Opinion
73 Cr. 441 (MBM), 81 Civ. 6378 (MBM), 86 Civ. 1687 (MBM).
June 27, 2003.
Herbert Sperling, F.C.I. Allenwood, White Deer, PA, Petitioner pro se.
OPINION AND ORDER
Herbert Sperling was convicted in 1973, after a four-week trial before the Hon. Milton Pollack and a jury, of, among other things, engaging in a continuing criminal enterprise ("CCE") involving the sale of narcotics, in violation of 21 U.S.C. § 848. He was sentenced to life imprisonment on that count. As set forth in greater detail below, Sperling's convictions on three substantive narcotics counts were later reversed on appeal due to the government's failure to disclose material required to be provided to the defense pursuant to 18 U.S.C. § 3500. As is also explained in further detail below, Sperling has claimed many times since in various proceedings that reversal of the substantive counts should have resulted as well in the setting aside of his conviction on the CCE count, because the acts charged under the reversed substantive counts provided the basis for the CCE conviction.
In an application that is far more intricate procedurally than it is complicated substantively, Sperling is making that argument again in what he styles at least in part a motion pursuant to Federal Rule of Civil Procedure 60(b) for relief from the judgment in a prior proceeding that denied his application to set aside the CCE conviction. He claims that the holding in a 1999 Supreme Court case, Richardson v. United States, 526 U.S. 813 (1999), compels the result he seeks.
For the reasons set forth below, the motion is denied.
I.
As noted, the direct appeal following Sperling's conviction in 1973 resulted in reversal of his conviction on the three substantive narcotics charges against him, because the government had failed to provide the defendants with a letter written by a witness, Barry Lipsky, to one of the prosecutors, which the Court of Appeals held might have undermined Lipsky's credibility. The Court found that Lipsky's testimony therefore had to be disregarded for appellate purposes, and that absent Lipsky's testimony, there was insufficient evidence to support conviction on those counts. See United States v. Sperling, 506 F.2d 1323, 1335 (2d Cir. 1974). However, the Court affirmed Sperling's conviction on conspiracy and CCE charges, holding that his conviction on those counts was not affected by the failure to disclose the Lipsky letter. Id. at 1335-37, 1337 n. 18.
Following resentencing on the conspiracy count, an appeal from that resentencing, entry of an order of nolle prosequi, on the government's application, as to the three substantive narcotics counts, and dismissal of Sperling's appeal from Judge Pollack's refusal to compel the government to dismiss those three counts with prejudice — all raising issues not relevant to this motion — Sperling in July 1978 filed his first petition pursuant to 28 U.S.C. § 2255, claiming that dismissal of the three substantive counts invalidated the CCE conviction. Judge Pollack denied the petition and the Court of Appeals affirmed by order. Sperling v. United States, 595 F.2d 1209 (2d Cir. 1979) (mem.).
In October 1981, Sperling filed his second § 2255 petition, under docket number 81 Civ. 6378. The Court of Appeals described the claims in the first and second petitions as "essentially identical." Sperling v. United States, 692 F.2d 223, 225 (2d Cir. 1982). Judge Pollack denied the second petition in what the Court of Appeals described as "a comprehensive, well reasoned opinion." Id.
In its opinion affirming Judge Pollack's decision, the Court of Appeals explained further the basis upon which it had upheld, on direct appeal, Sperling's conviction on the CCE charge even though the Court had reversed convictions on the three substantive counts whose underlying allegations formed the basis for that charge. The Court first noted that the dispute over whether the CCE charge could stand had been "triggered by the district court's instruction at the 1973 trial that, to convict appellant on the § 848 [CCE] count, the jury must have been convinced beyond a reasonable doubt that he committed the offenses charged in the substantive counts." Id. at 226. However, the Court continued, that charge was "unnecessarily favorable" to Sperling because the law required only that there be evidence that he committed three substantive offenses, even if not charged separately, and there was such evidence even absent the three substantive counts. Id. n. 1.
In any event, the Court continued, the basis for reversing the convictions on the substantive counts was a violation of a statutory rather than a constitutional requirement. Because the violation "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 those substantive offenses, thus providing the predicate for the § 848 [CCE] conviction." Id. at 227 (footnote omitted).
