Petition — Balistrieri v. United States

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. @9-L17ZQ9

FRANK PETER BALISTRIERI, |

Petitioner, |

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Morris A. SHENKER

CORDELL SIEGEL

408 Olive Street

Suite 802

St. Louis, Missouri 63102

(314) 241-6116

Counsel for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

—

TIN

INDEX

Constitutional provisions, statutes, and rules involved . .

Ce pi wuececcces

Reasons for granting the writ ..........ccccccccccecs

Il.

III.

The decision below conflicts with many deci-

sions of this Court as to the proper relief and

procedure to be afforded an individual seek-

ing postconviction relief where the govern-

ment has concealed a surreptitious intrusion

into the attorney-client relationship during ex-

tensive unlawful electronic surveillance ......

The decision below raises significant and

recurring questions concerning what con-

stitutes a sufficient opportunity for presenta-.

tion of a postconviction claim under due

process and what relief should be afforded a

postconviction claimant, who, after convic-

tion, uncovers a surreptitious government in-

trusion into his attorney-client relationship ..

The case at bar has so far departed from the

accepted and usual course of judicial pro-

ceedings as to call for an exercise of this

Court’s power of supervision ..............

2 RRS EAS SORE Ne aE ape tT kL TEN ECR OY 37

Appendix A—Judgment of the United States Court of

Appeals for the Seventh Circuit entered October 2,

ENA: ERS OR PS SAOT gic Sry. aa FO A-l

Appendix B—Order of the United States Court of

Appeals for the Seventh Circuit denying the Peti-

tion for Rehearing entered December 6, 1979 ..... A-12

Appendix C—Order of the United States District Court

for the Southern District of Illinois entered

SOS ES Ne ar ae eee A-13

Appendix D—Order of the United States District Court

for the Southern District of Illinois entered

SIE FRONT 5 on <b cov tk peida bake Sood A-17

Appendix E—Order of the United States District Court

for the Southern District of Illinois entered

PN EE Moe od oc sdowend cues ic cx. A-20

CITATIONS

Cases: Page

Alderman v. United States, 394 U.S. 165 (1969) ....... 22

Alioto v. United States, 216 F. Supp. 48 (E.D. Wis.

hoi EE CE POU PE TRC ter 9

Black v. United States, 385 U.S. 26 (1966) (per curiam) . 22,23,

24,25,27,32,33,34,36

Blackledge v. Allison, 431 U.S. 63 (1977) ...... 20,21 ,27,28,29

Burns v. Alabama, 377 F.2d 233 (Sth Cir. 1967) ....... 29

Caldwell v. United States, 205 F.2d 879 (D.C. Cir. 1953) 26,33

Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951),

cert. denied, 342 U.S. 926 (1952)................ 26,33

iii

Giordano v. United States, 394 U.S. 310 (1969)........ 22

Glasser v. United States, 315 U.S. 60 (1942)........... 33

Harris v. Nelson, 394 U.S. 286 (1969) ................ 20,27

Hoffa v. United States, 387 U.S. 231 (1967) ......... 22,25,32

Hoffa v. United States, 385 U.S. 293 (1966) ......... 24,26,33

Jones v. Squier, 195 F.2d 179 (9th Cir. 1952) .......... 29

Kolod v. United States, 390 U.S. 136 (1968)........... 22

Machibroda v. United States, 368 U.S. 487 (1962).... 20,21,27

McNabb v. United States, 318 U.S. 332 (1943) ........ 36

Mesarosh v. United States, 352 U.S. 1 (1956).......... 36

Neely v. United States, 546 F.2d 1059 (3d Cir. 1976).... 29

O’Brien v. United States, 386 U.S. 345 (1967) (per

I 65.6 0 SERS eke tneees 22,23,24,25,27,32,33,34

Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116

COE ac wakvewceS asad edad inde teeendsyeee 20,21,27

South Dakota v. Long, 465 F.2d 65 (8th Cir. 1972), cert.

denied, sub nom. Hale v. South Dakota, 409 U.S.

aS rrr rere re ree ere reer _

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ..... 36

United States v. Balistrieri, 403 F.2d 472 (7th Cir. 1968),

cert. denied, 349 U.S. 985 (1969), rehearing

granted, judgment vacated, and case remanded,

; 58k err rer ete eee ree 10,11,35

United States v. Balistrieri, 436 F.2d 1212 (7th Cir.),

cert. denied, 402 U.S. 953 (1971). .......-...-05- 11,35

United States v. Brodson, No. 74CR98 (E.D. Wis.) ....

United States v. Keogh, 391 F.2d 138 (2d Cir. 1968} ....

