United States Court of Appeals for the Second Circuit

“ The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game. We agree with the District Court that the player's participation does not withdraw the audiovisual work from copyright eligibility. No doubt the entire sequence of all the sights and sounds of the game are different each time the game is played, depending upon the route and speed the player selects for his spaceship and the timing and accuracy of his release of his craft's bombs and lasers. ”

“ Additionally, review of the transcript of the seven painstaking days of jury selection, involving the interrogation of 63 out of 200 veniremen for the panel and 17 for the six alternate positions, convinces us of the accuracy of the trial court's finding after selection was completed that "we have gotten a jury which is, if not totally free from bias, by and large capable of putting aside the bias they have and deciding the case on the merits of the charges." Jurors need not be totally ignorant of a defendant in order to be fair and unbiased. ”

“ The Caviezels' challenges to the dismissal of their First Amendment and equal protection claims and the award of summary judgment on their state law exemption claim fail to clear the common hurdle erected by the district court's factual finding, made after the preliminary injunction hearing, that they failed credibly to demonstrate “that they hold genuine and sincere religious beliefs which prohibit vaccinations.” ”

“ 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 is more likely that defendants sought to appropriate the trademark with the expectation that they would later imitate the audiovisual display." Moreover, the equities abundantly justified issuance of an injunction against Omni's use of the mark. Stern has a substantial investment in the mark, having achieved success in the marketplace with its sales of a large number of units bearing the mark. By contrast, Omni has placed the mark on the headboard of five units of games that are not "Scramble" and has used the mark for a "Scramble" game that is a pirated "knock-off" of Stern's game. ”

“ Under New York law, which governs the issue of ownership, it is well settled that a donor's intent to create a trust must be clear and unequivocal. This rule is not limited to private trusts, as defendant claims, since the creation of a charitable trust also requires a clear expression of intent. ”

“ In order for a trust to exist, the trustee must be obligated to use the property for the benefit of the beneficiaries; a gift with a mere request or expectation that the property would be used a particular way does not create a trust. There is no trust if the person who receives the money is free to use it for his own benefit. If a trust does exist and the trustee diverts trust property to his own use, the funds diverted become taxable to him at the time and to the extent so diverted. ”

“ That finding precludes a viable claim that they have been injured in the free exercise of religion or that the government treats sincere religious beliefs disparately in violation of the Equal Protection Clause. ”

“ The preliminary injunction is affirmed.
* The Honorable Edward Dumbauld of the United States District Court for the Western District of Pennsylvania, sitting by designation 1 Memory devices of computers are generally either RAM (random access memory) or ROM (read only memory) . RAM, used in most sophisticated computers, is a memory device in which stored information can be changed simply by writing in new information that replaces old information. The stored information in a ROM cannot be changed; it is imprinted into the ROM when the device is manufactured. ”

“ Right to Counsel
The Caviezels maintain that the district court erred in dismissing for lack of standing their claim that the form used by the New York State Education Department in assessing vaccination exemption requests chilled their right to utilize counsel by directing them to describe their objection to vaccination “in [their] own words.” J.A. 43. See generally Baywood Elec. Corp. v. N.Y. State Dep't of Labor, 232 A.D.2d 553, 554, 649 N.Y.S.2d 28, 29 (2d Dep't 1996) (commenting that due process affords party to administrative hearing “opportunity to be represented by counsel”) . ”

“ As a preliminary matter, it is essential to inquire as to who had the burden of proof on the trust issue. Of course, the government must prove every element of the offense charged beyond a reasonable doubt. One of those elements is that Moon had income from the Chase accounts and the Tong I1 stock distribution that he failed to report. Defendant may then present an "affirmative defense," one which does not rebut an element of the crime, or some other defense which rebuts an element of crime. If defendant asserts an affirmative defense he bears the burden of proof on it. ”

“ Video games like "Scramble" can roughly be described as computers programmed to create on a television screen cartoons in which some of the action is controlled by the player. In Stern's "Scramble," for example, the video screen displays a spaceship moving horizontally through six different scenes in which obstacles are encountered. With each scene the player faces increasing difficulty in traversing the course and scoring points. ”

“ In reviewing the district court's determination we turn to Federal Rule of Evidence 401 which states that relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The government argues now, as it did at trial, that the submission of false immigration documents was relevant to Moon's intent in filing the false tax returns. ”

