets held viola- relations to what he considers the divine First Amendment. as- tion of the Counsel and the duties such relationship imposes as worldwide followers be- serts Moon’s may approved by person’s con “potentially lieve him to be the new Messi- science, worship and to in any way such the ar- theological premise ah.” From this person thinks fit so long as this is not gument personifies is made that Moon injurious to the “It equal rights of others. indistinguishable church movement and is was never intended or supposed from it. the Unification Church Since amendment could protec be invoked as a can no taxes on income de- movement owe against legislation tion punishment for the activities, rived from church-related the de- of acts inimical to the peace, good order and argues fense that neither can Reverend society.” Beason, morals of Davis v. Moon. at at 300. The Supreme S.Ct. accept We do not this defense. continued, Court free the exercise “however The fact that Moon is the head of the be, religion may it must be subordinate mean that the Church it Church does not to the criminal laws of the country, passed separate body. self is not a distinct and with reference to regarded by gen actions spiritual identity as leader of the eral consent as properly subjects legal movement and his punitive legislation.” 342-43, Unification Church Id. at taxpayer as a are not same. identity 300-01. To foreclose a court from Church, the analyzing spiritual a church’s He is the leader of activities as needed to leader of the Ro spiritual determine whether those activities violated the is the Pope statute, Church, on the he also has a ground that the First man Catholic but distinct, hu- Amendment forbids such as a individual inquiry, legal identity would provided and honest information he had being. capacity man It is in this latter that income, regarding the then he, preparers income. to Pope, or the could have taxable you guilty, must find defendant Moon that a church long may It has been held government free from property legally hold added). objection This is rather (emphasis inference would interference because such light in of the fact that surprising, violate the First Amendment. Terrett following charge: requested defendant 43, 51-52, (9 Cranch) 3 L.Ed. Taylor, U.S. representa- If Rev. Moon and his you find (1815). property But where held indi- in good providing tives acted in faith vidually personally gives and used rise to they information that believed to be rele- income, subject to that income is taxation. Rev. Moon’s vant to the determination of permit To allow otherwise would be to liability they responded fully tax and that law, church leaders to stand above the Peat, requests Marwick’s candidly to rejеcted. view we have previously relating information additional accounts, you Chase then must find de- to ar Finally, contrary defendant’s guilty fendant Rev. Moon not false gument, the failure to assets charge that return for 1974 and 1975. counts which came from church sources to be used (emphasis added). say, Needless to the de- purposes for church are not taxable to Moon, complain fendant cannot now be heard to did not violate the “neutral princi Wolf, request- the same “if-then” formulation he ples” approach outlined in Jones v. fact, requested language ed. In this 61 L.Ed.2d 775 (1979). preceded a sentence which shifted the Supreme In Jones the held Court emphatically the First burden of even more to prohibits proof Amendment charge given by resolution of the defendant than did the property disputes intra-church civil interpreting courts doc court. religious trine, required that civil courts defer Second, charge gave the intent the resolution of such issues the highest evaluating in de jury factors consider hierarchical organization. church This those Among fendant’s state mind. “neutral principles approach of law” is one designed mentioned as an affirmative act approved of several methods of resolving wrongdoing conceal consciousness of church property disputes between groups in that deal “dealing cash.” Moon claims within the church. Id. at 99 S.Ct. at in practice cash is a common 3025. The doctrine application has no not, therefore, Orient and could be inter the facts of this case.5 preted as evidence of intent to conceal. tending tax fraud cases evidence to show Charge C. on Intent in through dealings misconduct extensive The final jury charge objections evidence, cash is admitted into see properly deal with the issue of intent in two particu White, (2d States F.2d First, lars. objects to the “if-then” Cir.1969), denied, cert. 397 U.S. 90 S.Ct. formulation contained in the following in is, therefore, It 25 L.Ed.2d struction: event, And, properly chargeable. If you find that Moon provided per- the “dealing language in cash” was immedi son who prepared the tax return ately with full aby balancing charge followed and honest information as to “openness his income in conduct” could rise to the give and that Moon then adopted, signed and inference that the believed he had taxpayer filed the tax returns as prepared nothing done nothing wrong and “had belief that the return contained the full hide.”6 Contrary contention, bеing

5. property the defendant’s beneficial owner of the judge question. trial did instruct lack of a organizational pre- formal structure would not language 6. Moon con- also contends vent the Unification Church movement Religion by inviting travened the Clauses

1229 (Korea- IV into Korean-American relations investigation that such had touched gate), ISSUES MISCELLANEOUS Church, upon the Unification and therefore A. Prosecution Selective of government’s prosecution that Moon imper- could be seen to have stemmed from that appellants Both contend religious political missible and/or hostility. prosecution against mounted them in support No other evidence was submitted impermissibly by hostility motivated toward proof of the motion. The before the trial their and that the district court religion wholly court was insufficient mandate denying request discovery erred their inquiry hearing further or a and the court’s hearing pros and a on the issue of selective claim selective rejection prosecu- of the of Circuit, who ecution. In this a defendant proper. tion at that point clearly prosecution advances a claim of selective pretrial proceedings, must do so in see Unit trial, Following arguably and in an 1345, (2d Taylor ed States v. 562 F.2d manner, submitted ad- untimely appellants denied, 909, Cir.), cert. U.S. S.Ct. ditional “evidence” of selective prosecution. person 53 L.Ed.2d 1083 Specifically, they presented affidavits from asserting such a claim bears burden of who, disavowing any four individuals while establishing prima facie both: knowledge government’s motive in (1) that, similarly while others situated case, held church they asserted have not been generally proceeded funds in own names and did not pay their against because of conduct of the type taxes on interest earned on the funds. forming charge against the basis of the a letter copy Moon also submitted a him, singled prosecu- he has been out for Dole to United States Robert Senator tion, (2) the government’s dis- that it look into the Unifica- requesting IRS criminatory prosecu- selection of him for exempt tion Church’s tax status. While faith, tion has been invidious or in bad acknowledging that Moon’s status as a i.e., based such upon impermissible con- visible, religious leader well highly may race, religion, siderations as or the desire returns, have led to the audit of his tax prevent his exercise of constitutional govern- district court reasoned that rights. ment’s to institute criminal rather decision charges wholly separate than was a civil Bеrrios, United States 501 F.2d decision that the additional evidence of (2d Cir.1974). No evidentiary hearing improper motive submitted prosecutorial or discovery is mandated unless the district appellants satisfy require- still failed to court, discretion, in its see id. finds ments of Berrios. We need not decide here that both prongs of the test have been met. whether submission of appellants’ post-trial Ness, See United States v. 652 F.2d regarding prosecution selective (9th Cir.), denied, cert. late; considering was too even that evi- 976, 71 (1981); L.Ed.2d 113 dence, correctly the district court concluded Catlett, (8th States it was insufficient to meet the Berrios Cir.1978); Berrios, 501 F.2d at 1211. We standard. say cannot on this record that the-district

court holding abused its discretion in respect requirement With the first appellants failed to demonstrate the neces similarly that “others situ- proof Berrios — ated” have not been sary predicates factual for their claim of prosecuted four —the prosecution. selective above-mentioned affidavits of other church

The only pretrial sup- adequately evidence offered leaders did not Berrios’ prove First, port appellants’ prong assertion of selective first for two reasons. prosecution was to was that Congress government’s theory against the effect that had previously investigation personal conducted an he held were own funds practice soliciting charge clearly to treat the Church’s But the refers to Moon’s conduct public suspect. practices. cash contributions from the and not Unification Church any always engender suspicion and that therefore interest some with re- property to him. earned on the funds taxable spect government’s bona fides. But contrast, By the submitted affidavits de- engage inquiry respecting in a collateral involving persons scribe situations who motive, prosecutorial there must be more funds, as opposed claim to hold church judi- than mere or surmise. If a suspicion personal funds, pay in their own names and government’s cial motive inquiry into by no taxes on interest earned the funds. prosecuting for could be launched without While Moon still contends that the funds he showing an factual adequate improprie- property, held were church at the time of frequently judi- it would lead far too ty, post-trial squarely this motion the had power cial intrusion on the of the executive Second, rejected theory. this case also prosecutorial branch to make decisions. involved charges perjury and obstruction judicial inquiries would also Unwarranted justice. Reference to these charges is strong public policy undermine the that res- totally ignored in appellants’ analysis of of criminal cases not be de- unduly olution whether situated similarly individuals have layed by litigation over collateral matters. short, prosecuted. been appellants sim- ply to provide prima failed the necessary facie evidence that others similarly situated Act Interpreters B. have not prosecuted. been The next issue raised concerns Court As prong the second of Berrios Interpreters Act of U.S.C. §