United States v. Marcello, 202 F. Supp. 694 (E.D. La.

SN Gok i dinnk sss cdeutas beeeaeuseneerae

United States v. Markis, 352 F.2d 860 (2d Cir. 1965),

cert. granted, judgment vacated, and case remand-

ed for new trial, 387 U.S. 425 (1967). ............

United States v. Mills, 430 F.2d 526 (8th Cir. 1970), cert.

| eee

United States v. Moretti, 353 F.2d 672 (2d Cir. 1965),

cert. granted, judgment vacated, and case remand-

ed for new trial, 387 U.S. 425 (1967) .............

United States v. Morgan, 346 U.S. 502 (1954) .........

United States v. Morrison, 602 F.2d 529 (3d Cir. 1979),

petition for cert. filed, 48 U.S.L.W. 3154 (U.S.

apt. 7, STEP: FPO 6 kos nensanencaennte

United States v. Orman, 417 F. Supp. 1126 (D. Colo.

1976)

United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973),

cert. denied 417 U.S. 950 (1974)

United States v. Schipani, 362 F.2d 825 (2d Cir. 1966),

cert. denied, 385 U.S. 934, rehearing granted,

judgment vacated, and case remanded, 385 U.S.

PHO 5k with cy bea chen Bhckates cena

United States v. Zarzour, 432 F.2d 1 (Sth Cir. 1970) ....

Via v. Cliff, 470 F.2d 271 (3d Cir. 1972)

Weatherford v. Bursey, 429 U.S. 545 (1977)

28,29

Constitution, Statutes, and Rules:

U.S. Const., amend. V ........cccccccecccccrccccces 3

U.S. Const., amend. VI ..... ccc ccc cece cee cccens 3

18 U.S.C. § 3500 (1970)... 0. ce ccc cece cece eee e eens 15

28 U.S.C. § 1651(a) (1970). 0... cece cece eee e eens 3,9,29

P< EES Poa |): SN eee noe 3

ee i cca cabs cenccn se stsescrseseesens 3,4,18

2 Sk Serre rer Teer Teer e eee re 5

ES a rere rere rete ree te 5

icin seen ac cwnses Sees pevecduees 6,27

4 8 Se Ser rer te errr 7

ce ey Se Seeererrerr Terr eerie eer 7,14,27,31

Rule 6 Governing Section 2255 Proceedings for the

United States District Courts ..........+.-- 2,8,18,30

Rule 6 Governing Section 2254 Cases for the United

States District Courts ..........0eeeeceee neces 29,30

Miscellaneous:

Brief for United States in O’Brien v. United States, O.T.

I SU BB sg nds cca ncdcisseseseesckecgaes 24

Memorandum for United States in Black v. United

States, O.T. 1965, No. 1029... 26... ee eee eee ees 23

IN THE

‘Supreme Court of the United States

OcTOBER TERM, 1979

No.

FRANK PETER BALISTRIERI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Petitioner prays that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals for the

Seventh Circuit entered in this cause on October 2, 1979.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is reported at 606 F.2d 216 (7th Cir. 1979), and

a copy of said opinion is attached hereto as Appendix A. The in-

terlocutory order of the United States District Court for the

Southern District of Illinois entered December 3, 1976, is

ay ee

reported at 423 F. Supp. 793 (S.D. Ill. 1976), and is attached

hereto as Appendix C. The interlocutory order of the district

court entered September 14, 1977, is unreported, and is at-

tached hereto as Appendix D. The final order of the district

court entered Novmeber 10, 1978, is unreported, and is attached

hereto as Appendix E.

JURISDICTION

The judgment of the United States Court of Appeals for the

Seventh Circuit was entered on October 2, 1979 (Appendix A).

A timely petition for rehearing was denied on December 6, 1979

(Appendix B). On December 26, 1979, Mr. Justice Stevens ex-

tended the time for filing the Petition for a Writ of Certiorari

until February 4, 1980. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether due process and the assurance of careful con-

sideration and plenary processing of a claim require that a peti-

tioner seeking postconviction relief should be afforded

discovery before the district court summarily dismisses his

claim, where the record before the court shows government con-

cealment of extensive unlawful electronic surveillance during

which he has been overheard on four occasions, one of which is

a conversation with his attorney.

2. On a motion in the nature of a writ of error coram nobis to

vacate a judgment of conviction in a criminal case, should the

district court apply the Federal Rules of Civil Procedure or the

Federal Rules of Criminal Procedure, or both sets of rules, and

do the Rules Governing Section 2255 Proceedings for the

United States District Courts have any applicability to such a

proceeding?

