The Words of the Durst Family
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The Words of the Durst Family |
At
the press conference: (from left to right) Charles Sims, ACLU
director; Dr. Mose Durst, president of the Unification Church;
Defense lawyer Laurence Tribe, and Dr. Osborne Scott, of the
International Coalition Against Racial and Religious Intolerance.
By now you have heard that the Second Circuit U.S. Court of Appeals upheld the conviction of Father and Mr. Kamiyama. Although the result was disappointing, there is much hope as Professor Tribe continues the appeal. As you may remember, six cases involving our church in the last 18 months were decided unfavorably towards us in lower courts and overturned in our favor in higher courts.
A positive aspect of the ruling was that the presiding Judge on the panel, James L. Oakes wrote a vigorous 14 page dissent from the opinion of the 2 junior judges.
On September 27, a motion for rehearing was filed on behalf of Father and Mr. Kamiyama. It will request that the full bench of eleven judges rehear the case -- only three judges of the Second Circuit Court of Appeals sat on the panel the first time. The court will probably decide the motion within a few weeks. If they decide favorably, an oral hearing will take place. If they reject the idea, within 60 days a petition must be filed before the Supreme Court asking it to review the case. If four Supreme Court judges agree, the case will be accepted. Once this has happened, five judges are the majority needed to reverse the appeal.
Please pray for the September 27 motion, and please especially pray for the Supreme Court judges (below).
What is happening to our Father must be understood in classical, historical terms. It is not an isolated instance, but it is the same thing that happened to so many great individuals who challenged the status quo of great civilizations: Socrates in ancient Greece, Jesus in imperial Rome, and Martin Luther King, Jr., in modern America. We can have great faith in the goodness that Father constantly represents to us as he conveys the core of God's heart.
Bless you as you pursue your daily work!
Chief Justice Warren E. Burger
Justice
William J. Brennan
Justice Thurgood Marshall
Justice Byron R.
White
Justice Lewis Powell
Justice William Rehnquist
Justice
John Paul Stevens
Justice Harry A. Blackmun
Justice Sandra Day
O'Connor
"We believe that this decision strikes a blow at principles
of religious liberty which we cherish and are confident that our
views will be affirmed upon further appeal of this decision."
Earl
Trent, American Baptist Church
"I regret that I cannot he at this press conference this
morning. The government is determined to make a martyr of Mr. Moon
and to ride roughshod over constitutional rights in the process. I
have every reason to believe the National Council of Churches will
continue in its amicus (friendly) support of Reverend Moon's position
in all further appeals."
Reverend Dean Kelley, Director
for Religious and Civil Liberty, National Council of Churches
"The Court of Appeals has not given due consideration to the
First Amendment issues raised in Reverend Moon's case. The
Constitution distinguishes between religious and secular
institutions. I believe in this case, the court has failed to make
proper application of those distinctions."
John W. Baker,
General Counsel for the Baptist Joint Committee on Public Affairs
This is from the HSA Legal Department. If you would like copies of the petition, please write to 4 West 43rd Street, New York, New York, 10036.
In summary, it is not in the courts of this nation that Reverend Moon's vindication ultimately lies. It is in awakening and educating the American people to the true reality of Reverend Moon' motives and purpose in coming to America. Our IOWC movement across this nation is so significant at this time. Lawyers and prosecutors can make impressive and complex arguments but it is the person with a pure and loving heart who can give the true testimony about who Reverend Moon really is. This is our mission and now is the time.
The response to the Court of Appeals ruling on Reverend Moon's tax appeal has been overwhelming. Religious leaders throughout the country are extremely alarmed at several key aspects of the decision that jeopardize important constitutional principles and they intend to support Reverend Moon's renewed appeal.
Typical responses included Reverend Dean Kelley of the National Council of Churches, who stated publicly that the theory advanced by the government and accepted by the Second Circuit in this case "Runs roughshod over constitutional rights." Earl Trent, counsel for the American Baptist Churches, stated that "This decision strikes a blow at principles of religious liberty which we cherish." And of course, Dr. Mose Durst, President of the Unification Church of America was empathic when he said "Our cause is just and our belief absolute that our founder, the Reverend Sun Myung Moon remains innocent and will ultimately be vindicated."
