United States District Court, S.D. New York
June 15, 2005.
UNITED STATES OF AMERICA,
HERBERT SPERLING, Defendant.
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
OPINION AND ORDER
In what amounts to a motion for reargument filed almost three
years after the initial decision, in violation of all applicable
rules, Herbert Sperling, this time flying the flag of hired
counsel, moves under the version of Federal Rule of Criminal
Procedure 35(a) in effect at the time of his conviction for
reduction or vacatur of his sentence, asking me to contemplate
the "overall ramifications" of Richardson v. United States,
526 U.S. 813 (1999), the authority under which Sperling sought
relief last time he was here on a Fed.R.Civ.P. 60(b) motion,
and which I discussed in an opinion filed on June 27, 2003.
United States v. Sperling, Nos. 73 Cr. 441, 81 Civ. 6378, 86
Civ. 1687, 2003 U.S. Dist. LEXIS 11214 (S.D.N.Y. June 27, 2003).
Judging from the motion papers, familiarity with that prior
opinion can safely be assumed if indeed there is truth in the old
saying that familiarity breeds contempt.
The earlier edition of Rule 35 on which Sperling relies permits
a court to "correct an illegal sentence at any time." The alleged
illegality arises from the reversal of the substantive counts,
which Sperling now contends yet again requires reversal of
the CCE count that he thinks rests on those counts. As the
excruciatingly lengthy procedural recitation in my prior opinion
shows, however, and as adumbrated by the "yet again" above,
Sperling has raised that argument which really has nothing to do with either the holding in Richardson or
whatever may be its "overall ramifications" before, in
unsuccessful petitions pursuant to 28 U.S.C. § 2255, and it has
been rejected. I will not visit it again.
This motion is objectively frivolous and is denied.
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