“ For the Supreme Court has also held that even though one has no right to a government benefit, such benefit may not be denied and when granted may not be conditioned or later revoked for a reason that infringes an individual's constitutional rights, especially First Amendment freedoms. ”

“ Nothing in the Constitution guarantees one the right to select his own tribunal or the right to a speedy and public trial by a fair and impartial judge. The right to trial by jury is a benefit granted an accused, see Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979) , which a defendant has the power to waive. But before a waiver can be effective, the consent of the prosecutor and the sanction of the court must be obtained. See Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. ”

“ 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. ”

“ B. Religion Clauses Objections Moon objects to instructions that permitted the jury to find that if he used the Chase funds for his own business investments or personal ends--that is for other than religious purposes--such use would indicate the lack of a trust relationship. The defense urges that this instruction violated the First Amendment Religion Clauses because the trial court was obligated to charge that the jury must accept as conclusive the Unification Church's definition of what it considered a religious purpose. ”

“ In the first place, whether the Chase Manhattan Fund and the Tong Il stock held in Moon's own name were church property or Moon's personal property was the critical issue in the case. The Government went to great lengths to establish a fact that was really conceded from the beginning, that the assets were held in Moon's own name. But the law is clear that dominion and control over funds does not by itself establish taxability, at least where funds are beneficially owned by another. ”

“ 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. ”

“ The court should have said that a specific organizational structure was not a prerequisite to the existence of a charitable trust because in fact no beneficiary of a charitable trust need be designated at all. ”

“ But, there are religions which do not positively require the assumption of a God, for example, Buddhism and the Unitarian Church. Hence, a broader definition of the word religion--one which we think more accurately captures its essence--is that formulated by the pre-eminent American philosopher, William James, who said religion means: "the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine." ”

“ Second, when a gift appears to have been made for charitable or religious purposes, the gift may be found to have been made in trust even if no trust language has been used and even if the gift was in form absolute. ”

“ What remains to be answered is whether the petit jury could still properly infer corrupt intent from the fact that Kamiyama submitted the false documents to the grand jury knowing that the documents were material to that jury's investigation. Intent to obstruct justice is normally something that a jury may infer from all of the surrounding facts and circumstances. ”

“ The Government's assertion that defendants made "no claim ... that [they] wanted, much less were entitled to, any of the specific instructions on the law of trusts which are claimed to be so crucial on appeal" simply does not hold water. The Reverend Moon submitted detailed instructions with supporting memoranda of law both on the general issue of beneficial ownership (No. 16) and on the specific issue whether an unincorporated religious association can be the beneficiary of a charitable trust (No. 15) . ”

“ While the income from such businesses is taxable, this fact does not make taxable the religion's income from other sources, including interest it earns on funds it has on deposit.
There is no legal requirement that a religious society be incorporated prior to making business investments. It is legal for an unincorporated church or religious association to be the beneficial owner of property held for its use in the name of others. ”

“ OAKES, Circuit Judge (dissenting) : While fully concurring in the other portions of Judge Cardamone's lucid and careful opinion, I am required to dissent to that portion of it relating to the trial judge's charge on the law of trusts. Majority op. IIIA. Contrary to the Government's brief and the majority's view that "Moon did not raise until late in the trial" the claim that he was holding the assets in question in trust, this was his position in the pretrial motion to dismiss as well as during argument on the midtrial motion for a judgment of acquittal. ”

“ Whether a trust is created depends on the intent of the person giving the property at the time of the transfer, and that intent must be clear and unambiguous. A trust can be created orally or by the conduct of the parties. The trust need not be reflected in a written document. ”

“ It did not request an audit of Moon's personal tax status, suggest that he be criminally prosecuted, or indicate any racial or religious bias. Thus, we fail to see how the letter can be said to constitute prima facie evidence that the decision to prosecute Moon was the product of an impermissible motive. Appellants have therefore failed to satisfy either prong of Berrios.
We recognize that Moon is a controversial public figure who has been subjected to extensive media attention, much of it critical, and that his church may perhaps be viewed by the general public in an unfavorable light. ”

“ But the majority thinks there was not enough evidence to present the issue to the jury at all.
Thus, there appears to be no good basis for finding that "clear and unambiguous" intent is necessary to create a charitable trust under the law of New York. The strong policy of New York trust law and of trust law generally is to uphold charitable trusts whenever possible and to construe their terms liberally. ”