—proof that the government’s decision to (Supp. 1981). provides pertinent V It prosecute was impermissible based on con- part that: siderations religion appel- of race and/or — presiding judicial officer ... shall lants rely heavily on the above-mentioned utilize the services of most available letter from Senator Robert Dole to the IRS. interpreter any certified ... criminal That letter merely requested an audit of by or civil action initiated the United exempt Unification Church’s tax status. States in a United district court States It request did not an per- audit of Moon’s ... if the deter- presiding judicial officer status, sonal tax suggest he be crimi- (including mines . party ... [a] nally prosecuted, or indicate racial or case), in a criminal or a wit- defendant religious Thus, bias. we fail to see how the may present testimony ness who in such letter can be said to prima constitute facie action— evidence that the decision prosecute Moon was the product impermissible of an (1) speaks only primarily language or Appellants motive. have therefore failed to English language; other than the or satisfy prong either of Berrios. (2) hearing impairment suffers from a recognize We that Moon is a controversial (whether suffering or not also from public figure subjected who has been speech impairment) attention, extensive media much of it crit- so as to inhibit party’s comprehen- such ical, and that may his church perhaps proceedings sion of the or communication viewed the general public in an unfavor- judicial with counsel or the offi- presiding light. able These naturally facts tend to cer, or so as to inhibit such witness’ com- foster suspicion that the motive behind this and the prehension questions presenta- prosecution might have been improper. testimony. tion of such That naked suspicion cаnnot serve aas sub- 1981). The 1827(d) (Supp. V U.S.C. § stitute for the evidentiary showing mandat- Act further “other provides persons, ed Berrios. This case is not the first witnesses,” waive, with the may than occasion when a political controversial court’s their entitlement to a permission, religious figure has been criminally prose- cuted; court-appointed and use their interpreter and if history teaches us anything, 1827(f) plainly, it will own translator instead. 28 not be the last. U.S.C. By § their nature, very such highly (Supp. 1981). visible cases will V During pretrial proceedings, Congress’s Moon moved dermine using scheme of inde- 1827(f) pursuant to waive the use of a pendent interpreters to insure § accurate court-appointed interpreter employ Thus, and to translations. the district court cor- personally-selected instead his own transla- rectly 1827(f), ruled that under if Moon § tor. The district court ruled that Moon was elected to testify, speak he would have to interpreter certified, free to use the of his choice through own a court-appointed inter- for purposes translating proceedings of preter. him; but, of the trial to that if Moon elect- argues requiring further him ed to testify, testimony would have to to testify through court-appointed a inter- be translated a court-appointed, certified preter burdened his impermissibly Fifth

interpreter. Moon elected not testify to rights present Sixth Amendment to his own trial. Tennessee, full defense. Citing Brooks v. While it was not argued below that the 406 U.S. 32 L.Ed.2d 358 S.Ct. use of a court-appointed translator (1972), would he by depriving asserts that him of impinge upon Moon’s to ability communi- opportunity testify through an inter- cate effectively with the he jury, preter now ar- of his own choosing, the district gues that the district court con- incorrectly court unconstitutionally restricted his deci- 1827(f) strued to preclude him from waiv- § sion as to whether not he would testify. ing the use of an appointed interpreter if dealt with a state requirement Brooks and when he elected to testify. Specifical- choosing a defendant to testify testify must ly, testified, he asserts that if he had beginning he at the of the defense case before would have been party-witness, any that a other testimony is heard. This restric- party-witness is not a “witness” within the tion is different now at issue. By meaning 1827(f), of and that he therefore forcing § a defendant to decide whether he should have been allowed to waive the use will testify at a in the trial point where a of a court-appointed interpreter. realistic assessment of the value of his testi- difficult, mоny is pro- condemned state premise party-wit —that vision in privilege Brooks restricted the nesses are somehow different from other remain put silent because it the defendant purposes witnesses for 1827(f) of un § —is at an disadvantage unfair tactical in decid- tenable. The express language of subsec ing whether to privilege. exercise his Id. at (f) tion makes no such distinction. While 610-11, 92 at 1894. The Interpreters 1827(d) “parties” does refer to § and “wit Act does not make the assertion of the nesses” separately, this language does not privilege similarly costly; simply it ensures create a distinction that must be carried that whatever a defendant testimony gives over to (f). subsection The legislative histo is honestly reported. of ry 1827(f) indicates that purpose § its prevent parties Moreover, from using untrust even were requiring worthy translators. For example, interpreter Moon to use a court-appointed House Judiciary Committee Report in dis to be viewed as some restriction on his cussing the provision defense, waiver refers to the ability present a full we observe danger allowing “an individual to waive that not all restrictions on a defendant’s use of a certified interpreter and then right to testify per impermissible. are se substitute their personal Bifield, own interpreter e.g., See United States v. F.2d - might denied, create an opportunity (2d Cir.), for a cert. [which] party to use an unscrupulous interpreter.” -, 103 S.Ct. 77 L.Ed.2d 304 95-1687, H.R.Rep. No. Cong., 95th 2d Sess. For example, evidentiary pro certain 5, reprinted in 1978 Cong. U.S.Code & Ad. cedural restrictions are sanctioned where News 4656. (emphasis added). To reasonably to the achievement necessary interpret 1827(f) term “witness” so § of a fair trial. There is no evi See id. as not narrowly to include party-witnesses, court-appointed dence here that use of a as Moon now suggests, would seriously un- have unfair to Moon interpreter would been an appellate would have will not be overturned suggested why he has not it Id. the district court’s reasonably reviewing de- court. regard been. We 1827 as § Rule of in- we turn to Federal legitimate public further the determination signed to 401 which states that relevant of criminal Evidence terest in the fair administration having tend- any “means evidence necessarily requires trials. interest Such fact that any of trial to make the existence ency accurate and unbiased translations does not force to the determination testimony. consequence the statute is of Since probable elects to to do so at or less testify probable defendant who the action more disadvantage, unfair we hold that without the evidence.” than it would be application now, district court’s 1827 did not as it did at argues The government § restrict Moon’s constitutional impermissibly trial, immigra- false that the submission of right present a full defense. relevant to Moon’s in- tion documents was the false tax returns. We do filing tent in Problems Evidentiary

C. how the submission of the false see papers Immigration to the immigration regard- Both defendants raise questions in one instance is Naturalization Service ing the of certain admissibility evidence relevant to the defendant’s intent to submit trial. Moon contends that the district court papers unrelated false in anoth- erred in intro- IRS allowing government the to Halper, v. Cf. United States er. 590 F.2d immigration duce various as documents 422, (2d Cir.1978) (submission similar of false complains act evidence. 432 Kamiyama prejudice the whether de- created this evidence tax return not relevant to infected his by “spilling trial over.” Addi- fendant to submit false Medicaid intended tionally, Kamiyama claims, versa). the admis- of this challenges and vice Admission sion during government’s rebuttal of an abuse of irrelevant evidence constituted Nevertheless, evidence concerning his failure to file in- trial court’s discretion. come tax Finally, relating returns in 1973 and 1974. of to light strong evidence returns, both defendants government claim that the intent to file false tax see Moon’s presented improper IIA.(2) supra, the jury evidence to the error must be Section regarding deemed harmless. See United States religious practices Uni- Quinto, fication (2d Church which they permitted Cir.1978). claim 582 F.2d 235 them to be tried by religious innuendo. to respect Kamiyama’s With claim rested, After the government defense spillover, charge the trial court’s con introduced documents relating Moon’s cautionary tained the instruction that and his wife’s applications permanent “have no immigration documents were to residence in the United States. Contained bearing against [Kamiyama].” on the case in these documents were govern- what the instruction, coupled This with the fact that ment maintained were false representations made claim that Kami government no concerning the Moons’ income for 1972 and yama had connection with the Moons’ 1973. The government argued that such immigration was sufficient to safe papers, evidence was probative of Moon’s intent guard adequately against impermissible knowledge because it wаs relevant on Reed, United See States prejudice. the question of absence regard- of mistake (2d Cir.1981). F.2d ing the preparation of the tax returns. Kamiyama’s major evidentiary claim of acknowledge