3. Should a petitioner be granted postconviction relief and

have his conviction set aside, because of the government’s

i ais

nefarious conduct in concealing from the courts and him an

unlawful electronic intrusion into his attorney-client relation-

ship, as well as other overhearings of him, particularly since a

vast amount of other unlawful electronic surveillances on him

previously had been concealed by the government?

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED

The fifth amendment to the United States Constitution pro-

vides in pertinent part as follows:

No person shall... be deprived of life, liberty, or

property, without due process of law...

U.S. Const., amend. V.

The sixth amendment to the United States Constitution pro-

vides in pertinent part as follows:

In all criminal prosecutions, the accused shall enjoy the

right to . . . the assistance of counsel for his defense.

U.S. Const., amend. VI.

28 U.S.C. § 1651(a) provides as follows:

(a) The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or ap-

propriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.

28 U.S.C. § 1651(a) (1970).

Federal Rule of Civil Procedure 26 provides in pertinent part

as follows:

= eo

Rule 26. General Provisions Governing Discovery

(a) Discovery Methods. Parties may obtain discovery by

one or more of the following methods: depositions upon

oral examination or written questions; written inter-

rogatories; production of documents or things or permis-

sion to enter upon land or other property, for inspection

and other purposes; physical and mental examinations;

and requests for admission. Unless the court orders other-

wise under subdivision (c) of this rule, the frequency of use

of these methods is not limited.

(b) Scope of Discovery. Unless otherwise limited by

order of the court in accordance with these rules, the scope

of discovery is as follows:

(1) Jn General. Parties may obtain discovery regarding

any matter, not privileged, which is relevant to the subject

matter involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery or to

the claim or defense of any other party, including the ex-

istence, description, nature, custody, condition and loca-

tion of any books, documents, or other tangible things and

the identity and location of persons having knowledge of

any discoverable matter. It is not ground for objection that

the information sought will be inadmissible at the trial if

the information sought appears reasonably calculated to

lead to the discovery of admissible evidence.

person from whom discovery is sought, and for good cause

shown, the court in which the action is pending or alter-

natively, on matters relating to a deposition, the court in

the district where the deposition is to be taken may make

any order which justice requires to protect a party or per-

son from annoyance, embarrassment, oppression, or un-

due burden or expense, including one or more of the

following: (1) that the discovery not be had; (2) that the

discovery may be had only on specified terms and condi-

tions, including a designation of the time or place; (3) that

the discovery may be had only by a method of discovery

other than that selected by the party seeking discovery; (4)

that certain matters not be inquired into, or that the scope

of the discovery be limited to certain matters; .. .

If the motion for a protective order is denied in whole or

in part, the court may, on such terms and conditions as are

just, order that any party or person provide or permit

discovery. ...

Fed. R. Civ. P. 26(a), (b), (c).

Federal Rule of Civil Procedure 30 provides in pertinent part

as follows:

Rule 30. Depositions Upon Oral Examination

(a) When Depositions May be Taken. After commence-

ment of the action, any partv may take the testimony of

any person, including a party, by deposition upon oral €x-

amination. Leave of court, granted with or without notice,

must be obtained only if the plaintiff seeks to take a

deposition prior to the expiration of 30 days after service

of the summons and complaint upon any defendant or

service made under Rule 4(e), . . .

Fed. R. Civ. P. 30(a).

Federal Rule of Civil Procedure 33 provides in pertinent part

as follows:

Rule 33. Interrogatories to Parties

(a) Availability; Procedures for Use. Any party may

serve upon any other party written interrogatories to be

answered by the party served or, if the party served. is a

public or private corporation or a partnership or associa-

tion or governmental agency, by any officer or agent, who

shall furnish such information as is available to the party.

~—

(b) Procedure. The request may, without leave of court,

be served upon the plaintiff after commencement of the ac-

tion and upon any other party with or after service of the

summons and complaint upon that party... .

Interrogatories may, without leave of court, be served ; b

upon the plaintiff after commencement of the action and Fed. R. Civ. P. 34(a), (b).

upon any other party with or after service of the summons Federal Rule of Civil Procedure 36 provides in pertinent part

and complaint upon that party. as follows:

Rule 36. Requests for Admission

(b) Scope; Use at Trial. Interrogatories may relate to (a) Request for admission. A party may serve upon any

any matters which can be inquired into under Rule 26(b), other party a written request for the admission, for pur-

and the answers may be used to the extent permitted by the poses of the pending action only, of the truth of any mat-

rules of evidence. ters within the scope of Rule 26(b) set forth in the request

that relate to statements or opinions of fact or of the ap-

plication of law to fact, including the genuineness of any

Fed. R. Civ. P. 33(a), (b). documents described in the request. . . . The request may,

without leave of court, be served upon the plaintiff after

commencement of the action and upon any other party

with or after service of the summons and complaint upon

Rule 34. Production of Documents and Things and that party.