As Judge James L. Oakes, the presiding judge on the three-judge panel of the Court of Appeals stated in his powerful 12-page dissent from the court's ruling "... this case did not involve a claim that an ordinary, lay taxpayer held certain assets in a private trust for the benefit of another. On the contrary, the taxpayer here was the founder and leader of a worldwide movement which... is... on its face a religious one, the members of which regard the taxpayer as the embodiment of their faith." Judge Oakes wrote "... the issue of beneficial ownership as one 'central to the determination of guilt or innocence' in the case... [t]hus, any defects in respect to the require reversal." He also wrote "In my view those instructions contained errors which because they were on the crucial issue of the case, mist be considered prejudicial."
Professor Laurence H. Tribe of Harvard Law School, one of the nation's foremost constitutional experts and Reverend Moon's attorney, said, "This ruling is so hard to reconcile with important constitutional principles that it must certainly be reviewed by a higher court. In addition this case will give higher courts an opportunity to decide whether the religion clauses of the first amendment permit the government to disregard the beliefs and intentions of those believers who entrust their property to their spiritual leader, intending that he hold it for their religion."
Reverend Moon's attorneys have now filed a petition for rehearing of the case by the entire United States Court of Appeals for the Second Circuit. This petition is a powerful statement of Reverend Moon's case. Although there are many issues in the case, the following are some excerpts from the two most significant constitutional arguments in the petition:
Even the majority of the split panel that affirmed Reverend Moon's conviction recognized that the defense has raised "troubling issues of religious persecution and abridgment of free speech." Those issues prompted the filing in this Court of amicus briefs on behalf of the New York and American Civil Liberties Unions, the Christian Legal Society, and a group of churches with an aggregate membership over forty million. Because the panel's resolution of these issues is no less troubling, plenary reconsideration is required.
The majority rejects defendant's challenge to the trust law instructions, reasoning that the trial court erred in deeming the evidence sufficient to require it to charge on the trust issues at all, and that the instructions given were correct. Judge Oakes' dissenting opinion cogently refutes the majority on both points, and is a compelling argument in itself for rehearing this important case en bane. Only the following need be stated here. First, the majority concedes that there was indeed evidence that several donors "gave money to Moon, intending it as a donation to their church." But, under New York law, evidence that funds were given to a religious leader as a gift for his church is in itself evidence that the funds were given in trust for that church. For, if no trust restrictions were implied in such a gift, the leader would be free to use the funds for non-church purposes, defeating the intent of the donors. Accordingly, the presence of any evidence of such a gift sufficed to require that trust instructions be given -- especially since, as the majority also concedes, the burden of proof on beneficial ownership rests on the government.
Second, the need to give such instructions in the form recognized in Judge Oakes' dissent, likewise follows from the basic proposition that, regardless of formalities, New York law seeks to prevent the intent of charitable donors from being defeated by faithless recipients. No one who has ever made a charitable donation would have it otherwise.
Third, the panel's very division on the principles of New York trust law that all concede lie at the heart of this case underscores that compelling need for rehearing en bane. As Justice Frankfurter observed long ago, "no matter how seasoned the judgment of [a federal judge] may be [on state law], it cannot escape being a forecast rather than a determination." The defendant who is sued civilly in federal court at least has the choice of seeking abstention under Pullman on state-law questions. But since the state-law question here is wrapped in a federal criminal prosecution, the defendant here has no such choice -- unless the Second Circuit should conclude that, despite the absence of a statutory certification procedure expressly open to federal courts, the views of New York's highest state court may be sought by the circuit court in aid of its jurisdiction. Given that absence of choice, the accused should at least be entitled to more than a mere forecast by a closely divided federal panel on a state-law matter that could mean his imprisonment. Fairness to the defendant, and fair respect for values of federalism, require that the panel's decision be reconsidered en banc, especially since disagreement over the issue of beneficial ownership -- the issue of who owns church property, a religious leader or his flock -- inevitably impinges in this case on the exercise of religious liberty. Neither religious donors nor religious leaders should have to hazard a guess, on pain of criminal prosecution, as to the ownership and taxability of religious contributions.
