Full opinion text
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 II 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 fact-finder 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. Trial by jury is a constitutional right provided in Article III Section 2 of the Constitution. The Sixth,Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” 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. 253, 263, 74 L.Ed. 854 (1930); Fed.R.Crim.P. 23(a). The ability to waive the benefit does not import a right to claim its opposite. And the Supreme Court has stated that because of “confidence in the integrity of the federal prosecutor, Rule 23(a) does not require that the Government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant’s proffered waiver.” Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965). Conclusive as that statement might appear, it does not end the matter. 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. See, e.g., Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Sherbert v. Verner, 374 U.S. 398, 405, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). But the defendant has presented no facts on this record that convince us that the government’s reason for refusing to consent to a bench trial was impermissibly to punish Moon for exercising his First Amendment rights. Instead, it appears that the public prosecutor elected, as was her right and based upon the reasons she gave, to have this case tried in the constitutionally preferred manner. Without the factual predicate to support his argument, the defendant’s claim of error evaporates. B. As the Denial of the Right to a Fair Trial Moon also contends that prior to the voir dire there was an unacceptable risk that a fair jury could not be selected and therefore that the denial of a bench trial violated his right to a fair trial. This argument, like the previous one, urges that there was a reasonable likelihood in advance that public animosity toward Moon and his religion would prevent a fair trial. In our view this debatable contention could be satisfactorily resolved only upon the voir dire of prospective jurors. See Application of Cohn, 332 F.2d 976, 977 (2d Cir.1964). Ordinarily, insisting that a defendant undergo a jury trial against his will does not run afoul of a defendant’s right to due process and a fair trial. Singer v. United States, 380 U.S. at 34-36, 85 S.Ct. at 789-790. Certainly we recognize, though, that there might be cases where the circumstances are so compelling that for the court to countenance the government’s insistence on a jury trial over the defendant’s request to be tried by a judge alone would deny the defendant a fair trial. See Singer v. United States, 380 U.S. at 37, 85 S.Ct. at 791. This is not such a case. Compelling circumstances are not demonstrated simply by claims of an atmosphere poisoned by a negative press. The validity of such claims is properly shown upon a voir dire of prospective jurors. The trial court, wisely recognizing that this was a safer avenue to follow in order to ascertain whether a fair jury could be obtained, properly reserved until after the voir dire its option to overrule the government’s refusal to waive a jury trial. 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. See Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 798-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975). Even where a prospective juror has formed some preconceived opinion as to the guilt of the accused in the case on trial the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on the evidence in the case. Murphy v. Florida, 421 U.S. at 799-800, 95 S.Ct. at 2035-2036; Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); United States v. Murray, 618 F.2d 892, 899 (2d Cir.1980). Significantly, defense counsel only challenged one of the 12 jurors for cause, and the denial of that challenge is not raised on appeal. See Beck v. Washington, 369 U.S. 541, 557-58, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962) (failure to challenge for cause prospective jurors is strong evidence defendant considered jurors not biased). Absent a clear abuse of the trial court’s discretion, one that results in manifest prejudice to defendants, the finding made by the trial judge that the jury was fair and unbiased must be upheld. See United States v. Brown, 644 F.2d 101, 104 (2d Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). II SUFFICIENCY OF THE EVIDENCE A. Counts Two Through Six Defendants argue that the evidence presented was insufficient to find them guilty beyond a reasonable doubt on the substantive tax offenses charged in Counts Two through Six. To find defendants guilty of fraud in the filing of Moon’s income tax returns, the jury had to find that statements contained in the returns which were verified as true were in fact false, and that these false statements were willfully made. Viewing the evidence in the light most favorable to the government and considering that all questions of credibility are within the exclusive province of the jury, there was ample evidence to find that Moon willfully filed false tax returns for the years 1973-75 and that Kamiyama willfully aided and abetted in the false 1974 and 1975 filings. (1) Falsity (a) Moon’s Financial Picture We examine first the evidence regarding falsity. In order to do so we sketch briefly defendants’ financial picture. In November 1972 when Reverend Moon visited the United States he was already a successful businessman, being founder and chairman of the boards of eight publishing and manufacturing companies in his native Korea. The Unification Church of New York had begun purchasing and importing ginseng tea and marble vases from some of Moon’s Korean companies. In June 1973 Kamiyama incorporated Tong II Enterprises in New York which purchased and sold these items. Moon subscribed to 500 shares for $50,000 which, according to some of the corporation’s records, he paid for. His wife subscribed to 200 shares