United States v. Ellenbogen

• Decision Date: 15 September 1966
• Docket Number: Docket 30102.,No. 336,336
• Citation: 365 F.2d 982
• Parties: UNITED STATES of America, Appellee, v. Herbert A. ELLENBOGEN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

365 F.2d 982 (1966)

UNITED STATES of America, Appellee, v. Herbert A. ELLENBOGEN, Appellant.

No. 336, Docket 30102.

United States Court of Appeals Second Circuit.

Argued April 13, 1966.

Decided September 15, 1966.

COPYRIGHT MATERIAL OMITTED

Herbert A. Ellenbogen, pro se.

Peter M. Brown, New York City, for defendant-appellant.

Michael S. Fawer, Asst. U. S. Atty. Southern District of New York (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, and John S. Martin, Jr., and Otto G. Obemaier, Asst. U. S. Attys., on the brief), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Samuel DiChellis and the appellant Herbert A. Ellenbogen were indicted for conspiracy to defraud the United States.¹ In the same indictment, the appellant was charged with two counts of bribery of a federal employee² and DiChellis was charged with two counts of receiving the bribes from the appellant.³ DiChellis pleaded guilty to the three offenses for which he was indicted. Ellenbogen was represented by retained counsel and pleaded not guilty. After a trial before the court without a jury, he was convicted on all three counts. He appealed and we reversed⁴ and remanded for a new trial because the trial judge had refused to turn over to the defense certain statements made by DiChellis to the F. B. I., to which Ellenbogen claimed he was entitled under the Jencks Act, 18 U.S.C. § 3500. Thereafter Ellenbogen was tried again in a jury trial before Judge Robert L. Taylor of the Middle District of Tennessee, sitting in the Southern District of New York by designation. The jury returned verdicts of guilty on all three counts and a judgment of conviction was entered. It is from this judgment that Ellenbogen appeals. We affirm.

The principal grounds of appeal are, first that the trial judge abused his discretion in refusing applications by defense counsel for continuances both before and during the trial, and second that it was reversible error for the court to admit into evidence certain documents as records kept in the regular course of business and to admit a chart based upon those records. The appellant has raised several other points, only a few of which call for comment.

There was evidence from which the jury could have found the following facts: DiChellis was a purchasing agent, in the General Services Administration, whose duties included the purchasing of cellophane, polyethylene and plastic bags and sacks, as well as packaging materials and plastic sheets. The appellant, Ellenbogen, was president of Allied Converters, Inc., a company which sold packaging materials of cellophane, polyethylene and other substances. In the course of purchasing this kind of commodity DiChellis became acquainted with Ellenbogen about the middle of the year 1960. From that time on, Ellenbogen gave DiChellis various sums of money for the purpose of influencing him to give the appellant's company favorable treatment in procuring such products from the company.

The two bribery counts against Ellenbogen alleged, in count two, that for that purpose he had in 1961 given DiChellis a 1961 Oldsmobile and, in count four, that for a like purpose he had given DiChellis $3000 toward the purchase price of a house. There was ample proof that Ellenbogen had made these gifts and abundant evidence from which the jury could conclude, as it did, that he had done so with the intention of influencing DiChellis in his official capacity with respect to the purchases of cellophane and polyethylene products.

During the period in question the G. S. A. provided for two procurement procedures which DiChellis was required to follow. Purchases in amounts exceeding $2500 were made under a term contract with a supplier for the particular G. S. A. region, in this case Region Two. These agreements usually ran for a year and were made with the supplier who was the lowest bidder under a formal bidding system. No fixed quantity was specified but the G. S. A. was obliged to fill all of its requirements for the described commodity from the successful bidder for the life of the contract. At the time Allied Converters, Inc., held such a contract for Region Two to which DiChellis was assigned. The other procedure concerned purchases under $2500 in amount which the purchasing agent could effect by negotiation with local suppliers. For the purpose he would have two to four dealers submit bids in writing on a standard form or he would telephone two to four dealers for oral bids. Whichever method was used, the purchase was made from the lowest bidder. Purchasing agents were kept informed of the amount of a commodity, currently needed, through "buy cards," issued at the end of every week, by an automatic data-processing machine. When a purchasing agent became aware by other means that there was an unusually large demand for a particular item in an earlier part of a week, he was authorized to prepare a "buy card" manually.

