Petition — Sperling v. United States

Supreme Court brief1983

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No.

Office-Supreme Court, U.S.

FIiLe @

82-1391 FEB 17 1983

-XANDER L. STEVAS,

Supreme Court of the Anited States >

October Term, 1982

HERBERT SPERLING,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Auan M. Dersnowitz

20 Elmwood Avenue

Cambridge, Massachusetts 02138

(617) 661-1965

Natuan Z. DersHow1tTz

15 East 84th Street

New York, New York 10021

(212) 879-4500

Attorneys for Petitioner

QUESTIONS PRESENTED

Where the indictment and the trial

court instructions have specifically

required the jury to find the defendant

guilty of specified substantive counts

before it could find him guilty of a

§848 violation; where the jury has con-

victed on the substantive and §848

counts; where the Court of Appeals has

then reversed the substantive counts

because of a Jencks Act violation; can

the §848 convistion still stand?

Where the District Court judge and a

majority of the Court of Appeals have

-- either deliberately or indadvertent-

ly -- failed to address the issues

clearly raised by petitioner and have

instead addressed and answered other,

far easier, issues that were not

raised, has petitioner been denied due

process?

Where petitioner alleges that the Dis-

trict Court judge who decided that case

was heard bragging by a distinguished

member of the bar that he had initiated

ex parte communication with the United

States Attorney about how to handle the

petition, and had made specific tacti-

cal suggestions about handling the pe-

tition, was it appropriate to deny a

hearing on these allegations?

Where a member of the majority of the

panel of the Court of Appeals -- in his

separate opinion -- has relied on a

sentence from a secret memorandum which

he purports to have sent to a member of

a previous panel and which he claims

“prompted” the recipient to decide an

important issue in the case in a cer-

tain manner, was it proper for the

Court of Appeals to deny petitioner's

request for full disclosure of the mem-

orandum "so that he could make an inde-

pendent determination of the accuracy

of Judge Van Graafeland's representa-

tion"?

iid

TABLE OF CONTENTS

Guestions Presented ..«.c«erseecee ec &

Pable of Cestents®s - ~c«crsececee ve ce 8

Pable of Authorities . -« «erseeeee VS

Opinions Below ..-e«-eceeee eee bb

Jurisdiction . . . 7. 7 > 7 . . >. . . . 2

Statement of the Case .. ee ee eee 38

Basis for Federal Court Jurisdiction

in Court of First Instance ..... 7

Reasons for Granting the Writ ..... 8

Ze Introduction ee ee ee ee ee ee

II. Petitioner's § 848 Conviction

Cannot Stand After the

Reversal of the Underlying

Substantive Counts Cale a. ee) ae

Dr.» -s 4 6 & & ©.6 6 @. © .6.:0. 6 an

Appendix

Order on Petition for Rehearing

and Rehearing En Banc .

Opinion of the Court of Appeals

Err ata . . . . . . .

Opinion of the District Court

Constitutional and Statutory

Provisions Involved

TABLE OF AUTHORITIES

Cases:

Dunn v. United States, 442 U.S.

100 (1979) * - > . > . > .

Statutes:

18 U.8.C. § 3500 . . . «© «© « o

21 U.S.C. § 841(a)(1) ....

210.S.C. § 841(b)(1)(A) ...

21 U.8.C. § 848 . . «© « «@ «

28 U.S.C. § 2255 . . « « © © «@

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Second Circuit,

dated October 22, 1982, and the opinion of

the United States District Court for the

Southern District of New York, dated

Janaary 22, 1982, are reprinted in the

Appendix. The Court of Appeals' decision

is reported at 692 F.2d 223 (2d Cir. 1982);

the District Court's opinion is reported at

530 F. Supp. 672 (S.D.N.Y. 1982).

Previous opinions: United States v.

Sperling, 506 F.2d 1323 (2d Cir. 1974)

("Sperling I"), cert. denied, 420 U.S. 962

(1975); United States v. Sperling, 560 F.2d

1050 (2d Cir. 1977) ("Sperling II"); United

States v. Sperling, 595 F.2d 1209 (2d Cir.)

("Sperling III"), cert. denied, 441 U.S.

947 (1979).

JURISDICTION

a) The judgment of conviction was

rendered on July 12, 1973.

b) The order and judqment of the

United States District Court is dated

January 22, 1982. The order of affirmance

of the United States Court of Appeals is

dated October 22, 1982. The order and

judgment denying rehearing is dated

December 20, 1982.

c) Jurisdiction to review the

judgment by certiorari is conferred under

28 U.S.C. § 1254.

STATEMENT OF THE CASE

Petitioner Herbert Sperling is pres-

ently incarcerated for life without possi-

bility of parole, having been convicted of

violating 21 U.S.C. § 848 (engaging in a

continuing criminal interprise). In May

1973, a twelve-count grand jury indictment

was filed in the United States District

Court for the Southern District of New

York. Count Two of the indictment alleged

that Petitioner engaged in a continuing

criminal enterprise in violation of 21

U.S.C. § 848. As a specific element of the

§ 848 charge, the indictment incorporated

the underlying predicate felonies alleged

in Counts Eight, Nine and Ten.*

A jury trial in the United States

Distric Court for the Southern District of

New York, Judge Milton Pollack presiding,

commenced on June 18, 1973. Judge Pollack

instructed the jury that proof beyond a

reasonable doubt of the underlying felonies

charged in Counts Eight, Nine and Ten was a

necessary element of the § 848 offense

charged in Count Two. The jury found

Petitioner Sperling guilty on all counts in

which he was named. In September 1973, on

Count Two, alone, Judge Pollack sentenced

Petitioneer to life imprisonment without

possibility of parole and a $100,000 fine.

(Petitioner received lesser penalties for

* Petitioner's conviction on Count One,

the mig, Je Hoek od j charge, was vacated since it

was a lesser included offense of the Count

Two § 848 continuing criminal enterprise

violation and imposition of concurrent

sentences violated the Fifth Amendment's

double jeopardy clause. United States v.

fearing: 560 F.2d 1050, 1059-60 (2d Cir.

the other Counts which have since been

dismissed or remanded.)

On appeal, the United States Court

of Appeals for the Second Circuit reversed

Petitioner's convictions on the underlying

substantitve felonies charged in Counts

Eight, Nine and Ten. United States v.

Sperling, 506 F.2d 1323 (2d Cir. 1974),

cert. denied, 420 U.S. 962 (1975). The

reversals were based on the Government's

failure to disclose a letter written by

Barry Lipsky, the principal government

witness on these three counts. As a result

of this Jencks Act violation, 18 U.S.C. §

3500, there was no creditable evidence to

support Petitioner's conviction on the

predicate felonies. 506 F.2d at 1331.

Despite the reversal of the convic-

tions on the substantive counts which had

been a prerequisite for the finding of

guilt under § 848, the Court did not over-

turn the § 848 conviction. Instead, the

Court postulated a wholly different basis

to support a finding of guilt on the § 848

count -- "more than sufficient" evidence of

Petitioner Sperling's involvement in nar-

cotics transactions other than those

described in Counts Eight, Nine and Ten.

On July 10, 1978, Petitioner

Sperling filed a petition, pursuant to 28

U.S.C. § 2255, to vacate his conviction and

sentence. He alleged that his § 848 sen-

tence was unconstitutionally imposed since

the prosecution failed to prove all the

elements of a § 848 offense and because the

appellate court affirmed his conviction on

grounds never raised by the prosecution,

nor passed upon by the jury. District

Judge Pollack held that the petition raised

"“non-constitutional issues at best."

United States v. Sperling, Memorandum

Opinion, August 31, 1978. The United

States Court of Appeals for the Second

Circuit affirmed and the Supreme Court

denied both a petition for certiorari and a

petition for rehearing, none of these dis-

positions being on the merits. United

States v. Sperling, 595 F.2d (2d Cir. 1979)

("Sperling III"), cert. denied, 441 U.S.

947 (1979).

Petitioners’ current § 2255 motion,

upon which this petition is based, was

again rejected by Judge Milton Pollack,

Memorandum Opinion, January 22, 1982, and

by a divided panel of the United States

Court of Appeals for the Second Circuit.

' Opinion, October 22, 1982.

BASIS FOR FEDERAL COURT JURISDICTION

IN COURT OF FIRST INSTANCE

The district court had jurisdiction

by virtue of 28 U.S.C. § 2255.

REASONS FOR GRANTING THE WRIT

I. INTRODUCTION

This case -- involving a sharply

divided Court of Appeals* -- raises

compelling issues going to the integrity of

the judicial system. It raises unanswered

questions of judicial impropriety involving

ex parte communications betweeen a district

judge of the United States Court of Appeals

for the Southern District of New York.

Most importantly, it centers on a defendant

who has already served nine years in prison

and who will spend the rest of his life in

prison for a crime of which he does not

stand properly convicted. The case --

raising the most fundamental constitutional

issues --

calls for the supervision of this Court and

of the Solicitor General's Office.

¥” The panel's decision included a lengthy

and stinging dissenting opinion by Judge

Kearse. Three judges, including the Chief

Judge, voted for rehearing en banc.

Petitioner has repeatedly sought to

have a court understand and reply to his

simple and straightforward allegations. No

court has done so. Finally, after years of

frustrating litigation, during which the

District Judge Milton Pollack has misstated

and deflected his contentions - for

possible reasors which raise the gravest

questions of judicial integrity -- and

during which the Court of Appeals has

simply followed Judge Pollack's path, one

judge of the Court of Appeals has finally

taken Petitioner's claims seriously.

Accordingly, instead of simply repeating

these claims in his own words, Petitioner,

in addition to briefly setting out his

contentions in the body of this petition,

incorporates Judge Kearse's opinion as his

argument to this Court. He respectfully

urges this Court (and the Solicitor

General's Office ) to read that opinion,

along with the others.

Unless the Solicitor General's

Office and the Justices of this Court can

justify -- really justify, not just write

the necessary words -- how petitioner's §

848 conviction can still stand in the face

of the reversals of the underlying substan-

tive counts, then justice and simple intel-

lectual honesty demand that the Solicitor

General and this Court acknowledge that it

is power alone -- and not law or justice --

that is keeping the petitioner in prison.

Neither the majority nor the con-

curring opinion of the panel of the Court

of Appeals responds to any of the issues

raised by petitioner. They simply offer

verbal constructs which paper over peti-

tioner's real and unanswerable claims.

There is nothing more frustrating to honest

lawyers, ox more destructive of the respect

and integrity of the judicial system, than

to read judicial opinions which ~-- inad-

vertently or deliberately -- sidestep the

issue raised and address straw-persons. It

is for that reason that the tone of this

petition is somewhat challenging. It is,

with all due respect, a respectful

challenge to the Solicitor General's Office

and to this Honorable Court to take

seriously -- and respond to -=- the real

claims that petitioner has been seeking,

with frustrating results, to present to the

courts over the past five years. He is

confident that in light of Judge Kearse's

unanswerable arguments, the Solicitor

General and this Honorable Court will

consider those issues, and not the straw

issues addresed by Judge Pollack, Judge

Timbers, and Judge van Graafeiland.

II. PETITIONER'S § 848 CONVICTION

CANNOT STAND AFTER THE REVERSAL OF

THE UNDERLYING SUBSTANTIVE COUNTS

Petitioner -- who is confined for

life without possibility of parole for a

§848 conviction -- has twice sought to

raise a simple and straightforward consti-

tutional challenge to his conviction. The

issue -- in a nutshell -- is this: where

the indictment and the trial court instruc-

tions have specifically required the jury

to find the defendant guilty of specified

substantive counts before it could find him

guilty of a §848 violation; where the jury

has convicted on the substantive and §848

counts; and where the Court of Appeals has

then reversed the substantive counts

because of a Jencks Act violation; can the

§848 conviction still stand?

Despite the simple and straight-

forward nature of this issue, District

Judge Pollack has twice -- to put it most

generously -- “misperceived the gist of

the prisoner's ground" and responded to

arguments that “were not the [claims] on

which Sperling relied." Slip op. at 540l,

5402 (Kearse, J., dissenting). After the

oral argument on this appeal, counsel for

petitioner received information concerning

ex parte communications which -- if true --

strongly suggests that Judge Pollack's

misperception of petitioner's claims may

not have been inadvertent.

The way in which this case has been

"handled" from the very beginning -- dis-

tortion of the issues, apparent ex parte

communications, refusal by the Court of

Appeals to confront the real issues --

raises serious questions about the

integrity of the judicial process. Judge

Kearse's detailed opinion examines Sedge

Pollack's misperception of the issues and

the Court of Appeals' errors in refusing to

reverse Judge Pollack's orders. Petitioner

relied on Judge Kearse's dissent in his

petition for rehearing en banc, which

garnered the votes of three Circuit Judges.

He continues to rely on Judge Kearse's

opinion in the instant petition for

certiorari. Petitioner urges this Court to

read the opinions before deciding whether

to grant the petition.

Judge Kearse's dissenting opinion

succinctly states the relevant facts and

the issues.

Sperling was convicted ... of

engaging in a continuing criminal

enterprise, in violation of 21

U.S.C. §848 (1976) (count 2); and of

possessing heroin and cocaine with

intent to distribute it, in viola-

tion of 21 U.S.C. §§841(a)(1) and

(b)(1)(A) (1976) (counts 8, 9, and

10). As to count 2, the jury had

been instructed that in order to

find Sperling guilty of a continuing

criminal enterprise under §848, it

must first find him guilty under

counts 8, 9 and 10 of the

indictment.

On appeal by Sperling and his

codefendants, this Court reversed

the convictions on counts 8, 9 and

10 on the ground that the government

had failed to disclose, pursuant to

the Jencks Act, 18 U.S.C. §3500

(1976), a letter that might have

been used to impeach the govern-

ment's key witness, Barry Lipsky.

United States v. Sperling, 506 F.2d

’ sam r. 74)

| eberliag I"), cert. denied, 420

U.S. (1975). We ruled that

without the Lipsky testimony the

evidence was insufficient for the

jury to find Sperling or his code-

fendants guilty on counts 8, 9, and

10. Id. at 1335. We therefore

remanded these counts for a new

trial, with the Jencks Act material

disclosed. We upheld Sperling's

conviction on count 2, however,

stating that

- « e-Sperling's conviction of

engaging in a continuing

criminal enterprise involving

hard narcotics was based on

evidence wholly independent

of Lipsky's testimony.

Id.

