Appeal from an order denying appellant's second petition 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 continuing criminal enterprise as charged under 21 U.S.C. § 848 (1976) should be vacated. Affirmed.
Timbers, Van Graafeiland and Kearse, Circuit Judges. Van Graafeiland, Circuit Judge, concurring. Kearse, Circuit Judge, dissenting.
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. § 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.
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. § 846 (1976). Count II charged him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 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. §§ 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. § 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, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (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.
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, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (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 § 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, 99 S. Ct. 2168, 60 L. Ed. 2d 1049 (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, 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 opinion dated January 22, 1982, 530 F. Supp. 672, denied appellant's second § 2255 petition. From the order entered thereon, the instant appeal was taken.
A court may give controlling weight to the determination of a prior § 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, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (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 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. § 2255, P5 (1976) that "the 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." 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, 60 L. Ed. 2d 743, 99 S. Ct. 2190 (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. We did not affirm Sperling's conviction on charges other than those on which he had been indicted and convicted.
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 must 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 offenses), cert. denied, 419 U.S. 1008, 42 L. Ed. 2d 283, 95 S. Ct. 328 (1974). Absent the linking of § 848 to the three substantive counts, there clearly was sufficient evidence to support the § 848 conviction even without the substantive counts.*fn1
Since the trial judge linked the § 848 count to the substantive counts, however, we were precluded in Sperling 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 not 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 substantive 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 government 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, 21 L. Ed. 2d 537, 89 S. Ct. 528 (1969) ("our Jencks [v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (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, 3 L. Ed. 2d 1287, 79 S. Ct. 1217 (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 convictions on the substantive counts and remanding the cases for a new trial was appropriate, see, e.g., Goldberg v. United States, 425 U.S. 94, 111-12, 47 L. Ed. 2d 603, 96 S. Ct. 1338 (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 appellant committed*fn2 those substantive offenses, thus providing 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 constitutionally 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 I that "we find insufficient evidence, other than ...