The opinion of the court was delivered by: POLLACK
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 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.
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 within the power of the Congress to prescribe multiple penalties by statutes which may overlap and proscribe similar conduct; that is what Congress has seen fit to do in regard to violations of §§ 846 and 848, so that a challenge based on improper multiplicity must fail. See United States v. Bommarito, supra, 524 F.2d at 144 & n. 4; cf. 1 C. Wright, Federal Practice & Procedure § 142 (1969) at 312.
Indeed, the Second Circuit has not hesitated to affirm convictions of the same defendant under both §§ 846 and 848. See, e.g., United States v. Sisca, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S. Ct. 328, 42 L. Ed. 2d 283 (1974); United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2651, 41 L. ...