We the long held error relates to the admission of an IRS view of this Circuit that judge the trial is in certificate that there was no rec- indicating the best position to weigh competing having inter ord of filed federal in- Kamiyama ests in deciding whether or not years to admit come tax returns for the 1973 and certain evidence. See United v. Bir States government’s 1974. It was the contention ney, (2d Cir.1982). F.2d Ab on the the certificate relevant discretion, sent an abuse of the decision of issue of motive to create the Kamiyama’s the trial judge to reject admit or Kami- Family Ledger. Purportedly, Fund other $10,000 question cash for 100 ties of church officials. The yama paid shares $110,000 cash for in 1973 us is whether evidence of II stock before Church Tong relevant, II stock in 1974. 1,100 practices, although shares of should have that this government argued “untraceable” probative been excluded because “its value up cash and that to cover was income outweighed substantially by the dan [was] money Kamiyama source of this concocted ger prejudice,” of unfair Fed.R.Evid. 403. Family Ledger. precisely Fund Since judge superior from vantage The trial same scenario was established point position weigh is in the best these deposits account for the cash in Moon’s competing interests. See States v. accounts, Chase entitled Robinson, (2d Cir.1977) (en conduct, infer so the Kamiyama’s denied, banc), cert. government handling that his argues, 55 L.Ed.2d 496 Absent an with the crim- requisite returns was discretion, his broad the decision abuse of inal knowledge. intent and judge challenged the trial to admit the evi Nonetheless, proof there was no religious practices dence of must stand. To Kamiyama had income sufficient abuse, find we conclude that such must require ‍‌​‌‌‌‌​‌​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‌‌​‌​​​‌​​​​​‌‌‌​​‌​‌‍him a tax for the to file return arbitrarily trial acted judge irrationally; years in stock question. Simply purchasing arbitrarily a court acting avoid must proof with cash is not had Kamiyama make a conscientious assessment when income, taxable since the cash have might probative against weighing value risk source, come from some other see v. Marcus prejudice. of unfair United States v. Bir 752, States, United 422 F.2d (5th 755 Cir. F.2d at ney, thorough 106. A review of 1970). foundation, a Lacking proper see the record reveals no abuse of the district States, Dupree v. Unitеd 218 F.2d discretion. court’s (5th denied, Cir.), (5th reh’g F.2d Cir.1955), the certificate not rele IRS D. Proceedings Post Trial vant it was evidence and admit improperly ted. We note that the and the certificate the trial claims sur- After was concluded testimony accompanying it were admitted on the improper jury. faced of influences government’s the case on rebuttal and allegations arose when a Unification These that this proof occupied an insignificant member, attorney David Hager, Church portion record, of the trial was not raised in was a Bruce Ro- by contacted man named summation, was not in and the trial court’s attempting who was apparently manoff to instructions to jury. against Balanced recordings sell conversations tape phone the other of Kamiyama’s we guilt, associate, John Curry, between Romanoff’s find this error harmless. Steward, juror Virginia and trial a former personal tapes friend of On these Curry.

With to respect by religious trial made various statements indicat- Steward innuendo, concededly testimony there was jury might exposed that the have been that members of Church Unification prejudicial to extraneous information and together, lived and donating worked their outside influences. After con- improper earnings to church.7 The their central issue Romanoff, a where ducting hearing Curry, for the jury to decide was whether know- potentially and two other II stock and Chase Steward Manhattan Bank jurors, Mary accounts Nimmo belonged ledgeable forelady to the Church to Moon or McGrath, personally. probing issue, questioned, that it was John were trial inevitable that existed to grounds that some Unification Church court concluded no practices creep exposed would into the order that been to jury trial in believe had to illustrate Moon’s control over activi- outside improper influences extraneous prevalent 7. We note that the Unification mem- Church also certain centuries-old orders of living, appel- bers’ mode of evidence of which Christians and Buddhist monks. innuendo, religious lants claim to amounts jurors discussed find out whether there was and that information prejudicial This by jury. tried a not be request inquiry. no need to continue of a at the end allegedly reported fact was repeating bears hardly It a differ- which concerned newspaper article be, to haul are, should hesitant courts men- been ent apparently that had topic verdict reached a they in after have jurors аmong the Nimmo and discussed tioned instances of potential for probe in order stated jurors questioned all the jurors. But influences. bias, extraneous misconduct or article, and the not read they had Moten, v. in United States explained As we the court below credible two found to be Cir.1978), trial (2d a 582 F.2d 666-67 the article subject main noted post-trial jury a to hold required court is only casually was mentioned grounds for when reasonable hearing only indirectly in- None even lightly. passed-off grounds Reasonable investigation exist. concerning a request that Moon’s timated clear, strong, there is present are when them, let alone a known trial was jury evidence, and incontrovertible substantial jury conversation before topic of States, (2d King v. United 576 F.2d how Moreover, has not shown large. denied, Oir.), cert. 439 U.S. jur- even were the prejudiced he would be non- (1978), specific, that a 58 L.Ed.2d 154 tried without of his desire ors aware has occurred speculative impropriety jury. the trial of a defend prejudiced could have Second, the trial Moon claims that A is not held to afford hearing ant. call additional by refusing to court erred opportunity convicted defendant newspapers in the issue of jurors explore fishing expedition.” “conduct a were The fact there room. Moten, States Although 582 F.2d at 667. is an insuffi room newspapers in the decided cases are the circumstances conducting post-ver cient predicate in this area is sui instructive, each situation instructed jurors inquiry. dict Barnes, generis. United States case concerning the not to read articles denied, cert. (2d Cir.1979), 446 U.S. them; absolutely pre they were before (1980). 1833, 64 L.Ed.2d 260 100 S.Ct. All of looking newspapers. at cluded from standard, which ap This same they that had indicated questioned those to a determination of plies judge’s trial case, not did not read articles about is post-verdict hearing, whether to hold a had, had not who any jurors know of in whether ascertaining also useful articles discussing such jurors heard other is scope hearing of a that has been held above). One (other the one alluded to than adequate. question While breadth newspapers, she did not look at said ing permit should “to the en be sufficient “Wingo” only played another said she United States picture explored,” tire to be cut third said he and others game, and the Moten, picture that is 582 F.2d case, was but he out articles about boundaries. painted on a canvass with finite the trial. There saving these to read after Therefore, in of a post-verdict the course alone a substantial showing, has been no let when and if it be inquiry subject, on this one, jurors prejudicial that read any apparent comes that the above-described the case. newspaper accounts of grounds suspect prejudicial reasonable might have done so is juror claim that some exist, the jury impropriety inquiry do not justi insufficient speculative argument should end. fy inquiry. further Third, it was nec argues that Moon asserts that the district court Torres to the Esperanza attempts essary juror curtailed defense to call improperly circumstances sur explore that and to thorough inquiry conduct a more stand through firing of a shot post-trial hearings rounding at the three areas should First, the trial. during he window Steward explored have been further. Torres’s upset day one it that Torres had been claims was error to block defense efforts testified

