United States v. Sweig

• Citation: 316 F. Supp. 1148
• Decision Date: 15 June 1970
• Docket Number: No. 70 Cr. 20.,70 Cr. 20.
• Parties: UNITED STATES of America v. Martin SWEIG and Nathan Voloshen, Defendants.
• Court: U.S. District Court — Southern District of New York

316 F. Supp. 1148

UNITED STATES of America v. Martin SWEIG and Nathan Voloshen, Defendants.

No. 70 Cr. 20.

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

April 22, 1970.

On Motion to Dismiss for Want of Venue May 8, 1970.

On Motion to Dismiss Perjury Count June 1, 1970.

On Motion for Physical Examination June 15, 1970.

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Whitney North Seymour, Jr., U. S. Atty., S.D. New York, for the United States; William J. Gilbreth, Richard Ben-Veniste, Asst. U. S. Attys., of counsel.

Paul T. Smith, Boston, Mass., for defendant, Martin Sweig; Gilbert Rosenthal, New York City, of counsel.

Kostelanetz & Ritholz, New York City, for defendant, Nathan Voloshen; Jules Ritholz, New York City, of counsel.

OPINION

FRANKEL, District Judge.

The court has been presented with an array of motions by defendants Martin Sweig and Nathan Voloshen, who are variously charged, separately or together, in a 15-count indictment. The court has heretofore decided motions for particulars and discovery. Additional rulings are now ready and are announced herein. Others remain for study and decision in the near future.

The first count of the indictment charges both defendants with a conspiracy violative of 18 U.S.C. § 371. It alleges that from the beginning of 1964 to the date of the indictment in January 1970, defendant Sweig, who was serving in Washington, D. C., as an Assistant to Speaker John W. McCormack of the United States House of Representatives, and defendant Voloshen, who lived and had an office in New York City conspired

"with each other and with other persons to the grand jury known and unknown,¹ to defraud the United States and agencies thereof, in connection with its lawful governmental functions hereinafter described, to wit: (a) its lawful function to have its business and affairs conducted honestly and impartially as the same should be conducted, free from fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction; (b) its lawful right to have its officers and employees, free to transact the official business of the United States unhindered, unhampered, unobstructed, unimpaired and undefeated by the exertion upon them of dishonest, unlawful, impaired and undue pressure and influence."

Paragraph 4 of the indictment says it was part of the conspiracy (a) that Voloshen "would and did accept fees from various persons with matters pending before federal departments and agencies * * * to exert the influence of the office of the Speaker of the House to said agencies, on behalf of said persons," (b) that Voloshen "would and did use the offices, telephone, secretarial staff, and goodwill of the Speaker," (c) that both defendants would agree to have Sweig, "by various means, express the interest of the Office of the Speaker * * * in said matters * * * on behalf of said persons," (d) that Voloshen "would and did falsely assume and pretend" to be a member of the Speaker's staff and (e) that Sweig "would and did act as agent and attorney for persons before departments and agencies of the Government in connection with * * * matters in which the United States was a party and in which it had a direct and substantial interest." Paragraph 5 alleges the use of telephone calls, from the Speaker's offices and elsewhere, and of personal visits by both defendants to "express the interest of the office of the Speaker of the House in said matters pending before said agencies." A list of 15 alleged overt acts includes a number of telephone calls, two appearances before the Securities and Exchange Commission, and receipts of fees on two occasions by defendant Voloshen.

Count Two charges that Voloshen, on November 1, 1968, violated 18 U.S.C. § 912 by falsely pretending to be a member of the Speaker's staff and appearing in that guise before the Treasury Department's Alcohol, Tobacco and Firearms Division, where he "advocated a position on behalf of the Century Arms Company."

Count Three charges that Sweig, aided and abetted by Voloshen, violated 18 U.S.C. § 205 when, on May 7, 1969, he appeared before the S.E.C. "as an agent for the Parvin/Dohrmann Company" in connection with the Commission's suspension of trading in that Company's stock.

Counts Four through Twelve charge Sweig with perjury in testimony he gave before a grand jury in this Court on October 15, 1969. Briefly described, these charges allege false testimony concerning: a visit to S.E.C. headquarters, the arranging of an appointment there for Voloshen, the subjects or existence of telephone calls to specified government people, and Sweig's acquaintance with, or knowledge of, named individuals for whom, in the Government's evident theory, the defendants are thought to have conspired to exert improper influence or otherwise to act unlawfully.

