United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, District Judge
Spigelman, proceeding pro se, has filed two motions:
first, a motion captioned “Sentence Imposed in
Violation of the Laws of the United States 18 U.S.C. §
3742(a)(1), ” arguing that his sentence violates his
right against double jeopardy (Dkt. No. 171); and second, a
“Motion to Dismiss Indictment Based Upon Fraud on the
Court Pursuant to Rule 60(b), ” arguing that the
Government has committed fraud upon the court by allowing
perjured testimony to be submitted during trial and the
subsequent habeas corpus proceedings. (Dkt. No. 174.) For the
reasons that follow, the motions are denied.
20, 2007, Spigelman was charged in a superseding four-count
indictment with intentional murder in connection with a drug
conspiracy, murder in aid of racketeering, murder committed
with a firearm, and conspiracy to possess and distribute
cocaine. Spigelman v. United States, No. 10 Civ.
7579, 2012 WL 3594304, at *1 (S.D.N.Y. Aug. 21, 2012).
trial was held before the honorable Judge Shira A. Scheindlin
in July 2007. Id. At trial, the Government presented
evidence that Spigelman ordered the robbery and murder of a
female drug courier who was transporting large quantities of
cocaine. Id. The Government offered testimony of
over a dozen witnesses, including Ricardo Castro-Cubillos
(“Castro”). Id. Castro was a member of a
“robbery crew” with which Spigelman regularly did
business; he personally met with Spigelman in connection with
the murder and participated in the robbery. Id. The
jury convicted Spigelman on all four counts and Judge
Scheindlin sentenced him to four concurrent life sentences.
appealed his conviction only as to the count for murder
committed with a firearm, arguing that the district court
erroneously denied his motion to dismiss that count and that
the district court's Pinkerton charge on that
count was not sufficiently clear. United States v.
Rodriguez, 320 F. App'x 105, 107 (2d Cir. 2009). The
Second Circuit rejected Spigelman's appeal and affirmed
the judgment of the district court. Id. at 107-08.
Spigelman petitioned for certiorari to the United States
Supreme Court, which was denied on October 5, 2009.
Spigelman v. United States, 558 U.S. 940 (2009).
September 28, 2010, Spigelman, proceeding pro se,
filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. In his petition, Spigelman
argued: (1) ineffective assistance of counsel; (2) defective
indictment and improper venue; (3) knowing use of false
evidence; (4) unreasonableness of life sentence; (5)
insufficient evidence; (6) violation of the Double Jeopardy
Clause of the United States Constitution; (7) impairment at
trial; (8) error by the Second Circuit in deciding his
appeal: (9) selective prosecution; and (10) multiple
conspiracies. Spigelman, 2012 WL 3594304, at *1. In
particular, Spigelman's primary argument to support his
claim that the Government knowingly used false evidence
suggested that the Government knew that “its star . . .
witness, ” Castro, lied on the stand at trial.
Id. at *9-10.
August 21, 2012, Judge Scheindlin denied Spigelman's
petition in its entirety and declined to grant a certificate
of appealability. Id. at *14. Spigelman then moved
for reconsideration of the denial of his petition, which
Judge Scheindlin also denied. (Dkt. No. 137.) Spigelman also
moved the Second Circuit for a certificate of appealability
with regard to the denied petition; the Second Circuit denied
his motion and dismissed the appeal. (Dkt. No. 140.)
proceeding pro se, filed a motion with the Second
Circuit for leave to file a successive petition under 28
U.S.C. § 2255, which was denied on April 19, 2016. (Dkt.
The Current Motions
filed a “Motion to Dismiss Indictment Based Upon Fraud
on the Court Pursuant to Rule 60(b), ” dated December
12, 2016. (Dkt. No. 174.) In that motion, Spigelman argues
that the Government submitted perjured testimony in