1235 because a shot fired through supposed had been her connection between the two before, night window the and that Torres was events and the trial not and could not intimated that the incident Steward be supported factually. might be to her jury connected service. course, Of safeguards jur- “[t]he Steward also related Torres told her or as voir impartiality, protec such dire and bullet,

the police had found no investigated, instructions from the trial judge, tive are and concluded that the hole in Torres’s win- not infallible” and “it is virtually impossible dow by was most caused a BB shot likely jurors every shield from contact or influ “just some fresh ... fooling kids around.” ence that affect might theoretically their thought apparently Steward little of the 209, 217, Phillips, vote.” 455 Smith U.S. incident since lived in a neigh- Torres bad S.Ct. 71 L.Ed.2d 78 It borhood, and had when Torres been similar- up is judge trial determine the ly upset behind, after her was hit car occurrences, prejudicial effect of potentially Steward told to be silly her not and that it id., reviewing and the court’s concern is to just Nimmo coincidence. confirmed determine whether the trial only judge having heard second-hand the BB inci- abused his discretion when so deciding. dent and probably it was due to the we, sitting Whether or not neighborhood, nature of the trial Torres’s but she judge’s place, had heard have might that Torres attributed it to called Torres to McGrath, testify trial. sat next say who to Torres not the issue. We cannot box, the jury nothing Judge heard about these Goettel abused discretion end events. ing the post-trial when he did. inquiry Given these was unnecessary facts it At the of the post-ver сonclusion the district probe any court to further into dict jury inquiry, judge the district also since, the event unlike circumstances in ordered, on pain contempt, States, Remmer v. U.S. that the ... and agents, defendants their (1954), appeal S.Ct. L.Ed. 654 follow attorneys defense and their agents, ing remand, and the attorneys Government and their (1956) L.Ed. 435 Gersh, and United States v. agents, are restrained from communicat- Cir.1964), (2d there was no with, contacting or in any manner rational basis to connect these outside inci juror, juror, whatsoever alternate Moreover, dents with the trial. even if . . . prospective juror the [instant] Torres interrogated, had been she could case, consent prior without of the Court. only have been questioned about “whether Defense argue counsel this amounts to any outside influence improperly gag order which violates the First her, brought to bear upon” and could not because, when conjunc- Amendment read in have been “the asked about effect of [the tion accompanying with the court’s memo- upon mind or emotions as incident] [her] decision, randum prior it placed restraint influencing to assent to or dissent [her] on members, all Unification Church forbid- verdict,” from the 606(b). Fed.R.Evid. ding communicating them from with the most she could repeat have done was to the subject prejudice media on the of shot, jury story about the BB but it would vio the late case. Aside from fact that the 606(b) Rule her to have juxtapose the this, say incident memorandum does not such a with her read- jury service and have her clear, unambiguous testify language that it of influenced her vote. See the United is Beltempo, 472, restraining States v. order far-fetched. While 675 F.2d (2d denied, Cir.), 481 the 1135, 102 accompanying light cert. 457 memorandum sheds U.S. on S.Ct. 73 the for imposing L.Ed.2d 1353 court’s reasons Without calling power Torres the had to restraint impose against jury court sufficient in the formation contact, from which it could gratuitous conclude that it is insofar as the con- there was no outside influence tent of the itself is concerned. More- improperly order brought her, to over, bear upon and that any appellate jurisdiction we lack to re- 1236 accuracy. their vouched for affirmatively inappro- mandamus is

view this order case would be Similarly, government’s the here, court’s where, the district priate there evidence persuasive more were unquestionable. is it did power to act as the docu- had submitted States, (2d Kamiyama that 403 77 F.2d See Miller v. United that, he knowledge had ments with the vir- jurisdiction, and Cir.1968) (no appellate on chosen, production resisted he could have condoned). tually identical order On both grounds of self-incrimination. V fails to di- points government of these the trial record in to any portion rect us KAMIYAMA CLAIMS brought to which such evidence Impede the A. Intent Grand we, have after Nor petit jury’s attention. Investigation Jury transcript, found reviewing actual trial any such evidence. contends his con Kamiyama that false and knowingly submitting viction for is to be answered remains What to the grand jury documents misleading still properly could petit whether the impede its investi corruptly intent fact that Ka infer intent from corrupt 18 1503 gation, in violation of U.S.C. § documents to the false miyama submitted (Supp. 1981), Specifi must be set aside. Y knowing that documents grand jury cally, only that he he asserts submitted jury’s investigation. were material to that (the Fund question Family documents in normally some justice Intent to obstruct Ledger Agreements) Loan European that infer from all of the thing jury may grand it had subpoenaed because and circumstances. See surrounding facts them there was evi and that insufficient Haldeman, F.2d United States impede dence he intended to its inves denied, (D.C.Cir.1976), 115-16 cert. 431 U.S. tigation. this response challenge, 2641, 53 (1977); cf. 97 S.Ct. L.Ed.2d government cor Kamiyama’s answers Dibrizzi, F.2d United States v. rupt adequately intent was demonstrated intent to embez (2d Cir.1968) (dealing with could by the facts that he have resisted zle). the fact Were it not for production of the documents on Fifth such an infer subpoenaed, documents were grounds and he vouched Amendment permissible ence have been would doubtless accuracy of the documents in his ledger in this But here the and loan case. testimony grand jury. Specific before the pursuant sub agreements produced intent impede jus the administration of ample there was poena though and even tice is an essential element of a § backdated, falsely there proof being their violation, v. Ryan, United States in Kamiyama’s corrupt was no evidence (9th Cir.1972) (citing Pettibone Whether producing tent them. 197, 13 States, 148 production, Kamiyama have resisted could (1893)), L.Ed. which the government government argues, as the beyond must establish reasonable doubt. was not before the trial government theory light Viewing the evidence in most fa it, as to a reasonable doubt jury. Without we prosecution, unper vorable to the are Therefore, exists. Kamiyama’s mens rea Kamiyama’s corrupt suaded that intent was must re conviction Count Seven adequately proved. versed. examining underly In evidence Before B. False Declarations Count, look may only we Jury Grand pet- actually introduced before the his convictions problem it no also attacks jury. Kamiyama There would be Eleven, and Thirteen Twelve government’s contention it intro under Counts had only and the count duced of the main indictment proof petit jury before the 194). (No. As indictment Kamiyama effect had not additional only produc charged documents, noted, Kamiya- counts ed the had also earlier those questionable but ma with making false declarations to a gave ma the testimony knowing it to be grand jury, violation of 18 1623 false. U.S.C. § 1981). V (Supp. provides That statute Kamiyama now challenges the district pertinent part “[wjhoever under oath court’s materiality finding. argues He ... in any proceeding before or ancillary to not, the substitute grand could jury as a any grand ... jury the United States law, matter of constitute an ancillary pro- knowingly makes false material decla- ceeding; that there was no evidence that ration” shall be guilty of a crime. 18 U.S.C. grand jury substitute was ancillary; 1623(a). Before addressing precise § that the district court ruling erred in on the