for $20,000 and Kamiyama subscribed to 100 shares for $10,000, all from an original issue of 1005 shares. Thus, Moon and his wife had 70 percent control of the company and Moon was elected chairman of its board. Although 500 shares were issued to Moon, he did not actually pay for them, as he had originally obligated himself to do. Instead the stock was issued to him without payment in 1973, apparently in exchange for various assets transferred to Tong II by other corporations which Moon controlled. In the spring of 1974 Moon began drawing a salary from this enterprise as a “business consultant” and at the same time opened a checking account, known as the “household account,” in the Chase Manhattan Bank into which his salary was deposited. As noted, about a year earlier, Moon had opened a different personal checking account (“checking account”) and an individual savings account at the Chase Manhattan Bank. Subsequently, on April 9, 1973, Moon personally deposited $100,000 into the checking account. During the three-year course of his relationship with the bank approximately $1,724,774 was deposited into Moon’s various accounts. Commencing in late 1973 he transferred from the checking and savings accounts, and directly deposited, a substantial portion of the $1.7 million in high-yielding Chase time deposits. These time deposits were also held in Moon’s name, and on his instructions they, together with the interest earned on them, were rolled-over. The total interest earned on all the Chase accounts in the relevant years, 1973-75, was approximately $106,650. With respect to living expenses, the household account at Chase was used by Moon primarily to pay the private school expenses of his children. Ordinary personal and household expenses were paid for by the Holy Spirit Association for Unification World Christianity (HSA-UWC), incorporated in California in 1961 as the American branch of the Unification Church. Having outlined the Tong II stock and Chase accounts transactions, we complete Moon’s financial picture by describing the real estate dealings pertinent to this case. A month before Moon’s November 1972 arrival in the United States HSA-UWC purchased “Belvedere,” the 20 acre Bronfman estate in Tarrytown, New York, for $750,-000. The seller took back a $550,000 mortgage and the $200,000 balance was paid by HSA-UWC. When Moon came in 1972 he occupied the main house on this estate. In the fall of 1973 an adjoining estate became available. It was purchased that October in the name of HSA-UWC for $631,827. To complete the purchase Moon loaned HSA-UWC $361,827 from the checking account at Chase. He also issued his personal check to Sotheby Park Bernet for $51,160 to pay for furnishings in the estate, which he named “East Garden.” In late 1973 Moon’s family came from Korea. He and his staff moved out of Belvedere and, together with his family, took up residence in East Garden. (b) Evidence Under the government’s theory of the case, Moon failed to report interest income earned on the Chase Manhattan Bank accounts that he purportedly owned and income recognized as a result of a distribution of Tong II stock to him at no cost. Appellants’ principal contentions at trial were that the Chase accounts and Tong II stock belonged to the Church, that Moon merely held these assets as the nominee, agent, and/or trustee of the Church, and that therefore he was not taxable on either the Chase interest or Tong II stock distribution. In concluding that the jury properly found the Chase accounts and Tong II stock to be Moon’s personal property, we start first with the fact that the Chase accounts and Tong II securities were maintained in Moon’s name and controlled by him. Second, some funds clearly destined for Church entities were put in existing Church bank accounts which were owned and controlled by Church corporations. Third, from his handling of the Chase accounts and Tong II stock Moon seemingly regarded them as his own, not as belonging to the Church. Fourth, high ranking members of the Church were told that the Chase funds belonged to “Father,” not to the Church. The government introduced evidence that Moon actually considered the Chase accounts to be his own property rather than the Church’s, and that he used funds from the accounts for expenditures which the jury could have concluded were personal in nature. Several examples will suffice. In September 1975 Moon and Kamiyama purchased shares in a new bank, Diplomat National Bank in Washington, D.C., $80,000 worth of stock for Moon and $75,000 for Kamiyama. The funds used to pay for the stock were derived from one of Moon’s time deposits at Chase and transferred into the household account, and later a check drawn on that account was made payable to the Diplomat National Bank. In 1973, when HSA-UWC purchased East Garden, Moon loaned HSA-UWC $361,827 from the checking account to complete the $631,827 purchase. This transfer was carried on HSA-UWC’s books as a personal loan from Moon. Later, when HSA-UWC was unable to meet mortgage payments on the $500,000 mortgage on “Belvedere,” Moon broke a Chase time deposit and loaned $175,000 to the Church organization. HSA-UWC repaid Moon $70,000 of this loan, writing off the $105,000 balance as a personal contribution from Moon. The jury might well have inferred from the bookkeeping entries concerning these transactions that HSA-UWC considered the Chase funds Moon’s exclusive property. In November 1973 Moon directed that title to East Garden be transferred to him because he had supplied most of its purchase price from his personal funds, i.e., the Chase accounts. But before Moon’s subordinates could complete this transfer they were informed by Church lawyers that Moon would have to pay the estate’s fair market value of $700,000 in order to avoid adverse tax consequences for himself and the Church. To create this $700,000 consideration, loans to HSA-UWC from Moon amounting to $361,827 were falsely increased on the Church