Sperling's claim on his $2255

application is that because the jury

had been instructed that it must

find him guilty on counts 8-10 in

order to convict him on count 2, our

setting aside the verdicts on counts

8-10 eliminated the mandated predi-

cate for the jury's verdict of

guilty on count 2. He claims that

we denied him due process by looking

to evidence of acts other than those

charged in counts 8-10 as support

for the conviction under count 2,

because we thereby sustained his

conviction on the basis of facts

different from those on which the

jury had been instructed to rest its

verdict on count 2.

Slip op. at 5389-90 (Kearse, J., dissent-

ing) (footnote and citation omitted).

Notwithstanding the simplicity of

the constitutional claim, four separate

courts -- District Judge Pollock on two

occasions and panels of the Court of

Appeals on two occasions -- have chosen,

either deliberately 1/ or inadvertently,

1 Petitioner's counsel had received

information raising serious questions con-

cerning the propriety of Judge Pollack's

conduct in handling petitioner's second

application. This information was summar-

ized in the following telegram sent on June

4, 1982, to the panel of the Court of

Appeals that considered the instant

appeal:

At 8 AM this morning I received a call

from a member of the bar who informed me

that last night he was in the presence

of Judge Milton Pollack -- the District

Judge in the Sperling case -- and heard

Judge Pollack bragging about how he had

handled my petition on the Sperling

case. Judge Pollack said that he had

spoken to John Martin, the United States

Attorney, and advised him how to deal

with my petition so that he could dis-

miss it. During this exparte conversa-

tion, Judge Pollack made specific

suggestions about the legal responses

and tactics the government should use

and the personnel who should implement

these tactics.

Needless to say, this kind of exparte

communication between the Judge and the

prosecutor is absolutely improper and

illegal. It was extremely prejudicial

to my client's right to a fair hearing

by an unbiased judge, and it strongly

suggests that Judge Pollack has been

biased against my client throoughout

this litigation. The case is now on

appeal. In the event this Court has

decided to reverse the conviction no

harm has been done to my client. But in

to ignore or distort the issue presented by

petitioner.

Judge Kearse detailed, in her

dissent, the deficiencies in each of the

the event it may affirm, then I hereby

request an evidentiary hearing, before a

different Judge, at which I can examine

both Judge Pollack and Mr. Martin under

oath to establish the exact nature and

content of the discussions. There were

other witnesses to last night's state-

ments by Judge Pollack. If these state-

ments are denied, I would call them as

well.

Because of the extremely serious nature

of this situation, it might be advisable

to have the hearing -- if necessary --

before a judge who has no personal asso-

ciation with either Judge Pollack or Mr.

Martin. If tke Court finds it necessary

I will attest to the above in a sworn

affidavit, but I felt it imperative to

get this information before the Court as

soon as it came to my attention.

Respectfully submitted.

Judge Timbers blandly asserts that it is

unnecessary and inappropriate to comment on

these charges. “We decide the case on the

record before us." Slip op. at 5384, n.3.

Despite this assertion the majority relied

heavily upon Judge Pollack's opinion which,

if the above allegations are true, is

tainted. Indeed, since Judge Pollack

denied petitioner an evidentiary hearing,

the most significant aspect of the “record”

is Judge Pollack's opinion.

prior judicial responses to petitioner's

claims. Thus, for example, she recognized

that Judge Pollack's characterization of

the first §2255 application as raising

"“non-constitutional errors at best"

occurred because Judge Pollack failed to

consider an essential ingredient of

petitioner's claim: that the Court of

Appeals had affirmed the count 2 conviction

on the basis of acts other than those

charged in counts 8-10.

"(T]he district court seemed to

assume that Sperling I affirmed the

count 2 conviction in reliance on

the Lipsky testimony evidence on

Counts 8-10. Proceeding on this

assumption, the Court construed

Sperling's claim as (a) a simple

attack on the sufficiency of the

evidence to support a conviction on

count 2, and (b) a Jencks Act claim

that the Lipsky evidence should not

have been considered on count 2."

Slip op. at 5400 (Kearse, J., dissent-

.ting). The Court of Appeals summarily

affirmed.

Ruling on the instant petition,

Judge Pollack once again rejected petition-

er's claim, and the Court of Appeals

affirmed. Adopting Judge Pollack's errone-

ous assumption and despite its own clear

language in Sperling I, the Court of

Appeals insisted that it had affirmed the

§848 conviction not on evidence other than

that in support of the substantive counts,

but precisely on the evidence presented in

support of those counts (i.e., the Lipsky

testimony).

The court's theory, while difficult

to comprehend, is apparently either that

the Jencks Act rendered the Lipsky testi-

mony inadmissible on the substantive counts

but admissible on the § 848 count; or that,

while the Lipsky testimony was equally

inadmissible on the § 848 count, its

admission was mere statutory error, not of

constitutional magnitude, and thus not

subject to attack under § 2255.

Judge Kearse is clearly correct in

her determination that the affirmance in

Sperling I was based on evidence other than

that presented in support of the substan-

tive counts and therefore violated

Sperling's constitutional right to due

process.

But even if the majority's premise

were sound -- that the Sperling I affirm-

mance of the § 848 count rested on the

Lipsky testimony -- his conviction is still

infirm. There is simply no basis in law or

in logic for the proposition that Lipsky's

testimony was competent for purposes of the

§848 count but incompetent for purposes of

the substantive counts. 2/ The Jencks Act

surely does not recognize such a

2. Without further explanation, the Court

merely asserts that “Although the Jencks

Act required that the testimony not be con-

sidered in ruling on the validity of the

substantive offenses, it did not require

that it be ignored with respect to the §

858 count." Slip op. at 5384. Petitioner

respectfully requests the Solicitor Gen-

eral's office to address this unprecedented

and illogical distinction.

distinction. Nor do the substantive or

§ 848 statutes. Moreover, the court's

theories still fail to address petitioner's

contention: that the charge to the jury

required that the jury find defendant

guilty of the substantive counts before it

could convict on the § 848 count, and,

absent convictions on those counts the §848

conviction cannot stand. 3/

In short, Judge Timbers' opinion and

Judge Van Graafeiland's concurrence are

3 The majority argues that there was

"sufficient evidence to support the § 848

conviction even without the substantive

counts." Slip op. at 5382. As petitioner

argued in all of his briefs and at oral

argument -- literally ad nauseam -- this is

not his contention. His contention is that

the indictment, the prosecution's case, and

the jury instruction all required the jury

to find the defendant guilty of the

substantive counts as a condition precedent

to convicting him of the § 848 count.

The majority also appears to argue that, if

the convictions on the substantive counts

had been reversed on constitutional

grounds, "a new trial would have been

barred on double jeopardy grounds." Slip

op. at 5383. No authority is cited for

this proposition, and we are aware of none.

When a conviction is reversed on Brad

grounds -- a constitutional violation --

there is no double jeoipardy barier to

retrial. There is indeed no relationship

between double jeopardy and whether the

ground for reversal was constitutional or

statutory. Again petitioner respectfullly

requests the Solicitor General's office to

address this argument.

simply wrong.4/ As Judge Kearse points

out, petitioner has not taken inconsistent

positions. See Slip op. at 5403, n.1ll

(Kearse, J., dissenting).

Petitioner agrees with the majority

of the panel that “there must be an end to

the instant litigation at some point."

Petitioner -- who is serving a sentence of

life imprisonment with no possibility of

4 In support of his erroneous contention

of inconsistency, Judge Van Graafeiland

quotes selectively from a confidential

memorandum that he sent to Judge Waterman

on June 3, 1977, and claims that it was

"that memo which prompted Judge Waterman to

provide for reinstatement of the conspiracy

sentence in the ‘unlikely event' that

Sperling's conviction on the continuing

criminal enterprise count should be

vacated.” Slip op. at 5387, n.1l (Van

Graafeiland, J., concurring). Petitioner

respectfully requested full disclosure of

the memorandum and any responses so that he

can make an independent determination of

the accuracy of Judge Van Graafeiland's

representation. It would be unfair in the

extreme to allow a judge to quote

selectively from an internal memorandum

without permitting counsel to inspect the

entire memorandum and the responses. His

request was ignored below and Petitioner

respectfully raises it again in this

petition.

parole -- has done everything in his power

to present his important constitutional

issue in the clearest and most straight-

forward manner. It has been Judge Pollack

and the majority judges of the two appel-

late panels who have kept this litigiation

going by distorting and ignoring

petitioner's claims.

This litigation will not end until a

federal court responds to petitioner's

actual contentions. This Honorable Court

can put an end to this litigation by

addressing those claims. But no court,

under our system of government, can order

an end to litigation by repeatedly refusing

to address important constitutional issues

and by concocting erroneous post hoc

rationalizations to hide error. It is

precisely the office of the writ of habeas

corpus to assure that so long as a peti-

tioner remains confined on the basis of an

unconstitutional conviction, and so long as

the courts have not definitely ruled

against the constitutional challenges he

has presented, that the petitioner must

remain free to persist in his challenge.

And this petitioner will persist unless and

until a court addresses it and resolves

it. It would be a mockery of the legiti-

mate considerations of finality to deny

petitioner a hearing on the ground that

twice previously the Courts have errone-

ously refused to consider the constitu-

tional issues he has sought to raise.5/

5 Any doubts about the power of the courts

to grant collateral relief on this second

petition for a writ of habeas corpus are

resolved by Judge Kearse's reliance -- in

her opinion -- on a case decided by this

Court subsequent to the filing and

disposition of the first petition.

The majority's palliative for this

fundamental defect is to state that

the trial court's instructions to the

jury with respect to count 2 were

more favorable to Sperling than was

required by law. Whether or not the

premise is correct, it cannot alter

the instructions given, and in light

of those instructions we were not en-

titled to affirm on the basis of acts

not charged in counts 8-10, for it is

As Judge Kearse notes, the gravamen

of petitioner's claim is that he was denied

established that a defendant has a

due process right to have an affirm-

ance of his conviction based strictly

on a consideration of the premises on

which the jury was instructed to base

its verdict. Dunn v. United States,

442 U.S. 100 (1979).

In Dunn, the defendant had been

charged with making inconsistent

statements in grand jury proceedings

or proceedings ancillary thereto, in

violation of 18 U.S.C. § 1623 (1976).

The government introduced evidence

that Dunn had given testimony before

the grand jury, that he thereafter,

in September 1976, made a statement

inconsistent with his grand jury tes-

timony, and that in October, 1976 he

gave testimony reiterating his Sep-

tember statement. The indictment

charged that Dunn's grand jury testi-

mony was inconsistent with his Sep-

tember statement, and the case was

submitted to the jury on this theory.

442 U.S. at 106 & n.4. On appeal

from the conviction, the court of

appeals ruled that the September

statement should not have been con-

sidered since it was not made in an

"ancillary" proceeding, but that as

the October statement had been made

in such a proceeding, the conviction

would be upheld. [In an 8-0 decision,

the Supreme court reversed, stating

that

while there was no variance be-

tween the indictment and the proof

at trial, there was a discrepanc

between the basis on which oe

his constitutional rights by the original

action of a panel of the Court of Appeals

decision on Dunn's September

statement, the Tenth Circuit

predicated its affirmance on

petitioner's October testimony. The

Government concedes that this ruling

was erroneous.

*e We agree.

To uphold a conviction on a

charge that was neither alleged in

an indictment nor presented to a

jury at trial offends the most

basic notions of due process. Few

constitutional principles are more

firmly established than a defend-

ant's right to be heard on the

specific charges of which he is

accused. See Baton v. Tulsa, 415

U.S. 697, - ( 4) (per

curiam); Garner v. isiana, 368

U.S. 1576, -164 ( ); Cole v.

Arkan , 333 U.S. 196, 201

: De Jonge v. Oregon, 299

U.S. 353, 362 eC iece is,

to be sure, no glaring distinction

between the Government's theory at

trial and the Tenth Circuit's

analysis on appeal. The jury

might well have reachec the same

verdict had the prosecution built

its case on petitioner's October

21 testimony adopting his Septem-

ber 30 statement rather than on

the September statement itself.

But the off wa ot so de-

n rts

-~- rather than by the district court. It

was a panel of the Court of Appeals which

reversed the convictions on the underlying

ecause the fame result would likely

obtain on retrial.

Id. at 106-07 (emphasis added).

The principle of Dunn is no less

applicable to Sperling. Count 2, see

note 5 supra, charged Sperling with

having violated § 848 "in that he"

engaged in the specific acts alleged

in counts 8, 9, and 10, which were

incorporated by reference in count 2;

these were alleged to be part of a

continuing series of violations, none

of which was even minimally detailed.

Consistent with count 2, the trial

court's charge instructed the jury

that it must find Sperling guilty of

counts 8, 9, and 10 in order to con-

vict him on count 2. I find the par-

allel between this case and Dunn in-

escapable. Notwithstanding the rul-

ing in United States v. Sisca, 503

F.2d 1337, [348-46 (2d Cir.), cert.

denied, 419 U.S. 10008 (1974), that a

defendant may be convicted under

§ 848 even if no substantive offenses

have been alleged as separate counts

of the indictment, Dunn holds that

due process does not permit the ap-

pelate court to substitute uncharged

offenses for the charged violations

that cannot be sustained. Thus, when

the jury has been instructed that it

may conclude "A" only if it has found

substantive crimes while upholding the

§ 848 conviction. Since there is some

question whether a district court or a

panel of the Court of Appeals may appro-

priately overrule another panel, it is

highly appropriate that this issue be

considered by this Honorable Court. This

is especially so since serious allegations

of judicial impropriety remain unanswered

in this case.

"BS," we simply may not affirm on the

supposition that the outcome would have

been the same if the jury had been told

that it could conclude "A" if it had

found "Cc."

In sum, I disagree with the major-

ity's view of the merits of Sper-

ling's claim. As I read Sperling I,

Sperling's contention that Ais Count

2 conviction was affirmed on the ba-

sis of facts other than those on

which the jury had been instructe to

render its verdict is factually cor-

rect. And his contention that such

an affirmance denied him due process

is legally sound.

United States v. Sperling, supra, Slip. op.

at 5394-93 (Kearse, J., a sant ng)

(footnote omitted).

CONCLUSION

This is a case which cries out

urgently for review by this Court. Peti-

tioner, who has been sentenced to prison

for the rest of his life -- has been denied

the most elementary justice. Only Judge

Kearse has considered and responded to the

important constitutional issue he has tried

to raise. And, as she has concluded, there

is no basis on which petitioner's § 848

conviction can now stand. Despite Judge

Kearse's unanswered analysis petitioner

mist remain imprisoned for the remainder of

his life unless this Court is willing to

grant him relief.