The Court explained its ruling further: "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 [CCE] count." Id.
In 1986, Sperling sought relief a third time under 28 U.S.C. § 2255, under docket number 86 Civ. 1687. By agreement between Judge Pollack and then-Chief Judge Charles L. Brieant, as has long been permitted by local rule, the case was assigned to Judge Brieant. See Rule 16 of the Rules for the Division of Business Among District Judges, Southern District of New York (current). Despite Sperling's suggestion to the contrary in his current papers, of which more later, Judge Pollack did not recuse himself and was not recused from that case. Rather, Judges Pollack and Brieant agreed that Judge Brieant would decide Sperling's petition. In that petition, Sperling argued that the then-recent case of Garrett v. United States, 471 U.S. 773 (1985), required that the government prosecute successfully the predicate offenses relied on to support a CCE conviction under 21 U.S.C. § 848. Because his convictions on the predicate offenses had been dismissed, Sperling reasoned, so too must his conviction on the CCE count. Judge Brieant found that "[n]othing in Garrett supports this interpretation of 18 U.S.C. § 848," and ruled as follows:
The C.C.E. offense only requires that the jury find that the defendant committed the predicate offense; it does not require that the Government successfully prosecute both predicate and C.C.E. offenses together, seriatim, or at all.Sperling v. United States, No. 86 Civ. 1687, slip op. at 4 (S.D.N.Y. Mar. 5, 1986). Judge Brieant denied a motion for reconsideration on March 18, 1986. The docket sheet of that case contains the following entry, apparently reflecting a summary affirmance by the Court of Appeals:
Fld. MANDATE, U.S.C.A. for the Second Circuit. A True Copy. Elaine B. Goldsmith, Clerk. The ORDER of the district court is AFFIRMED. Sperling's contention that Garret [sic] v. U.S., 105 S.Ct. 2407 (1985), constitutes a constitutional basis for overturning his conviction is without merit. We previously rejected his other claims on direct appeal and on earlier collateral proceedings, cf. Sperling v. U.S., 692 F.2d 223, 227 (2d Cir. 1982), cert. denied, 462 U.S. 1131 (1983); U.S. v. Sperling, 595 F.2d 1209 (2d Cir.), cert. denied, 441 U.S. 947 (1979); U.S. v. Sperling, 560 F.2d 1050, 1060 (2d Cir. 1977); U.S. v. Sperling, 506 F.2d 1323, 1335 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975), and discern no reason to disturb our earlier decisions.Sperling v. United States, No. 86 Civ. 1687, Docket entry no. 5 (S.D.N.Y. Dec. 4, 1986) (punctuation as in original).
After the Supreme Court issued its decision in Richardson, on which Sperling relies in this proceeding, Sperling sought permission from the Court of Appeals to file yet another petition under 28 U.S.C. § 2255. The Court of Appeals refused such permission on July 31, 2000, because Sperling's proffered claim did not involve "newly discovered evidence" or "a new rule of constitutional law." Nonetheless, the Court of Appeals held open the possibility that any claim by Sperling of actual innocence could be raised in a petition for habeas corpus relief under 28 U.S.C. § 2241. Sperling v. United States, Mandate, No. 00-3566 (2d Cir. July 31, 2000).
Sperling then filed a § 2241 petition in the Middle District of Pennsylvania, where he is incarcerated. That Court dismissed the petition for failure by Sperling to establish that a § 2255 petition was inadequate or otherwise ineffective for his purposes. Sperling v. Zenk, No. 00-CV-1478 (M.D. Pa. Oct. 31, 2001). Following denial by the district court on March 18, 2002, of a motion for reconsideration, the Court of Appeals for the Third Circuit affirmed the dismissal, expressing doubts that Sperling could pursue a § 2241 claim in the district where he is incarcerated. However, the Court suggested, based on its own authority in In re Nwanze, 242 F.3d 521, 527 (3d Cir. 2001) that the "practical circumstances," id., presented by Sperling's conviction in this district recommended that he pursue his remedies here, and then suggesting that Sperling's claims might be raised in § 2241 petition, a petition under the All Writs Act ( 28 U.S.C. § 1651), or perhaps a writ of errorcoram nobis or a writ of audita querela, citing the opinion of our own Court of Appeals in Triestman v. United States, 124 F.3d 361, 380 n. 24 (2d Cir. 1997). Sperling v. Zenk, No. 02-1885, slip op. at 4 (3d Cir. Dec. 2, 2002).