books to $700,000. Moon then signed a Release and Cancellation of Indebtedness Agreement covering the $700,000 purchase price for East Garden. Even though this document was never actually used, by signing it Moon implicitly acknowledged that the $361,827 used to pay for the property, which had come from the Chase accounts, was his own. Finally, the documents given by the defendants to the Justice Department to support their theory that Moon held the Chase funds and Tong II stock other than individually were revealed to be fraudulently backdated. To understand how this came about it is helpful to capsulize Moon’s finances at the beginning of 1974. At that time Moon had $556,000 in Chase time deposits, an outstanding loan of $361,827 to HSA-UWC made in connection with the purchase of East Garden, $50,000 and $4,000 in his Chase checking and savings accounts respectively and $50,000 worth of Tong II stock. East Garden had $51,160 worth of furnishings purchased from Sothebys. These assets had a value in excess of a million dollars. At this point the leaders of HSA-UWC consulted a Washington law firm regarding a number of business and financial matters, including the transfer of East Garden into Moon’s own name. The leaders were advised by counsel to keep Moon’s assets separate from those of the Church, that Moon had to file a personal income tax return, that as a resident alien he was taxable on all income to him from whatever source, and that the custom of providing substantial gifts to Reverend Moon in kind or cash should be terminated. After meeting with lawyers and accountants on January 3 and 4, 1974 it was decided not to have these professionals handle Moon’s 1973 tax return. Instead, Kamiyama was to be in charge, preparing the return under Moon’s instructions. Records were produced to account for the nearly 1.8 million dollars deposited into the Chase Manhattan Bank and to show these as the Church’s assets rather than Moon’s. Three hundred and fifty thousand dollars was accounted for as “loans” from leaders of Unification organizations in England, France, Germany, Italy and the Netherlands. Each loan, signed by Kamiyama, bore a date and amount which matched, or in combination matched, a deposit into the Chase account in 1973. Another 1.2 million of cash deposited into Chase was accounted for by Japanese church members who, it was said, carried this money into the United States in amounts of three or four thousand dollars each. A ledger was kept — the Japanese Family Fund Ledger — with hundreds of entries showing a name, date of contribution and amount. The ledger also showed disbursements labelled “donations” which matched precisely the deposits into the Chase accounts. With respect to the loans from the European leaders ostensibly made and entered into a loan ledger in 1973, a watermark expert established at trial that the paper on which these 1973 transactions occurred had not been manufactured until 1974. The Japanese Family Fund Ledger was also shown to be manufactured after the fact. Because some of the bank deposits consisted not of cash but of checks from sources other than Japanese donors, the government was able to demonstrate the falsity of the ledger. A comparison of Chase deposit slips, which included checks not reflected in the ledger, with the Japanese Family Fund Ledger revealed “donation” disbursements on the same date in the exact amount of each Chase deposit. A discrepancy appeared because the ledger disbursement indicated that the entire deposit in the same amount as the deposit slip was cash, while the proof at trial demonstrated that the deposit was partly in checks. Thus unravelled it appeared that Kamiyama’s aide, Yukiko Matsumura, had constructed the ledger simply by working backwards from Moon’s bank statements and deposit slips to create fictitious cash sources to account for all of the deposits at Chase. Since she mistakenly thought each deposit was all cash the ledger entries and the total amount deposited into the bank accounts matched perfectly. When checks were included in the totals, however, the fraudulently backdated nature of the ledger was clearly revealed. In sum the government presented evidence at trial that Moon controlled the Chase accounts and Tong II stock, held them in his own name, considered the Chase accounts his own, used the accounts in a seemingly personal manner, and was regarded by other Church figures as owning the assets personally. Additionally, the documents produced by the defendants to show that the assets were in fact Church property proved to be backdated and false. Viewing this evidence in the light most favorable to the government, it is sufficient to establish that Moon owned the Chase accounts and Tong II stock in a personal capacity. Because he owned the assets, he should have reported the interest and stock distribution income on his tax returns. Since he failed to do so, his 1973-75 returns were false. (2) Willfulness We turn to the evidence that Moon willfully filed income tax returns for the 1973-75 tax years knowing that these returns contained false information and that Kamiyama willfully aided and abetted the 1974 and 1975 filings. Willfulness in tax fraud cases has become equated with bad faith, want of justification or knowledge that the taxpayer should have reported more income than he did. See United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973). The Supreme Court collected the formulations cited in Bishop and reduced them to the statement that willfulness in the context of filing a false income tax return “simply means a voluntary, intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976). The evidence presented on this issue, although circumstantial, was sufficient to sustain the jury’s verdict. The salient points follow. Moon signed his 1974 and 1975 returns, acknowledging that he had read them and that they were accurate, and he signed an RSC-12 form giving similar assurances as to his 1973 return; Moon