issues raised some background information ancillary proceeding question rather than is necessary. submitting petit it to the jury; and that the impermissibly district court amended the In March 1981 Kamiyama appeared be- indictment by relying ancillary pro- on the fore the June 1980 Additional Grand Jury ceeding theory which was not set out in the for the Southern District of New York Moreover, indictment. he contends that (Grand Jury) refused, but on Fifth Amend- there was insufficient evidence that his mis- grounds, ment to testify. In Ka- July 1981 statements were material to the Grand Jury miyama changed his mind and testified be- which eventually heard them. For the rea- fore both the Grand Jury and a substitute sons discussed belowthese arguments are of grand jury which was filling in for the no avail. Jury Grand while its members were on va- Eleven, Twelve, cation. Counts Thirteen 1623 proscribes Section false and No. 194 involve initially statements declarations made before grand made and recorded before this substitute where “material,” those declarations are grand jury and later presented to the Grand i.e., response made in questions within Jury in accordance with the latter’s instruc- the purview of grand matters that the tions. is investigating. Berardi, States 723, (2d Cir.), denied, cert. Prior to trial appellant moved to dismiss U.S. 101 S.Ct. 66 L.Ed.2d 293 the perjury arising counts from his testimo- (1980); see United Mulligan, States v. ny before the grand substitute jury on the (2d F.2d Cir.), denied, cert. 439 U.S. ground that this testimony was not materi- 99 S.Ct. L.Ed.2d 120 al to any investigation being by conducted Whether or not a false declaration is mate grand substitute jury. published rial grand to a jury investigation ques is a decision, the district agreed court that Ka- tion of law that must be determined miyama’s statements to the substitute court, not the jury. v. United Sinclair grand jury technically were not material to States, 263, 298-99, 49 S.Ct. any investigation then being conducted (1929) 73 L.Ed. 692 (dicta); Berar it. United Moon, States v. 532 F.Supp. di, 728; 629 F.2d at Mulligan, 573 F.2d at 1360, 1371 (S.D.N.Y.1982). Nevertheless, 779. Materiality is demonstrated if the the district court refused to dismiss the question posed is such that a truthful re subject counts, reasoning that 1623(a)ex- § sponse could aid the potentially inquiry or a tends to proceedings ancillary to those of a false Berardi, answer hinder it. 629 F.2d at grand jury and that at the time Kamiyama 728. materiality Because is a question of testified before the substitute it body was law, an appellate court may substitute its acting in such an ancillary capacity. Id. judgment for that of the lower court on the On that basis the judge trial found that issue of whether the materiality element Kamiyama’s grand substitute jury testimo- Berardi, has been met. See 629 F.2d at ny was material to an investigation being 728-29 (holding that the district court erred conducted by the Jury. Grand The petit in finding immaterial). false declaration jury thereafter impliedly found by its con- viction of defendant on Counts Eleven we disagree Because with the dis through Thirteen and No. 194 that Kamiya- trict holding court’s that Kamiyama’s state- indicting Grand to the verbatim peated when material were not “technically” ments questions of the examination need Our jury, Jury. we grand the substitute made to strengthens further in issue questions responses the numerous or decide not reach material to were grand they the substitute conviction whether our regarding ancillary proceed- questions conducting juries’ inquiries. an grand was both jury Eleven, finding that Kami- court’s forth in Counts ing. The district answers set to the immaterial not deal were 194 do yama’s Twelve, statements and No. Thirteen is at odds with jury no rele- grand substitute matters of tangential with simply point. on this Instead, in the record evidence only prosecution. instant to the vance uncontradicted, testimony in direct There the sources with are concerned they At- Assistant United States by the record funds, Family accounts Chase that both Flumenbaum torney Martin Tong II acquisition Ledger, Fund grand jury the substitute Jury and Grand Moon con- in which stock, the manner tax possible Moon for investigating matters These affairs. his business ducted tes- Flumenbaum example, For violations. juries’ grand both heart of very were at the was grand jury that the substitute tified issues at the critical related to inquiries and the same mat- investigating with “сharged sense, we do matter of common As a trial. doing.” Jury] was ters that Grand [the label them basis to there is not believe affidavit supported by was testimony This immaterial.8 Jury the Grand to the effect that: procedure by in advance approved Inaccuracies Translation C. Claimed sub- before the Kamiyama which testified as to jury, which was advised grand stitute respect contends further Kamiyama investigation on-going the substance of the im- that he was convictions perjury to his informed of the context of Moon and for state- and convicted indicted permissibly on two Kamiyama testifying; princi- his give. did not Because ments he heard grand jury occasions the substitute he addressed language Japanese, pal witness in this testimony from another interpreter. an juries through grand case; actively grand jury and the substitute tape recordings of counsel request At the asking proceedings by participated Kamiyama’s grand were made of handling questions relating numerous to the perju- for indicted being After statements. affairs and of Moon’stax and business cop- received Kamiyama ry in October documentary requesting production testimony. recordings of tape ies of the can- grand jury If substitute evidence. coun- defense After were reviewed they investigating have not be said to been certain to dismiss moved Kamiyama sel asking when it was Ka- Moon’stax affairs Ten in Counts contained specifications affairs, it about those is difficult miyama that the ground Thirteen on through perceive exactly doing. what it was did not accu- language allegedly perjurious said to actually what he had reflect rately grand juries both were inves Since that a requested He also jury. grand affairs, it some tigating Moon’stax seems review the accu- translator court-appointed an illogical say Kamiyama’s what language. Before challenged racy of when given swers were immaterial motion, Kamiyama’s material, court ruled on as the trial grand jury, but substitute was returned indictment were, superseding re- district court found when they Scott, offense); United States materiality 437 U.S. issue does not same 8. Our decision on the (1978) rights 2187, 2194, appellant’s jeopardy 82, 91, L.Ed.2d 65 intrude on double 98 S.Ct. appealed acquittal may under the Fifth Amendment since it neither (judgment not be set- necessitates a retrial nor has the effect of prosecution when reversal and terminates ting judgment acquittal on the mer- aside a merely trial). have new We necessitate would Berardi, 730; cf. Whalen v. its. See affirming adopted the district basis for another States, 684, 688, 100 S.Ct. Kamiyama’s substitute court’s conclusion (1980) (double jeop- L.Ed.2d grand material. statements were ardy protects against a second trial

1239 falsity, two of the inaccu- as to allegedly accuracy omitted not to in Ten. specifications rate Count event appel- translation. we address lant’s “translations” contentions one count court an ultimately appointed The trial at a time. tape recording to translate the interpreter portions Kamiyama’s jury grand of those Nine, Count respect appellant With to the testimony included in indictment. asserts that while he was indicted for an coun- Judge requested Goettel also defense in swering the the “did” negative question portions sel the of the “specify particular sign any dealing Reverend Moon documents dispute.” translation that This [were] stock, the question actually posed with pretrial was done at a held on hearing ever to sign whether Reverend Moon “had” respect objec- March 1982. With to the documents. claim such This of inaccurate Eleven, tions to Counts Ten and the district translation was raised in not defendant’s significant court found no difference be- dismiss; pretrial motion to nor did he at tween out in Kamiyama’s testimony as set tempt bring purported infirmity the the superseding indictment and the court- the attention court jury of the or trial. appointed interpretation translator’s of the Consequently, objection the Nine Count agree of that recordings testimony. It did preserved has not been for appeal. See Kamiyama’s claims certain Count Bonacorsa, United States v. testimony Twelve had been translated inac- Cir.), denied, (2d cert. curately and it all of dismissed that Count’s L.Ed.2d specifications objected to by Kamiyama. Ten, testimony underlying Count Thirteen, With regard Count the court indictment, set out as follows: found the appointed translator’s ver- under- declarations answers are sion of what Kamiyama agreed had said [False language indictment, with the quoted lined.] and counsel for Kamiyama accepted those “Q. carry Did Reverend Moon as being translations accurate. The govern- book check with him? ment superseding later obtained a Count doesn’t, He managed A. because I it. Twelve indictment which omitted previ- Q. You carried the check book with ously objected language. very from you beginning Kamiyama At not argue trial did that the account? testimony translation set forth in the Yes, myself A. I it the be- kept remaining false declaration counts was in- ginning. evidence, After accurate. the close of the Q. you sign any Did of the checks for the district court re- granted Kamiyama’s Reverend Moon’s acéount? quest to make the court translator’s transla- I it signed although A. never myself, see, tion an exhibit jury which the if could signature, I asked him for and I made a requested. Although was so in- signed but I request, myself. never

formed, apparently it did not request Q. all signed Reverend exhibit. checks? appeal Kamiyama On now asserts That’s A. correct. “all specifications” in the perjury counts Q. And write out did Reverend Moon were erroneously translated and am- fatally portions the other of the check than other biguous.9 Close examination of appellant’s signature? contentions reveals that some points of the raised actually No, no, relate to sufficiency of A. he didn’t do it. Estepa, Citing Kamiyama 9. States v. F.2d even concedes that the translator’s (2d Cir.1972), Kamiyama findings generally allegedly also contends accorded with the prosecution grand perjurious language abused the forth in indictment. set process by variances, having it reevaluate all of the there material for ex- Where perjury Twelve, light court-appointed ample government counts in did Count meritless; findings. grand jury. translator’s This claim is its case resubmit I asked A. don’t remember who the checks for I prepared all Q. You sure, do is for I didn’t it thing do so. One him? A. ^[*] That’s correct. ^{[*] [*] [*] [*] [*]} that myself. Q. four And hundred thousand where did you get the dollars, to money, any Moon ever write Did Reverend Q. account? Moon’s deposit in Reverend the Man- the checks on Chase portion of family A. fund. From signature? his account other hattan Q. money actually where was the And anything wrote other A. He never it you deposited into at the time before I as far as remem- signature own than his Moon’s account?

