UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 12, 1972.
UNITED STATES OF AMERICA, APPELLEE,
MARTIN SWEIG, APPELLANT
Moore, Hays and Mulligan, Circuit Judges.
HAYS, Circuit Judge:
This is an appeal from an order of the United States District Court for the Southern District of New York, denying a motion pursuant to F.R.Crim.P. 35 to "correct a sentence imposed in a illegal manner. . . ."*fn1
On July 7, 1970, a jury convicted Sweig on one count of perjuy after a trial on fifteen counts arising from the alleged missuse of his position as administrative assistant to the Speaker of the United States House of Representatives. On September 3 he was sentenced by Judge Frankel to thirty months' imprisonment and a fine of $2000.00. This court affirmed the conviction, United States v. Sweig, 441 F.2d 114 (2d Cir.), cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971), and we refer to that opinion for a full exposition of the facts of the case.
In the course of a lengthy statement at the original sentencing proceeding, Judge Frankel indicated that his deliberations were influenced in part by Sweig's failure to cooperate with government officials in their investigation of influence peddling, and by evidence at the trial, much of it admitted on counts of which Sweig was acquitted, showing that Sweig was part of "a picture of corruption of a very profound kind . . . ." As to Sweig's silence, the court recognized that cooperation could hardly be expected until Sweig's appeals were exhausted, and it invited a motion to reduce sentence when cooperation would no longer be prejudicial.*fn2 Sweig's argument is that Judge Frankel's use of these criteria in effect punished him for exercising his right against self-incrimination, and for crimes of which he had been acquitted by a jury.
These contentions are without merit. A sentencing judge has very broad discretion in imposing any sentence within the statutory limits, and in exercising that discretion he may and should consider matters that would not be admissible at a trial. Williams v. Oklahoma, 358 U.S. 576, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959) (hearsay); Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949) (prior crimes for which defendant was not tried, and hearsay); United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1198, 28 L. Ed. 2d 334 (1971) (evidence obtained in violation of fourth amendment); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84 (1965) (charges dismissed without adjudication of merits). Appellant argues that his case is distinguishable because none of the other cases concerned with this issue involved the consideration of evidence on charges of which the defendant was acquitted. However, just as the sentencing judge may rely upon information as to crimes with which the defendant has been charged but not tried, see United States v. Doyle, supra, so here the judge could properly refer to the evidence introduced with respect to crimes of which defendant was acquitted. Acquittal does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendant. For all that appears in the record of the present case, the jury may have believed all such evidence to be true, but have found that some essential element of the charge was not proved. In fact the kind of evidence here objected to may often be more reliable than the hearsay evidence to which the sentencing judge is clearly permitted to turn, since unlike hearsay, the evidence involved here was given under oath and was subject to cross-examination and the judge had the opportunity for personal observation of the witnesses.
Appellant's self-incrimination argument is equally unpersuasive. Judge Frankel made it perfectly clear, particularly in denying the instant motion, that his intention was merely to leave the door open for a reduction of sentence if Sweig should subsequently be able to show mitigating circumstances. The judge stated expressly the "universally known possibility" that cooperation with law enforcement officials would be entitled to consideration. This case is indistinguishable from United States v. Vermeulen, 436 F.2d 72 (2d Cir. 1970), cert. denied, 402 U.S. 911, 91 S. Ct. 1390, 28 L. Ed. 2d 653 (1971).
The order of the district court is affirmed.