and Kamiyama both knew of Moon’s interest income at Chase and income from the distribution of Tong II stock; Moon actively supervised all of his personal financial matters and never signed anything until he understood it; Moon’s 1973 “personal income tax matters [were] being handled under his instructions by Mr. Kamiyama” (quoting from a wire communication sent by a Unification Church official); Kamiyama participated in the completion of Moon’s 1973 returns directly; and the public accounting firm that prepared Moon’s 1974 and 1975 returns was provided with false information and fraudulently backdated documents. As an example of this last point, the preparers of the 1974 return were shown the “loans” ledger of transactions from the European Church leaders to Kamiyama. These “loans” amounted to $200,000. The ledger then reflected that Kamiyama made a loan to Moon (backdated and signed by both defendants) for the $200,000. The accountants were advised that these loan agreements evidenced the fact that the funds on deposit in the Chase Manhattan Bank earning interest in Moon’s name were not his funds, but were held by him only as nominee for the Church. Noteworthy is the fact that appellants’ initial tax attorneys informed HSA-UWC leaders prior to the filing of Moon’s 1973 return that he would have to pay taxes on all of his United States income, from whatever source it was derived. No interest income was declared on the 1973 return, and only small amounts the two succeeding years. For example, Moon’s 1973 return declared $14,458 income from the Unification Church of New York and no interest earned, although there was earned interest of $3,208 on the Chase accounts. On the 1974 return, reported income was $20,520 from Tong II and $254 interest earned, although the deposits at Chase earned $59,079. On the 1975 return Tong II income was reported at $37,080 and interest of $267, although the accounts at Chase earned $43,841. Moon apparently knew that the interest he reported in 1974 and 1975 on the small savings account at Chase was income to him; thus it seems reasonable for the jury to conclude that he also knew that the interest on his time deposits at the same bank, which came from withdrawals from the checking and savings accounts, was also income to him. We are unable to accept defendants’ argument that as new residents of the United States they were unfamiliar with tax law. Not only are both defendants sophisticated businessmen, but they had at their disposal a small army of tax attorneys and accountants whose advice, unfortunately, was not sufficiently heeded. Finally, Moon’s signing of the aborted Release of Indebtedness on the East Garden transfer, discussed earlier, was an acknowledgment by him that the Chase accounts in his name were actually his funds and at the same time evinced his willingness to sign a false document to escape personal income tax liability. B. The Conspiracy Count (Count One) Moon next argues that the government presented no evidence that he personally entered into or participated in a conspiratorial agreement to file false tax returns or obstruct the tax fraud investigation against him. The facts adduced at trial contained ample evidence that several subordinates of Moon engaged in a continuing and agreed upon course of conduct amounting to a conspiracy to file false returns and obstruct justice. Included among these was Kamiyama, whose participation in the preparation of the 1973 return and whose part in the false and backdated “loan” agreements submitted to the accountants for preparation of the 1974 and 1975 returns has already been recounted. Viewed in the light most favorable to the government, Moon’s argument of lack of involvement is unpersuasive. Not only was Moon the person with the greatest personal stake in the success of the acts in question, but there was proof that he exerted close scrutiny over his own personal affairs and was aware of the information contained in his tax returns. He signed one of the postdated loan agreements (the $200,000 loan from Kamiyama to Moon) which was later submitted to the IRS in connection with the audit of his returns. Finally, Moon and his associates, through Moon’s personal lawyers, submitted to the Justice Department in 1981 the same falsely backdated documents that had earlier been submitted to the IRS and to Moon’s accountants. In short, there was ample evidence for the jury to find that Moon participated in a conspiracy to file false tax returns and/or obstruct justice. Ill JURY INSTRUCTIONS Moon objects to the trial court’s instructions to the jury in three particular areas. First he contends that the instructions on the law of trusts were erroneous and incomplete. Second, he argues that certain instructions violated the First Amendment’s Religion Clauses. And third he questions the instructions on intent. Although specific objections overlap to some extent, we will deal with them separately. A. Charge on Trusts Perhaps the most crucial area concerns the trial judge’s charge on the law of trusts. Despite the fact that Moon did not, until late in the trial, clearly raise the claim that he was holding the assets in question in trust for the International Unification Church movement, the district court saw fit to instruct the jury on this defense theory. The defendant now objects to what he claims are errors and omissions in this charge. We believe that defendant’s contentions fail, first, because the trial court was not required to charge the jury on the trust issue and, in any event, because the trust instructions were neither erroneous nor prejudicial. 