ber. for charge in physically A. I wasn’t wrote correct? verend never affixed A. To Q. ^[*] signature anything So, ^ your best of but ^[*] knowledge, he never the anything book, in my knowledge, ^[*] signature; ^[*] other than the check. is that ^[*] Re- that thousand without clear four deposited into Moon’s account? Tomoko A. Q. fund. hundred Well, Over Torii, dollars —how But, where did the four recollection. thousand dollars T-o-m-o-k-o years, I may our brethren did have T-o-r-i-i, you get asked Miss that hundred you but the USA, contrib- they came to Japan, who first al respect With to the two ute, I remem- it was accumulated. and answers, Kamiyama’s objec false legedly at about seven ber that there are least accuracy not to the transla goes tion coming to USA. hundred brethren tion, of the sufficiency govern but to Q. in the fami- any money Was proof at trial. He claims that ment’s expenses used to ly pay stated that Moon does not fund ever only answers had come New carry Japanese account check members who presently the Chase book; government proved that while the York? previously trial that Moon carried A. We never that. No. did checkbook, it did that he prove present Q. you put money didn’t why So so; therefore, that, does and ly Kamiyama’s in a account? bank answers were not to be false literally shown into the put A. Part of was We disagree. Viewing at trial. the first bank, kept. and the balance context, in two answers see sequence Q. Well, account you did have a bank Bonacorsa, they plainly F.2d at fund? family the name carry that Moon the check state “did” not A. No. This indisputably

book. assertion was Q. Reverend Why you did use not to be trial. proved Kamiya true at the family name for the fund? remaining regarding ma’s contentions overseas, money A. came from As the wholly Ten were waived or are Count either nec- money may that become part of merit. without care of the expenses take essary as Eleven, Moving to the specifica- Count brethren, it Reverend Moon’s put we perjury tions of were as follows: Inter- name, represents legitimately who answers are under- declarations or [False Church. national Unification lined.] argues that the first Kamiyama Now, Q. largest deposit, what was alleged to be answers, although not two single deposit was made into Rever- that false, translated inaccurately end Moon’s account? ain mis the third answer somehow cast A. I think it around four hundred inaccura leading assuming Even context. thousand dollars. interpretation to the respect cies with answers, to see we fail

Q. money? Who two deposited first relationship between them and the third swers. Specifically, he contends that answer, alleged the one to be false. With government only demonstrated at trial answer, respect to the second false allegedly he “suggested” or “recommended” that Kamiyama’s it was inaccurately claim give explanation Warder a false ‍‌​‌‌‌‌​‌​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‌‌​‌​​​‌​​​​​‌‌‌​​‌​‌‍as to the translated is unpersuasive since the version Tong origin, II stock’s which is not the same set out in the indictment is in substantial and, therefore, as “telling,” that his an- agreement with the appointed translator’s swers grand jury questions were not Kamiyama argues version. also proven Viewing false. the evidence in the allegedly third false answer —“As the mon- light most government, favorable to the ey came from overseas” —resulted from an jury could have concluded that when Kami- by inaccurate translation the interpreter. yama recommended to Warder that he do Comparing language used in the indict- something telling he was him to do it. Ap- ment with the version of the court-appoint- pellant specific makes no claims with re- ed money translator —“the from overseas” spect to the colloquy translation of underly- —we see no material difference. ing count No. 194. Nor does he argue that the government’s evidence on that count Twelve, As for Count alleged none of the was insufficient.10 mistranslations, ambiguities, or other pur- ported complained infirmities of now was Accordingly, the judgments of conviction Thus, raised below. these claims are are affirmed on all except counts Count waived. Similarly, while he now asserts Seven, Kamiyama’s on which conviction is the two questions underlying Count reversed. The mandate of the court shall Thirteen were translated in fatally forthwith, issue provided that the mandate “vague fashion,” and ambiguous appellant shall stayed for the purpose of and for so abandoned his Count Thirteen translation long permissible as is perfect to and deter- objections during the pretrial on hearing his mine timely appeals from this decision. Moreover, motion to dismiss. there is noth- ing unduly vague ambiguous about the OAKES, Judge (dissenting): Circuit Count Thirteen colloquy, which reads as While fully concurring in the other por-

follows in the indictment: tions of Judge Cardamone’s lucid and care- “Q. you Did ever tell Michael Warder ful I opinion, required am to dissent to that lower echelon Unification Church offi- [a portion relating of it to the trial judge’s to tell government investigators that cial] charge on the law of trusts. Majority op. he got purchase Tong $5000 stock in II IIIA. Contrary Government’s brief from relatives or friends? you Did ever and the view that majority’s “Moon did not tell give him to explanation any- raise until late in the trial” the claim that one? he was holding question assets in A. I didn’t do it. trust, this was position pretrial his Q. Did you ever tell Mike Warder to motion to dismiss as during argu- well as give a false explanation as to paid how he ment on the midtrial motion for a judgment for his stock in II? of acquittal. judge The trial quite properly No, A. I didn’t. acknowledged obligation his charge on

Appellant argues further with re the law of trusts and did so no fewer than spect to Count Thirteen that the govern three space times in the of six pages of ment failed prove the falsity of his an- transcript.1 Government’s assertion Kamiyama’s 10. regarding final already possession contentions his had its information perjury (1) govern- contradicting testimony. convictions are: that the The district court obligation ment part breached rejected some arguments published on its these in its deci- grand jury Kamiyama’s insure at the level 1371-72, 1374, sion see F.Supp. at and we erroneous answers were in fact intentional lies agree rejection with that for the reasons stated negligent mistakes; (2) rather than mere opinion. in the district court’s underlying that his false answers Counts Nine grand example: and Ten were immaterial because the 1. For the be- really that was conceded claim ... fact made “no that defendants to, held Moon’s that the assets were ginning, wanted, much were entitled less [they] do- clear that But the law is the law name. on own instructions specific funds does and control over so crucial minion claimed to be which are of trusts least where taxability, water. The itself establish does not hold simply appeal” on another. beneficially owned instruc funds are Moon submitted detailed Reverend Commissioner, 57 See, Brittingham v. e.g., of law memoranda supporting tions v. Commis- (1971); Seven-Up Co. own T.C. 91 issue of beneficial general on the both also Poonian sioner, See issue 14 T.C. 16) specific and on the (No. ership Cir.1961). States, (9th F.2d associ v. United unincorporated religious whether an in- the court’s Thus, it was essential that of a charitable beneficiary can be the ation on the the law precisely state pressed counsel structions (No. 15). Similarly, trust im- relationship and of a trust requests at creation upon his and elaborated that such a jury’s finding his dis plain plications made charging conference and this case. relationship existed in with the instruction agreement proposed Further by the Government. submitted did not place, this case In the second to more, lodged objections specific counsel lay tax- ordinary, claim that an involve a doing so given as and in the instructions private in a trust certain assets payer held pro for request renewed the specifically the con- of another. On for the benefit position instructions. The defense posed was the founder taxpayer the here trary, the throughout clear and consistent was which, of a worldwide movement and leader v. Kelin proceedings. See United States may what think of the observer regardless son, 600, Cir.1953) (Fed. (2d 205 F.2d 601-02 motives, is neverthe- or even of its views its to lawyer “does a require R.Crim.P. 30 not one, a the members religious less on its face chattеring a magpie”). become the as the embod- regard taxpayer of which Moon Because was objections properly pre- if iment of their faith. Even church, the issue served, however, leader the spiritual the issue of beneficial the of beneficially or the church ownership was one “central to the determi- whether he case, crystal- as or in the funds in his was not guilt nation of innocence” owned name 315, to be Alston, glance 321 seem first the might v. clear as United States Thus, (D.C.Cir.1976). respect defects in case. charge the on this central issue would

to question in appears It the assets plain require error reversal. constitute and from members his largely came to Johnson,-U.S.-, v. Connecticut See faith, was the and there some 969, -, 976, 103 74 L.Ed.2d 823 to intended contributions donors their (1983). purposes. him for religious used in the case a discussing gives Before detail what I believe context involved religious instructions, such I As in cases as special were the errors trust color. noted 1060, Commissioner, in it is F.2d 1065 put wish to them context because v. 595 Winn use Cir.1979), their funds for the only importance (5th then that becomes donated religious in work apparent. place, In the first whether an individual involved religious Tong gifts Manhattan II be considered may Chase Fund and church the individual organization stock held in Moon’s own name were it Winn, example, was In was personal property or Moon’s affiliated. property given money critical in the case. The Govern- that where was issue held cousin, response in missionary, great lengths taxpayer’s ment went to to establish purpose, you got get using was for that But I do think have before believed he them though may in a few instances notion believes even he have if the people gave money of it for or used some that the who intended made bad investments himself, still be viewed it Unification that the monies could to be for the International Movement, being being Movement’s. he Church and if Moon believed as not but holding purpose, if he it for that and T. 6122.