Counts Thirteen through Fifteen charge perjurious grand jury testimony by Voloshen on August 15 and 19, 1969, concerning payments to him, and, on the latter date, concerning his knowledge of one individual and representation of another.

Motions To Dismiss

1. Both defendants seek dismissal of the indictment on the ground that it was preceded by masses of publicity reporting or speculating about allegations of misconduct by them, and that this deprived them of the right to have an impartial and unbiased grand jury determine whether or not they should be indicted. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Lawn v. United States, 355 U.S. 339, 349, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). There appears to be no doubt about the existence, character and large quantity of pre-indictment publicity. But defendants do not shoulder the probably unmanageable burden of arguing that those factors alone could warrant nullification of the grand jury's decision to indict. Cf. Costello v. United States, supra, 350 U.S. at 362-363, 76 S.Ct. 406; Lawn v. United States, supra, 355 U.S. at 349-350, 78 S.Ct. 311; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 n. 3 (1966); United States v. Nunan, 236 F.2d 576, 593 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957). Instead, the focus of their attack is upon the asserted fact that much of the publicity was generated by the Department of Justice itself or by other agencies of the Government. And while even this seeks an unprecedented kind of relief, see Gorin v. United States, 313 F.2d 641, 645 (1st Cir. 1963), the argument on its face has substance.

Granted the historic proposition that grand juries may roam fairly widely (and certainly outside the limits of Wigmore's concerns) in collecting their factual beliefs, e. g., Costello v. United States, supra, it can hardly be doubted now that prosecutors must observe some limits of essential fairness in their work with such investigatory bodies. See United States v. Umans, 368 F.2d 725, 730 (2d Cir. 1966). Unless the role of the grand jury as a shield for the citizen as well as a prosecutorial agency is to become an empty slogan, there are kinds of pressure that must obviously be avoided to the extent possible. However free may be the sources of "fact," the generation of public animus against a prospective defendant, with the attendant danger that grand jurors may be subjected to subtle or explicit "demands" for prosecution, see Sheppard v. Maxwell, 384 U.S. 333, 339-342, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); see also Beck v. Washington, 369 U.S. 541, 585-587, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962) (Douglas, J., dissenting), is no part of the prosecution's legitimate business. It may be (at least the court accepts for now, as defendants appear to do) that such "atmospheric" influences have to be dealt with by measures short of dismissing indictments when the sources and causes are wholly non-official. But the interest in the integrity of the criminal process may require sterner measures of prophylaxis if the prosecution itself forgets its duty to "be sensitive to the considerations making for wise exercise of such investigatory power." Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 817, 95 L.Ed. 1118 (1951).

This thought may proceed a small step beyond the lower-court precedents the Government cites. It has indeed been common in past cases to reject motions of the general kind here in question for failure to show actual "prejudice" resulting from pre-indictment publicity. United States v. Osborn, 350 F.2d 497 (6th Cir. 1965), aff'd, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Estes v. United States, 335 F.2d 609, 613 (5th Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); Gorin v. United States, 313 F.2d 641, 645 (1st Cir. 1963), cert. denied, 379 U.S. 971, 85 S.Ct. 669, 13 L.Ed. 2d 563 (1965); Beck v. United States, 298 F.2d 622, 627 (9th Cir.), cert. denied, 370 U.S. 919, 82 S.Ct. 1558, 8 L.Ed. 2d 499 (1962); United States v. Dioguardi, 20 F.R.D. 33, 34-35 (S.D.N.Y. 1956). But such rulings, perhaps reflecting the nearly impenetrable armor traditionally protecting indictments, have tended to prescribe a test normally impossible of fulfillment. The secrecy of the grand jury's work, usually preserved in large measure at least until or after the trial, is a barrier to even an attempted showing of prejudice. It has sometimes seemed, therefore, that attacks upon indictments because of prejudicial publicity were inevitably doomed as a matter of law.

There have, nevertheless, been intimations before now that the case of prosecution-inspired publicity might be different. See Silverthorne v. United States, 400 F.2d 627, 633-634 (9th Cir. 1968); United States v. Nunan, 236 F.2d 576, 593 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957); United States v. Kahaner, 204 F.Supp. 921, 922 (S.D.N.Y.1962). Recent developments give special meaning to...