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 II 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. Here, since the defense theory that Moon was acting only as a trustee rebuts the “ownership” element of the crime charged, it was not an affirmative defense. Hence, the only burden on Moon was to present a prima facie case that he held the assets in trust. If the defense had successfully introduced into evidence this prima facie rebuttal of the element of ownership, the trial court would have been obliged to instruct the jury on the law of trusts and the government would still have had to prove beyond a reasonable doubt that Moon “owned” the assets. A careful review of the evidence, however, reveals no proof that Moon actually held the subject funds in trust. In order to establish the defense of trusteeship, defendants would have had to produce evidence of the donors’ intent to create a trust. Yet the only evidence even remotely touching on this issue was the testimony of Church members Matsumura and Porter and German Unification Church leader Werner who simply stated that they gave money to Moon, intending it as a donation to their church. They never mentioned the word “trust” or, more importantly, gave any indication that they intended to create a trust relationship. Accordingly, this evidence only demonstrated the charitable intent of the contributors, not the clear expression of intent necessary to create a trust. 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. See, County of Suffolk v. Greater New York Councils, Boy Scouts of America, 51 N.Y.2d 830, 832-33, 433 N.Y.S.2d 424, 413 N.E.2d 363 (1980); Lefkowitz v. Cornell University, 35 A.D.2d 166, 173, 316 N.Y.S.2d 264 (4th Dep’t 1970) (while no particular words are required to create a charitable trust, the words relied upon to create such a trust must be unequivocal), aff’d, 28 N.Y.2d 876, 322 N.Y.S.2d 717, 271 N.E.2d 552 (1971); 4 Scott on Trusts § 348, at 2769-70 (3d ed. 1967) (as with a private trust, person creating a charitable trust must manifest by his words or conduct an intention to create it); Restatement (Second of Trusts) § 351 (1959). The dissenting opinion, unfortunately, obscures the intent requirement, focusing instead on a totally distinct and, for purposes of this analysis, inapposite issue — the policy of upholding charitable trusts whenever possible by construing their terms liberally. For this proposition, the dissent cites In re Price’s Will, 264 A.D. 29, 35 N.Y.S.2d 111 aff’d 289 N.Y. 751, 46 N.E.2d 354 (1942), and In re Durbrow’s Estate, 245 N.Y. 469, 157 N.E. 747 (1927), neither of which controls here. Each of these cases involved a written will which plainly expressed the testator’s intent to create a trust. More specifically, Price’s Will applied the cy pres doctrine and held that a charitable trust already in existence survived even after its primary purpose had terminated. Similarly, Durbrow’s Estate held that a charitable trust will not fail for want of a definite beneficiary. It is true, therefore, that both of these cases support the policy of upholding charitable trusts; however, neither stands for the proposition that a charitable trust comes into being absent the clearly expressed intent to create it. Since the intent to create such a trust was clearly indicated by the written wills in Price’s Will and Durbrow’s Estate, the question of intent to create a charitable trust was not in issue. Contrast these cases with the present one. Here, there is no evidence of intent to create a trust, only the vague testimony of three witnesses establishing that a charitable gift had been made to the Church. Although we agree with the dissent’s assertion that charitable trusts must be liberally upheld, there is no rule of law that presumes simply from a charitable gift the donor’s intent to create a trust. Thus, since defendants failed to make a prima facie case that Moon held the Chase accounts and Tong II stock in trust, the trust issue was one that need not have been charged to the jury in the first instance. Any purported errors or omissions in the instructions were therefore harmless. In any event, we find that the defendant’s objections to the trust instructions are without merit. Moon challenges the use of what he terms a “laundry list” of factors which the trial court instructed the jury to consider in determining whether a trust existed. He now asserts that important factors were omitted from this list, the vital issues of source of funds and donor’s intent were buried in this extensive list, and some factors were misleading. The claim of omissions is spurious, as all the factors alleged to be omitted were clearly charged. In connection with the first of these factors, i.e., whether the International Unification Church movement “had a specific organizational structure, written charter or constitution,” the dissent believes that Judge Goettel should have said that a specific organizational structure was not a prerequisite to the existence of a charitable trust. But, the record reveals that immediately following the list of factors, Judge Goettel did so charge in the following language: As I have mentioned, you may consider whether the International Unification Church Movement had a specific organizational structure in making your decision. However, the lack of a formal corporation does not prevent a religious movement from being the beneficial power of property held in the name of another (emphasis supplied). It ill-behooves an appellate court to engage in word-by-word parsing of a jury charge, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d (1973), substituting its own choice for those equally appropriate words already in the charge. With regard to the last two objections, the dissenting opinion is also critical of the trial court, not for its failure to charge correctly, but for its failure to instruct the jury to accord the greatest weight and thereby emphasize the factor of the “intent of the parties” who gave property to Moon. Each of the factors referred to was correctly stated by the trial court and all of them were equally relevant to the jury’s determination. Undue emphasis on any was not required. The “list” was slightly over one half a page; it was hardly extensive and no important factor was buried. Moon and the dissent also object to the “if-then” language