For all these reasons, petitioner

respectfully prays that this Court grant

his petition or other relief which will

finally resolve the issue that he has

repeatedly tried to present.

Respectfully submitted,

Alan M. Dershowitz

Nathan Z. Dershowitz

Attorneys for Herbert Sperling

February 17, 1983

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United

States Court of Appeals, in and for the

Second Circuit, held at the United States

Courthouse, in the City of New York, on the

twentieth day of December, one thousand

nine hundred and eighty-two.

HERBERT SPERLING,

Petitioner-Appellant,

No. 82-2022

UNITED STATES OF AMERICA,

Respondent~Appellee.

A petition for rehearing containing

a suggestion that the action be reheard in

banc having been filed herein by counsel

for the petitioner-appellant, Herbert

Sperling,

Upon consideration by the panel that

heard the appeal, it is

ORDERED that said petition for

rehearing is DENIED, Judge Kearse

dissenting.

It is further noted that a poll of

the judges in regular active service having

been taken on the suggestion for rehearing

in banc and there being no majority in

favor thereof, rehearing in banc is DENIED,

Chief Judge Feinberg and Judges Oakes and

Kearse, dissenting.

A. Daniel Fusaro, Clerk

/3/

Francis X. Gindhart

Chief Deputy Clerk

[CORRECTED COPY]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1042—August Term, 1981

(Argued May 21, 1982 Decided October 22, 1982)

Docket No. 82-2022

——

HERBERT SPERLING,

Petitioner-Appellant,

_—V—

UNITED STATES OF AMERICA,

Respondent-Appellee.

SS oe

Before:

TIMBERS, VAN GRAAFEILAND and KEARSE,

Circuit Judges.

Appeal from an order denying appellant’s second peti-

tion pursuant to 28 U.S.C. § 2255 (1976), Milton Pollack,

District Judge, claiming on the identical grounds asserted

in his first petition that his conviction for engaging in a

$375

continuing criminal enterprise as charged under 21

U.S.C. § 848 (1976) should be vacated.

Affirmed.

GERARD E. Lyncu, Asst. U.S. Atty., New

York, N.Y. (John S. Martin, Jr., U.S.

Atty., and Kate Stith Pressman, Asst.

U.S. Atty., New York, N.Y., on the

brief), for respondent-appellee.

ALAN M. DERSHOWITZ, Cambridge, Mass.

(Nathan Z. Dershowitz and Mark D.

Fabriani, New York, N.Y., on the brief),

for petitioner-appellant.

TIMBERS, Circuit Judge:

For the third time appellant Sperling (hereinafter, “ap-

pellant”) asks us to consider alleged errors in his 1973

conviction for engaging in a continuing criminal en-

terprise in violation of 21 U.S.C. § 848 (1976). This is the

second time appellant has appealed to this Court from the

denial of his petitions pursuant to 28 U.S.C. § 2255

(1976), in both instances raising identical claims. We find

his claims no more persuasive now than before. We

affirm.

Appellant and seventeen others were indicted on May

11, 1973 on various counts charging violations of the

5376

federal narcotics laws. Count J charged appellant with

conspiracy to violate the narcotics laws. 21 U.S.C. § 846

(1976). Count II charged him with engaging in a continu-

ing criminal enterprise in violation of 21 U.S.C. § 848

(1976). Counts VIII, IX, and X charged him with possess-

ing heroin and cocaine with intent to distribute it in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (1976).

On July 12, 1973, after a four week jury trial, Milton

Pollack, District Judge, appellant was convicted on all

counts upon which he was charged. On September 12,

1973, Judge Pollack sentenced appellant to life imprison-

ment on Count II, 30 years on Counts I, VIII, [IX and X

(concurrent), 6 years special parole, $100,000 fine on

Count II, and $200,000 fine on alli other counts.

On their direct appeals to this Court, appellant and his

codefendants claimed, inter alia, that the government

failed to comply with the Jencks Act, 18 U.S.C. § 3500

(1976), in that it failed to provide them with a letter

written by witness Barry Lipsky which might have had an

impact on his credibility. As to this claim, we agreed and

reversed the convictions on the substantive counts

(Counts VIII, IX, and X), holding that there was insuffi-

cient evidence other than Lipsky’s testimony to susiain

the convictions on those counts. United States v. Sperl-

ing, 506 F.2d 1323, 1335 (2 Cir. 1974) (“Sperling I”), cert.

denied, 420 U.S. 962 (1975). We remanded the case for a

new trial on those counts.

In Sperling I, we affirmed appellant’s convictions on

the conspiracy count (Count I) and on the continuing

criminal enterprise count (Count II), holding that appel-

lant’s convictions on those counts were not affected by

the absence of the Lipsky letter. 506 F.2d at 1335-37 and

1337 n.18. With respect to the conspiracy count, we held:

5377 3b

“In short, we are left with the firm conviction that,

in view of the substantial, independent and corrobo-

rating evidence linking the Pacelli and Sperling nar-

cotics operations, the availability of the

Lipsky-Feffer letter for use on cross-examination of

Lipsky would not have had any effect on the jury’s

verdict with respect to the conspiracy convictions of

Sperling, Goldstein and Schworak, including their

participation in the Pacelli-Sperling conspiracy.” Jd.

at 1337 (footnotes omitted).

With respect to the continuing criminal enterprise count,

we held:

“Moreover, Sperling’s conviction of engaging in a

continuing criminal enterprise involving hard nar-

cotics was based on evidence wholly independent of

Lipsky’s testimony.” Jd. at 1335.

We also held, with respect to the continuing criminal

enterprise count, that the “evidence was more than suffi-

cient to sustain his conviction under this count.” /d. at

1344 (footnote omitted). We remanded the case to the

district court for resentencing on Count I, since that

sentence had been made concurrent with the sentences on

the reversed substantive counts. The Supreme Court de-

nied certiorari. 420 U.S. 962 (1975).

On remand, the district court on May 17, 1976 resen-

tenced appellant on Count I to 30 years imprisonment

and a $50,000 fine, the sentence on Count I to run

concurrently with the life sentence and $100,000 fine

previously imposed on Count II. 413 F.Supp. 845. On

appeal from that judgment, we vacated the sentence

imposed on Count I on the ground that the conspiracy

count was a lesser included offense in the continuing

criminal enterprise charge. We held, however, that “in the

5378 4b

unlikely event that sometime in the future his conviction

on Count Two shall be overturned, the sentence imposed

on the unaffected conviction on Count One is to be

reinstated.” United States v. Sperling, 560 F.2d 1050,

1060 (2 Cir. 1977) (“Sperling IT’).

Rather than retrying appellant on the three substantive

counts, the government applied for and, on May 16,

1975, was granted an order of nolle prosequi as to those

counts. The district court, on July 24, 1975, denied

appellant’s motion to vacate the nolle proseque order or,

in the alternative, to dismiss the counts with prejudice.

We dismissed the appeal from that order on January 26,

1976.

On July 10, 1978, appellant filed his first § 2255 peti-

tion, alleging that the absence of guilty verdicts on

Counts VIII, [IX and X rendered the continuing criminal

enterprise conviction invalid. On August 31, 1978, Judge

Pollack denied the petition in a brief opinion, stating that

the continuing criminal enterprise conviction was sup-

ported by more than sufficient evidence. We affirmed by

order. 595 F.2d 1209 (2 Cir. 1979) (mem.) (“Sperling IIT”).

The Supreme Court denied certiorari, the petition to that

Court having raised essentially the same issues which had

been raised in and rejected by the two lower courts. 441

U.S. 947 (1979).

On October 13, 1981, Sperling filed his second § 2255

petition, alleging that, by affirming his conviction on

Count II despite having vacated the convictions on

Counts VIII, IX, and X, this Court had sanctioned his

conviction of a crime although there was no proof that he

had committed it. The claims raised in appellant’s first

and second § 2255 petitions are essentially identical. The

only difference between the two is that appellant, who

was represented by retained counsel on his first petition,

5379 5 b

was represented by different retained counsel on his

second petition. Appellant’s counsel on the instant appeal

conceded that he was making the same argument that was

made on appeal from the denial of the first § 2255

petition, adding, “the argument was made by different

counsel.”

Judge Pollack, in a comprehensive, well reasoned opin-

ion dated January 22, 1982, denied appellant’s second

§ 2255 petition. From the order entered thereon, the

instant appeal was taken.

Il.

A court may give controlling weight to the determina-

tion of a prior § 2255 petition if: (1) the same ground

presented in the subsequent petition was determined ad-

versely to the petitioner on the prior petition; (2) the prior

determination was on the merits; and (3) the ends of

justice would not be served by reaching the merits of the

subsequent petition. Sanders v. United States, 373 U.S. 1,

15 (1963).

We hold that the first requirement clearly is satisfied

here. The same arguments were presented in appellant’s

prior § 2255 petition before the district court, this Court,

and the Supreme Court. In each instance, the identical

arguments made here were rejected.

We also hold that the second requirement is satisfied.

The issue on the first petition, as on the instant one, was

whether the judgment vacating the convictions on the

substantive counts rendered the continuing criminal en-

terprise conviction constitutionally infirm. Judge Pollack,

in denying the first petition, held that the conviction was

not rendered infirm. We affirmed. The Supreme Court

denied certiorari.

5380

This brings us to the third requirement. In deciding

whether the ends of justice require reaching the merits, we

must consider the repetitious nature of this petition,

especially in view of the clear mandate of Congress in 28

U.S.C. § 2255, 4 5 (1976) that “[t]he sentencing court

shall not be required to entertain a second or successive

motion for similar relief on behalf of the same prisoner.”

Although there is no res judicata effect with respect to

prior determinations of repetitious § 2255 petitions, a

court should be less receptive to a claim when exactly the

same claim previously was decided against a petitioner.

For example, in Alessi v. United States, 653 F.2d 66, 69 (2

Cir. 1981), a case involving a repetitious § 2255 petition,

we held that there was no reason why the ends of justice

required reaching the merits of claims which so recently

had been held to be without merit by the district court

and by our Court. “Plainly there must be an end to

litigating these claims several times decided by the district

court and by us.” /d. Similarly, the instant case involves a

successive, repetitious petition without any new legal or

factual claims being raised for setting aside the convic-

tion. There must be an end to the instant litigation at

some point. We hold, so far as this Court is concerned,

that that point has now been reached.

Appellant contends that the merits should be reached

because there has been an intervening change in the law,

citing Dunn v. United States, 442 U.S. 100 (1979), which

held that the court of appeals had erred in affirming a

perjury conviction on grounds other than those charged.

That case did not change the law. It merely emphasized

the “firmly established” rule that a defendant has a right

“to be heard on the specific charges of which he is

accused.” Jd. at 106. We did not affirm Sperling’s convic-

tion on charges other than those on which he had been

indicted and convicted.

7 5381 7b

Appellant further contends that the merits should be

reached because both the direct appeal and the first

§ 2255 petition were incorrectly decided. He argues that,

by vacating the convictions on the substantive counts, we

removed the necessary predicate for conviction on the

continuing criminal enterprise count. Although we need

not discuss the merits because we believe that our earlier

dispositions were correct, we believe it is appropriate

briefly to explain more fully our holding in Sperling I.

The instant controversy is triggered by the district

court’s instruction at the 1973 trial that, to convict

appellant on the § 848 count, the jury msut have been

convinced beyond a reasonable doubt that he committed

the offenses charged in the substantive counts. That

charge was unnecessarily favorable to appellant. The law

requires merely that there be evidence that the defendant

committed three substantive offenses—even if not

charged in separate indictments—to provide the predicate

for a § 848 conviction. See United States v. Sisca, 503

F.2d 1337, 1345-46 (2 Cir.) (affirming a § 848 conviction

although there were no indictments for substantive of-

fenses), cert. denied, 419 U.S. 1008 (1974). Absent the

linking of § 848 to the three substantive counts, there

clearly was sufficient evidence to support the § 848 con-

viction even without the substantive counts.'

| We summarized this independent evidence in Sperling /:

“The record shows that Sperling was the operational kingpin of a

highly organized, structured and on-going narcotics network. Testi-

mony by Conforti, Cecile Mileto and Vance, as weil as visual and

electronic surveillance, clearly established that during the period

from May 1, 1971 through April 13, 1973 Conforti, Louis Mileto,

Goldstein, Schworak, Spada and many others were engaged in

Sperling's narcotics enterprise directly under his supervision. There

was evidence that on more than 26 occasions some or all of these

individuals mixed heroin for Sperling. Each of these mixing sessions

5382 8b

Since the trial judge linked the § 848 count to the

substantive counts, however, we were precluded in Sper/-

ing I from looking beyond the three substantive counts to

hold that the jury convicted on the basis of evidence other

than the substantive counts. See Dunn v. United States,

supra. Rather, we affirmed the § 848 conviction nor on

evidence other than that in support of the substantive

counts, but precisely on the evidence presented in support

of those counts. This was appropriate because of the basis

for our decision in vacating the convictions on the sub-

stantive counts.

We vacated the convictions on the substantive counts

because the government failed to comply with the Jencks

Act, 18 U.S.C. § 3500 (1976), which requires the govern-

ment to turn over statements of a government witness

relating to that witness’ trial testimony. That was a

decision not based on constitutional grounds, however,

since the Jencks Act is a statutory requirement, not a

constitutional one. See United States v. Augenblick, 393

U.S. 348, 356 (1969) (“our Jencks [v. United States, 353

U.S. 657 (1957)] decision and the Jencks Act were not

cast in constitutional terms”); see also Palermo v. United

States, 360 U.S. 343, 353 n.11 (1959).

If the failure to comply with the Jencks Act were a

constitutional error—e.g. insufficiency of the evidence—

the 1973 convictions would have been reversed outright

and a new trial would have been barred on double

jeopardy grounds. Here, however, vacating the convic-

tions on the substantive counts and remanding the cases

involved possession, diluting and distributing from a half kilo to

three kilos of pure heroin.” 506 F.2d at 1344.

We held that this evidence was more than sufficient to sustain appel-

lant’s conviction under the continuing criminal enterprise count. /d.

5383 9b

for a new trial was appropriate, see, e.g., Goldberg v.

United States, 425 U.S. 94, 111-12 (1976), because there

was no constitutional infirmity in those convictions.

