The opinion of the court was delivered by: BRIEANT
On November 1, 1976 this Court heard argument on the merits of a motion sought to be made by a "Notice of Motion for Order to Show Cause," filed with me on that date. Familiarity with all prior proceedings is assumed.
By our Findings and Conclusions dated June 4, 1976 made after an evidentiary hearing, we denied the motion of defendant Louis Ostrer for a new trial, and enlarged him on bail, finding it "appropriate that he should continue to be enlarged pending appellate finality." (Findings, p. 41).
On October 28, 1976, the Court of Appeals (Docket No. 76-1282) affirmed this Court's order and directed that "the mandate shall issue forthwith." Pursuant to the mandate, the United States Attorney directed Ostrer to surrender before the Part I Judge of this Court on Friday, November 5, 1976 at 10:30 A.M. which date, by stipulation without prejudice, has been enlarged until November 30, 1976.
The Government regards issuance of the mandate as a revocation sub silentio of the bail fixed or continued by this Court in its June 4, 1976 order.
A petition for a writ of certiorari, which defendant intends to file, is part of the appellate process. Flynn v. United States, 99 L. Ed. 1298, 75 S. Ct. 285 (1955 mem. dec. by Frankfurter, J., granting a stay as a single Justice, apparently not officially reported). Defendant in effect asks this Court to determine that the bail granted or continued by the trial court on June 4, 1976 remains in effect through the efforts to obtain certiorari, and that the mandate issued by the Court of Appeals cannot supersede the district court's order in that respect, thereby revoking the defendant's release pending appeal.
Rule 46(c) of the Federal Rules of Criminal Procedure, as amended in 1972, directs that the granting of release pending the filing of the Notice of Appeal is governed by 18 U.S.C. § 3148. The Committee Note to Rule 46, however, dictates that once the Notice of Appeal is filed, release by the district court shall be in accordance with Rule 9(b) of the Federal Rules of Appellate Procedure, which provides that the "application for release after a judgment of conviction shall be made in the first instance in the district court." Such release, as noted above, was granted by this Court on June 4, 1976.
It is well established in this Circuit that once a case has left the district court and is in the Court of Appeals or the Supreme Court, the district court is without power to make any further orders in the appealed case. United States v. Ellenbogen, 390 F.2d 537, 542 (2d Cir.) cert. denied 393 U.S. 918, 89 S. Ct. 241, 21 L. Ed. 2d 206 (1968); United States v. Ostrer, 386 F. Supp. 159, 161 (S.D.N.Y.1974); United States v. Rosa, 372 F. Supp. 1341 (S.D.N.Y.1974). These cases specifically hold that once a mandate of the Court of Appeals has issued, the district court no longer has the power to grant a bail application. Here, the Court of Appeals has affirmed this Court's denial of a motion for a new trial, and has issued a mandate enforcing its order forthwith. Therefore, the defendant's release pending appeal, as ordered by this Court, is terminated. United States v. Scharfman, 53 F.R.D. 525 (S.D.N.Y.1971); United States v. Parness, 536 F.2d 474 (2d Cir. 1976).
In urging that this Court either restrain the government from enforcing the surrender order, or, alternatively, issue a new order enlarging defendant's bail pending the final step in appellate review, defendant makes several arguments which merit consideration:
1. Defendant asserts his case is not controlled by the rule of Ellenbogen, since this Court's bail order was issued before the Court of Appeals issued its mandate, and while this Court had jurisdiction. By contrast, in Ellenbogen, the district court ordered that defendant be released on bail after the Court of Appeals had issued its mandate, and after bail applications had been rejected by both the Court of Appeals and a Justice of the Supreme Court.
2. The mandate issued by the Court of Appeals does not invalidate this Court's prior order granting bail "pending appellate finality." The question of bail was not argued or briefed in the Court of Appeals, nor did that Court give express consideration to that issue. Defendant asserts that the mandate, therefore, does not speak to the issue of bail, and that the bail set by the district court in a proper exercise of its jurisdiction, thus remains in effect.
3. If the mandate of the Court of Appeals is found to revoke defendant's bail, then defendant asserts he has been denied due process, or the right to prior notice and hearing.
4. The Court of Appeals lacked power to revoke defendant's bail absent an evidentiary hearing or an express finding that further appellate ...