United States v. Ellenbogen

ANDERSON, Circuit Judge: In February of 1964, Samuel DeChellis and the appellant Herbert A. Ellenbogen were indicted for conspiracy to defraud the United States.1 In the indictment the appellant was also charged with two counts of bribery of a federal employee2 and DeChellis was charged with two counts of receiving the bribes from the appellant.3 DeChellis pleaded guilty to the three offenses for which he was indicted and the appellant pleaded not guilty. After a trial before Judge John M. Cannella, without a jury, Ellenbogen was convicted on all three counts against him in the indictment. He was sentenced to serve sixty days imprisonment on each count, the sentences to run concurrently. On appeal to this court, the judgment of conviction was reversed for Jencks Act violations, 18 U.S.C. § 3500, and the case was remanded for a new trial.4 Upon retrial before Judge Robert L. Taylor5 and a jury, Ellenbogen was again found guilty on all three counts, and was sentenced on each to concurrent terms of imprisonment of one year and one day. He appealed to this court and, on September 15, 1966, we affirmed the conviction.6 Petitions for rehearing and for a stay of the mandate of this court were denied on October 27, 1966. The mandate issued on October 31, 1966, and, on November 28, 1966, Ellenbogen filed a petition for certiorari in the Supreme Court.