Since the Jencks Act error was technical and statutory,

not constitutional, it was not inconsistent for us to have

vacated the convictions while still holding that the jury

could have found beyond a reasonable doubt that appel-

lant committed’ those substantive offenses, thus provid-

ing the predicate for the § 848 conviction. In short, in

vacating the convictions on the substantive counts on

statutory grounds, we did not hold that it was constitu-

tionally impermissible for the jury to have considered the

Lipsky testimony in finding appellant guilty of the § 848

violation. Although the Jencks Act required that the

testimony not be considered in ruling on the validity of

the substantive offenses, it did not require that it be

ignored with respect to the § 848 count. Thus, this was

consistent with our statement in Sperling J that “[w]e find

insufficient evidence, other than Lipsky’s testimony, to

sustain the convictions of any of the appellants for

possession and distribution of cocaine and heroin as

charged in substantive Counts Three through Ten. . . .”

506 F.2d at 1335 (emphasis added).’

Affirmed.

2 We note that the district court instructed the jury that it must find

beyond a reasonable doubt that appellant committed the substantive

offenses, not that he was convicted of them. Thus the § 848 conviction

was not rendered invalid by vacating the substantive convictions.

3 We find it neither necessary nor appropriate ‘o comment on a

post-argument communication addressed to us by appellant’s counsel

regarding an incident alleged to have occurred some two weeks after

the argument in the instant case. We decide this case on the record

before us.

5384 ifth

VAN GRAAFEILAND, Circuit Judge, concurring:

It is a truism of the law that effective justice can only

be achieved through the cooperative effort of those who

seek it and those who dispense it. For this reason,

litigants should not be permitted to play “fast and loose

with the courts” by taking inconsistent positions in re-

lated proceedings. Selected Risks Insurance Co. v. Kobe-

linski, 421 F. Supp. 431, 434 (E.D. Pa. 1976) (quoting

Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir.

1953)). Because I believe that this is what appellant is

doing in the instant case, I write separately to indicate my

accord with Judge Timbers, in whose well-reasoned opin-

ion I fully concur.

Five years ago, appellant argued in this Court that his

sentence on the conspiracy count should be vacated be-

cause the conspiracy was a lesser included offense in the

continuing criminal enterprise and punishment under

both counts constituted double jeopardy. Uniied States v.

Sperling, 560 F.2d 1050, 1053 (2d Cir. 1977). Appellant

was fully familiar with the well-established doctrine,

sometimes referred to as “judicial estoppel”, which pre-

cludes a litigant from leading a court to find one way in

one proceeding and then, because his interests have

changed, leading the court to find another way in a

subsequent proceeding. Indeed, in his brief on that ap-

peal, appellant quoted the doctrine as it is set forth in Jn

re Johnson, 518 F.2d 246, 252 (10th Cir.), cert. denied,

423 U.S. 893 (1975).

With complete awareness of where he was going, appel-

lant argued that, because of his conviction on the con-

tinuing criminal enterprise count, his sentence on the

conspiracy count must be vacated. Appellant assured the

Court that “[i]f Sperling prevails he will still be saddled

5385 4ib

with a sentence of life without parole.” On that ground,

and on that ground alone, the 1977 panel vacated appel-

lant’s sentence on the conspiracy count. 560 F.2d 1060.

Having accomplished this, appellant is now back in our

Court seeking to have his continuing criminal enterprise

conviction vacated, thus knocking the props from under

the argument which he presented successfully on his

former appeal.

Moreover, the grounds upon which he bases his motion

to vacate are inconsistent with his former arguments

directed to the conspiracy count. Sperling’s role in the

conspiracy, which ran from May 1, 1971 to mid-April

1973, was described in our 1974 opinion as follows:

Evidence concerning the activities of Sperling and the

Sperling branch of the conspiracy was adduced pri-

marily through the testimony of Joseph Conforti, a

former member of the conspiracy. Conforti’s testi-

mony, corroborated by that of Cecile Mileto and

Zelma Vance, established that 13 of the defendants

and 2 of the co-conspirators named in the indictment

were participants in the narcotics operations directed

by Sperling. These witnesses described approximately

69 meetings, conversations, drugs sales or transfers

beginning in early 1971 and continuing through April

1973 involving members of the Sperling group. As

with the Pacelli branch of the conspiracy, each of

Sperling’s workers had a definite role in the con-

spiracy, including Goldstein and Schworak who de-

livered narcotics at Sperling’s direction. Sperling

supervised and directed the purchase, processing and

sale of narcotics within his sphere of control.

(506) F.2d at 1330-31).

i2b

5386

On his 1977 appeal, appellant argued that the con-

spiracy and the continuing criminal enterprise occupied

the same time span, that the persons who allegedly acted

in concert to commit multiple violations of the narcotics

laws were also named as conspirators in the conspiracy

count, and that the objects of the conspiracy and the

continuing criminal enterprise were the same, i.e., the

violation of 18 U.S.C. § 841. Appellant stated in his

brief:

Thus the Court told the jury that, as to Count 1,

Sperling commanded the services of six particular

persons, and that, as to Count 2, he occupied a

position of organizer, supervisor and manager of the

same six persons. This effectively cemented the

merger of Counts | and 2, as to Sperling, for

punishment purposes upon conviction. (emphasis in

original)

Today, however, appellant argues that he stands con-

victed of “criminal acts not charged at trial, and never

found by a jury.” I agree with Judge Timbers that this

argument should be rejected on the merits. I also agree

that there is no need to reach the merits. Whether we base

our holding on a theory of estoppel, waiver, preclusion,

or abuse of writ, we should not permit such piecemeal,

inconsistent, and mutually exclusive attacks on a judg-

ment of conviction as have occurred in this case.' For civil

! On June 3, 1977, | sent a memo to Judges Waterman and Motley, the

panel majority in United States v. Sperling, 560 F.2d 1050, in which |

said:

If my crystal ball is working properly, I can see [Sperling] moving to

dismiss the section 848 count as soon as the conspiracy count is

gone.

It was that memo which prompted Judge Waterman to provide for

reinstatement of the conspiracy sentence in the “unlikely event” that

5387 43b

cases applying one or more of these concepts, see Davis v.

Wakelee, 156 U.S. 680, 689 (1895), Roth v. McAllister

Bros., Inc., 3216 F.2d 143, 145 (2d Cir. 1963), Hart v.

Mutual Ben. Life Ins. Co., 166 F.2d 891, 894 (2d Cir.

1948), Smith v. United States, 466 F.2d 535, 536 (6th Cir.

1972), and Gottesman v. General Motors Corp., 222 F.

Supp. 342, 344 (S.D.N.Y. 1963), cert. denied, 379 U.S.

882 (1964). For criminal cases, see United States v.

Kramer, 289 F.2d 909, 919-20 (2d Cir. 1961), United States

v. Gremillion, 464 F.2d 901, 906-07 (5th Cir.), cert.

denied, 409 U.S. 1085 (1972), and Sa/ta v. United States,

44 F.2d 752, 753 (lst Cir. 1930). For habeas corpus cases,

see Johnson v. Massey, 516 F.2d 1001, 1002 (Sth Cir.

1975), Bryans v. United States, 374 F.2d 505, 506 (Sth Cir.

1967), cert. denied, 387 U.S. 903 (1967), and Crawford v.

Cox, 307 F. Supp. 732, 736 (W.D. Va. 1969).

KEARSE, Circuit Judge, dissenting:

With all due respect to the majority, I must dissent. I

do so because I believe the claim made by Sperling in his

present application under 28 U.S.C. § 2255 (1976), which

he concedes is the same claim presented in his ‘prior

§ 2255 application, is a valid constitutional claim that

should be addressed on its merits and should be upheid.

Sperling’s conviction on the continuing criminal enterprise count

should be vacated. If this “unlikely event” were to occur, | wouldn’t

need a crystal ball to predict what would happen next. Sperling's

counsel has already indicated that, if successful on this appeal, he will

fight any attempt to reinstate Speriing’s sentence on the conspiracy

5388 14D

A. The Nature of Sperling’s Claim

Sperling was convicted on five counts of an indictment,

to wit, of conspiring to violate the narcotics laws, in

violation of 21 U.S.C. § 846 (1976) (count 1); of engaging

in a continuing criminal enterprise, in violation of 21

U.S.C. § 848 (1976) (count 2); and of possessing heroin

and cocaine with intent to distribute it, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A) (1976) (counts 8, 9, and

10). As to count 2, the jury had been instructed that in

order to find Sperling guilty of a continuing criminal

enterprise under § 848, it must first find him guilty under

counts 8, 9, and 10 of the indictment. (Tr. 4139, 4140.)

On appeal by Sperling and his codefendants, this Court

reversed the convictions on counts 8, 9, and 10 on the

ground that the government had failed to disclose, pur-

suant to the Jencks Act, 18 U.S.C. § 3500 (1976), a letter

that might have been used to impeach the government’s

key witness, Barry Lipsky. United States v. Sperling, 506

F.2d 1323, 1332-35 (2d Cir. 1974) (“Sperling I”), cert.

denied, 420 U.S. 962 (1975). We ruled that without the

Lipsky testimony the evidence was insufficient for the

jury to find Sperling or his codefendants guilty on counts

8, 9, and 10. Jd. at 1335. We therefore remanded these

counts for a new trial, with the Jencks Act material

disclosed.' We upheld Sperling’s conviction on count 2,

however, stating that

. . . Sperling’s conviction of engaging in a continu-

ing criminal enterprise involving hard narcotics was

| The pertinent Lipsky letter had come to Sperling's attention between

the time of trial and the appeal.

On remand, the government retried other defendants on some of the

substantive counts but chose not to retry Sperling on counts 8-10.

5389 i5b

based on evidence wholly independent of Lipsky’s

testimony.

Id.

Sperling’s claim on his § 2255 application is that be-

cause the jury had been instructed that it must find him

guilty on counts 8-10 in order to convict him on count 2,

our setting aside the verdicts on counts 8-10 eliminated

the mandated predicate for the jury’s verdict of guilty on

count 2. He claims that we denied him due process by

looking to evidence of acts other than those charged in

counts 8-10 as support for the conviction under count 2,

because we thereby sustained his conviction on the basis

of facts different from those on which the jury had been

instructed to rest its verdict on count 2.

B. The Merits of Sperling’s Claim

Notwithstanding the majority’s interpretations of the

action taken in Sperling J, Sperling’s contention that that

decision affirmed his conviction on count 2 on a basis as

to which the jury had not been instructed appears to be

accurate. ae

At the close of trial the jury was instructed that it could

not find Sperling guilty of a continuing criminal en-

terprise under count 2 unless it found him guilty of the

violations charged in counts 8-10. The court’s instructions

on count 2 were, in pertinent part, as follows:

Before you can find the defendant Herbert Sperling

guilty of the crime charged in the 2nd count of the

indictment you must be convinced beyond a reason-

able doubt that. . .:

. . . [hJe commitied the offenses charged in

counts 8, 9 and 10 of this indictment.

5390 16 b

. . « [YJou must be satisfied that Herbert

Sperling is guilty under counts 8, 9 and 10

(Tr. 4139, 4140.) Counts 8-10 alleged quite specific acts.

Count 8 charged that Sperling and others distributed, and

possessed with intent to distribute, one kilogram of co-

caine in July 1971. Count 9 charged that Sperling and

others distributed, and possessed with intent to distribute,

two kilograms of heroin in November 1971. Count 10

charged that Sperling and others distributed, and pos-

sessed with intent to distribute, one kilogram of cocaine

in December 1971.

Apparently the only evidence of these alleged acts of

July, November, and December 1971 was the testimony of

Lipsky, for in reversing the convictions on counts 8-10,

after ruling Lipsky’s testimony inadmissible without the

disclosure of Jencks Act material, we stated as follows:

We find insufficient evidence, other than Lipsky’s

testimony, to sustain the convictions of any of the

appellants for possession and distribution of cocaine

and heroin as charged in substantive Counts Three

through Ten; indeed, we do not understand the

government to claim that there is any evidence to

corroborate Lipsky’s testimony as to these counts.

506 F.2d at 1335. Logically, therefore, in light of the

explicit instructions to the jury not to convict on count 2

unless it was satisfied beyond a reasonable doubt of

Sperling’s guilt on counts 8-10, it would seem that we

would have set aside the conviction on count 2 as well. If

the jury was not entitled to find Sperling guilty on counts

8-10, it was not entitled, under the court’s instructions, to

find him guilty on count 2.

5391 i7b

Sperling I nevertheless upheld the conviction on count

2, resting the affirmance on evidence of violations other

than the acts alleged in counts 8-10. Thus, we ascribed the

count 2 conviction to “evidence wholly independent of

Lipsky’s testimony”—i.e., evidence that we had just

noted did not corroborate the Lipsky testimony as to

counts 8-10.* Jd. This other evidence supporting count 2,

and the legal framework within which it was viewed in

Sperling I, was described as follows:

To establish a violation of § 848, it was incumbent

upon the government to prove that Sperling occupied

a position as organizer or a managerial or supervi-

sory position with respect to a continuing narcotics

trafficking operation in concert with five or more

other persons, and that he received substantial in-

come or resources froin the operation.

The record shows that Sperling was the opera-

tional kingpin of a highly organized, structured and

on-going narcotics network. Testimony by Conforti,

Cecile Mileto and Vance, as well as visual and elec-

tronic surveillance, clearly established that during the

period from May 1, 1971 through April 13, 1973

Conforti, Louis Mileto, Goldstein, Schworak, Spada

and many others were engaged in Sperling’s narcotics

enterprise directly under his supervision. There was

evidence that on more than 26 occasions some or all

of these individuals mixed heroin for Sperling. Each

of these mixing sessions involved possession, diluting

and distributing from a half kilo to three kilos of

: Neither Sperling nor the government had addressed the effect that a

reversal of the convictions on counts 8-10 would have on the count 2

conviction in light of the jury charge on count 2.

5392 485

pure heroin. Such evidence was more than sufficient

to sustain his conviction under this count.

Id. at 1344 (footnote omitted).

Undoubtedly this evidence would have sufficed to sus-

tain Sperling’s conviction on count 2 if the jury had

properly been given general instructions along the lines

set forth in the first paragraph of the quoted passage.’

