Sperling v. U.S., No. 1042

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore TIMBERS, VAN GRAAFEILAND and KEARSE; TIMBERS; Pollack; VAN GRAAFEILAND, Circuit Judge, joined by Timbers; KEARSE
Citation692 F.2d 223
PartiesHerbert SPERLING, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 82-2022.
Decision Date20 December 1982
Docket NumberNo. 1042,D

Page 223

692 F.2d 223
Herbert SPERLING, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 1042, Docket 82-2022.
United States Court of Appeals,
Second Circuit.
Argued May 21, 1982.
Decided Oct. 22, 1982.
Rehearing and Rehearing En Banc Denied Dec. 20, 1982.

Page 224

Gerard E. Lynch, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty., and Kate Stith Pressman, Asst. U.S. Atty., New York City, on the brief), for respondent-appellee.

Alan M. Dershowitz, Cambridge, Mass. (Nathan Z. Dershowitz and Mark D. Fabiani, New York City, on the brief), for petitioner-appellant.

Before TIMBERS, VAN GRAAFEILAND and KEARSE, Circuit Judges.

TIMBERS, Circuit Judge:

For the third time appellant Sperling (hereinafter, "appellant") asks us to consider alleged errors in his 1973 conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 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. Sec. 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 federal narcotics laws. Count I charged appellant with conspiracy to violate the narcotics laws. 21 U.S.C. Sec. 846 (1976). Count II charged him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (1976). Counts VIII, IX, and X charged him with possessing heroin and cocaine with intent to distribute it in violation of 21 U.S.C. Secs. 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 imprisonment 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 all 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. Sec. 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 insufficient evidence other than Lipsky's testimony to sustain the convictions on those counts. United States v. Sperling, 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 appellant'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:

"In short, we are left with the firm conviction that, in view of the substantial, independent and corroborating evidence linking the Pacelli and Sperling narcotics 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." Id. 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 narcotics was based on evidence wholly independent of Lipsky's testimony." Id. at 1335.

Page 225

We also held, with respect to the continuing criminal enterprise count, that the "evidence was more than sufficient to sustain his conviction under this count." Id. 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 denied certiorari. 420 U.S. 962 (1975).

On remand, the district court on May 17, 1976 resentenced 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 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 II " ).

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 prosequi 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 Sec. 2255 petition, 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 supported by more than sufficient evidence. We affirmed by order. 595 F.2d 1209 (2 Cir. 1979) (mem.) ("Sperling III " ). 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 Sec. 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 Sec. 2255 petitions are essentially identical. The only difference between the two is that appellant, who was represented by retained counsel on his first petition, 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 Sec. 2255 petition, adding, "the argument was made by different counsel."

Judge Pollack, in a comprehensive, well reasoned opinion dated January 22, 1982, 530 F.Supp. 672, denied appellant's second Sec. 2255 petition. From the order entered thereon, the instant appeal was taken.

II.

A court may give controlling weight to the determination of a prior Sec. 2255 petition if: (1) the same ground presented in the subsequent petition was determined adversely 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 Sec. 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

Page 226

judgment vacating the convictions on the substantive counts rendered the continuing criminal enterprise 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.

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. Sec. 2255, p 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 Sec. 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 Sec. 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." Id. Similarly, the instant case involves a successive, repetitious petition without any new legal or factual claims being raised for setting aside the conviction. 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." Id. at 106...

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31 practice notes
  • U.S. v. Stoner, No. 94-6377
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1996
    ...Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. United States, 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); United States v. Johnson, 575 F.2d 1347, 1354 (5th......
  • U.S. v. Lewis, Nos. 83-1705
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 22, 1985
    ...Cir.1984). In several other cases, Courts of Appeals have upheld the maximum sentence under the CCE statute. Sperling v. United States, 692 F.2d 223, 224-25 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983) (life sentence and $100,000 fine for heroin and coc......
  • Beem v. McKune, No. 00-3224.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 27, 2003
    ...New Hampshire and join other circuits in reining in those litigants who play "fast and loose with the courts." Sperling v. United States, 692 F.2d 223, 227 (2d Cir.1982) (Graafeiland, J., concurring) ("Sperling Sperling successfully argued that a conspiracy count was a lesser included offen......
  • U.S. v. Rosenthal, Nos. 84-8969
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 18, 1986
    ...U.S. v. Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, --- U.S. --- 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. U.S., 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 72 L.Ed.2d 1366 (1983) ("The law requires merely that there be evidence that ......
  • Request a trial to view additional results
30 cases
  • U.S. v. Stoner, No. 94-6377
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1996
    ...Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. United States, 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); United States v. Johnson, 575 F.2d 1347, 1354 (5th......
  • U.S. v. Lewis, Nos. 83-1705
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 22, 1985
    ...Cir.1984). In several other cases, Courts of Appeals have upheld the maximum sentence under the CCE statute. Sperling v. United States, 692 F.2d 223, 224-25 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983) (life sentence and $100,000 fine for heroin and coc......
  • Beem v. McKune, No. 00-3224.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 27, 2003
    ...New Hampshire and join other circuits in reining in those litigants who play "fast and loose with the courts." Sperling v. United States, 692 F.2d 223, 227 (2d Cir.1982) (Graafeiland, J., concurring) ("Sperling Sperling successfully argued that a conspiracy count was a lesser included offen......
  • U.S. v. Rosenthal, Nos. 84-8969
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 18, 1986
    ...U.S. v. Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert. denied, --- U.S. --- 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. U.S., 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 72 L.Ed.2d 1366 (1983) ("The law requires merely that there be evidence that ......
  • Request a trial to view additional results

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