The panel repeatedly concedes that "the critical issue" in this case is an issue of property -- whether the assets in question were owned by Reverend Moon or by the Unification Church movement. But there is no special law of property for federal tax purposes. As both the majority and dissenting opinions recognize, "federal income tax liability follows ownership#
... [and] [i]n the determination of ownership, state law controls." And, of course, whenever state property law determines who owns what in a religious community, it must do so within established Religion Clause constraints -- constraints that limit the jury charge in criminal cases, see United States v. Ballard, no less than in civil. At least three such constraints were flouted here.
First, intra-church property disputes must be decided in accord with "neutral principles" calculated to "ensure that [the] dispute... will be resolved in accord with the desires of the members." Yet the panel concedes that, under the instructions here, the donors' intent was one of many factors that the jury was left free to consider or not, as the jury saw fit. Thus, the jury was invited to ignore what even the majority recognized as the "testimony of three witnesses establishing that char; gifts had been made to the Church."
Second, legal decisions turning on which uses of property advance the purposes of a religious body must be made on the basis of the religion's own criteria. Yet the panel implicitly acknowledges that the jury was left free to decide that a particular use of the property was not religious -- and thus that the property was not church- owned -- simply on the basis that the jury regarded the use as serving merely "business... or personal ends." The instructions this permitted the jury wholly to disregard evidence that, from the religion's point of view, the uses in question were calculated to advance its cause.
The panel radically misstates defendant's argument when it says that "[u]nder the definition now advanced as the Church's, any use of these funds by Reverend Moon was for religious purposes." Reverend Moon has never claimed or suggested that any use of funds by him was ipso facto a religious use; his objection to the instructions is not that they permitted the jury to distinguish between religious and personal uses, but that they permitted the jury to do so on whatever basis it wished -- without a regard whatever to the tenets or purposes of the Unification faith.
Third, because a religion's choices of organizational structures and practices are themselves religious matters, a religion cannot be panalized for those choices. Yet the trial court listed as the very first factors the jury "should consider" in determining who owns the assets (a) "whether the Movement had a specific organizational structure... " and (b) whether "other Unification Church corporate entities" existed. This instruction clearly authorized inferences adverse to Reverend Moon based on the organizational choices of his religion.
Nor, contrary to the majority's view, was this instruction cured by the later instruction that a movement may beneficially own property even if not incorporated. For an instruction permitting the jury to penalize the accused because of his religion surely cannot be cured by another instruction adding the qualification that the jury also acquit the accused despite his religious affiliation.
It follows from these three errors that the jury was unconstitutionally charged and the conviction must be reversed, unless the Religion Clauses are actually held to be inapplicable in this case. Astonishingly enough, that is precisely what the panel held, saying that the Religion Clause precedents do not apply "in a federal criminal tax prosecution."
It is difficult to fathom a basis for this extraordinary ipse dixit. Perhaps it is the product of an unstated -- and plainly erroneous -- premise that, in federal income tax prosecutions, the Religion Clauses can be relevant, if at all, only by creating all-or-nothing immunity from tax liability. Why else would the panel ignore Reverend Moon's claim that the Religion Clauses were breached by the criteria the jury was allowed to apply, and, instead, incorrectly attribute Reverend Moon the claim that, "[Once the Unification Church movement can owe no taxes on income derived from church-related activities... neither can Reverend Moon?" No such claim has ever been made in this case. In fact, as the trial court instructed the jury, with the defendant's approval, nothing depends here upon whether the Church movement would itself owe income tax on the assets. Reverend Moon's position has always been that his lack of tax liability flows solely from the fact that he did not beneficially owe the assets; the movement did.
It bears emphasis that Reverend Moon's arguments under the Religion Clauses spring not from any claim of exemption from tax liability because of religion but rather from the simple propositions (a) that property owner- ship is a constant, and (b) that federal tax prosecutions turning on who owns what are as subject to constitutional limits on resolution of property issues as are all other governmental proceedings. In its mistaken concern that Reverend Moon's instruction arguments would allow religious leader to put themselves above federal tax law, the panel ends up adopting a rule that puts federal tax law prosecutions in the Second Circuit outside the law of property and above the First Amendment.
Surely the Second Circuit cannot permit so extraordinary a holding to stand unreviewed.