The jury was not, however, given such general instruc-

tions. Rather, it was told that it could convict Sperling on

count 2 only if it found beyond a reasonable doubt that

he was guilty of having possessed and distributed one

kilogram of cocaine in July, 1971 and in December 1971,

and two kilograms of heroin in November 1971; and since

this Court then sustained the count 2 conviction only on

the basis of evidence that Sperling was kingpin of an

ongoing narcotics conspiracy in which several individuals

frequently mixed various amounts of heroin for Sperling

between May 1971 and April 13, 1973—evidence that we

had ruled insufficient to prove Sperling’s specifically

alleged possession or distribution in July, November, or

December 1971—I am forced to conclude that this Court

affirmed Sperling’s count 2 conviction on a basis other

than that on which the jury had been instructed to rest its

decision.*

3 Bui see note § infra and accompanying text.

4 It is not entirely clear to me whether the majority construes Sperling

/ as having relied on the Lipsky evidence on counts 8-10 to support the

conviction on count 2, or as having affirmed count 2 on the basis of

the non-Lipsky evidence. Compare, e.g., opinion of Timbers, J., ante

at 6 (“(W]e affirmed the § 848 conviction nor on evidence other than

that in support of the substantive counts, but precisely on the evidence

presented in support of those counts” (emphasis in original)), with id.

at _. n.1 (quoting Sperling I's recitation of evidence of acts other

than those charged in counts 8-10 and conceding that “[wje held that

this evidence was more than sufficient to sustain appellant's conviction

under the continuing criminal enterprise count” (emphasis added)).

$393 29b

The majority’s palliative for this fundamental defect is

to state that the trial court’s instructions to the jury with

respect to count 2 were more favorable to Sperling than

was required by law. Whether or not the premise is

correct,’ it cannot alter the instructions given, and in light

of those instructions we were not entitled to affirm on the

basis of acts not charged in counts 8-10, for it is es-

tablished that a defendant has a due process right to have

an affirmance of his conviction based strictly on a consid-

With all due deference to the views of Judge Timbers as the author of

Sperling I, the Sperling I opinion itself leaves little doubt that the

affirmance on count 2 was based only on evidence other than Lipsky’s

testimony. See 506 F.2d at 1335, 1344.

$ These instructions, which in fact had been requested by the govern-

ment, reflected the specificity of count 2 of the indictment, which

expressly linked the charged violation of § 848 to the violations alleged

in counts 8-10. Count 2 charged as follows:

COUNT TWO

The Grand Jury further charges:

From on or about the Ist day of May, 1971, and continuously

thereafter up to and including the date of the filing of this

indictment, in the Southern District of New York, HERBERT

SPERLING, the defendant, unlawfully, wilfully, intentionally and

knowingly did engage in a continuing criminal enterprise in that he

unlawfully, wilfully, intentionally and knowingly did violate Title

21, United States Code, Sections 841(aX(1) and 841(b)1)(A) as

alleged in Counts Eight, Nine and Ten of this indictment which are

incorporated by reference herein, which violations were a part of a

continuing series of violations of said statutes undertaken by the

defendant in concert with at least five other persons with respect to

whom the defendant occupied a position of organizer, supervisor

and manager and from which continuing series of violations the

defendant obtained substantial income and resources.

(Title 21, United States Code, Section 848)

(Emphasis added.) In light of the specificity with which count 2

incorporated the particular charges of counts 8-10, it is not clear that a

general instruction, or one referring to different acts at other times and

places—which are nowhere mentioned in the indictment—would not

have been “an informal but impermissible amendment of the indict-

ment.” United States v. Knuckles, 581 F.2d 305, 310 (2d Cir.), cert.

denied, 439 U.S. 986 (1978); see also id. at 311-12.

5394 20 b

eration of the premises on which the jury was instructed

to base its verdict. Dunn v. United States, 442 U.S. 100

(1979).

In Dunn, the defendant had been charged with making

inconsistent statements in grand jury proceedings or pro-

ceedings ancillary thereto, in violation of 18 U.S.C.

§ 1623 (1976). The government introduced evidence that

Dunn had given testimony before the grand jury, that he

thereafter, in September 1976, made a statement inconsis-

tent with his grand jury testimony, and that in October

1976 he gave testimony reiterating his September state-

ment. The indictment charged that Dunn’s grand jury

testimony was inconsistent with his September statement,

and the case was submitted to the jury on this theory. 442

U.S. at 106 & n.4. On appeal from the conviction, the

court of appeals ruled that the September statement

should not have been considered since it was not made in

an “ancillary” proceeding, but that as the October state-

ment had been made in such a proceeding, the conviction

would be upheld. In an 8-0 decision, the Supreme Court

reversed, stating that

while there was no variance between the indictment

and the proof at trial, there was a discrepancy

between the basis on which the jury rendered its

verdict and that on which the Court of Appeals

sustained petitioner’s conviction. Whereas the jury

was instructed to rest its decision on Dunn’s Septem-

ber statement, the Tenth Circuit predicated its af-

firmance on petitioner’s October testimony. The

Government concedes that this ruling was erroneous.

. . . We agree.

To uphold a conviction on a charge that was

neither alleged in an indictment nor presented to a

5395 21b

jury at trial offends the most basic notions of due

process. Few constitutional principles are more

firmly established than a defendant’s right to be

heard on the specific charges of which he is accused.

See Eaton v. Tulsa, 415 U.S. 697, 698-699 (1974) (per

curiam); Garner v. Louisiana, 368 U.S. 157, 163-164

(1961); Cole v. Arkansas, 333 U.S. 196, 201 (1948);

De Jonge v. Oregon, 299 U.S. 353, 362 (1937). There

is, to be sure, no glaring distinction between the

Government’s theory at trial and the Tenth Circuit’s

analysis on appeal. The jury might well have reached

the same verdict had the prosecution built its case on

petitioner’s October 21 testimony adopting his Sep-

tember 30 statement rather than on the September

statement itself. But the offense was not so defined,

and appellate courts are not free to revise the basis

on which a defendant is convicted simply because the

same result would likely obtain on retrial.

Id. at 106-07 (emphasis added).

The principle of Dunn is no less applicable to Sperling.

Count 2, see note 5 supra, charged Sperling with having

violated § 848 “in that he” engaged in the specific acts

alleged in counts 8, 9, and 10, which were incorporated

by reference in count 2; these were alleged to be part of a

continuing series of violations none of which was even

minimally detailed. Consistent with count 2, the trial

court’s charge instructed the jury that it must find Sperl-

ing guilty of counts 8, 9, and 10 in order to convict him

on count 2. I find the parallel between this case and Dunn

inescapable. Notwithstanding the ruling in United States

v. Sisca, 503 F.2d 1337, 1345-46 (2d Cir.), cert. denied,

419 U.S. 1008 (1974), that a defendant may be convicted

under § 848 even if no substantive offenses have been

$396 225

alleged as separate counts of the indictment, Dunn holds

that due process does not permit the appellate court to

substitute uncharged offenses for the charged violations

that cannot be sustained. Thus, when the jury has been

instructed that it may conclude “A” only if it has found

“B,” we simply may not affirm on the supposition that

the outcome would have been the same if the jury had

been told that it could conclude “A” if it had found “C.”

In sum, I disagree with the majority’s view of the

merits of Sperling’s claim. As I read Sperling I, Sperling’s

contention that his count 2 conviction was affirmed on

the basis of facts other than those on which the jury had

been instructed to render its verdict is factually correct.

And his contention that such an affirmance denied him

due process is legally sound.

C. Prior Treatment of Sperling’s Claim

Nor do I share the majority’s view that on the present

§ 2255 petition we and the district court are free, in the

interests of achieving an end to litigation, not even to

consider the merits of Sperling’s claim because that claim

had been rejected in the first § 2255 proceeding. Section

2255 allows a prisoner in federal custody to move at any

time to have the court that sentenced him vacate, set

aside, or correct his sentence on the ground that the

sentence was imposed in violation of the Constitution or

laws of the United States. While successive motions on

the same grounds are not favored,*® the Supreme Court

has stated that “[(cjonventional notions of finality of

litigation have no place where life or liberty is at stake

6 Section 2255 provides that “(t]he sentencing court shall not be

required to entertain a second or successive motion for similar relief on

behalf of the same prisoner.”

5397 23 b

and infringement of constitutional rights is alleged,”

Sanders v. United States, 373 U.S. 1, 8 (1963), and has

formulated the following basic rule for determining

whether a repetitive motion may be denied without con-

sideration of its merits:

Controlling weight may be given to denial of a

prior application for federal habeas corpus or § 2255

relief only if (1) the same ground presented in the

subsequent application was determined adversely to

the applicant on the prior application, (2) the prior

determination was on the merits, and (3) the ends of

justice would not be served by reaching the merits of

the subsequent application.

Id. at 15 (footnote omitted). In the present case it appears

to me that none of the three Sanders conditions is met.

Part of the first Sanders condition is the requirement

that the petitions’ common “ground,” which Sanders

defined as “simply a sufficient legal basis for granting the

relief sought by the applicant,” id. at 16, must previously

have been determined. There are several indicia that the

district court’s decision on the first § 2255 petition did

not determine the claim asserted by Sperling, i.e., that he

was denied due process by the affirmance on a different

factual basis than that on which the jury had been

instructed to rest its verdict.

First, although on that original petition the district

court’s decision, which is set out in the margin,’ began by

7 The district court's ruling on Sperling’s first application stated as

follows:

Sperling contends that the absence of a “guilty” verdict on three

of the substantive counts in the indictment (8, 9, 10) removes the

basis for his conviction for engaging in a continuing Criminal

Enterprise under 2] U.S.C. 848 (Count 2) because the charge of the

jury required it to find that he had committed the offenses set forth

in those counts. Counts 8, 9 and 10 were ultimately nolle prosequid

Be 24 b

recognizing that Sperling’s claim was based on the fact

that the jury had been instructed not to convict on count

after guilty verdicts thereon were set aside and those counts ordered

retried due to the government’s failure to produce a certain letter

affecting a witness’ credibility, viz., violation of a Jencks Act

requirement, 18 U.S.C. § 3500. The appellate court in ordering the

retrial of those counts expressly found nonetheless that

“We also hold that Sperling’s conviction on Count Two was

not affected by the absence of the Lipsky-Feffer letter” [the

omitted Jencks Act disclosure] 506 F.2d at 1337 n.18.

The appellate court did not reverse and dismiss Counts 8, 9 and 10

as it would have done if the evidence of Sperling’s commission of

the offenses had been lacking. Burks v. United States, 46 U.S.L.W.

4632 (Sup. Ct. June 14, 1978). That is, the proof of Sperling's

commission of the offenses charged under Counts 8, 9 and 10 was

amply shown in the record and Count 2 was therefore properly

considered by the jury and resolved in favor of the government

pursuant to the charge of the Trial Judge on the issue of the

existence of a criminal enterprise under 21 U.S.C. § 848. The Court

of Appeals expressly found that the verdict under Count Two (the

continuing enterprise) was supported by “more than sufficient

evidence” 506 F.2d at 1344. Thus no constitutionally required

evidence was lacking for the Sperling conviction under Count Two.

The non-disclosure of Jencks Act material which tripped the convic-

tion on Counts 8, 9 and 10 did not constitutionally taint conviction

under Count Two—the failure to apply such a statute raises no issue

of constitutional dimension.

There was no fundamental defect herein which inherently re-

sulted in any miscarriage of justice and the matter now conjured up

on Sperling’s behalf is merely a challenge bottomed on non-consti-

tutional error at best. Such a challenge does not ground collateral

review under § 2255. Kaufman v. United States, 394 U.S. 217, 223

(1969); Hill v. United States, 368 U.S. 424, 428 (1962); Sunal v.

Large, 332 U.S. 174 (1947). “The writ of habeas corpus and its

federal counterpart, 28 U.S.C. § 2255, will not be allowed to do

service for an appeal”, with respect to non-constitutional error.

Stone v. Powell, 428 U.S. 465, 477, n.10 (1976). Moreover, the

present challenge is too late. Sperling never challenged his convic-

tion heretofore under Count Two based on the non-disclosure of the

Jencks Act material. The time to do so was on his direct appeal or

on petition for rehearing after affirmance of the conviction on

Count Two. Other opportunities have intervened since then without

a word suggesting the present challenge. Even if we assume that

these opportunities following the appeal would have been consid-

ered too late, the present claim asserted still later certainly precludes

5399 25 b

2 unless it was satisfied that Sperling was guilty on counts

8, 9, and 10, the decision never mentioned the other

essential ingredient of Sperling’s claim, i.e., that our

Court affirmed the count 2 conviction on the basis of

evidence of acts other than those charged in counts 8-10.

Rather, the district court seemed to assume that Sperling I

affirmed the count 2 conviction in reliance on the Lipsky

evidence on counts 8-10. Proceeding on this assumption,

the court construed Sperling’s claim as (a) a simple attack

on the sufficiency of the evidence to support a conviction

on count 2, and (b) a Jencks Act claim that the Lipsky

evidence should not have been considered on count 2.°

These are the only matters the district court addressed, as

it concluded that “no constitutionally required evidence

was lacking” for conviction on count 2, and that the

government’s Jencks Act violation was not sufficiently

serious to warrant relief under § 2255. Memorandum

decision dated August 31, 1978, at 1.

review under § 2255. Without any doubt, there has been no good

“cause” for the previous omission to raise the present claim.

In sum, the Court of Appeals affirmed Sperling’s conviction on

Count Two on “more than sufficient” evidence and its decision that

the Jencks Act error did not taint any Counts other than 8, 9 and 10

{not Two] gives no ground arising under or protected by the

Constitution.

Petition Denied.

Memorandum decision dated August 31, 1978 (emphasis in original;

footnote omitted).

8 See the portion of the court’s decision, note 7 supra, immediately

following its citation of Burks v. United States. The court’s premise

that Sperling | relied on the Lipsky testimony in sustaining the count 2

conviction would explain the court’s insistent characterization, in both

the prior and present § 2255 proceedings, of Sperling’s due process

claim as one based simply on the Jencks Act. Sperling / did of course

state that the conviction on count 2 was not affected by the Jencks Act

violation; but this was quite plainly because only Lipsky material had

been wrongfully withheld and Sperling / relied on non-Lipsky evidence

to support the conviction on that count.

5400 26b

The court’s failure to recognize the actual nature of

Sperling’s claim is further revealed by its comment that a

§ 2255 petition cannot be used as a substitute for appeal

from the conviction. This observation was inapposite

because Sperling’s § 2255 claim is that he was denied due

process not by the trial court but by the appellate court.

Finally, the court concluded that Sperling’s claim was

“merely a challenge bottomed on non-constitutional error

at best.” Jd. at 2. Such a characterization is surely

incompatible with any recognition of Sperling’s claim as

he framed it.’

The majority concludes that the first Sanders condition

is met, i.e., that Sperling’s due process ground was

determined on his first petition, simply because the

ground was presented and the petition was denied. I do

not believe the first Sanders requirement means so little.

A determination of a ground—i.e., a legal basis for relief,

Sanders v. United States, supra, 373 U.S. at 16--that is

not the one relied on by the prisoner cannot fairly be

viewed as a determination of the prisoner’s ground. Just

as we should resolve in the prisoner’s favor all doubts as

to whether two grounds are the same or different, id., so

should we infer, when the district court has apparently

misperceived the gist of the prisoner’s ground, that the

unrecognized ground has not been determined.