Entry Upon Land for Inspection and Other Purposes

Federal Rule of Civil Procedure 34 provides in pertinent part

as follows:

(a) Scope. Any party may serve on any other party a re- :

quest (1) to produce and permit the party making the re- | Fed. R. Civ. P. 36(a).

quest, OF someone acting on his behalf, to inspect and Federal Rule of Criminal Procedure 16 provides in pertinent

copy, any designated documents (including writings, draw- part as follows:

ings, graphs, charts, photographs, phono-records, and

other data compilations from which information can be

obtained, translated, if necessary, by the respondent

through detection devices into reasonably usable form), or

to inspect and copy, test, or sample any tangible things

which constitute or contain matters within the scope of

Rule 26(b) and which are in the possession, custody or con-

trol of the party upon whom the request is served; . . .

Rule 16. Discovery and Inspection

(a) Disclosure of Evidence by the Government.

(1) Information Subject to Disclosure.

the defendant the government shall permit the defendant

a ee

to inspect and copy or photograph books, papers,

documents, photographs, tangible objects, buildings or

places, or copies or portions thereof, which are within the

possession, custody or control of the government, and

which are material to the preparation of his defense or are

intended for use by the government as evidence in chief at

the trial, or were obtained from or belong to the defen-

dant.

Fed. R. Crim. P. 16(a)(1)(C).

Rule 6 Governing Section 2255 Proceedings for the United

States District Courts provides in pertinent part as follows:

Rule 6. Discovery

(a) Leave of court required. A party may invoke the

processes of discovery available under the Federal Rules of

Criminal Procedure or the Federal Rules of Civil Pro-

cedure or elsewhere in the usages and principles of law if,

and to the extent that, the judge in the exercise of his

discretion and for good cause shown grants leave to do so,

but not otherwise. If necessary for effective utilization of

discovery procedures, counsel shall be appointed by the

judge for a movant who qualifies for appointment of

counsel under 18 U.S.C. § 3006A(g).

(b) Requests for discovery. Requests for discovery shall

be accompanied by a statement of the interrogatories or re-

quests for admission and a list of the documents, if any,

sought to be produced.

28 U.S.C.A. foll. § 2255, Rule 6.

parent

ane eis

STATEMENT OF THE CASE

Petitioner, on January 30, 1976, filed a motion in the nature

of a writ of error coram nobis in the United States District

Court for the Southern District of Illinois, pursuant to 28

U.S.C. § 1651(a) (1970), seeking collaterally to attack his judg-

ment of conviction (O.R. 1).' The pertinent allegations of peti-

tioner’s motion? are summarized as follows:

Petitioner and his secretary, Jennie Alioto, were indicted on

January 6, 1965, in three counts; count one charging both

defendants with conspiracy to evade income taxes, and count

two and three cl../ging only petitioner with income tax evasion

for 1959 and 1960 (O.R. 21-1; App. 15). Count one of the in-

dictment was subsequently dismissed (O.R. 21-2; App. 15-16).

The government in its investigation of petitioner engaged in

unlawful activities. Jennie Alioto’s office-apartment was

broken into, and an unlawful electronic surveillance was main-

tained therein for nearly nine months. On two separate other

occasions, her apartment was illegally entered, and evidence was

unlawfully seized (O.R. 21-2; App. 16).? The government also

| OR.’ references are to the Original Record; ‘‘App.”’ references

hereinafter used are to the printed Appendix, and ‘‘Tr. 2-28-77’’ and

“Tr. 10-31-78’ references hereinafter used are to the separate

transcripts of proceedings on February 28, 1977 and October 31, 1978,

respectively, filed in the United States Court of Appeals for the

Seventh Circuit.

2 Petitioner subsequently twice amended his motion in the nature of

a writ of error coram nobis (O.R. 18, 21; App. 15-27). All three of the

motions are substantially the same, the latter two motions presenting a

_ more specific set of facts and surrounding history. The last amended

motion will be the one referred to hereinafter.

