The opinion of the court was delivered by: EDELSTEIN
Defendant Louis Ostrer was tried and convicted of conspiring to violate provisions of the federal securities laws (15 U.S.C. §§ 77q(a), 77x, 78j(b) and 78ff (1970)) and the mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343 (1970)) in January 1973. Thereafter, defendant made a motion for a new trial, which was subsequently denied. United States v. Dioguardi, 361 F. Supp. 954 (S.D.N.Y. 1973). Defendant's conviction was affirmed by the Court of Appeals for the Second Circuit on January 4, 1974, United States v. Dioguardi, 492 F.2d. 70 (2d Cir. 1974), and his petition for a writ of certiorari has been denied. Ostrer v. United States, 419 U.S. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53, 43 U.S.L.W. 3193 (1974).
On December 11, 1974 the defendant filed two new motions in this court. The first is for a new trial. Defendant sets forth two grounds for this motion. First he asserts that "a probable error in the trial transcript," discovered by newly-retained counsel while he was preparing the certiorari petition, may have been responsible for an erroneous disposition of defendant's first new trial motion. Specifically, the first new trial motion raised the ground that subsequent to the verdict, one of the jurors wrote a letter to Ostrer's co-defendant, which letter was prima facie evidence that under 28 U.S.C. § 1865 (1970) the juror was incapable of rendering satisfactory jury service by reason of mental infirmity. Defendant now argues that the statements of the juror on voir dire "are pregnant with ambiguity" and can be plausibly read to mean that the juror, who described herself, when asked about employment, as a patient attendant at Flower Fifth Avenue Hospital, was actually a psychiatric patient working part time as an attendant, i.e., that she was a patient-attendant. Defendant concludes that, under the opinions of the district court and the court of appeals on this issue, such a construction necessitates an evidentiary hearing on the juror's psychiatric history.
The second ground upon which the defendant bases his new trial motion is the recent discovery by newly-retained counsel
of evidence "which reasonably leads to the conclusion that the Government was privy [to], prior to and during trial, confidential and privileged communications between defendant and his attorneys, which communications were obtained from New York State authorities, who in turn obtained them by means of wiretapping and electronic surveillance of the defendant's premises, all in violation of the defendant's Fourth and Sixth Amendment rights." The defendant asserts that the federal prosecutors made various strategic decisions at the trial which can only be explained by their having had access to the monitored conversations.
Defendant's second motion of December 11, which is the subject of this opinion, is a motion for bail pending resolution of the new trial motion. In support of his motion defendant asserts that his new trial motion is neither frivolous nor filed for purposes of delay and that there is no likelihood that he will abscond.
The Government opposes the motion for bail on the ground that under United States v. Ellenbogen, 390 F.2d 537 (2d Cir.), cert. denied, 393 U.S. 918, 21 L. Ed. 2d 206, 89 S. Ct. 241 (1968), the district court has no power to grant bail once the mandate of the court of appeals has issued.
The Government further argues that even if this court has the power to grant bail, defendant has not made a showing sufficient to justify the exercise of that power.
The court heard oral argument on the motion to admit to bail late in the afternoon preceding the day scheduled for the defendant's surrender. This opinion is filed to provide elaboration on the court's denial from the bench of that motion.
In Ellenbogen the court said:
Ellenbogen is now improperly at large. On October 27, 1966, this court denied Ellenbogen's petition for a stay of its mandate and, on January 3, 1967, Mr. Justice Harlan, Circuit Justice for this Circuit, denied an application for bail pending certiorari in the Supreme Court. The effect of this was to order that the appellant immediately commence serving his sentence of imprisonment. Nevertheless, Ellenbogen was permitted, by order of Chief Judge Sugarman of the Southern District of New York, to remain at large for 72 hours from Friday to Monday until such time as his Rule 35 motion could be heard by Judge Cooper and, thereafter, he was released on his own recognizance for the duration of the present proceedings. This was done in complete disregard of the order of this court and of the action of the Circuit Justice and without authority or color of authority under the Rules, [citations omitted] or under the Bail Reform Act of 1966, which does not change prior practice in this regard. [citations omitted]
Research has revealed two cases in which judges of this court have specifically followed Ellenbogen. In United States v. Scharfman, 53 F.R.D. 525 (S.D.N.Y. 1971), Judge Metzner held that under Ellenbogen he was without power to stay defendant's surrender pending disposition of a petition for certiorari. In United States v. Rosa, 372 F. Supp. 1341 (S.D.N.Y. 1974), Judge Brieant was asked to stay the defendant's commitment pending the court's decision on defendant's motion made pursuant to Fed. R. Crim. P. 35. While he questioned whether the Second Circuit would adhere to Ellenbogen upon a review of relevant authorities, Judge Brieant found himself constrained to follow the clear mandate of that case and so denied the stay motion for lack of jurisdiction.
Defendant, without a great deal of specificity, has advised this court that Southern District judges frequently continue bail on facts similar to those at issue here. The court, however, knows of no written opinions embodying such action.
The basis for the Ellenbogen rule appears to be that neither statute nor rule confers upon the district court the authority to grant bail in the context of a post-conviction attack made after the issuance of the mandate of the court of appeals. Regardless of any factual differences between this case and Ellenbogen, this court believes that the rationale behind Ellenbogen is applicable here. The mandate of the court ...