Table of Contents

718 F.2d 1210, 52 A.F.T.R.2d 83-6026, 83-2 USTC P 9581, 14 Fed. R. Evid. Serv. 133

One defendant was convicted in the United States District Court for the Southern District of New York, Gerard L. Goettel, J., of conspiracy and filing false tax returns and other defendant of aiding and abetting filing of false returns, obstruction of justice and perjury, and they appealed. The Court of Appeals, Cardamone, Circuit Judge, held that: (1) Government's reason for opposing first defendant's request for bench trial was not to punish him for exercising his First Amendment rights; (2) denial of bench trial did not violate first defendant's right to fair trial; (3) there was sufficient evidence to support filing and aiding and abetting convictions; (4) there was sufficient evidence to support conspiracy conviction; (5) trial court was not required to charge jury on trust issue; (6) certain instructions did not violate First Amendment religious clauses; (7) district court did not abuse its discretion in holding that defendants failed to demonstrate necessary factual predicate for claim of selective prosecution; (8) district court correctly ruled that if defendant elected to testify, he would have to speak through certified, court-appointed interpreter; (9) requiring defendant to testify through court-appointed interpreter did not impermissibly restrict defendant's constitutional right to present full defense; (10) admission of certain irrelevant evidence was harmless; (11) district court did not abuse its discretion in allowing admission of evidence of church practices; (12) there was no reversible error in denial of motions relating to alleged improper influences on jury; (13) evidence was insufficient to support conviction for knowingly submitting false and misleading documents to grand jury with intent to corruptly impede its investigation; and (14) evidence was sufficient to support remaining convictions.

Affirmed in part and reversed in part.

Oakes, J., filed dissenting opinion.

See also, 93 F.R.D. 558; 532 F.Supp. 1360; 688 F.2d 817; 697 F.2d 301.

Laurence H. Tribe, Cambridge, Mass. (Jeanne Baker, David J. Fine, Baker & Fine, Cambridge, Mass., Charles A. Stillman, Stillman, Friedman & Shaw, P.C., New York City, Bernard S. Bailor, Caplin & Drysdale, Chartered, Washington, D.C., of counsel), for defendant-appellant Moon. Andrew M. Lawler, New York City (Maurice M. McDermott, Dennis E. Milton, Anne T. Vitale, Andrew M. Lawler, P.C., New York City, Barry A. Fisher, Robert C. Moest, David Grosz, Fisher & Moest, Los Angeles, Cal., of counsel), for defendant-appellant Kamiyama.
Jo Ann Harris, Asst. U.S. Atty., New York City (William M. Tendy, Acting U.S. Atty. S.D.N.Y., Gary G. Grindler, Gerard E. Lynch, Walter P. Loughlin, Asst. U.S. Attys., New York City, Martin Flumenbaum, Sp. Asst. U.S. Atty., New York City, of counsel), for appellee.
Samuel E. Ericson, Springfield, Va. (Edward Larson, Springfield, Va., of counsel), for the Center for Law and Religious Freedom, amicus curiae.
Steven R. Shapiro, New York City, for the American Civil Liberties Union and New York Civil Liberties Union, amicus curiae.
Earl W. Trent, Jr., Valley Forge, Pa., for National Ministries, American Baptist Churches in the U.S.A., amicus curiae.

Before OAKES, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge

Reverend Sun Myung Moon and Takeru Kamiyama appeal from judgments of conviction entered on July 16, 1982 in the United States District Court for the Southern District of New York following a six-week jury trial before Judge Gerard L. Goettel. Moon was charged basically with filing false income tax returns and Kamiyama with obstructing the investigation of those returns.
Paying income taxes is not America's most popular national pastime. But, most accept the certainty of taxes as part of the price of modern life. Tax fraud prosecutions usually do not present the myriad of constitutional problems involved here. Yet in this case the defense raises troubling issues of religious persecution and abridgment of free speech that are interwoven with other grounds for objection to the judgments below. In reducing this huge record and the veritable avalanche of arguments presented to what we hope is comprehensible form, we have divided this opinion into five major sections-- Denial of Bench Trial, Sufficiency of the Evidence, Jury Instructions, Miscellaneous Issues, and Kamiyama's Claims. Most of the issues raised have been addressed. Those not discussed are minor points that we consider wholly without merit.
We commend the manner in which Judge Goettel presided in this especially lengthy trial. Such errors as inevitably crept in were skillfully unearthed by counsel. Of course, defendants are only entitled to "a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Defendants did receive a fair trial and we affirm their convictions on all counts, except Kamiyama's conviction on Count Seven which is reversed.