3 As to one of those occasions, the United States District Court for

the Eastern District of Wisconsin held that the search warrant and

search were invalid and unlawful and ordered that all of the property

seized in connection therewith be returned. See Alioto v. United

States, 216 F. Supp. 48 (E.D. Wis. 1963).

maintained another illegal electronic surveillance at petitioner’s

office for over a year (O.R. 21-3; App. 16-17). Petitioner un-

covered this unlawful electronic microphone and filed a motion

to suppress. At a hearing on the motion to suppress, the govern-

ment produced various log summaries, transcripts, and airtels

relative to the unlawful electronic surveillance at Jennie Alioto’s

apartment and petitioner’s office. The government also produc-

ed a set of papers which it assured the district court did not

relate to petitioner’s case, but which petitioner later discovered

was an unlawful electronic surveillance by the government for

nearly six months of the law offices of petitioner’s attorney,

Dominic Frinzi (O.R. 21-3; App. 17).

Also at that hearing, the government stated to the court that

the materials turned over were all it had; that it had no reason to

believe that there was anything more; and that in the event any

additional material was brought to its attention, it would bring

it to the court’s attention, and, if appropriate, turn it over to the

defense (O.R. 21-4; App. 18).

Petitioner’s trial began the next week (O.R. 21-4; App. 18).

Simultaneously with the trial, the district court conducted a sup-

pression hearing, and eventually overruled petitioner’s motion

to supress and his objections to the admissibility of certain

evidence (O.R. 21-5, 6; App. 19-20).

On March 23, 1967, the jury rendered a verdict of guilty on

both counts. On September 18, 1967, the court entered a judg-

ment of conviction and sentenced petitioner to two concurrent

terms of two years imprisonment and a fine of $5,000.00 on

each count (O.R. 21-6; App. 20).

The judgment was affirmed by the United States Court of

Appeals for the Seventh Circuit, United States v. Balistrieri, 403

F.2d 472 (7th Cir. 1968),‘ and certiorari was denied by this

Court. Balistrieri v. United States, 394 U.S. 985 (1969).

* All of the unlawful activity and electronic surveillance on the part

of the government set forth ante was the subject inter alia of defen-

' dant’s first appeal. United States v. Balistrieri, 403 F.2d 472, 474-78

(7th Cir. 1968).

Thereafter, in response to a petition for rehearing in the

Supreme Court, the Solicitor General disclosed that petitioner

was overheard during the course of an illegal electronic

surveillance in Chicago. This Court granted the petition for

rehearing, vacated the order denying certiorari, and remanded

the case to the district court. Balistrieri v. United States, 395

U.S. 710 (1969).

On remand, petitioner also filed a motion for new trial. A

hearing was held at which it was determined that the govern-

ment had not disclosed to petitioner that it had for over six

months maintained the unlawful electronic surveillance in

Chicago, during the course of which petitioner was overheard.

After the hearing, the district court overruled the motion for

new trial and re-entered the judgment and sentence (O.R. 21-7;

App. 21). The court of appeals again affirmed the judgment,

United States v. Balistrieri, 436 F.2d 1212 (7th Cir. 1971),* and

certiorari was denied, Balistrieri v. United States, 402 U.S 953

(1971). Petitioner subsequently served his sentence (O.R. 21-7;

App. 21).

Many times in the course of the above proceedings, the

government had been ordered by courts to produce for inspec-

tion all tapes, transcripts, and logs containing electronic

monitoring of petitioner (O.R. 21-8; App. 22).

In 1975, petitioner discovered that the government had main-

tained yet another unlawful electronic surveillance of long dura-

tion at a restaurant he frequented, in Milwaukee, Wisconsin.

(O.R. 21-7; App. 21). The government never disclosed to peti-

’ The overhearing of petitioner in Chicago, during the course of the

government’s undisclosed unlawful electronic surveillance, inter alia,

was the subject of petitioner’s second appeal. United States v.

Balistrieri, 436 F.2d 1212, 1213-15 (7th Cir. 1971).

tioner this unlawful restaurant surveillance, but petitioner learn-

ed of such surveillance coincidentally from an affidavit submit-

ted by the government in a different person’s criminai case.°

Petitioner incorporated this affidavit as Exhibit ‘‘B’’ to his

motion in the nature of a writ of error coram nobis. Petitioner

alleged in his motion that he had many occasions to be in the

restaurant and had conversations there with many individuals

concerning his business interests pertinent to the issues of his

criminal trial (O.R. 21-8; App. 22). Petitioner also incorporated

in his motion his own affidavit, in which he stated that several of

his conversations at the restaurant dealt with topics relating to

his income tax liability, and set forth the names of friends,

associates, and defense witnesses at his criminal trial who had

met and discussed with him topics relating to his income tax

(O.R. 1-Exhibit ‘‘C’’). Additionally, incorporated in

petitioner’s motion were the affidavits of four persons, which

stated that those affiants frequented the restaurant, had

witnessed petitioner conversing with many individuals, had

themselves conversed with petitioner, and that several of the

conversations related to petitioner’s income tax liability (O.R.