1243 solicitation, following for de- This conclusion stems from the church-sponsored First, facts. law favors charitable account, personal to her posit ultimately trusts will draw reasonable inferences used, intended, support her and resolve to find ambiguities uphold work, sufficiently it was established mission Will, 29, 264 them. re Price’s A.D. 35 the funds were “for the use donated 114-15, aff’d, 111, 751, N.Y.S.2d 289 N.Y. 46 church(es) the contribii- permit of” Nurse, In re (1942); N.E.2d 354 Estate of ting taxpayers to claim deductions for con- 446, 381, 389, N.Y.2d N.Y.S.2d Riddell, Morey v. Similarly tributions. (1974). 321 N.E.2d 537 See N.Y.Est. Pow- F.Supp. (S.D.Cal.1962), it was 1967). 8-1.1 (McKinney ers & Trusts Lаw § money held that where contributed to a Second, gift appears when a to have been totally unorganized religious association by religious purposes, made for charitable way checks to individual “ministers” was to have been gift may be found made church, expenses to meet includ- used language trust even if no trust has been living expenses, the ministers’ deduc- gift was in used and even if form religious tions for contributions would be Estate, absolute. In re Durbrow’s 245 N.Y. Commissioner, But see permitted. Cox (1927); 157 N.E. see also (2d Cir.1961) (not 297 F.2d 36 deductible Society New York v. Board of City Mission intent bequest when was to make indi- Pensions, 261 A.D. N.Y.S.2d vidual). The Reverend Moon’s claim that Third, there are numerous II he held the Chase Funds and the cases a minister or other holding that stock as trustee for the Unification Church church held title to property official who question movement likewise raised the his own name so as trustee for the did property whether the donors intended this See, Parker, church. e.g., Sears purposes. be used for religious 551, to In this (1907) (fund Mass. 79 772 N.E. for context, then, ministers); it I think was incumbent widows and of church orphans Habersham, 174, 182, 2 Jones v. 107 the court certain U.S. upon to make that the 336, 343, (1882) (devise to S.Ct. 27 L.Ed. charge trust not only properly state the church poor trustees to benefit of and fee- involved, were factual elements that but state). Scott, ble 4 A. churches in See The emphasize that it clearly also that the 371.3, at Law of Trusts 2885 & n. §§ proof Government had the burden of be- 1967). (3d Finally, at 2797-98 where ed. a reasonable on this yond doubt difficult source, the source is a church of the assets issue. the added to the fact that donee is a reli- Moreover, as we are referred to state law official, may be gious imposed. a trust See respect in to see ownership, United States Umscheid, Fink v. 40 Kan. 19 P. 623 Mitchell, v. (1888) (Catholic bishop sup- using money 1768, 29 (1971); L.Ed.2d 406 United States plied to in by congregation purchase land (2d Manny, Cir.1981); school, church and own name for a later also Treas.Reg. (1974), see 301.7701-4 the § attempting property; to sell land conceded- light instructions must be viewed in of New ly trust). in also Archbishop held See York law assets pertaining given to to a 21 P. Shipman, 79 Cal. religious leader for the by use trust. While Thus the was whether the funds key issue byI no agree means with the appellants’ given to for his own use or for contention that law New York establishes a movement, that of his church international presumption given any that assets to a reli- whether, though and some of the even gious leader are him in a by held charitable living pur- funds were for his own utilized trust, it permits at lеast of a finding to this poses, permit the to such donors intended effect. use.2 indicted, theory I note here

2. that Moon was and the the that he had “diverted” to his own tried, theory case was given on the that the originally funds in use funds trust. with, begin were never in trust and not on I reprint margin the instructions judge as the in his instructions on the question” the issue” or “central “key ensuing termed it. The discussion relates being religious prevent movement from the key or a whether not the bank 3. issue is The property held in of the name and beneficial owner Manhattan Bank accounts at the Chase Tong in another. II stock issued Reverend the contend, Now, among other belonged the defendants to Reverend Moon. name Tong things, II held the stock and that Moon that these funds and The defense contends by beneficially the accounts trustee Interna- funds of the Chase owned the stock were Unification for the International Church Unification Church Movement tional briefly explain you the supported Movement. Let me various nation- the activities you in order for to evalu- and essentials of a trust al entities in the United States church ate these contentions. elsewhere. person given government A when a is contends funds trust is created The that these money property and for belong to be held used Moon. or to Reverend you person The of someone else. the crucial issue of fact for benefit This is holding property is called the trustee. decide. person property you The who transfers If find that the funds in the Chase “settler”; property referred to as a International trust is accounts were person property is the “trus- Movement were held who holds Unification Church or tee”; entity person on by or whose for the Unifi- and the trust Moon International “beneficiary.” behalf it is the Movement and used for is held cation Church depends purposes on trust is created on the and the interest Whether a church giving property belonged person intent to the Internation- of the those funds also transfer, the time intent must al Unification Church Movement and were it, unambiguous. clear A trust can be that interest not be be used for then would orally par- not created the conduct of the income to Moon. You should or taxable in a interest ties. trust need not be reflected consider whether that income would Moon; anyone other than written document. taxable to is, exist, yourself you concern with In a trust trustee should not order for property obligated International must be to use the whether the Unification Church beneficiaries; gift liability tax inter- benefit Movement had for the deposits, request expectation proper- that the the time mere est earned because way ty particular does not an issue in this case. would be used person determining if the create a There is no trust whether 1974 and trust. money is free to use it for International Unification Church who receives the 1975 the Move- his own If a trust does exist and the Movement existed and whether the benefit. use, property to his own ment owned the funds the Chase accounts trustee diverts trust become taxable him at II stock or whether Reverend Moon funds diverted them, you the evi- the time the extent so diverted. owned dence, including should consider all and to relationship determining such factors the In whether a trust whether existed, should, specific already organizational you as I have men- Movement had a constitution, tioned, structure, you. the evidence before written charter the consider all corpo- unnecessary It is there to be a written existence of other Unification Church for during period, agreement Moon rate entities the relevant time between Reverend and the Church, providing the fact that the accounts maintained Unification were International name, deposits Tong the II Moon’s of he held time and under Reverend the source the funds, parties All intent of the stock of the church. that is the the who on behalf required parties to to the relation- caused the stock and funds be transferred is that both name, any ship person to Moon’s of that the first is hold- second, Reverend evidence understand agreements property benefit of the as to how the funds would be the for the used, you understanding on in which and find such an the manner the stock and can party’s and the conduct. funds were administered whether there basis of the any- is Also evidence Moon ever accounted to the mere fact that Reverend the funds the one for the use of the funds. exercised control over and necessarily per- of list no You stock is indicative This exhausted. not means prop- making ownership. person A who holds should consider all the evidence in sonal your may given erty be on of another broad determination. behalf considering] evidence, authority In the to deal with that there are a and discretion property may long to he does so a manner number of related issues you. occur as as briefly you purpose I for which he was want to instruct on the consistent with the given applicable property place. in the law to these issues. title to the first mentioned, you say may As I have I like to a few final words on the consider would subject religious whether the International Church movements. Unification specific organizational organizations Such can invest conduct Movement had a However, making your the income from such structure in businesses. While decision. taxable, corporation the lack of a formal not this fact does not make does businesses is