in the following instruction on the ground that it impermissibly shifts the burden of proof to the defense to show that the interest on the Chase accounts was not taxable to him: If you find that the funds in the Chase accounts were the property of International Unification Church Movement or were held in trust by Moon for the International Unification Church Movement and used for church purposes and that the interest on those funds also belonged to the International Unification Church Movement and were used for it, then that interest would not be taxable income to Moon. This “if-then” formulation did not shift the burden of proof to defendants to prove their innocence. First, the charge contained 30 separate instances properly stating the burden of proof, and read as a whole and in context, the charge on this particular issue clearly states the correct burden. Second, the implication, if any, is even stronger in Moon’s own written request to the trial judge which contained, in addition to this subject, five other “if-then” formulations. Third, since no objection was made to the trial court’s charge as given, it was waived. See United States v. Praetorius, 622 F.2d 1054, 1061-62 (2d Cir. 1979), cert. denied, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980). This belated argument is thus totally without merit. Moreover, we find no error in the charge that trust property diverted is taxable to the extent diverted. The objections raised are that this “diversion” theory was not contained in the indictment, no instruction was given on partial diversion, and there was no explanation by the trial judge of what “diversion” means. Since diversion was not an element of the crime charged, it was not required to be included in the indictment. The crucial point is that Moon was indicted, tried and convicted for his false and fraudulent failure to report taxable income. Further, in response to the trust defense raised at trial, the court did properly instruct the jury on partial diversion when it charged that the funds diverted to Moon’s personal use became taxable “to the extent so diverted.” Obviously, the word “divert” is in common enough use and understandable by ordinary jurors, so as to require no explanatory charge. Cf. United States v. Valencia, 645 F.2d 1158, 1167 (2d Cir.1980) (term “hesitation” did not need to be clarified). Finally, the trial judge properly charged that “there is no trust if the person who receives the money is free to use it for his own benefit.” This instruction was in accord with familiar law that the same person may not at one and the same time be the sole trustee and sole beneficiary of a trust. In re Phipps, 2 N.Y.2d 105, 108, 157 N.Y.S.2d 14, 138 N.E.2d 341 (1956); 61 N.Y.Jur., Trusts § 214, at 395 (1968); Restatement (Second) of Trusts § 341(1) (1959). 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. Under the definition now advanced as the Church’s, any use of these funds by Reverend Moon was for religious purposes. This argument overstates the scope of the protections afforded by the Religion Clauses. The term “religion” was defined by the Supreme Court nearly 100 years ago in Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1980) as having reference to a person’s views of his relations to his Creator. This definition seems unduly narrow today. In every religion there is an awareness of what is called divine and a response to that divinity. 7 The Encyclopedia of Philosophy 143 (1972). 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.” W. James, The Varieties of Religious Experience 31 (1910). In referring to an individual’s relation to what he considers the divine, Professor James used the word “divine” in its broadest sense as denoting any object that is godlike, whether it is or is not a specific deity. Id. at 34. Therefore, under the Religion Clauses, everyone is entitled to entertain such view respecting his relations to what he considers the divine and the duties such relationship imposes as may be approved by that person’s conscience, and to worship in any way such person thinks fit so long as this is not injurious to the equal rights of others. “It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.” Davis v. Beason, 133 U.S. at 342, 10 S.Ct. at 300. The Supreme Court continued, “however free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.” Id. at 342-43, 10 S.Ct. at 300-01. To foreclose a court from analyzing a church’s activities as needed to determine whether those activities violated a statute, on the ground that the First Amendment forbids such inquiry, would mean that there are no restraints or limitations on church activities. See Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849, 856 (10th Cir.), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973). The “free exercise” of religion is not so unfettered. The First Amendment does not insulate a church or its members from judicial inquiry when a charge is made that their activities violate a penal statute. Consequently, in this criminal proceeding the jury was not bound to accept the Unification Church’s definition of what constitutes a religious use or purpose. Holy Spirit Association v. Tax Commission, 55 N.Y.2d 512, 518, 450 N.Y.S.2d 292, 435 N.E.2d 662 (1982), is inapposite. That case dealt with the inquiry that a court may conduct when determining whether a religious organization is entitled to a real property tax exemption under New York law. The principles there enunciated upon which appellant relies are relevant in that context and do not serve as precedent in a federal criminal tax prosecution. Moon also argues that an omission from the charge — the so-called “Messiah” defense — permitted the jury to look at the assets held in his name “secularly,” in violation of the First Amendment. Counsel asserts that Moon’s worldwide followers believe him to be “potentially the new Messiah.” From this theological premise the argument is made that Moon personifies the church movement and is indistinguishable from it. Since the Unification Church movement can owe no taxes on income derived from church-related activities, the defense argues that neither can Reverend Moon. We do not accept this defense. The fact that Moon is the head of the Church does not mean that the Church itself is not a distinct and separate body. Moon’s spiritual identity as leader of the Unification Church movement and his legal identity as a taxpayer are not the same. He is the spiritual leader of the Church, as the Pope is the spiritual leader of the Roman Catholic Church, but he also has a legal identity as a distinct, individual human being. It is in this latter capacity that he, or the Pope, could have taxable income. It has long been held that a church may hold property legally free from government interference because such inference would violate the First Amendment. Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 51-52, 3 L.Ed. 650 (1815). But where property held individually and used personally gives rise to income, that income is subject to taxation. To allow otherwise would be to permit church leaders to stand above the law, a view we have previously rejected. Finally, contrary to defendant’s argument, the failure to charge that assets which came from church sources to be used for church purposes are not taxable to Moon, did not violate the “neutral principles” approach outlined in Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). In Jones the Supreme Court held that the First Amendment prohibits the resolution of intra-church property disputes by civil courts interpreting religious doctrine, and required that civil courts defer the resolution of such issues to the highest hierarchical church organization. This “neutral principles of law” approach is one of several approved methods of resolving church property disputes between groups within the church. Id. at 602, 99 S.Ct. at 3025. The doctrine has no application to the facts of this case. C. Charge on Intent The final jury charge objections deal with the issue of intent in two particulars. First, Moon objects to the “if-then” formulation contained in the following instruction: If you find that Moon provided the person who prepared the tax return with full and honest information as to his income and that Moon then adopted, signed and filed the tax returns as prepared in the belief that the return contained the full and honest information he had provided to the preparers regarding income, then you must find defendant Moon not guilty, (emphasis added). This objection is rather surprising, in light of the fact that the defendant requested the following charge: If you find Rev. Moon and his representatives acted in good faith in providing the information that they believed to be relevant to the determination of Rev. Moon’s tax liability and that they responded fully and candidly to Peat, Marwick’s requests for additional information relating to the Chase accounts, then you must find defendant Rev. Moon not guilty of the false return counts for 1974 and 1975. (emphasis added). Needless to say, the defendant cannot now be heard to complain of the same “if-then” formulation he requested. In fact, this requested language was preceded by a sentence which shifted the burden of proof even more emphatically to the defendant than did the charge given by the court. Second, the intent charge gave the jury factors to consider in evaluating defendant’s state of mind. Among those mentioned as an affirmative act designed to conceal consciousness of wrongdoing was “dealing in cash.” Moon claims that dealing in cash is a common practice in the Orient and could not, therefore, be interpreted as evidence of intent to conceal. In tax fraud cases evidence tending to show misconduct through extensive dealings in cash is properly admitted into evidence, see United States v. White, 417 F.2d 89, 92 (2d Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 910, 25 L.Ed.2d 92 (1970). It is, therefore, properly chargeable. And, in any event, the “dealing in cash” language was immediately followed by a balancing charge that “openness in conduct” could give rise to the inference that the taxpayer believed he had done nothing wrong and “had nothing to hide.” IV MISCELLANEOUS ISSUES A. Selective Prosecution Both appellants contend that the prosecution mounted against them was impermissibly motivated by hostility toward their religion and that the district court erred in denying their request for discovery and a hearing on the issue of selective prosecution. In this Circuit, a defendant who advances a claim of selective prosecution must do so in pretrial proceedings, see United States v. Taylor 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977). The person asserting such a claim bears the burden of establishing prima facie both: (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). No evidentiary hearing or discovery is mandated unless the district court, in its discretion, see id. at 1212, finds that both prongs of the test have been met. See United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981); United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978); Berrios, 501 F.2d at 1211. We cannot say on this record that the-district court abused its discretion in holding that appellants failed to demonstrate the necessary factual predicates for their claim of selective prosecution. The only evidence offered pretrial in support of appellants’ assertion of selective prosecution was to the effect that Congress had previously conducted an investigation into Korean-American relations (Korea-gate), that such investigation had touched upon the Unification Church, and therefore that the government’s prosecution of Moon could be seen to have stemmed from impermissible religious and/or political hostility. No other evidence was submitted in support of the motion. The proof before the trial court was wholly insufficient to mandate further inquiry or