1-Exhibits ‘‘D’’, ‘‘E’’, ‘‘F’’, and ‘‘G’’).

Petitioner further alleged in his motion that he was the sub-

ject of the unlawful microphone surveillance conducted by the

* In the case of United States v. Brodson, No. 74CR98 (E.D. Wis.),

Gregory H. Ward, Special Attorney, U.S. Department of Justice, sub-

mitted an affidavit dated February 11, 1975, in response to a request

by defendant Brodson, as to whether he had ever been monitored by

electronic surveillance. In pertinent part, the affidavit of Gregory H.

Ward states in paragraph 4 as follows:

“*Sidney A. Brodson was possibly a participant in conversations

monitored by the Federal Bureau of Investigation on September

10, 1964, during a microphone surveillance from June 10, 1964

through February 5, 1965. Such surveillance involved Walter

Felix Brocca’s restaurant, 519 West Wells Street, Milwaukee,

Wisconsin.’’

government; that the government overheard his conversations

and obtained evidence and/or leads from which evidence was

obtained, which led to his conviction, and that had petitioner

known of the restaurant surveillance, it would have enabled him

to better prepare his defense (O.R. 21-8, 9; App. 22-23).

The government filed its response to petitioner’s motion, at-

taching thereto an affidavit signed by Geir N. Magnesen, a

special agent of the F.B.I., dated March 24, 1976 (O.R. 2; 3;

App. 6-7). The affidavit stated that ‘‘[t]he recorded tapes were

destroyed . . . and no transcripts were prepared,’’ but ‘‘only

the monitoring logs were maintained,”’ and that ‘‘[a] review of

the logs indicated that Frank Peter Balistrieri was incidentally

overheard on July 24, 1964, in which the following notation ap-

pears: ‘Man No. 2 is Frank B. He can’t be understood at

all—talks too low at this point.’ ’’ The affidavit further stated:

‘‘In addition, on July 24, 1964, the following entry ap-

pears: ‘unknown male (Frank) talks very softly, says Cliff,

Frank, anybody call? Oh, . . . (unable to hear few words).

.. . Well, I’ll be there in about 20 minutes, soon as they

call—let me know. Alright. Hangs up. (Unable to deter-

mine if it was Frank B.)’ On September 30, 1964, the

following entry appears: ‘Blackie greeted man as Frank.

Normal restaurant business. No conversations.’

‘“‘The exact identity of the individuals monitored on

July 24, 1964, and September 30, 1964, was not deter-

mined at the time of monitoring.

‘‘4 complete review of the logs indicates that Frank

Peter Balistrieri was not monitored on any occasion at 519

West Wells Street with the exception of those noted and

those log entries have been included in their entirety.”

(O.R. 3; App. 6-7) (Emphasis supplied).

Subsequently, petitioner requested a date for an evidentiary

hearing and a date was set by the district court. Meanwhile, peti-

tioner had filed discovery requests upon the government under

the Federal Rules of Civil Procedure in the form of a request for

admissions (O.R. 4), interrogatories (O.R. 5; 7), and a request

for the production of documentary evidence (O.R. 6).’ Peti-

tioner also served notice to take the depositions of five persons,

three of whom were government agents who had worked on

petitioner’s criminal case. (O.R. 9). The government moved to

quash all of the civil discovery requests (O.R. 8), moved to

quash the taking of depositions (O.R. 9), and the evidentiary

hearing was cancelled.

On December 3, 1976, the court entered its order granting the

government’s motions to quash for the reasons that ‘‘[a] motion

in the nature of a writ of error coram nobis is but a step in the

criminal case,’’ and that ‘‘[s]ubjecting the Government to costly

and time consuming inquiries into matters long closed through

the broad latitudes of civil discovery is not justified.’’ (O.R.

10-4; App. 9-12). (Appendix C, infra at A15).

Petitioner thereafter filed requests for production and inspec-

tion under Rule 16 of the Federal Rules of Criminal Procedure

(O.R. 11), a request for the production and inspection of all

evidence in possession of the government favorable to the

defendant (O.R. 12) and a motion for production of Jencks Act

: Among other things, the discovery requests sought information

concerning the receipt of any information by attorneys representing the

government in petitioner’s criminal trial from the electronic

surveillance at the restaurant; the identity of persons who installed the

microphone, who monitored the microphone surveillance, and who

directed or ordered the installation or monitoring of the microphone

surveillance at the restaurant; the purpose for and target individual of

the installation of the microphone surveillance at the restaurant; in-

formation relative to overhearing of the conversations of the persons

who gave the affidavits to petitioner’s motion, as well as the produc-

tion and inspection of all the monitoring logs and a request for admis-

sions necessary for sustaining petitioner’s burden of proving his

motion (O.R. 4; 5; 6; 7).

