United States v. Ellenbogen

Decision Date27 February 1968
Docket NumberNo. 197,Docket 31708.,197
Citation390 F.2d 537
PartiesUNITED STATES of America, Appellee, v. Herbert A. ELLENBOGEN, Appellant.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Daniel H. Greenberg, New York City, for appellant.

Lee A. Albert, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., Michael S. Fawer and Pierre N. Leval, Asst. U. S. Attys., Southern Dist. of New York, on the brief), for appellee.

Before KAUFMAN, ANDERSON and FEINBERG, Circuit Judges.

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.

The proceedings which give rise to the present appeal took place in January of 1967, during the pendency of the appellant's petition for certiorari in the Supreme Court.7 On January 6 Ellenbogen moved in the District Court for a reduction of his sentence or for an order suspending execution of the sentence and placing him on probation. The motion was argued before Judge Irving Ben Cooper on January 9, 1967, and was decided on January 12. In his order of that date, Judge Cooper suspended execution of the sentence of one year and one day and placed Ellenbogen on probation for a period of three years. In addition the court imposed a fine of $5000 on the conspiracy count, to be paid as directed by the probation department.8 As amended judgment of conviction and order of probation was entered accordingly and, on January 16, 1967, Ellenbogen filed a notice of appeal from so much of it as imposed the $5000 fine in connection with count one.

On January 18, 1967, the Government moved for reargument on the ground that the court lacked power to modify its judgment and asked that the order of January 12, 1967 be set aside as void. It asserted the general rule that the docketing of an appeal removes the case in all respects from the jurisdiction of the trial court and that, therefore, the District Court was without jurisdiction of the case on January 12 while Ellenbogen's petition for certiorari was pending. The appellant, on the other hand, though acknowledging the applicability of this rule to a case on appeal, argued that it did not apply to a case during the petition for certiorari. He claimed that, under Rule 35 of the Federal Rules of Criminal Procedure,9 he might move for a reduction of his sentence for 120 days after the affirmance of his conviction, despite the fact that certiorari review was then being sought in the Supreme Court. While a dictum in Johnson v. United States, 235 F.2d 459, 461 (5 Cir. 1956), suggests that the Fifth Circuit might support the appellant's position, the case of Nemec v. United States, 184 F.2d 355 (9 Cir. 1950), indicates that the Ninth Circuit would not. Faced with no controlling authority on the point from this Circuit, Judge Cooper concluded that there was no distinction between appeal and certiorari which would permit a district court to act during the pendency of the latter, when it clearly could not during the pendency of the former. Accordingly, by order dated January 20, 1967, he set aside the amended judgment of conviction and the order of probation of January 12, 1967, and reinstated the original judgment, without prejudice to renewal of the motion under Rule 35 at an appropriate time upon termination of proceedings in the Supreme Court. On January 24, 1967, Ellenbogen filed a notice of appeal from this order.

The appellant has made essentially the same argument before this court, which he made below, but in so doing he has lost sight of what the District Court's order of January 12, 1967, purported to accomplish. That order, see fn. 8 supra, did not grant a reduction of Ellenbogen's sentence of one year and one day, as the appellant's argument assumes; rather it suspended the execution of that sentence and ordered that the defendant be placed on probation. The court's purported authority to do this derived, not, as the trial court erroneously assumed, from Rule 35, but from the Probation Act, 18 U.S.C. § 3651, and, therefore, the 120 day limitation in Rule 35 had nothing to do with the case.

The confusion arises from a failure to distinguish between the power to correct or reduce a sentence, on the one hand, and the power to suspend the execution of a sentence and to order probation, on the other. The power to reduce is an inherent power of the court and is one aspect of the control which a court retains over a judgment which it has entered. United States v. Benz, 282 U.S. 304, 306-307, 51 S.Ct. 113, 75 L. Ed. 354 (1931). Originally that power was held to expire at the end of the term of court at which the sentence was imposed. See United States v. Claus, 5 F. R.D. 278, 279 (E.D.N.Y.1946). But since the adoption of the Federal Rules of Criminal Procedure in 1946, and the abrogation of any effect of the expiration of term of court, see Rule 45(c), the provisions of Rule 35 have governed the expiration of the power to reduce sentences in the federal system. The time limitation stated in Rule 35, first 60 days, now 120 days, is jurisdictional and cannot, under any circumstances, be extended by order of the court. Criminal Rule 45(b); United States v. Robinson, 361 U.S. 220, 226, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); compare United States v. Howe, 280 F. 815, 817, 23 A.L.R. 531 (2 Cir.), cert. denied 259 U.S. 587, 42 S.Ct. 590, 66 L.Ed. 1077 (1922).

But a federal court has no inherent power to suspend the execution of a sentence which it has imposed or to place the defendant on probation. When this was first announced by the Supreme Court in 1916 in the case of Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916), an abrupt halt was brought to a practice which, by then, had become widespread in the federal system, and which had existed for more than 70 years in this Circuit, see Ackerson v. United States, 15 F.2d 268, 269 (2 Cir.), cert. denied, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926), whereby the district courts had exercised a form of probationary power either by suspending sentence or by withholding imposition of sentence and placing a defendant under the supervision of a state probation officer or volunteer. See United States v. Murray, 275 U.S. 347, 354, 48 S.Ct. 146, 72 L.Ed. 309 (1928). But in Ex Parte United States the Supreme Court held that, without congressional authorization, a district court had no power to deal in this fashion with a convicted defendant.

About nine years later Congress, by enacting the Probation Act of 1925,10 empowered the courts to make such dispositions in criminal cases. This is the sole source of the probationary powers exercised by the federal courts today. United States v. Murray, supra; United States v. Benz, supra. Under the Act, a district court is authorized to "suspend the imposition or execution of sentence and place the defendant on probation," 18 U.S.C. § 3651; it has no power to suspend a sentence without also imposing a term of probation, United States v. Graham, 325 F.2d 922, 925 (6 Cir. 1963); United States v. Sams, 340 F.2d 1014, 1020 (3 Cir.), cert. denied 380 U.S. 974, 85 S.Ct. 1336, 4 L.Ed.2d 270 (1965); see also Ackerson v. United States, supra 15 F.2d at 269. The court's authority arises "upon entering a judgment of conviction," 18 U.S.C. § 3651, and it terminates when the convicted defendant actually enters upon the service of his prison sentence, United States v. Murray, supra; Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955); Ackerson v. United States, supra, 15 F.2d at 269. It follows that once a convicted defendant has commenced to serve his sentence no subsequent order suspending the execution of the balance of the sentence and placing him on probation can be entered. But the beginning of the service of the sentence is the only time limit placed on the exercise of the court's probationary power. The running of the 120 day period provided in Rule 35 has no effect whatsoever upon the power to suspend sentence and to grant probation. Glouser v. United States, 340 F.2d 436, 437 (8 Cir.), cert. denied 381 U.S. 940, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965); Phillips v. United States, 212 F.2d 327, 334 (8 Cir. 1954); Kelley v. United States, 209 F.2d 638, 639 (10 Cir. 1954); United States v. Ribler, 148 F.Supp. 583, 584 (S.D.N.Y.1956). See also Ackerson v. United States, supra, 15 F.2d at 269; Pernatto v. United States, 107 F.2d 372, 373 (3 Cir. 1939) (term of court). Ellenbogen had not commenced service of his prison sentence by January 12, 1967, when the court attempted to suspend the execution of that sentence and to place him on probation, nor does it appear that he has...

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