Even if the nonresponsive rejection of Sperling’s first

§ 2255 petition be deemed a “determination” of his due

process ground, the second Sanders condition was not

satisfied. That requirement, i.e., that the claim have been

y Our affirmance of the district court’s denial of the first § 2255

petition added nothing to the analysis or determination of the lower

court. Our order, 595 F.2d 1209 (1979), simply read “AFFIRMED,”

without explication, and hardly evinced a determination of Sperling's

actual contention.

5401 27b

decided “on the merits,” id. at 15, means not only that

the decision must not have rested on a procedural basis,

but also that it must have adjudicated “the merits of the

ground presented,” id. at 16. Rejection of a § 2255

motion on the merits of a ground other than that argued

by the prisoner hardly satisfies this condition. The major-

ity views the prior rejection of Sperling’s § 2255 petition

as a determination on the merits of his due process

ground because it characterizes “[t]he issue” presented as

“whether the judgment vacating the convictions on the

substantive counts rendered the continuing criminal en-

terprise conviction constitutionally infirm.” Opinion of

Timbers, J., ante at 5. It concludes that the ground of

Sperling’s first petition was rejected on its merits because

“Judge Pollack, in denying the first petition, held that the

conviction was not rendered infirm.” Jd. This framing of

“the issue” is so broad as to encompass any of a number

of possible claims, and Judge Pollack did indeed reject

two such possible claims; but they were not the due

process claim on which Sperling relied.

Finally, if the first two Sanders conditions be viewed so

technically that the district court’s prior ruling on the

claims as it erroneously perceived them is deemed an

adjudication of the merits of the ground advanced by

Sperling, I have no doubt that the interests of justice

require a consideration now of the merits of the due

process ground as Sperling has in fact presented it.'° First,

10 I must note my disagreement with the implication in the majority

opinion that the repetitious nature of a claim should incline the court

toward the conclusion that the ends of justice do not require a review

of the merits of the claim. The majority states as follows:

In deciding whether the ends of justice require reaching the merits,

we must consider the repetitious nature of this petition. . . . [A]

court should be less receptive to a claim when exactly the same

claim previously was decided against a petitioner.

5402 285

elementary principles of fairness demand that Sperling's

due process claim not be ignored and that the court not

be permitted to refuse to reach its merits simply on the

basis that the court has rejected a previous petition,

apparently without understanding the ground on which

the petition was based. More importantly, even if the

court had accurately perceived Sperling's claim, it would

hardly further the interests of justice to immunize a

decision that is plainly incorrect. | agree with the Ninth

and Eleventh Circuits that “ ‘(t]he ends of justice are not

served by refusal to consider the merits of the second

application when the denial of the first rested on a court’s

plain errors of law.’ ” Bass v. Wainwright, 675 F.2d 1204,

1207 (llth Cir. 1982) (quoting Cancino v. Craven, 467

F.2d 1243, 1246 (9th Cir. 1972) ).

In summary, I believe that the action taken on Sperl-

ing’s first § 2255 petition did not determine the ground he

advanced and that the ends of justice require that the

merits of his claim be dealt with in the present proceed-

ing."

Opinion of Timbers, J., ante at 5. The ends-of-justice test is a catchall

requirement that comes into play under the Sanders formulation only

if the repeated claim Aas already been adversely decided. See Sanders

v. United States, supra, 373 U.S. at 15, 16-17. To say, then, that the

ends of justice are not compelling when the repeated claim has been

decided is to el'minate Sanders's ends-of-justice requirement entirely.

NW | disagree with Judge Van Graafeiland’s view that Sperling's claim

should be rejected on grounds of judicial estoppel. In United Srates v.

Sperling, 560 F.2d 1080 (2d Cir. 1977) (“Sperling /7"), the position

advanced by Sperling was not inconsistent with that taken here and

clearly was not viewed by the Sperling // majority as foreclosing a

future attack on the conviction of Sperling on count 2.

In Sperling /1, Sperling (who there appeared pro se) did not contend

that his conviction on count 2 was valid in order to avoid his

conviction on count |. Rather, he contended simply that, having been

convicted on both counts, one of which charged a lesser included

offense within the other, he could not be punished for both. Thus, his

5403 29 b

D. The District Court’s Decision on the Present Petition

I do not view Judge Pollack’s decision on Sperling's

present petition, which is reported at 530 F. Supp. 672

(S.D.N.Y. 1982), as having refused to reach the merits of

Sperling’s claim. The basis of his decision rejecting the

present application is twofold. While concluding that the

petition should be denied on the ground that it was

entirely repetitious, the court also proceeded to discuss

the merits of various claims, arguably including the one

pressed by Sperling. For the most part, however, it ap-

main brief stated that “(t)}his is a double jeopardy case involving the

issue of multiple punishment, as contrasted to prosecution or convic-

tion,” (Sperling brief in Sperling // at 10; emphasis in original), and his

reply brief reiterated this as follows:

ISSUE INVOLVED IS THE SENTENCE, NOT THE CONVIC-

TION

The government erroneously states at page 3 ef seq of its brief

that Sperling is attacking his “conviction” on Count |. Actually,

Sperling in his main brief went to great pains to show that on this

appeal, he is raising only the issue of multiple “punishment”, as

contrasted to prosecution or conviction (Br. 10); that a continuing

course of criminal conduct may not be “punished” cumulatively

(Broil)... .

(Sperling reply brief in Sperling //.) The Sperting 1] majority correctly

understood that Sperling attacked only the pyramiding of punishment,

as it stated that Sperling challenged the “sentencing on both counts,

rather than on only one or the other.” Sper/ing //, 560 F.2d at 1053; id.

at 1060 n.13. The fact that Sperling did not challenge the validity of

his convictions in Sperling //] should not bar his present challenge.

In agreeing with Sperling's contention that the double jeopardy

clause required the vacation of his sentence on either count | or count

2, the Sperling /] Court did not disturb the conviction on count |, and

obviously the majority did not believe that a later challenge to the

conviction on count 2 would be foreclosed. The majority stated as

follows:

We, of course, leave undisturbed Sperling's sentence and fine on

Count Two and in the unlikely event that sometime in the future his

conviction on Count Two shall be overturned, the sentence imposed

on the unaffected conviction on Count One is to be reinstated.

Id. at 1060,

5404 J 0 b

pears that the district court again addressed claims other

than the one advanced by Sperling.

First the court characterized Sperling's claim as fol-

lows:

Petitioner on this application questions whether

the Constitution requires that, in order to sustain a

charge under 21 U.S.C. § 848 (Count Two herein),

the defendant must be convicted of each of the

crimes charged in other counts of the indictment laid

under 21 U.S.C. §§ 812 and 841.

Id. at 673. This framing of the issue ignores the nature

and cardinal role of the jury charge in the present case,

and completely disregards the contention that the error

consisted in the action of the appellate court. It plainly is

not the claim Sperling has framed.

Thereafter, following a description of Sperling’s con-

viction and his direct appeal, the district court reiterated

its 1978 analysis of Sperling’s claim:

As the government correctly observes, Sperling

continues to argue today, as he did in 1978, that the

decision of the Court of Appeals reversing Counts

Eight to Ten on statutory grounds, but refusing to

reverse Count Two on the same statutory ground,

somehow resulted in two constitutional errors: lack

of sufficient evidence as to a necessary element of

Count Two and lack of trial by jury on that count.

Id. at 677 (emphasis added). The court stated that it had

ruled on this claim, noting as follows:

The Court of Appeals’ rejection of the claim of

violation of the Jencks Act in respect of the convic-

tion on Count Two and the finding by the Court of

Appeals that there was more than sufficient evidence

Re ae

to sustain that conviction were cited by this Court in

its denial of the earlier § 2255 petition and that

decision and its affirmance were on the merits; the

decision left the petitioner without a constitutional

claim and without a statutory claim. As this Court

wrote on the 1978 petition, Sperling “raises no issue

of constitutional dimension” and the petitions

amount to nothing more than an invalid statutory

claim in disguise.

Id. The district court’s emphasis on the Jencks Act as the

sole foundation for Sperling’s claim reflects the court’s

continued interpretation of Sperling J as having used the

Lipsky testimony in order to uphold the count 2 convic-

tion. See note 8 supra.

Nonetheless, after having described Sperling’s claim as

simply a “statutory claim in disguise,” 530 F. Supp. at

677, the court proceeded to discuss Sperling’s petition as

claiming a “lack of trial by jury on” count 2, id.—a

characterization that is far closer to Sperling’s actual

claim than any previously mentioned by the court. In

rejecting this proposition, the court stated as follows:

Sperling’s second argument, that he was deprived

of a trial by jury, is equally specious since all the

evidence was in fact submitted to the jury which

found—in a verdict not infected by constitutional

error—that Sperling committed the predicate acts

charged in Counts Eight to Ten as part of his supervi-

sion of a narcotics enterprise. This case is not at all

like Dunn v. United States, supra, where the Court

of Appeals had affirmed a conviction on a basis not

argued nor proved (much less proved beyond a

reasonable doubt) at trial, a ruling which the govern-

ment conceded was erroneous. Here the proof given

5406 32b

to the jury under Count Two remained constitu-

tionally sound both before and after the Second

Circuit affirmed the conviction on that count. The

holding of the Court of Appeals that there was more

than sufficient evidence to support the verdict on

Count Two independent of Lipsky’s testimony does

not therefore mean that petitioner stands convicted

on grounds neither considered nor decided by a jury.

Id. at 678. Although I regard the court’s reasoning as

both factually and legally flawed, it seems to me that

given the court’s characterization of Sperling’s claim as

one relating to the role of the jury, together with the

explicit reference to Dunn, this decision should be con-

strued as a present determination of the merits of Sperl-

ing’s claim.

E. Reviewing the Present Decision on the Merits

My views of the merits of Sperling’s claim are set forth

in detail in Part B of this dissent. As to the action taken

on Sperling’s direct appeal, Sperling I (a) found the

non-Lipsky evidence insufficient to support guilty ver-

dicts on counts 8-10, 506 F.2d at 1335; (b) noted the lack

of any evidence corroborating Lipsky as to counts 8-10,

id.; (c) stated that the conviction on count 2 was based on

evidence wholly independent of Lipsky’s testimony, id.;

(d) recounted that independent evidence with no mention

whatever of any of the acts charged in counts 8-10, id. at

1344; and (e) sustained the count 2 conviction on the basis

of the independent evidence just recounted, id. at 1344-

45. I therefore regard the district court’s premise that

Sperling I sustained the count 2 conviction in reliance on

the Lipsky evidence on counts 8-10 as clearly erroneous.

$407 33 b

Given an accurate recognition of the basis on which

Sperling I upheld the count 2 conviction and of the fact

that this basis differed from that on which the jury had

been instructed to rest its verdict, I regard the district

court’s ruling that Dunn v. United States is inapplicable

as a plain error of law.

Accordingly, I would reverse the order denying Sperl-

ing’s petition and would remand the matter to the district

court for an appropriate correction of Sperling’s sen-

tence.

5408

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

United States Courthouse

Foley Square

New York 10007

A. DAniel Fusaro

Clerk

Herbert Sperling v. U.S.A.

Docket No. 82-2022

August Term, 1981

Decided October 22, 1982

Page 5376, 4 lines up from bottom of page

- delete "affirm." and insert

“affirm.*" in place thereof.

Page 5376, bottom of page - insert "*Since

I agree with Judge Van Graafeiland's

concurring opinion, pages 5385-5388,

infra, and he agrees with mine, the

two Opinions together constitute the

majority view of this court.”

Page 5380, line 8 - delete “January 22,

1982, denied” and insert “January

22, 1982, 530 F. Supp. 672, denied”

in place thereof.

Page 5381, line 12 - delete "69 (2" and

insert "69" in place thereof.

Page 5381, line 13 -- delete "Cir. 1981),"

and insert "(2 Cir. 1981)," in place

thereof.

Page 5385, line 1 - delete "Circuit Judge,

concurring:" and insert “Circuit

Judge, joined by Timbers, Circuit

Jud

ge, concurring:" in place

thereof.

Page 5386, bottom line - delete "(506) F.2d

at 1330-31." and insert "506 F.2d at

« « « «” in place thereof.

A. Daniel Fusaro,

Clerk

ADF/hjd

UNITED STATES DISTRICT COURT

SOUTHER DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

HERBERT SPERLING,

Petitioner.

73 CR. 441 (M)

81 CIV. 6378 (MP)

Milton Pollack, District Judge.

The deficiency of this specious

application under 28 U.S.C. § 2255 makes it

a leaden abuse of the Writ and an

imposition on the Court.

Herbert Sperling petitions this

Court for a second time under 28 U.S.C. §

2255 to vacate his conviction by a jury --

rendered over eight years ago -- for

organizing and supervising a continuing

criminal narcotics enterprise. His

petition asserts that he was unconstitu-

tionally deprived of his Fifth Amendment

right to due process and his Sixth Amend-

ment right to a trial by jury. Sperling

unsuccessfully raised these exact claims

through another lawyer three years ago in

his earlier § 2255 petition before this

Court; he asserted them in the Court of

Appeals for the Second Circuit on his

appeal to that Court from the denial of §

2255 relief and raised them once again in

his unsuccessful petition for certiorari

thereon to the Supreme Court of the United

States. Petitioner's claims remain devoid

of merit and substance in the present §

2255 petition.

SUMMARY

Petitioner on this application

questions whether the Constitution requires

that, in order to sustain a charge under 21

U.S.C. § 848 (Count Two herein), the

defendant must be convicted of each of the

crimes charged in other counts of the

indictment laid under 21 U.S.C. §§ 812 and

841. The short answer is in the negative.

Section 848 reads in pertinent part:

(a) (1) Any person who engages in a

continuing criminal enterprise shall

be sentenced to a term of

imprisonment....

e 2' @

(b) For purposes of subsection (a)

of this section, a person is engaged

in a continuing criminal enterprise

if -

(1) he violates any provision

of this subchapter or subchapter

II of this chapter the

punishment for which is a

felony, and

(2) such violation is a a part

of a continuing series of

violations of this subchapter or

subchapter II of this chapter -

(A) which are undertaken by

such person in concert with

five or more other persons

with respect to whom such

person occupies a position

of organizer, a supervisory

position, or any other

position of management,

and

(B) from which such person

obtains substantial income

or resources.

Seriatim, the plain response to each

of the contentions presented on this

petition follow.