(18 U.S.C. § 3500) statements and reports of witnesses (O.R.

13).* The government filed its response to petitioner’s criminal

discovery requests, stating that it had nothing to turn over to

petitioner in response to his request for favorable evidence, and

opposed turning over to the petitioner the monitoring logs

themselves. The government offered instead to turn over the

monitoring logs to the court for an in camera inspection.

(O.R. 14).

The government also attached to its response to defendant’s

criminal discovery requests a second affidavit of Geir N.

Magnesen, dated February 4, 1977, which stated as follows:

‘“A review of the logs indicates on July 25, 1964 the

following mention is made of Frank Balistrieri. The parties

are identified as 2 or 3 unknown males, one of whom is

thought to be Walter Brocca and another called ‘John.’

The log indicates the following, ‘They mention Mr.

Balistrieri and $50.00 in their conversation at the very

beginning as tape was being set and not caught on tape.’

‘On October 23, 1964 the following mention is made of

a Balistrieri, first name not identified, the statement is

made by Walter Brocca as follows:

‘* ‘Was you out to see Frank? You meet my compradre,

Frank? Balistrieri. Well what did he say? Did he ask about

me? I was wondering if he asked about me. How is he, all

* The criminal discovery requests sought much the same informa-

tion as contained in the civil discovery requests, including, among

- other things, production and inspection of the monitoring logs or at

least the logs for conversations overheard of those persons who gave

affidavits incorporated in defendant’s motion, and the identities of

any attorney representing the government in petitioner’s criminal trial

who knew of electronic surveillance at the restaurant, and of all per-

sons who installed, monitored or directed the installation or monitor-

ing of electronic surveillance (O.R. 11; 12; 13).

—

right? We ain’t doing nothing here. No. No. Frankie’s

mad a me too. You talk to him? No, I mean lately. Was he

good to you? Had a long talk with him, uh? Who did they

kill? (B. says an Italian type name but too loud to copy).

Ya, I know about that. (Remainder of conversation, which

is very short, completely overriden by noise—someone

opened tavern door and left it that way.’

*‘No additional references by identified nor uniden-

tified individuals are made to Frank Peter Balistrieri, nor

could any business dealings be identified as relating to

Frank Peter Balistrieri.’’

(O.R. 15-2; App. 13).

Petitioner thereafter filed a motion to compel the criminal

discovery (O.R. 16).

An evidentiary hearing was again scheduled, and petitioner

served subpoenae duces tecum on witnesses to appear at that

hearing. The government orally moved to quash the subpoenae

duces tecum’, and tendered to the court the monitoring logs of

the electronic surveillance at the restaurant for an in camera in-

spection. The evidentiary hearing was again continued (Tr.

2-28-77, pp. 3-8). Subsequently, the government requested that

petitioner’s motion in the nature of a writ of error coram nobis

be dismissed without an evidentiary hearing.

On September 14, 1977, the court entered its order setting

forth the material from its in camera inspection of the monitor-

ing logs to which the court held petitioner entitled. (Appendix

D, infra at A17-19). The court found two additional conversa-

tions of petitioner not previously contained in Geir N.

Magnesen’s affidavit of March 24, 1976. One of these was a

conversation where petitioner had met with the co-defendant,

Jennie Alioto, and his attorney, Dominic Frinzi, as follows:

* The government later filed a written motion to quash the sub-

poenae duces tecum (O.R. 20).

—.

‘*7.25-64 at 12:42 a.m.—‘Music starts. Discussion on

current political situation. Man No. 1 is Dominic Fren-

zi—heard to say that Republican Party can’t afford to

do—Dominic orders three cups of coffee. Jenny called out

she wanted coke. Man No. 2 is Frank B. He can’t be

understood at all—talks too low at this point. Frenzi con-

tinues talking. Mentions Republican Party all the time and

cussed Goldwater especially in regard to CR and platform.

Joking and laughing. Not audible. Conversation about the

DA in Kenosha in joking manner followed by more

laughter. Other customers coming and going. Cash register

ringing. Frenzi wants to go home and get some sleep.

Frank B. heard to say something, but not audible.