1245 issue Secondly, though the was whether my view those instruc- material. to this trust, given religious funds were to a which, they errors because tions contained charge was that the intent to it create must case, the crucial issue must were on be unambiguous,” “clear and as in the case prejudicial. be considered private recognize trusts. I that ma jority portion charge believes this to to First, referring the fact law, be correct under York but New all consider the evidence on the jury should cases it cites for do proposition not move- Church the Unification issue whether support it. of Suffolk Greater County Councils, America, New Boy York Scouts of the movement or and whether ment existed 830, 832-33, 424, 51 433 N.Y.2d N.Y.S.2d owned funds Reverend Moon 425, (1980), 413 N.E.2d 364 only dealt stock, the court II accounts Chase with the when a issue donation to a charita in Para- forth as set eight factors listed ble organization, concededly subject to char among of the footnote. Listed graph Six restrictions, itable will subject trust be to specialized additional on these, not restrictions use emphasized, but was “the intent general narrower than the organization’s caused parties of the who the stock and purpose; charitable the court reversed a funds be to transferred Reverend Moon’s holding bequest Queens Coun simply including name.” Rather than in- ty Council of the be Boy had to used Scouts tent as one things for the jury to a particular forever for Boy camp Scout consider, the my court in view should have distinct from the Boy generally. Scouts advised the jury greatest to accord the Lefkowitz v. Cornell University, 35 A.D.2d weight factor. The church source of 166, 173, (1970), aff’d, 271 N.Y.S.2d the funds and role as church leader N.Y.2d N.Y.S.2d N.E.2d likely to cast on light the issue of the (1971), held that a trust was not created intent, donors’ accordingly charge by the Relying donee’s actions. In re upon specifically should have the jury’s directed Fontanella, 33 A.D.2d 304 N.Y.S.2d attention them. The as given instruction 829, 831 (1969), the court held that allowed the jury against to find Moon on evidenсe was insufficient to show that the issue of ownership beneficial without donee ever intended to create a Fon trust. even considering the crucial issue of donors’ trust, tanella simply private involved Montana, intent. See Sandstrom v. trust, a religious and the donee was not the 39 (1979). L.Ed.2d leader religious of a group.4 religion’s majority taxable only income from other states “the sources, including presented testimony interest it on earns funds it was the of three church deposit. has on they simply gave members who stated that legal requirement There is no that a money reli- intending to Moon to their donate it gious society incorporated prior making Nothing church. was said about of a creation legal business investments. It is an unin- contrary trust.” This statement runs corporated religious church or association to New York and law other trust I have cited property be the beneficial owner of held for necessary above. It was not creation the its in use the name of others. of a trust be mentioned. See Powers N.Y.Est. religious organization properly A pay can 1967); (McKinney & Trusts Law § 8-1.1 Re- living expenses the of leaders minis- [its] (Second) statement of Trusts b § comment pursue ters in order to allow them to its (1959) (“No particular of or con- form words religious purposes can and make loans to its necessary duct is for the manifestation of inten- length ministers or leaders on arm’s terms. Compare, tion to create a trust. charitable T. 6583-88. private trusts, 24(2). to A charitable trust § may although the created settlor does not majority equivocal saying, 4. The is on the ”). use the word ‘trust’ or ‘trustee.’ hand, only one that the burden on Moon was to present prima agree. a In this I facie case that he held connection the trial court and trust, sufficient, by though assets in to this There no not establish as an was and, other, conclusive, present question affirmative defense on the means to a to that, proof jury. majority agree review of evidence reveals no The I if this actually case, subject proof beyond Moon held the funds in trust. were the a burden instruction, over given The diversion basis case. good be no Thus, appears there was at variance objection, defense unambiguous” “clear finding that was the Reverend theory on a charitable to create necessary intent is entire case which the and on The indicted York. law of New under the trust law and of tried. York trust of New strong policy charitable uphold is to generally

trust law though Second, exist even may trust a and to construe possible trusts whenever freedom with the is endowed the trustee See, re Price’s e.g., In liberally. their terms portion benefit personal his own use for 111; In at Will, 35 N.Y.S.2d 264 A.D. at use in trust and such he holds the funds 469, 157 Estate, at 245 N.Y. Durbrow’s re trust. of the the existence nullify will not fact, it is this light at 747. N.E. 1145, 1166 Scott, F.2d United States unambigu- “clear and require anomalous denied, 455 Cir.1981), cert. (7th n. 38 establish intent to ous” of the donor’s proof (1982); 1252, 71 L.Ed.2d 907, 102 S.Ct. trust. a charitable 71-449, 77. This 1971-2 C.B. Rev.Rul. held case of monies true in the particularly in the instruc- error The second crucial leaders, use since often religious by in trust that the should charge in the tions lies living ex a leader’s pay funds to whether of such first factor very consider as the of the church’s scope are within the penses Unification move- Church the International See, v. Rid- eg., Morey religious purposes. struc- organizational specific ment “had a ” Moreover, the dell, at 918. F.Supp. .... ture, or constitution written charter that, even if explain instruction failed 13.) The Government (See supra note divert improperly had the Reverend Moon rule of trust concedes that it is a cardinal a nontrust funds to ed some of the Chase trust cannot fail for law that a charitable not make use, could partial such diversion beneficiary. The court specific lack of a the interest corpus, and thus the entire specific organiza- have said that a should thereon, him. United States taxable to prerequisite tional structure was not a 1145; Herbert v. Scott, at see also trust because 660 F.2d the existence of a charitable Cir.1967). Commissioner, (9th of a charitable trust beneficiary fact no the extent phrase “to The inclusion of designated need be at all. See N.Y.Est. portion of in the diversion (McKinney Law 8-1.1 so diverted” Powers & Trust § concept Scott, conveyed not have 1967).5 charge The Law of Trusts could A. See (3d 1967). at all. at 2838-39 ed. § shift-

Moreover, view the instructions regard- Finally, my the court's instructions on proof burden of ed to the defendant ing the use or misuse of trust funds were The ownership. (See the issue of beneficial confusing. supra least note very found the Chase First, charged that “if” it 114.) may while it be correct as the Internation- property funds were the matter of law that a trustee who diverts or were movement to his use is taxable to al Unification Church property trust own movement, diversion, Moon for the diversion was held in trust extent of the Thus, not be taxable interest “would charged in the indictment. evi- “then” the of this implication income to Moon.” dence of diversion was irrelevant state, upon indefinite- is invalid rеason of the remained reasonable doubt Govern- designated majority uncertainty persons was not ment. But the thinks there ness or enough present evidence to the issue to the If trustee is named as beneficiaries. instrument, prop- at all. legal disposing to the title purpose erty vests in for such a transferred 8-1.1(a) 5. N.Y.Est. Powers & Trusts Law § trustee; person as trus- is named if no such (McKinney 1967) reads as follows: tee, having jurisdiction vests in the court title religious, disposition property for No of the trust. over charitable, pur- educational or benevolent poses, laws of this otherwise valid under the instruction was that Moon had to convince INMATES, UNION COUNTY JAIL Tim- belonged that the property Barlow, Evans, Jr., Ray- mie Lee Elbert States, v. See Notaro United movement. Skinner, Wysocki, mond James on be- (9th Cir.1966) (con- 175-76 persons half of themselves and all other an demning “if/then” instruction as obscur- similarly situated locus of proof). the burden of By v. saying that the donor’s intent must be DIBUONO, Assignment Judge; V. William unambiguous,” only “clear and was the Barbieri, Joseph Assign- G. Criminal

law of misstated, charitable being trusts Judge; Davidson, Jr., ment Cuddie E. but placed the burden of proof improperly Judge; Representatives Bail upon the defendant was heavy made in- Judges of the Criminal of Courts Union deed. I do not believe that mention of County; Froelich, Ralph County Union “beyond reasonable doubt” the tail end Sheriff; Scanlon, James Jail Adminis- of this discussion overcame improper trator; Hefferson, Warden; Thomas Jail language within the concept curative of Sinnot, Chairman, Rose Marie Board of Cupp Naughten, 141, 146-47, 414 U.S. Freeholders; Albanese, George Chosen L.Ed.2d 368 County Manager; and their Successors Office, capacities, in their official Thus in a case issue, where the crucial Randolph Pisane and Louis J. Coletti ‍‌​‌‌‌‌​‌​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‌‌​‌​​​‌​​​​​‌‌‌​​‌​‌‍and indeed the only real question, factual was whether property unquestionably held FAUVER, Commissioner, William H. own De- name was beneficially owned partment Corrections, State New by him or was personally held him on Jersey, and his Successor in his official behalf international church move- capacity. ment, charge fell short in several re- spects. Appeal FAUVER, of William H. Commis- sioner, Jersey Department New While often a charge simply way to of Corrections. rough justice achieve help with the of a No. 82-5310. jury, when a issue separating critical crimi- nal involved, conduct from civil is in my United States of Appeals, Court view it must be accurate in all respects. Third Circuit. charge, believe, This I was not. Oct. 1983. SEITZ, ALDISERT,

Before Judge, Chief ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER BECKER, WEBER, Judges Circuit Judge.* District * Weber, vania, Honorable sitting by Gerald J. States designation. Dis- Judge Pennsyl- trict for the Western District

Case Details

Case Name: United States v. Sun Myung Moon and Takeru Kamiyama

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 13, 1983

Citation: 718 F.2d 1210

Docket Number: 755, 765, 766 and 1153, Dockets 82-1275, 82-1279, 82-1277, 82-1357 and 82-1387

Court Abbreviation: 2d Cir.