Here, it may be necessary to pause for a thumbnail explanation of Triestman, the All Writs Act, and the writs of error coram nobis and audita querela. In Triestman, our Court of Appeals held that in order to avoid an issue of possible constitutional infirmity of § 2255 and the gatekeeping provisions of § 2244, it would construe the language in § 2255 that permitted resort to habeas corpus when "the remedy by motion is inadequate or ineffective to test the legality of . . . detention" to permit resort under such circumstances to a petition under § 2241. Triestman, 124 F.3d at 377. The All Writs Act, codified at 28 U.S.C. § 1651, grants to the Supreme Court and "all courts established by Act of Congress," which would include this one, authority to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Writs of errorcoram nobis and audita querela are two such writs. In a footnote to Triestman, the Court noted that Triestman had argued he could use the All Writs Act to seek one of those two writs, and the Court then cited Justice Black's concurrence inKlapprott v. United States, 335 U.S. 601 (1949), for the cautionary observation that "`few courts ever have agreed as to what circumstances would justify relief under these old remedies.'" Triestman, 124 F.3d at 380 n. 24 (quotingKlapprott, 335 U.S. at 614). Despite that cautionary observation, the Triestman Court then proceeded to suggest, or muse on, circumstances in which those remedies "might be deemed available." Id. The distinction between the two writs has been explained by one Court as follows, in the setting of a criminal prosecution:
The noted distinction seems to be largely, if not entirely, one of historical nomenclature having relevance to timing, not substance. While, under the stated definition, coram nobis is used to attack a judgment that was infirm, for reasons that later came to light, at the time it was rendered, audita querela was a means of attacking a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition.United States v. Reyes, 945 F.2d 862, 863 n. 1 (5th Cir. 1991). Whatever relevance those writs, and that distinction, might have in connection with a criminal prosecution and direct appeal, however, a petition under either § 2255 or § 2241 is a civil proceeding, to which Federal Rule of Civil Procedure 60(b), invoked by Sperling without benefit of advice from any court, applies. See Gitten v. United States, 311 F.3d 529, 532-33 (2d Cir. 2002) (discussing applicability of Rule 60(b)). That Rule includes the following provision:
Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Back to the case at hand. After the Third Circuit had so magnanimously employed its own authority and that of our Circuit to lay before Sperling enticing albeit abstruse vistas of multi-faceted litigation in this district, Sperling reacted as one might expect. In April 2003, he filed two applications here. One was styled, "NOTICE OF MOTION FOR HABEAS CORPUS § 2241(c)(3); § 2243; AND/OR WRIT OF ERROR CORAM NOBIS § 1651(a)." That application contained no claim or showing of actual innocence. Accordingly, on June 11, 2003, I referred that application mea sponte to the Court of Appeals pursuant toLiriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996) (per curiam) for that Court to perform what is generally referred to as its gate-keeping function pursuant to 28 U.S.C. § 2244 and 2255, to determine whether Sperling may file yet another petition attacking his conviction.