The record amply shows that

petitioner's claims contrived

herein have heretofore always

been understood by the courts

and have been squarely addresed

and litigated successfully in

favor of the government; the

claims were ripe, and postured

by Sperling's previous lawyers,

fully litigated by him, and

successively found wanting in

merit. In his sworn statement

presenting this petition,

prepared by his latest attorney,

Sperling acknowledges that he

raised his “constitutional"

argument to three courts in

1978.

A § 848 conviction does not

require or rest on a separate

grand jury charge of or convic-

tion only on the acts which

could give rise to separate and

additional indictments under §

841. A separate conviction

thereon is not essential to

sustain a § 848 conviction if

other violations were proved.

Much more was proved at the

trial by the 18 witnesses who

testified relating to Sperling

than the specific acts mentioned

in Counts Eight, Nine and Ten.

Indeed, Sperling was convicted

of narcotics conspiracy, Count

One. 21 U.S.C. § 846. That

conviction satisfied the defini-

tional requirements of § 848(b)

of engagement in a continuing

criminal enterprise.

The Court's instructions did not

hinge conviction under Count Two

on convictions under Counts

Eight, Nine and Ten. The word

"conviction" is nowhere used or

implicit in the instructions on

the essentials to be proved to

sustain Count Two. No exception

was taken by the defendant to

the charge that “commission” of

the entreprenurial narcotics

acts was the essential element

to be found (not “conviction”

thereon).

4. The Court of Appeals, in affirm-

ing the conviction on Count Two

under § 848 had addressed and

its affirmance was on the

grounds litigated, viz., that

Sperli engaged in the sort of

enterprise condemne” in that

statute, that the Jencks Act

taint of Counts Eight, Nine and

Ten had not affected the acts

chargedl/ or the convictions

under either Counts One or Two

and that Count Two was proved by

"more than sufficient evidence."

United States v. Sperling, 506

F.2d 1323, 1344 (od Cir.

1974. 2/

17 The indictment on Count Two incor-

porated the acts mentioned in Counts Eight,

Nine and Ten.

2/ “The record shows that Sperling was the

operational kingpin of a highly organized,

structured and on-going narcotics network.

Testimony by Conforti, Cecile Mileto and

Vance, as well as visual and electronic

surveillance, clearly established that

during the period from May l, 1971 through

April 13, 1973 Conforti, Louis Mileto,

Goldstein, Schworak, Spada and many others

were engaged in Sperling's narcotics enter-

prise directly under his supervision.

There was evidence that on more than 26

occasions some or all of these individuals

mixed heroin for Sperling. Each of these

mixing sessions involved possession, dilut-

ing and distributing from a half kilo to

three kilos of pure heroin. Such evidence

was more than sufficient to sustain his

conviction under this count.” United

States v. Sperling, 506 F.2d 1333, 1344 (24

Le .

Sperling's Conviction and the Proceedings

on Direct Appeal

Herbert Sperling and several co-

defendants were convicted by a jury of

several narcotics offenses on July 12,

1973, after almost four weeks of trial.

The evidence showed Sperling to be the

kingpin in a vast continuing heroin and

cocaine distribution enterprise. Sperling

was also shown to be the primary supplier

of heroin for this enterprise.

Sperling had been charged on Count

One of the indictment with conspiracy with

his co-defendants to violate the federal

narcotics laws in contravention of 21

U.S.C. § 846, on Count Two with organizing

and supervising a continuing criminal

narcotics enterprise in violation of 21

U.S.C. § 848, and on Counts Eight, Nine and

Ten under 21 U.S.C. § 841 with intent to

Gistribute, along with others, cocaine and

heroin on the occasions mentioned. The

jury found Sperling and ten other defend-

ants guilty on all counts as charged.

Sperling was sentenced to life imprisonment

and fined $100,000 on Count Two, and to

thirty years imprisonment plus six years

special parole on Counts One, Eight, Nine

and Ten, and fined $50,000 on each of these

counts.

On October 10, 1974, the Court of

Appeals affirmed Sperling's convictions on

Counts One and Two but reversed and

remanded for a new trial as to him on

Counts Eight to Ten because of the govern-

ment's violation with respect to those

counts of its statutory obligations under

the Jencks Act, 18 U.S.C. § 3500. United

States v. Sperling, 506 F.2d 1323 (2d Cir.

1974), cert. denied 420 U.S. 962 (1975).

The government had failed to provide the

defendants with a letter (the Lipsky-Feffer

letter) written to a prosecutor by one of

the government's witnesses, Barry Lipsky,

which might have been used to impeach that

witness. Since Lipsky testified particu-

larly regarding the offenses charged in

Counts Three to Ten, the Court of Appeals

reversed as to all defendants convicted of

, these counts. However, the Court specifi-

cally rejected defendant's Jencks Act

challenge to Count Two, stating that "[wle

also hold that Sperling's conviction on

Count Two was not affected by the absence

of the Lipsky-Feffer letter.” Id. at

1337, n.18.

Counts Eight, Nine and Ten were not

retried; an entry of nolle prosequi was

made on May 16, 1975. This left the pro-

secution "just as though no such count had

ever been inserted in the indictment."

Dealy v. United States, 153 U.S. 539, 542

(1893). Petitioner moved to vacate the

entry of nolle prosequi of these counts or

alternatively to amend the original entry

to read: "Dismissed with Prejudice.” The

motion to vacate or so amend the entry was

denied and Sperling's appeal therefrom was

dismissed by the Court of Appeals.

In a footnote to its affirmance of

the conviction on Counts One and Two, the

Court of Appeals (Id. 1335, n.14) had

stated that "In view of the concurrent

sentences on the conspiracy count (Count

One) imposed on those appallants whose

convictions on the substantive counts we

reverse while sustaining these convictions

on the conspiracy count (Sperling as to

Count Eight, Nine and Ten ***), we remand

the cases of these appellants for reconsi-

deration on the conspiracy count....”

On March 26, 1976 Sperling filed a

motion in this Court “for reconsideration

of sentencing" on Count One (the conspiracy

count) and also for reduction of sentence.

On May 17, 1976 an order was entered that

the sentence theretofore imposed on Count

10d

One would be adhered to and Sperling was

then resentenced accordingly. United

States v. Sperling, 413 F. Supp. 847

(S.D.N.Y¥. 1976). Sperling appealed.

On June 13, 1977, the Court of

Appeals vacated the resentence on Count One

as imposed for a lesser offense included

under Count Two and remanded the action to

the District Court for further proceedings

in accordance with the opinion of the Court

of Appeals. United States v. Sperling, 560

m.2d 1050, 1060 (2d Cir. 1977). The Court

noted that:

(Wle vacate appellant Sperling's

sentence on Count One, the

conspiracy count, but we vacate only

the sentence, for his conviction on

Count One remains unaffected.

The government petitioned for a

rehearing of the Court's opinion and

decision filed June 13, 1977; the petition

was granted and an order was entered that:

We, of course, leave undisturbed

Sperling's sentence and fine on

Count Two and in the unlikely event

that sometime in the future his

conviction on Count Two shall be

1ld

overturned, the sentence imposed on

the unaffected conviction on Count

One is to be reinstated. Id.

The First § 2255 Petition

On July 10, 1978, petitioner filed a

motion pursuant to 28 U.S.C. § 2255 to

vacate his conviction on Count Two, posing

the identical arguments petitioner again

presses here. His petition stated:

"Herbert Sperling's Constitutional

Right to A Trial By Jury Was

Violated When His Judgment Of Con-

viction For Violating 21 U.S.C. 848

Was Affirmed On Appeal Upon A Charge

Of Which He Was Never Tried;" and

"Herbert Sperling's Constitutional

Right To Due Process Of Law Was Vio-

lated When His Judgment Of Convic-

tion for Engaging In a Continuing

Criminal Enterprise In Violation of

21 U.S.C. 848 Was Affirmed By the

Court Of Appeals On A Record That

Discloses No Proof Of One Of The

Essential Elements Of The Crime

Charged.”

This Court denied the § 2255 peti-

tion, pointing out that the Court of

Appeals, in affirming the Count Two convic-

tion, had expressly found that conviction

12d

to be supported by "more than sufficient”

evidence. United States v. Sperling, 78

Civ. 3099 (S.D.N.¥. August 31, 1978),

quoting United States v. Sperling, 506 F.2d

at 1344. This Court held that the finding

by the Court of Appeals that the Count Two

conviction was not tainted by violations of

the Jencks Act did not deprive Sperling of

any constitutional rights.

The Court of Appeals affirmed the

denial of the § 2255 petition. Sperling v.

United States, 595 F.2d 1209 (2d Cir.

1979).

Sperling appealed to the Supreme

Court for a writ of certiorari, again

raising therein the identical issues

presented here. Specifically, Sperling's

petition presented the following as the

constitutional questions inherent in his

case:

13d

tion.

(1) Was defendant denied due pro-

cess by affirmance of his conviction

on basis of charge for which he was

not tried or found guilty? (2) Was

defendant denied due process by

Government's failure to prove his

guilt beyond reasonable doubt on one

element of the crime charged? (3)

Was defendant denied due process by

indictment's failure to fairly

—- him of charges against

him?

47 U.S.L.W. 3732-33 (May 8, 1979).

The Supreme Court denied the peti-

Sperling v. United States, 441 U.S.

947 (1979).

The Present § 2255 Petition

Successive § 2255 petitions raising

the same questions previously considered in

collateral proceedings or even simply on

direct appeal are regularly denied

summarily by the courts. See, e.g.,

14d

Maxwell v. United States, 439 F.2d 135 (2d

Cir.), cert. denied 402 U.S. 1010 (1971)

(Per Curiam), where a five year delay

between the initial mistrial and the subse-

quent trial was claimed to have violated

the Sixth Amendment right to a speedy

trial. Petitioners had previously raised

the speedy trial issue on appeal and were

denied relief. hea petitioners in their

§ 2255 petition argued that a later Supreme

Court case raised doubts about the consti-

tutionality of a denial of the speedy trial

claim on direct appeal, the District Court

denied the § 2255 petition. The Court of

Appeals affirmed, holding that “(h]javing

passed upon petitioner's claim before, on

the appeal from their convictions which we

affirmed in 1967, we see no reason to

decide the question again." Id. at 136.

In United States v. Romano, 516 F.2d 768

(2d Cir.), cert. denied 423 U.S. 994

(1975), the Court of Appeals upheld the

15d

denial of a second § 2255 petition on the

ground, inter alia, that the claim was

successive even though the petitioner

alleged new facts on this claim.

In the instant case Sperling

attempts to avoid the weight of the pre-

vious denials by three courts of the exact

claims presented here by arguing, inter

alia, under Sanders v. United States, 373

U.S. 1 (1963) that the prior § 2255 motion

was not determined on its merits and that

intervening changes in the law favor his

position so that a rehearing on the peti-

tion would “serve the ends of justice.” The

rule in Sanders is that controlling weight

may be given to the denial of a previous

application for § 2255 relief if: (1) the

same ground presented in the subsequent

application was determined adversely to the

applicant on the prior application; (2)

that determination was on the merits, and;

16d

(3) the ends of justice would not be

served by reaching the merits of the subse-

quent application.

Sperling does not argue that he is

presenting his claims for the first time in

this petition, but argues that the

"lengthy and fragmented" nature of the

litigation prevented the reviewing courts

from clearly seeing the constitutional

claims in their entirety. It is hard to

understand how petitioner makes such an

argument when he, with the aid of counsel,

brought all the issues together in his

first § 2255 petition. That petition was

brought after the vacation of the convic-

tions under Counts Eight, Nine and Ten, the

nolle prosequi of those charges, and the

vacating of the sentence on Count One. The

case today is in the exact same posture as

it was three years ago.

Petitioner‘s claim that his previous

motion to vacate his conviction was not

17d

decided on the merits because the District

Court allegedly did not address peti-

tioner's constitutional arguments is

casuistic. The Court of Appeals' rejection

of the claim of violation of the Jencks Act

in respect of the conviction on Count Two

and the finding by the Court of Appeals

that there was more than sufficient

evidence to sustain that conviction were

cited by this Court in its denial of the

earlier § 2255 petition and that decision

and its affirmance were on the merits; the _

decision left the petitioner without a

constitutional claim and without a statu-

tory claim. As this Court wrote on the

1978 petition, Sperling “raises no issue of

constitutional dimension" and the petitions

amount to nothing more than an invalid

statutory claim in disguise.

The “intervening” change in the law

that petitioner adverts to is represented

by him to be Dunn v. United States, 442

18d

U.S. 100 (1979), which did not involve a

change in the law at all. In that case the

Supreme Court reversed a perjury conviction

because the Court of Appeals erroneously

affirmed the conviction on defendant's

October 2lst testimony rather than his

September 30th testimony which was the

issue presented to the jury. The govern-

ment had never argued that the October 2lst

testimony should be the basis for a perjury

conviction and admitted in the appeal to

the Supreme Court that the Court of Appeals

had been in error. Id. at 106. In revers-

ing, the Supreme Court noted that it was

not establishing any new principles of law,

stating that “(flew constitutional prin-

ciples are more firmly established than a

defendant's right to be heard on the

specific charges of which he is accused."

Id. Thus Dunn clearly is not a case

involving change in the law.

19d

Nonetheless, in view of petitioner's

persistence in arguing that a grave in-

justice has been done, it may be worthwhile

to demonstrate, once again, why peti-

tioner's claims of constitutional viola-

tions are without substance.

As the government correctly

observes, Sperling continues to argue

today, as he did in 1978, that the decision

of the Court of Appeals reversing Counts

Eight to Ten on statutory ground, somehow

resulted in two constitutional errors:

lack of sufficient evidence as to a

necessary element of Count Two and lack of

trial by jury on that count.

The first argument cannot be sus-

tained unless this Court is prepared to

overturn the Second Circuit's explicit

holding that the jury's verdict on Count

Two was a valid one and was based on "more

than sufficient" evidence as a constitu-

tional matter. Sperling continues to

20d

refuse to comprehend that the Jencks Act

and constitutional standards are completely

different, and that the Court of Appeals'

reversal of Courts Eight to Ten on statu-

tory grounds is irrelevant to the constitu-

tional Adequacy of the proof of the acts

charged in Counts Eight to Ten or Count

Two. The Court of Appeals was not consti-

tutionally compelled to apply the Jencks

Act to all counts, as it is simply a statu-

tory protection. As the Court of Appeals

for the Fifth Circuit stated in Calley v.

Callaway, 519 F.2d 184, 224 (Sth Cir.