With respect to purchases in excess of $2500 under the regional contract, Ellenbogen several tims persuaded DiChellis to order quantities beyond the actual needs of the G. S. A., which left the Government in long supply. Ellenbogen also infuenced DiChellis to award Allied Converters, Inc. over one hundred purchase orders for materials, in separate amounts of less than $2500, which totalled $183,342.82, by the more informal method of a standard bid form or an oral telephone bid. In these instances Ellenbogen was advised of the quotations of the other bidders taken first by DiChellis; and thereupon Allied Converters, Inc. underbid them. There was evidence that on some orders based on telephone bids, no bids by other suppliers were actually given but DiChellis falsely listed arbitrarily selected names.

The first of the major points raised by the appellant concerns the denial of his counsel's requests for continuances. On June 17, 1965 the new trial was assigned for September 7, 1965. About July 15th Edward R. Cunniffe, Jr., Esq., was notified that he had been assigned as defense counsel for Ellenbogen. Mr. Cunniffe accepted the assignment on July 19th and filed his appearance on August 6th. On September 7th he applied for a continuance on the ground that he was not yet ready to proceed to trial. His request for more time was supported by an affidavit in which he stated categorically that he was unprepared to begin trial on that date. Judge Taylor denied the application and ordered the parties to proceed. He assured Mr. Cunniffe that, if it appeared during the trial that counsel was overburdened, the court would exercise its discretion and recess at that time. Counsel thereafter made several applications for continuances during the trial. Each of these was denied. Appellant now contends that the trial court's refusal to grant the motions for a continuance was an abuse of discretion and that this court should reverse his conviction.

The granting of a continuance is a matter within the discretion of the trial judge, whether the requests are made before the trial, Nilva v. United States, 352 U.S. 385, 395, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957), United States v. Bentvena, 319 F.2d 916, 934-935 (2 Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963), or during its course, Avery v. State of Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Cimino, 321 F.2d 509, 512 (2 Cir. 1963), cert. denied, 375 U.S. 974, 84 S.Ct. 491, 11 L.Ed.2d 418 (1964). It must be shown that the trial judge acted arbitrarily and substantially impaired defendant's ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one. United States v. Bentvena, supra. We recognize however, that "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). See also Avery v. State of Alabama, supra (counsel appointed less than three days before trial). There is no mechanical test. Whether there was an abuse of discretion "must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request was denied." Ungar v. Sarafite, supra, at 589, 84 S.Ct. at 850.

The reasons which Attorney Cunniffe gave Judge Taylor, at the time he first asked for the continuance were not particularly persuasive. He simply stated in his affidavit accompanying the motion that he had not had enough time to prepare the case. In his oral argument of the motion he said he had just finished another trial in which he had participated as court appointed counsel but he did not say anything about the amount of time the preparation of that case and its trial had consumed. He also mentioned that he expected to apply for leave to examine documents but specified nothing further about them.

The present appeal was briefed and argued by Ellenbogen pro se but at the suggestion of the court, to which Ellenbogen acceded, Peter Brown, Esquire, of the New York Bar was appointed to examine the voluminous record and to file a brief on Ellenbogen's behalf. He performed this task with competence and skill. In connection with the brief he submitted a new affidavit by Attorney Cunniffe, dated June 16, 1966, in which the trial counsel states that on July 27, 1965 he had been assigned by the United States District Court for the Southern District of New York to represent the accused in the case of United States v. Capriola, to which he was required to devote a substantial portion of his time and attention throughout August, 1965.

The details presented in Mr. Cunniffe's recent affidavit, however, were not brought to the attention of Judge Taylor in anything more than a very sketchy form. The trial court's...