United States District Court, S. D. New York.

“ The Second Circuit went on to note, however, that when "a prosecutor is aware of any substantial evidence negating guilt he should, in the interest of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the (grand) jury not to indict." ”

“ That the misstatement in DiVarco did not concern the "Wages, salaries, tips, and other employee compensation" line on the income tax return is of no importance.
In light of DiVarco, this Court is not prepared to conclude so early in the case that Moon's representation, if false, was not material. Listing the Unification Church as the source of income clearly had a potential negative impact on the administrative operations of the IRS-besides the obvious problems of verification, such a statement concealed the existence of the Chase accounts and the interest they generated. ”

“ At a pretrial conference on January 15, 1982, the Court denied Moon's motions to dismiss on the ground that this is a selective prosecution, for a severance, for discovery of electronic surveillance, and for a hearing to determine the qualifications of any interpreter appointed by the Court. Moon's motion to suppress any evidence shown to have been obtained illegally was denied in the absence of proof that any evidence had been obtained in an illegal manner. ”

“ On December 15, 1981, the grand jury returned a superseding indictment that adds an additional perjury count against Kamiyama and makes certain changes in the language of other counts.
The defendants have made a number of substantive and procedural motions, many of which have already been decided. [FN3] Several motions remain outstanding. Moon moves to dismiss the tax counts on the ground that they are legally insufficient and to dismiss all the counts on the grounds of prosecutorial misconduct and abuse of the grand jury process. ”

“ I. The Tax Counts The first area of dispute concerns the tax counts of the indictment. Moon moves to dismiss counts two, three, and four, which charge Moon with knowingly and wilfully filing false income tax returns for the years 1973, 1974, and 1975, a violation of 26 U.S.C. s 7206 (1) (1976) , and count one insofar as it charges a conspiracy to file false tax returns. ”

“ Moon argues that this false source allegation is legally insufficient.
[3] The first argument proffered by Moon is that the statement amounted only to an explanation of the absence of an attached W-2 form, not a representation that the Unification Church was the source of the income reported on line 9. [FN7] This is untenable. A W-2 form indicates the amount of income received from a particular source, and it is prepared by the organization or individual that is the source of the income. ”

“ Reliance on Levy is misplaced, however, because it does not stand for the proposition that one can be prosecuted under section 7206 (1) only if the false statement was made in response to a question specifically authorized by the Code or Regulations. ”