1975), cert. denied 425 U.S. 911 (1976):

[T]he Supreme Court has noted that

the Jencks decision was "not

required by the Constitution," and

that the decision was not cast in

constitutional terms. The decision

in Jencks v. United States and the

Jencks Act itself do not set forth

constitutional requirements. Rather

"(t]hey state rules of evidence

governing trials before federal

tribunals; and we have never

extended their principles to state

criminal trials." (citations

ommited) (emphasis in original)

21d

See also United States v. Dioguardi, 428

F.2d 1033, 1038 (2d Cir.), cert. denied 400

U.S. 825 (1970) ("“[{R]ather than being the

Magna Carta of the right to production, the

Jencks Act is a restriction on it in

certain.respects.")

Sperling's second argument, that he

was deprived of a trial by jury, is equally

specious since all the evidence was in fact

submitted to the jury which found -- in a

verdict not infected by constitutional

error -- that Sperling committed the predi-

cated acts charged in Counts Eight to Ten

as part of his supervision of a narcotics

enterprise. This case is not at all like

Dunn v. United States, supra, where the

Court of Appeals had affirmed a conviction

on a basis not argued nor proved (much less

proved beyond a reasonable doubt) at trial,

a ruling which the government conceded was

erroneous. Here the proof given to the

jury under Count Two remained constitu-

22d

tionally sound both before and after the

Second Circuit affirmed the conviction on

that count. The holding of the Court of

Appeals that there was more than sufficient

evidence to support the verdict on Count

Two independent of Lipsky's testimony does

not therefore mean that petitioner stands

convicted on grounds neither considered nor

decided by a jury.

Petitioner seeks to obscure the fact

that the jury's verdict rested on adequate

and constitutionally admissible proof by

arguing that through this Court's charge to

the jury, the existence of convictions on

Counts Eight to Ten was prerequisite to a

conviction on Count Two and that the charge

somehow became the “law of the case.” This

argument mistakenly is based on a charge

not given. In charging the jury the Court

directed it to consider whether offensive

acts of intending narcotic distribution had

23d

been “committed,” not whether a

"conviction" had been established.3/ In

fact, in setting out each of the five

elements for a conviction under § 848,

(Count Two), (i.e. the charge that is at

issue), the Court clearly explained:

Before you can find the defendant

Herbert Sperling guilty of the crime

charged in the 2nd count of tiie in-

dictment you must be conwinced be-

yond a reasonable doubt the govern-

ment has proved the following

elements:

First, that the defendant Herbert

Sperling committed the offenses

charged in counts 8, 9 and 10 of

this indictment. Those counts, as

you will hear, charge

The latter charge would have in fact

en incorrect since, as the government

notes, there is no requirement under § 848

that these underlying acts be charged as

separate crimes at all, let alone that

judgments of conviction under Counts Eight

to Ten be entered. The government must

only offer proof under § 848 that the acts

are “committed.” See, e.g., United States

v. Sisca, 503 F.2d 1397 Cir.), cert.

denied 419 U.S. 1008 (1974), where a

defendant was convicted under § 848 even

though he was not even indicted for sub-

stantive acts of narcotics distribution.

Petitioner's argument that Sisca is in-

apposite because the defendant was con-

victed of underlying offenses misses the

24d

Specific substantitive offenses in

July, November and December, 1971,

by Herbert Sperling and Vincent

Pacelli, and in the December offense

also by Juan Serrano.

Second, that the offenses charged in

counts 8, 9 and 10 of this indict-

ment are part of a continuing series

of violations of the defendant

Herbert Sperling of the Prevention

and Control Act of 1970.

Third, that the defendant Herbert

Sperling undertook to commit such

offenses in concert with five or

more other persons, either named or

uvnamed in the indictment.

Fourth, that the defendant Sperling

occupied a position of organizer, a

supervisory position or other posi-

tion of management with respect to

such five or more other persons.

The fifth and last essential element

is: proof beyond a reasonable doubt

that from the continuing series of

violations, if such you so find, the

defendant Herbert Sperling obtained

substantial income or resources.

(Emphasis supplied)

point that such underlying offenses were

not ones of distributing narcotics but

rather conspiracy to distribute (such as

was charged here in Count One, a conviction

that remains valid), and use of a

communication facility in furtherance of

the conspiracy; United States v. Papa, 533

F.2d 815, 823 (2d Cir.), cert. denied 429

U.S. 961 (1976).

25d

Thus the charge to the jury did not

say that convictions on Counts Eight

through Ten were necessary to support a

conviction on Count Two -=- only that it was

essential to find that the defendants had

commited the acts mentioned in these later

counts.4/ The jury did so find, and the

Court of Appeals

47 Subsequently, in summarizing the

specific charge on element one of Count

Two, the Court told the jury that it must

believe Sperling guilty under Counts Eight,

Nine and Ten, -- meaning guilty of the acts

charged in those counts. Nowhere did the

Court use the word "conviction". Beyond

reasonable doubt the predicate acts ground-

ing Count Two were committed. Further,

even if use of the word “guilty” might have

been confusing in an isolated charge, here

it followed a detailed instruction which

explained that the jury had to find the

defendant committed the predicate offenses.

It is a well-established rule that "a

single instruction to a jury may not be

judged in artificial isolation, but must be

viewed in the context of the overall charge

»++eMoreover, in reviewing jury

instructions, our task is also to view the

charge itself as part of the whole trial.”

United States v. Park, 421 U.S. 658, 675

(1974). See also United States v.

Birnbaum, 373 F.2d 250, 257 (ad Cir.),

cert. denied 389 U.S. 837 (1967).

26d

expressly held that the Jencks Act claim

did not void the jury's findings with

respect to Count Two. As noted previously,

the Court of Appeals stated “[wje also hold

that Sperling's conviction on Count Two was

not affected by the absence of the Lipsky-

Feffer letter." 506 F.2d at 1337, n.18.

Clearly petitioner has not suffered

deprivations of his Fifth and Sixth Amend-

ment rights. His arguments to the contrary

are formalistic and based upon false pre-

mises. They cannot obscure the fact that

Sperling's conviction on Count Two rests

fully on competent, constitutionally

admissible evidence considered and found

decisive by a jury, nor that this petition

raises the same exact claims alleged in

Sperling's first § 2255 petition, three

years ago, the merits of which were passed

upon and unequivocally found wanting by

this Court.

27d

Other minor forays by the briefs on

the petition have been considered and found

unworthy of response.

The ends of justice would certainly

not be served by holding a hearing on this

petition.

Accordingly, this second § 2255

petition must be and is in all respects

denied.

SO ORDERED.

January 22, 1982 Milton Pollack

U.S. District Judge

28d

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U.S. Const. Amend. V:

No person shall be held to answer

for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offence to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due

proces of law; nor shall private property

be taken for public use, without just

compensation.

U.S. Const. Amend. VI:

In 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, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the Assistance of

Counsel for his defense.

18 U.S.C. § 3500:

(a) In any criminal prosecution

brought by the United States, no state-

ment or report in the possession of the

United States which was made by a Govern-

ment witness or prospective Government

witness (other than the defendant) shall be

the subject of subpena, discovery, or

inspection until said witness has testified

on direct examination in the trial of the

case.

(b) After a witness called by the

United States has testified on direct

examination, the court shall, on motion of

the defendant, order the United States to

produce any statement (as hereinafter

defined) of the witness in the possession

of the United States which relates to the

subject matter as to which the witness has

testified. If the entire contents of any

such statement relate to the subject matter

of the testimony of the witness, the court

shall order it to be delivered directly to

the defendant for his examination and use.

that any statement ordered to be produced

under this section contains matter which

does not relate to the subject matter of

the testimony of the witness, the court

shall order the United States to deliver

such statement for the inspection of the

court in camera. Upon such delivery the

court shall excise the portions of such

statement which do not relate to the

subject matter of the testimony of the

witness. With such material excised, the

court shall then direct delivery of such

statement to the defendant for his use.

If, pursuant to such procedure, any portion

of such statement is withheld from the

defendant and the defendant objects to such

withholding, and the trial is continued to

an adjudication of the guilt of the defend-

ant, the entire text of such statement

shall be preserved by the United States

and, in the event the defendant appeals,

shall be made available to the appellate

court for the purpose of determining the

correctnessof the ruling of the trial

judge. Whenever any statement is delivered

to a defendant pursuant to this section

the court in its discretion, upon applica-

tion of said defendant, may recess proceed-

ings in the trial for such time as it may

determine to be reasonably required for the

examination of such statement by said

defendant and his preparation for its use

in the trial.

(d) If the United States elects not

to comply with an order of the court under

subsection (b) or (c) hereof to deliver to

the defendant any such statement, or such

portion thereof as the court may direct,

the court shall strike from the record the

testimony of the witness, and the trial

shall proceed unless the court in its

discretion shall determine that the

interests of justice require that a mis-

trial be declared.

(e) The term “statement” as used in

subsections (b), (c), and (d) of this

section in relation to any witness called

by the United States, means __

(1) a written statement made

by said witness and signed or other-

wise adopted or approved by him;

(2) a stenographic,

mechanical, electrical, or other

recording, or a transcription there-

of, which is a substantially

verbatim recital of an oral state-

ment made by said witness and

recorded contemporaneously with the

making of such oral statement; or

(3) a statement, however taken

or recorded, or a transcription

thereof, if any, made by said

witness to a grand jury.

21 U.S.C. § 841 (a) (1):

(a) Except as authorized by this

subchapter, it shall be unlawf\ for any

person knowingly or intentionally _

(1) to manufacture, distribute, or

dispense, or possess with intent to

manufacture, distribute, or dispense, a

controlled substance; ...

21 U.S.C. § 841 (b) (1) (A):

(b) Except as otherwise provided in

section 845 of this title, any person who

violates subsection (a) of this section

shall be sentenced as follows:

(1) (A) In the case of a controlled

substance in schedule I or II which is a

narcotic drug, such person shall be

sentenced to a term of imprisonment of not

more than 15 years, a fine of not more than

$25,000, or both. If any person commits

such a violation after one or more prior

convictions of him for an offense

punishable under this paragraph, or for a

felony under any other provision of this

subchapter or subchapter II of this chapter

or other law of the United States relating

to narcotic drugs, marihuana, or depressant

or stimulant substances, have become final,

such person shall be sentenced to a term of

imprisonment of not more than 30 years, a

fine of not more than $50,000 or both. Any

sentence imposing a term of imprisonment

under this paragraph shall, in the absence

of such a prior conviction, impose a

special parole term of at least 3 years in

addition to such term of imprisonment and

shall, if there was such a prior

conviction, impose a special parole term of

at least 6 years in addition to such term

of imprisonment.

21 U.S.C. § 846:

Any person who attempts or conspires

to commit any offense defined in this

subchapter is punshable by imprisonment or

fine or both which may not exceed the

maximum punishment prescribed for the

offense, the commission of which was the

object of the attempt or conspiracy.

21 U.S.C. § 848:

(a) (1) Any person who engages in a

continuing criminal enterprise shall be

sentenced to a term of imprisonment which

may not be less than 10 years and which may

be up to life imprisonment, to a fine or

not more than $100,000 and to the

forfeiture prescribed in paragraph (2);

except that if any person engages in such

activity after one or more prior

convictions of him under this section have

become final, he shall be sentenced to a

term of imprisonment which may not be less

than 20 years and which may be up to life

imprisonment, to a fine or not more than

$200,000, and to the forfeiture prescribed

in paragraph (2).

(2) Any person who is convicted

under paragraph (1) of engaging ina

continuing criminal enterprise shall

forfeit to the United States--

(A) the profits obtained by him in

such enterprise, and

(B) any of his interest in, claim

against, or property or contractual

rights of any kind affording a source

of influence over, such enterprise.

(b) For purposes of subsection (a) of

this section, a person is engaged in a

continuing criminal enterprise if--

(1) he violates any provision of

this subchapter or subchapter II of

this chapter the punishement for which

is a felony, and

(2) such violation is a part of a

continuing series of violations of

this subchapter of subchapter II of

this chapter~-

(A) which are undertaken by

such person in concert with five

or more other persons with respect

10e

to whom such person occupies a

position of organizer, a super-

organizer, a supervisory position,

or any other position of

Management, and

(B) from which such person

obtains substantial income or

resources.

under this section, imposition or execution

of such sentence shall not be suspended,

probation shall not be granted, and section

4202 of Title 18 and the Act of July 15,

1932 (D.C. Code, secs. 24-203 to 24-207),

shall not apply.

(d) The district courts of the United

States (including courts in the territories

or possessions of the United States having

jurisdiction under subsection (a) of this

section) shall have jurisdiction to enter

such restraining orders or prohibitions, or

to take such other actions, including the

lle

acceptance of satisfactory performance

bonds, in connection with any property or

other interest subject to forfeiture under

this section, as they shall deem proper.

28 U.S.C. § 2255:

A prisoner in custody under sentence

of a court established by Act of Congress

claiming the right to be released upon the

ground that the sentence was imposed in

violation of the Constitution or laws of

the United Sttes, or that the court was

without jurisdiction to impose such

sentence, or that the sentence ws in excess

of the maximum authorized by law, or is

otherwise subject to collateral attack, may

move the court which impsed the sentence to

vacate, set aside or correct the sentence.

A motion for such relief may be made

at any time.

Unless the motion and the files and

records of the case conclusively show that

12e

the prisoner is entitled to no relief, the

court shall cause notice thereof to be

served upon the United States attorney

grant a prompt hearing thereon, determine

the issues and make findings of fact and

conclusions of law with respect thereto.

If the court finds that the judgment was

rendered without jurisdiction, or that the

sentence imposed was not authorized by law

or otherwise open to collateral attack, or

that there has been such a denial or

infringement of the constitutional rights

of the prisoner as to render the judment

vulnerable to collateral attack, the court

shall vacate and set the judgment aside and

shall discharge the prisoner or resentence

him or grant a new trial or correct the

sentence as may appear appropriate.

A court may entertain and determine

such motion without requiring the

production of the prisoner at the hearing.

13e

The sentencing court shall not be

required to entertain a second or

successive motion for similar relief on

behalf of the same prisoner.

An appeal may be taken to the court of

apeals from the order entered on the motion

as from a final judment on application for

a writ of habeas corpus.

An application for a writ of habeas

corpus in behalf of a prisoner who is

authorized to apply for relief by motion

pursuant to this section, shall not be

entertained if it appears that the

applicant has failed to apply for relief,

by motion, to the court which sentenced

him, or that such court has denied him

relief, unless it also appears that the

remedy by motion is inadequate or

ineffective to test the legality of his

detention.

l4e

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.