United States v. Sperling, No. 73 CR. 441(MP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtPOLLACK
Citation413 F. Supp. 845
PartiesUNITED STATES of America v. Herbert SPERLING (Pro Se), Defendant.
Decision Date17 May 1976
Docket NumberNo. 73 CR. 441(MP).

413 F. Supp. 845

UNITED STATES of America
v.
Herbert SPERLING (Pro Se), Defendant.

No. 73 CR. 441(MP).

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

May 17, 1976.


413 F. Supp. 846

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City by James P. Lavin, Asst. U. S. Atty., New York City, for the United States.

Herbert Sperling, pro se.

MEMORANDUM

POLLACK, District Judge.

The Court of Appeals for the Second Circuit affirmed the convictions of the defendant Herbert Sperling under 21 U.S.C. § 846 for conspiracy to violate the narcotics laws as charged in Count I of the Indictment and under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise as charged in Count II of the Indictment. United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975).

The appellate court reversed Sperling's convictions on the substantive offenses of distributing and possessing with intent to

413 F. Supp. 847
distribute narcotic controlled substances in violation of 21 U.S.C. § 841, as charged in Counts VIII, IX, and X. Although sustaining the conspiracy conviction, the Court of Appeals remanded for reconsideration of sentencing on that Count in view of the concurrent sentences which this Court had imposed on the conspiracy count and the substantive counts. Counts VIII, IX and X of the Indictment were nolle prosequied after the Supreme Court denied a writ of certiorari on Sperling's application therefor on Counts I and II

The defendant now moves to avoid resentence, or at least to mitigate his punishment on the conviction of the crime of conspiracy. The arguments presented in his motion papers are ingenious, but, as this analysis will illustrate, unpersuasive. It should be noted that the defendant failed to present these arguments to the Court of Appeals, and the time has thus long since passed at which he would have been entitled to judicial consideration of their merits.

In recognition of the serious penalty which has been meted out for the defendant's deadly serious crimes, this Court will nonetheless address the challenges he has presented to this resentencing proceeding.

I.

The defendant contends that the conspiracy of which he was convicted in Count I was a lesser-included offense within the continuing criminal enterprise of which he was convicted in Count II, and therefore that he may not be given a separate sentence on Count I. See United States v. Umans, 368 F.2d 725 (2d Cir. 1966), cert. dismissed, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967).

This legal proposition is faulty so far as concerns this case for a number of reasons. As this Court held in its decision denying a pre-trial motion which raised the same argument, a conspiracy is entirely independent of a related substantive offense which itself involves concerted action so long as the conspiracy charged involves a larger number of participants than the substantive offense requires. See, e. g., United States v. Bommarito, 524 F.2d 140, 144 (2d Cir. 1975); United States v. Becker, 461 F.2d 230 (2d Cir. 1972), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974). The fact that both the conspiracy count and the continuing enterprise count, as sent to the jury, allegedly encompassed the same time period, while the counts in the Indictment as originally charged presented differing dates, does not affect the result reached on the pre-trial motion; the critical distinction is in the number and identity of the participants, not in the time frame of the two counts.

Furthermore, the Second Circuit has recently declared in explicit terms that

prosecution under section 848 is distinct and separate from a prosecution for the conspiracy and substantive offenses that may constitute some of the evidence offered on a continuing criminal enterprise count. United States v. Papa, 533 F.2d 815 at 823 (2d Cir. 1976).

Thus, the Court of Appeals has expressly rejected the very argument which the defendant presses here. It is clearly...

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6 practice notes
  • United States v. Martinez-Torres, No. SSS 82 CR. 489 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1983
    ...cumulative fines of $30,000 on the § 846 count and $100,000 on the continuing criminal enterprise count. United States v. Sperling, 413 F.Supp. 845, 847 (S.D.N.Y. 1976). On Appeal, Sperling argued that because conspiracy was a lesser included offense of the continuing criminal enterprise co......
  • Sperling v. U.S., No. 1042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 20, 1982
    ...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 of......
  • U.S. v. Sperling, No. 237
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1977
    ...as the conspiracy charged involves a larger number of participants than the substantive offense requires. United States v. Sperling, 413 F.Supp. 845, 847 (SDNY 1976). In the context of this case, we do not believe this distinction answers the question of whether Sperling's participation in ......
  • United States v. Sperling, No. 73 CR. 441(MP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 22, 1982
    ...sentence theretofore imposed on Count One would be adhered to and Sperling was then resentenced accordingly. United States v. Sperling, 413 F.Supp. 845, 847 (S.D.N.Y.1976). Sperling On June 13, 1977, the Court of Appeals vacated the resentence on Count One as imposed for a lesser offense in......
  • Request a trial to view additional results
6 cases
  • Sperling v. U.S., No. 1042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 20, 1982
    ...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 of......
  • United States v. Martinez-Torres, No. SSS 82 CR. 489 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1983
    ...cumulative fines of $30,000 on the § 846 count and $100,000 on the continuing criminal enterprise count. United States v. Sperling, 413 F.Supp. 845, 847 (S.D.N.Y. 1976). On Appeal, Sperling argued that because conspiracy was a lesser included offense of the continuing criminal enterprise co......
  • U.S. v. Sperling, No. 237
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1977
    ...as the conspiracy charged involves a larger number of participants than the substantive offense requires. United States v. Sperling, 413 F.Supp. 845, 847 (SDNY 1976). In the context of this case, we do not believe this distinction answers the question of whether Sperling's participation in ......
  • United States v. Sperling, No. 73 CR. 441(MP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 22, 1982
    ...sentence theretofore imposed on Count One would be adhered to and Sperling was then resentenced accordingly. United States v. Sperling, 413 F.Supp. 845, 847 (S.D.N.Y.1976). Sperling On June 13, 1977, the Court of Appeals vacated the resentence on Count One as imposed for a lesser offense in......
  • Request a trial to view additional results

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