Sperling's other application is the one currently before me. It is styled, "MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 60(b)(5), (6); THE ALL-WRITS ACT, 28 U.S.C. § 1651(a); THE WRIT OF ERROR AUDITA QUERELA." That application initially bore only the docket number of Sperling's criminal case, and was sent by Sperling to Judge Pollack. However, after Judge Pollack requested a response to Sperling's application from the government, and extended time in which to file such a response, Sperling filed a "MOTION FOR RECUSAL PURSUANT TO TITLE 28 U.S.C. § 455(b)(1)" that bore also docket number 81 Civ. 6378, one of Sperling's unsuccessful § 2255 petitions before Judge Pollack. This motion stated that Sperling had sent his papers to Judge Pollack by mistake. In the motion, Sperling also asserted, falsely, that Judge Pollack had been recused in an earlier proceeding, and said that he "had been replaced by District Court Judge Charles L. Brieant," (id. at 1), an apparent reference to Judge Brieant's voluntary handling of Sperling's petition in 1986. In fact, Judge Pollack has never recused himself or been recused from any proceeding in any of Sperling's cases and, Sperling's assertions to the contrary notwithstanding, there has never been occasion for doing so. Sperling's motion asks that his current application be reassigned "to the Honorable Judge Brieant, or an appropriate replacement." (Id. at 2) As noted above, district judges are permitted by local rule to agree inter se to reassign cases.See p. 4, supra. I have conferred with Judges Pollack and Brieant, and inasmuch as Judge Brieant apparently volunteered to handle Sperling's prior application ex officio as Chief Judge when he held that position, I will do likewise now that I hold it. Accordingly, and with the approval of both of my colleagues, I have directed the Clerk to reassign to my docket the three cases bearing the above captions to which Sperling's motion might conceivably relate. If there are any others, they will be similarly reassigned. Further, as is apparent below, there is no need for any response from the government.
II.
The first question to be faced is how to treat the instant application, and specifically whether to refer it as well to the Court of Appeals pursuant to Liriano. For the reasons explained briefly below, I will not do that, but instead will treat it as what it purports in part to be — a motion pursuant to Federal Rule of Procedure 60(b), and decide it on the merits.
That Rule provides in pertinent part as follows: "On motion . . . the court may relieve a party . . . from a final judgment . . . for the following reasons: . . . (4) the judgment is void; . . . or (6) any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b).
In Gitten, the Court of Appeals noted that a district court "has some flexibility in handling" a motion for reconsideration under Rule 60(b), but cautioned that the court "must be careful not to precipitously treat a Rule 60(b) motion as a second collateral attack requiring referral to this Court to discharge its `gatekeeping' function under 28 U.S.C. § 2244 concerning successive applications for habeas review." Gitten, 311 F.3d at 530. So cautioned, and notwithstanding the indeterminate "flexibility" offered in Gitten, it seems appropriate to treat Sperling's current motion as one actually arising under Rule 60(b) not simply because he is seeking to use the Richardson case to bolster arguments he has made before — that reversal of his convictions on the substantive counts compels reversal as well of his conviction on the CCE count — but rather because his argument is based on a determination by the Supreme Court of what the statute requires and presumably required even at the time Sperling filed his earlier petitions, as well as at the time he was convicted. See, e.g., Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) ("A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction."). It may be difficult to discern specifically which of Sperling's prior petitions this motion relates to, but plainly it relates to one or more of them.
As it happens, there has been no small amount of confusion about when to treat such motions pursuant to Rule 60(b) and when to regard them as successive petitions. That confusion might have been resolved by the Supreme Court this term inAbdur'Rahman v. Bell, 535 U.S. 1016 (Apr. 26, 2002) (granting certiorari). However, one month after oral argument, the Court dismissed the case, finding that certiorari had been "improvidently granted." Abdur'Rahman v. Bell, 537 U.S. 88 (Dec. 10, 2002) (per curiam). Dissenting from that disposition, Justice Stevens suggested that his colleagues were "motivated, at least in part, by the view that the jurisdictional issues presented by this case do not admit of an easy resolution." 537 U.S. at 88 (Stevens, J., dissenting).
That brings us to the merits: whether Richardson supports the result Sperling seeks. In Richardson, the Court held that Section 848 requires jury unanimity as to which three offenses a defendant committed to comprise the "series of violations" constituting the continuing criminal enterprise charged in an indictment. Richardson, 526 U.S. at 824. However, that holding does Sperling no good whatsoever because if there is any fact that is visible with crystalline clarity even through the haze of 30 years, it is that the jury that convicted him in 1973 was unanimous as to which three offenses Sperling had committed. As noted at page 3 above, the jury was instructed that in order to convict Sperling on the CCE count, it had to conclude beyond a reasonable doubt that he had committed the three offenses charged in the substantive counts that were later dismissed on appeal. See Sperling, 692 F.2d at 226. That is to say, Sperling could not have been convicted of the CCE offense unless the jury at his trial had complied with the unanimity rule later announced in Richardson.
For the above reasons, Sperling's Rule 60(b) motion is denied.
SO ORDERED.