he was charged was overwhelming. See Pungitore, 910 F.2d at 1099. The erroneous instruction on management and control, in light of that evidence, cannot therefore be characterized as a fundamental defect that inherently gives rise to a complete miscarriage of justice.
D. Double Jeopardy
Mr. Pungitore's next and final complaint stems from the recent Supreme Court decision of Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). He argues that because the Supreme Court held that conspiracy to distribute controlled substances (21 U.S.C. § 846) is a lesser included offense of the continuing criminal enterprise offense ("CCE") (21 U.S.C. § 848) and therefore convictions of both cannot amount to consecutive sentences, we should reconsider the Court of Appeals' decision in Pungitore, 910 F.2d at 1115-17. Petition Addendum, at 3. We disagree.
The question of whether the double jeopardy clause of the Fifth Amendment prohibits consecutive sentencing for RICO conspiracy and substantive offenses (18 U.S.C. §§ 1962(c) & (d)) has already been litigated and decided on Mr. Pungitore's direct appeal. "Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those argument if raised again in collateral proceedings under 28 U.S.C. § 2255." United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981) (citing Kaufman v. United States, 394 U.S. 217, 227 n.8, 22 L. Ed. 2d 227, 89 S. Ct. 1068 (1969)). There is a great interest in the finality of litigation; matters fully addressed and decided on direct appeal should not be reexamined lightly.
In Pungitore, the Court of Appeals discussed the issue of consecutive sentences for RICO and RICO conspiracy in detail. Specifically, they addressed the question in light of another Supreme Court decision, Jeffers v. United States, 432 U.S. 137, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977), and held that the vast differences between § 1962 and §§ 846, 848 merited the conclusion that while consecutive sentences were not valid for the latter, they were for the former. The court further held that the statutory provisions in § 1962(c) and § 1962(d) defined different offenses under the law; there is nothing within the CCE statute that required otherwise. Given the depth of their discussion, we see no reason to revisit the issue.
We find, however, that even if we were to reconsider pursuant to Rutledge, there is nothing in that opinion that would give us pause. Contrary to Mr. Pungitore's interpretation, the case is quite frankly in line with the Court of Appeals' assessment of § 846 and § 848. The Rutledge court followed the logic in Jeffers, and makes no comparison or connection between the CCE and RICO statutes. As such, we decline to reevaluate the measured opinion of the Court of Appeals.
Our thorough review of the record in this matter points us indisputably to the conclusion that Mr. Capone did not provide Mr. Pungitore with ineffective assistance of counsel. Further, we see no reason to conclude that there was not sufficient evidence to convict Mr. Pungitore, nor was the jury instruction in error under the law at the time. Finally, we decline to revisit the issue of the consecutive sentences Mr. Pungitore received following his conviction of RICO and RICO conspiracy as the Court of Appeals has already considered it so completely.
For the foregoing reasons, we will deny Mr. Pungitore's petition for relief pursuant to 28 U.S.C. § 2255.
An appropriate order follows.
AND NOW, this 20th day of May, 1997, after a hearing in open court, upon consideration of defendant Anthony Pungitore, Jr.'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255, and the government's response thereto, it is hereby ordered that the same motion is DENIED.
BY THE COURT
Franklin S. Van Antwerpen
United States District Judge