a hearing and the court’s rejection of the claim of selective prosecution at that point was clearly proper. Following the trial, and in an arguably untimely manner, appellants submitted additional “evidence” of selective prosecution. Specifically, they presented affidavits from four individuals who, while disavowing any knowledge of the government’s motive in this case, asserted that they held church funds in their own names and did not pay taxes on interest earned on the funds. Moon also submitted a copy of a letter from United States Senator Robert Dole to the IRS requesting that it look into the Unification Church’s tax exempt status. While acknowledging that Moon’s status as a highly visible, religious leader may well have led to the audit of his tax returns, the district court reasoned that the government’s decision to institute criminal rather than civil charges was a wholly separate decision and that the additional evidence of improper prosecutorial motive submitted by appellants still failed to satisfy the requirements of Berrios. We need not decide here whether appellants’ post-trial submission of evidence regarding selective prosecution was too late; even considering that evidence, the district court correctly concluded that it was insufficient to meet the Berrios standard. With respect to the first requirement of Berrios — proof that “others similarly situated” have not been prosecuted — the four above-mentioned affidavits of other church leaders did not adequately prove Berrios’ first prong for two reasons. First, the government’s theory against Moon was that the funds he held were his own personal property and that therefore any interest earned on the funds was taxable to him. By contrast, the submitted affidavits describe situations involving persons who claim to hold church funds, as opposed to personal funds, in their own names and pay no taxes on interest earned by the funds. While Moon still contends that the funds he held were church property, at the time of this post-trial motion the jury had squarely rejected this theory. Second, this case also involved charges of perjury and obstruction of justice. Reference to these charges is totally ignored in appellants’ analysis of whether similarly situated individuals have been prosecuted. In short, appellants simply failed to provide the necessary prima facie evidence that others similarly situated have not been prosecuted. As for the second prong of Berrios —proof that the government’s decision to prosecute was based on impermissible considerations of race and/or religion — appellants rely heavily on the above-mentioned letter from Senator Robert Dole to the IRS. That letter merely requested an audit of the Unification Church’s tax exempt status. 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. These facts naturally tend to foster suspicion that the motive behind this prosecution might have been improper. That naked suspicion cannot serve as a substitute for the evidentiary showing mandated by Berrios. This case is not the first occasion when a controversial political or religious figure has been criminally prosecuted; and if history teaches us anything, plainly, it will not be the last. By their very nature, such highly visible cases will always engender some suspicion with respect to the government’s bona fides. But to engage in a collateral inquiry respecting prosecutorial motive, there must be more than mere suspicion or surmise. If a judicial inquiry into the government’s motive for prosecuting could be launched without an adequate factual showing of impropriety, it would lead far too frequently to judicial intrusion on the power of the executive branch to make prosecutorial decisions. Unwarranted judicial inquiries would also undermine the strong public policy that resolution of criminal cases not be unduly delayed by litigation over collateral matters. B. Interpreters Act The next issue raised concerns the Court Interpreters Act of 1978, 28 U.S.C. § 1827 (Supp. V 1981). It provides in pertinent part that: The presiding judicial officer ... shall utilize the services of the most available certified interpreter ... in any criminal or civil action initiated by the United States in a United States district court ... if the presiding judicial officer determines . ... that [a] party (including a defendant in a criminal case), or a witness who may present testimony in such action— (1) speaks only or primarily a language other than the English language; or (2) suffers from a hearing impairment (whether or not suffering also from a speech impairment) so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness’ comprehension of questions and the presentation of such testimony. 28 U.S.C. § 1827(d) (Supp. V 1981). The Act further provides that persons, “other than witnesses,” may waive, with the court’s permission, their entitlement to a court-appointed interpreter and use their own translator instead. 28 U.S.C. § 1827(f) (Supp. V 1981). During pretrial proceedings, Moon moved pursuant to § 1827(f) to waive the use of a court-appointed interpreter and to employ instead his own personally-selected translator. The district court ruled that Moon was free to use the interpreter of his own choice for purposes of translating the proceedings of the trial to him; but, that if Moon elected to testify, his testimony would have to be translated by a court-appointed, certified interpreter. Moon elected not to testify at his own trial. While it was not argued below that the use of a court-appointed translator would impinge upon Moon’s ability to communicate effectively with the jury, he now argues that the district court incorrectly construed § 1827(f) to preclude him from waiving the use of an appointed interpreter if and when he elected to testify. Specifically, he asserts that if he had testified, he would have been a party-witness, that a party-witness is not a “witness” within the meaning of § 1827(f), and that he therefore should have been