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United States v. Sweig

decided: April 14, 1971.

UNITED STATES OF AMERICA, APPELLEE,
v.
MARTIN SWEIG, DEFENDANT-APPELLANT



Lumbard, Chief Judge, and Kaufman and Hays, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge:

Martin Sweig appeals from a judgment of conviction on one count of perjury, entered on September 3, 1970, in the Southern District of New York, after a sixteen day jury trial before Judge Frankel. On the same day, Sweig was sentenced to a term of thirty months in jail and was fined $2,000; execution of his sentence was stayed and he is presently enlarged on bail pending appeal. We affirm the conviction.

The fifteen-count indictment in this case charged Sweig and Nathan Voloshen with conspiracy and related offenses of false personation, conflict of interest, and perjury. Count One alleged that Voloshen, who lived and had an office in New York City, and Sweig, who had been an administrative assistant to Speaker of the United States House of Representatives John W. McCormack for 23 or 24 years, conspired to defraud the United States by using the influence of the Speaker's office to benefit Voloshen's clients who had matters pending before various federal departments and agencies by applying and attempting to apply improper influence upon officials in said departments and agencies, in violation of 18 U.S.C. § 371. Count Two charged Voloshen alone with false personation of a federal officer in violation of Title 18 U.S.C. § 912. Count Three charged Sweig and Voloshen with conflict of interest in violation of 18 U.S.C. §§ 205 and 2. Counts Four through Twelve charged Sweig with perjury in his grand jury testimony of October 15, 1969, in violation of 18 U.S.C. § 1621. Counts Thirteen through Fifteen charged Voloshen with perjury in his grand jury testimony of August 5 and 19, 1969.

Voloshen pleaded guilty before trial to Counts One, Thirteen, Fourteen and Fifteen. As for Sweig, Count Three was dismissed prior to trial for lack of venue, Counts Four and Nine were dismissed by the court at the close of the government's case, and Count Five was withdrawn by the government at the same time. On July 7, 1970, the jury acquitted Sweig on Counts One, Seven, Eight, Ten, Eleven, and Twelve, and found him guilty on Count Six, one of the perjury counts.

With respect to Count Six, the only count on which Sweig was convicted, the government's proof at trial showed that Sweig made numerous telephone calls to military personnel in 1968 and 1969 on behalf of Gary Roth and Roger Warner, two of Voloshen's clients; that these telephone calls were made in Sweig's official capacity as assistant to the Speaker in order to help secure benefits for those clients, such as discharge from the Army or a better assignment within the Army; and that on October 15, 1969, in sworn testimony before a federal grand jury sitting in the Southern District of New York, Sweig falsely denied ever hearing of Roth and falsely stated that he had not made telephone calls relating to servicemen for Voloshen for three years or five years preceding the date of his appearance before the grand jury. Specifically, Sweig's allegedly false testimony was as follows (with the particular answers charged by the government as perjurious marked in brackets):

Q. I take it you've made various phone calls on Mr. Voloshen's behalf to certain people, is that correct? A. Yes, sir.

Q. For instance, could you give us an example of some of the people that you called at Mr. Voloshen's urging? A. Well, he'd come down and, say, with a service case, -- a boy in the service, who applied for a Compassionate Re-assignment, or a Hardship Discharge, -- I have no hesitancy in calling up the appropriate army officer, to find out the status of that application.

Q. Can you give us one of the names? A. Oh, gee, there were so many now; I just don't remember now.

[Q. Or Mr. Roth, did you ever hear that name in connection with one of these military cases? A. No.]

Q. When did you do this for Mr. Voloshen? A. Well, this is in a period of years gone by.

Q. This wouldn't be recently? A. No, sir.

[Q. In other words, not in the last three years? A. No sir.]

Q. You're talking about something that happened maybe ten, fifteen years ago? A. No, I wouldn't say ten, fifteen years ago. I can't remember that far back. I'd say in the past five years, up, I ...


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