decided: September 21, 1978; As Amended October 13, 1978.
Appeal from an order of the Southern District of New York, Charles L. Brieant, Judge, denying appellant's motion for continuation of an earlier bail order or, in the alternative, for a new order granting bail pending further appellate review of the denial of appellant's petition for habeas corpus relief by an earlier order of this Court directing that the mandate issue "forthwith." Affirmed.
Before Feinberg and Mansfield, Circuit Judges, and Werker, District Judge.*fn*
The sole issue presented by this appeal is whether appellant, who was sentenced in 1973, after trial and conviction in the Southern District of New York, to serve a term of three years' imprisonment for his participation in a securities fraud conspiracy, was entitled to remain at liberty pending possible review of this Court's affirmance on April 18, 1978, 577 F.2d 782, of an order of the Southern District, Charles L. Brieant, Judge, denying him habeas relief which had been sought under 28 U.S.C. § 2255. We hold that he was required to surrender. We therefore affirm the district court's denial of two motions for bail Pendente lite.
This appeal must be viewed against the backdrop of appellant's numerous post-conviction efforts to postpone or avoid service of his sentence, which he succeeded in doing for five years. After Ostrer was convicted in 1973 on 11 counts of a 40-count indictment he sought a new trial on grounds not relevant here. Chief Judge Edelstein, who had presided over Ostrer's trial, denied the motion and sentenced him on April 12, 1973, to serve a term of three years' imprisonment and to pay fines of $55,000. Bail was granted pending appeal.
The conviction and denial of the new trial motion were affirmed by us on January 4, 1974, United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974), and the Supreme Court denied certiorari on October 15, 1974. 419 U.S. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53 (1974). After the Government noticed Ostrer's surrender for December 2, 1975, but agreed to continue the surrender date for two weeks, Ostrer on December 11, 1974, filed another new trial motion. Chief Judge Edelstein denied bail, 386 F. Supp. 159 (S.D.N.Y.1974), but on December 17, 1974, we granted Ostrer's motion to remain at large until "24 hours after a decision by the United States District Court on the motion for a new trial, or until the next panel of this Court is available to hear any subsequent bail application, whichever is the later of those two dates."
Judge Brieant, to whom the case had been transferred, denied the motion on June 4, 1976, 422 F. Supp. 93 (S.D.N.Y.1976), but ordered that Ostrer be "continued on his existing bail pending appellate finality, unless the Court of Appeals shall direct otherwise." 422 F. Supp. at 108. On October 28, 1976, we affirmed the denial of the motion, and ordered that our mandate issue forthwith. 551 F.2d 303 (2d Cir. 1976).
In an effort to stave off surrender, Ostrer next filed a motion addressed to Judge Brieant, seeking an order declaring that his June, 1976, grant of bail "pending appellate finality" was still in effect despite the forthwith issuance of this Court's mandate. Alternatively, he sought a new order granting bail. Judge Brieant denied the motion on November 3, 1976. Ostrer appealed that denial, obtaining a stay of his surrender from this Court. The appeal, which raised similar, if not identical, issues as the present appeal, was fully briefed and argued, but in the meantime, on March 28, 1977, the Supreme Court denied review of our affirmance of the denial of the second new trial motion, 430 U.S. 946, 97 S. Ct. 1581, 51 L. Ed. 2d 793 (1977), rendering moot Ostrer's appeal on the issue of his custody, which was dismissed.
The Government then noticed Ostrer's surrender for April 15, 1977, which prompted the filing by Ostrer on April 14, 1977, of a petition for a writ of habeas corpus with Judge Brieant, who granted Ostrer bail pending determination of the habeas petition. Judge Brieant denied the petition on August 12, 1977, and at that time extended Ostrer's bail "until the Court of Appeals shall determine Ostrer's appeal . . . or otherwise direct."*fn1 We affirmed the denial of habeas relief on April 18, 1978, and in our decision directed that the mandate issue forthwith. Ostrer v. United States, 577 F.2d 782 (2d Cir. 1978).
The Government then noticed Ostrer's surrender for April 28, 1978. Thereupon Ostrer promptly sought from Judge Brieant essentially the same relief that had been requested in November, 1976, namely, an order declaring that his earlier grant of bail (in this case, the August, 1977, order) was still in effect or, in the alternative, a new bail order permitting Ostrer to remain at liberty pending further appellate review.*fn2 Judge Brieant denied the motions "for want of judicial power," and this appeal followed.
On May 2, 1978, Ostrer moved for bail pending this appeal, which another panel of this Court denied; on the following day Circuit Justice Marshall also denied bail. On May 3, 1978, more than five years after his conviction and sentence, Ostrer surrendered and began service of his sentence.
The custody of habeas petitioners during the pendency of their habeas proceedings is governed by Rule 23(b) of the Federal Rules of Appellate Procedure, which provides in pertinent part that:
"Pending review of a decision failing or refusing to release a prisoner in such a (habeas corpus) proceeding, the prisoner may be detained in the custody from which release is sought, or in other appropriate custody, or may be enlarged upon his recognizance, with or without surety, as may appear fitting to the court or justice or judge rendering the decision, or to the court of appeals or to the Supreme Court, or to a judge or justice of either court." Rule 23(b), Fed. R. App. P.
Rule 23(d) further provides that "(a)n initial order respecting the custody or enlargement of the prisoner . . . shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or the Supreme Court . . . the order shall be modified, or ...