# Petition — Sperling v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0493%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 462 U.S. 1131

## Text

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,
v.

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

1)

2)

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,

3)

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?

ii

4)

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

iv

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

la
lb
le
ld

le

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 . . « « © © «@

vi

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.

4

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
5

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

6

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

10

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.

11

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

12

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

13

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

14

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

15

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,

16

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

17

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.

18

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,

19

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

20

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.

21

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

22

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.

23

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.

24

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

25

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

26

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

27

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

28

-~- 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

29

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).

30

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

31

repeatedly tried to present.
Respectfully submitted,

Alan M. Dershowitz
Nathan Z. Dershowitz

Attorneys for Herbert Sperling
February 17, 1983

32

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.

x

HERBERT SPERLING,
Petitioner-Appellant,
No. 82-2022
Ve

UNITED STATES OF AMERICA,

Respondent~Appellee.

x

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
by

/3/

Francis X. Gindhart
Chief Deputy Clerk

2a

[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.

i

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

ib

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.

is

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.

I.

Appellant and seventeen others were indicted on May
11, 1973 on various counts charging violations of the

5376

2b

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.

5b

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.

as

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).

i

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

le

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.

2c

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

3c

UNITED STATES DISTRICT COURT
SOUTHER DISTRICT OF NEW YORK

UNITED STATES OF AMERICA
Ve
HERBERT SPERLING,
Petitioner.

73 CR. 441 (M)
81 CIV. 6378 (MP)

1d

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

2d

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

3d

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.

l.

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,

4d

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).

5d

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 .

6d

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

7d

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,

8d

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

9d

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0493%3A1. Public record. Not legal advice.