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UNITED STATES v. SPERLING

January 22, 1982

UNITED STATES of America
v.
Herbert SPERLING, Petitioner



The opinion of the court was delivered by: POLLACK

DECISION

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 unconstitutionally deprived of his Fifth Amendment right to due process and his Sixth Amendment right to a trial by jury. Sperling unsuccessfully raised these exact claims through another lawyer three years ago in his earlier § 2255 petition before this Court; he asserted them in the Court of Appeals for the Second Circuit on his appeal to that Court from the denial of § 2255 relief and raised them once again in his unsuccessful petition for certiorari thereon to the Supreme Court of the United States. Petitioner's claims remain devoid of merit and substance in the present § 2255 petition.

 SUMMARY

 Petitioner on this application questions whether the Constitution requires that, in order to sustain a charge under 21 U.S.C. § 848 (Count Two herein), the defendant must be convicted of each of the crimes charged in other counts of the indictment laid under 21 U.S.C. §§ 812 and 841. The short answer is in the negative.

 Section 848 reads in pertinent part:

 
(a)(1) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment....
 
(b) For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if-
 
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and
 
(2) such violation is a 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.

 
1. The record amply shows that petitioner's claims contrived herein have heretofore always been understood by the courts and have been squarely addressed and litigated successfully in favor of the government; the claims were ripe, and postured by Sperling's previous lawyers, fully litigated by him, and successively found wanting in merit. In his sworn statement presenting this petition, prepared by his latest attorney, Sperling acknowledges that he raised his "constitutional" argument to three courts in 1978.
 
2. A § 848 conviction does not require or rest on a separate grand jury charge of or conviction 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 definitional requirements of § 848(b) of engagement in a continuing criminal enterprise.
 
3. The Court's instructions did not hinge conviction under Count Two on convictions under Counts Eight, Nine and Ten. The word "conviction" is nowhere used or implicit in the instructions on the essentials to be proved to sustain Count Two. No exception was taken by the defendant to the charge that "commission" of the entreprenurial narcotics acts was the essential element to be found (not "conviction" thereon).
 
4. The Court of Appeals, in affirming the conviction on Count Two under § 848 had addressed and its affirmance was on the grounds litigated, viz., that Sperling engaged in the sort of enterprise condemned in that statute, that the Jencks Act taint of Counts Eight, Nine and Ten had not affected the acts charged *fn1" or the convictions under either Counts One or Two and that Count Two was proved by "more than sufficient evidence." ...

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