BACKGROUND

The main indictment upon which Reverend Moon and Mr. Kamiyama were tried charged them in Count One with conspiracy, 18 U.S.C. § 371, to file false federal income tax returns, 26 U.S.C. § 7206(1), to obstruct justice, 18 U.S.C. § 1503, and to make false statements to government agencies, 18 U.S.C. § 1001, and to a federal grand jury, 18 U.S.C. § 1623. Counts Two, Three and Four charged Moon with filing false tax returns for 1973, 1974 and 1975, in violation of 26 U.S.C. § 7206(1). Counts Five and Six charged Kamiyama with aiding and abetting the filing of the false 1974 and 1975 returns, 26 U.S.C. § 7206(2). The remaining counts (Seven through Thirteen) charged Kamiyama with the substantive offenses of obstruction of justice through the submission of false documents to the grand jury, 18 U.S.C. § 1503, submitting false documents to the Department of Justice, 18 U.S.C. § 1001, and five counts of perjury, 18 U.S.C. § 1623. A separate indictment charged Kamiyama with an additional count of perjury. At the conclusion of the trial on May 18, 1982 the jury returned guilty verdicts against both defendants on all counts. Moon was sentenced to concurrent terms of 18 months in prison on Counts One through Four and fined $25,000 plus costs. Kamiyama was sentenced to concurrent terms of six months in prison on all counts of which he was convicted and fined $5,000. Both sentences have been stayed pending this appeal.
Defendants moved in September 1982 for a new trial, alleging juror misconduct. After holding hearings on this issue, Judge Goettel denied the motion by order dated October 13, 1982 and issued an order on November 5, 1982 restraining all parties and their agents from communicating with the trial jurors without prior consent of the court. Defendants appeal from these two post-trial orders as well as from their convictions.
The case focused principally on bank accounts held in Reverend Moon's name in the Park Avenue office of the Chase Manhattan Bank. On March 27, 1973 Reverend Moon walked into the Chase branch and opened a personal checking account and a savings account. During the next nearly three years over 1.7 million dollars was deposited in these accounts in Moon's name, all but $200,000 of which was in cash. A substantial portion of the funds were transferred to high-yielding Chase time deposits held in Moon's name. During the years 1973-1975 these investments earned more than $100,000 in interest, not reported as income on Moon's tax returns for the years in question. Also at issue was $50,000 worth of stock issued to Moon in 1973 in Tong I1 Enterprises, Inc., a corporation organized in New York in 1973 by Moon and Kamiyama which was engaged in the business of importing products from Korea. The receipt of this stock, which the government apparently views as a dividend, also was not reflected as income on Moon's tax return.
The critical issue is whether, as the government claims, Moon owned these assets and was therefore required to pay income taxes on the bank interest and the value of the stock or, as the defense urges, Moon held these assets merely beneficially or as a trustee for the Unification Church. Before entering upon a discussion of this central issue, we first address contentions raised by the defendants as a result of the government's refusal to consent to defendants' request for a bench trial.

I

DENIAL OF BENCH TRIAL

A. As a Denial of the First Amendment Right to Free Speech

It is the view of the defense that the government's reason for opposing the defendants' request for a bench trial is unconstitutional, so that the judge's acceptance of it was error of constitutional dimension mandating reversal. The factual background may be simply stated. At a rally in New York City's Foley Square on October 22, 1981 following his arraignment, Moon made a speech which was partially reprinted as a full page advertisement in the New York Times of November 5, 1981. He stated:
I would not be standing here today if my skin were white or my religion were Presbyterian. I am here today only because my skin is yellow and my religion is Unification Church. The ugliest things in this beautiful country of America are religious bigotry and racism.
In response to defense efforts to waive a trial by jury, the prosecutor wrote a letter to Judge Goettel dated March 11, 1982 stating her opposition and, referring to the excerpt quoted above, adding that defendants had raised--and circulated worldwide--questions about "the integrity and motives of this prosecution." It was the prosecutor's conclusion that a single factfinder would be placed in an "untenable" position and that there was an overriding public interest in the appearance as well as the fact of a fair trial, which could be achieved only by a jury. The government insisted that employing this normal and preferable mode of disposing of fact issues in a criminal trial would defuse the public criticism that had been leveled by Moon. The defense argues that, on the contrary, insistence upon a jury trial had the effect of punishing Moon for exercising his First Amendment right of free speech. The punishment, so the argument runs, took the form of denying Moon a benefit, i.e., a nonjury trial, that he would otherwise have been entitled to. The underlying rationale for this argument is that Moon and his followers had received such negative press that, regardless of the government's protestations, it was impossible to obtain a fair trial with a jury and that this state of affairs was only exacerbated by Moon's speech.