Somebody wants to buy some drinks on way out—cash

Restaurant becomes quiet but placed on record.’ ”’

The other conversation disclosed by the Court was on 8-6-64, at

8:27 p.m., as follows:

‘‘Two men enter—one is Blackie. Directs other to wh re

the cold water is. Blackie went to cash register—apparently

got some change out, as thereafter jukebox started up

blocking all conversation. By tone of companion’s voice,

possibly Frank B. Radio turned on to a ball game also.’’'®

The court denied the remainder of petitioner’s request for

criminal discovery (Appendix D, infra at A18).

On October 31, 1978, at the oral argument on the govern-

ment’s request for summary dismissal, the government for the

‘© The order failed to mention the overhearings of petitioner on

July 24, 1964 and September 30, 1964 contained in Geir N.

Magnesen’s first affidavit dated March 24, 1976, and the affidavit of

Geir N. Magnesen failed to mention the two overhearings of petitioner

contained in the district court’s order of September 14, 1977.

—

first time clarified that there were two overhearings of peti-

tioner—one on July 24, 1964, contained in Geir N. Magnesen’s

affidavit of March 24, 1976, the other on July 25, 1964, con-

tained in the court’s order of September 14, 1977, and that the

government knowing of the July 25, 1964 overhearing did not

include the July 25, 1964 overhearing in Geir N. Magnesen’s af-

fidavit. (Tr. 10-31-78, pp. 42-43).

On November 10, 1978, the court entered its order summarily

denying petitioner’s motion in the nature of a writ of error

coram nobis (O.R. 26; App. 33-35) (Appendix E, infra at

A20-22).

The court held that petitioner was not the object of the

surveillance, and found that the recorded conversations involv-

ing the petitioner were clearly innocuous. As to the conversation

of July 25, 1964, where petitioner was overheard with his at-

torney, the court found that conversation was ‘‘merely social in

nature,’’ and held that ‘‘an evidentiary hearing would serve no

useful purpose’”’ (O.R. 26-3; 4; App. 35) (Appendix E, infra at

A22).

On October 2, 1979, the United States Court of Appeals for

the Seventh Circuit entered its judgment and opinion affirming

the district court’s order (Appendix A, infra at Al-11). The

court of appeals after first stating that ‘‘this appeal presented an

interesting issue of first impression’’ as to whether ‘‘on a mo-

tion in the nature of a writ of error coram nobis to vacate a

judgment of conviction in a criminal case, should the district

court apply the Federal Rules of Civil Procedure or the Rules of

Criminal Procedure,’’ found that ‘‘the district court may draw

from both sets of rules.’’ (Appendix A, infra at Al). However,

the court, relying upon Rule 6 of the Rules Governing Section

2255 Proceedings, and Fed. R. Civ. P. 26(c), held that the

district court ‘‘was acting well within its discretion’’ in disallow-

ing the discovery requests by petitioner. The court determined

in effect that the revelation gained from the in camera inspec-

~~ pen

tion of the monitoring logs that the petitioner and his attorney

were overheard by the government’s unlawful electronic

surveillance, was not significant or relevant enough to warrant

granting petitioner any discovery or an evidentiary hearing.

(Appendix A, infra at A8-10).

Petitioner filed a timely petition for rehearing, which was

denied on December 6, 1979 (Appendix B, infra at A12).

— ae

REASONS FOR GRANTING THE WRIT

The Decision Below Conflicts With Many Decisions of This

Court as to the Proper Relief and Procedure to be Afforded

an Individual Seeking Postconviction Relief Where the

Government Has Concealed a Surreptitious Intrusion Into the

Attorney-Client Relationship During Extensive Unlawful

Electronic Surveillance.

The decisions of this Court have established the following

standards for determining whether a claim for postconviction

relief is on its face without merit: whether the allegations of the

claim when viewed against the record are ‘‘vague,’’ ‘‘con-

clusory,’’ ‘‘palpably incredible,’’ or ‘‘patently frivolous or

false.’’ If the claim is without merit on its face, then the

postconviction motion may be summarily dismissed. Blackledge

v. Allison, 431 U.S. 63, 75-76 (1977); Machibroda v. United

States, 368 U.S. 487, 495 (1962); Pennsylvania ex rel. Herman

v. Claudy, 350 U.S. 116, 119 (1956). The Court has further

held, with respect to a claim on its face not without merit, that

constitutional due process entitles an individual to ‘‘careful con-

sideration and plenary processing”’ of his claim. Blackledge v.

Allison, supra at 82-83; Harris v. Nelson, 394 U.S. 286, 298

(1969). This does not necessarily require a full evidentiary hear-

ing, but, nevertheless, does demand some alternative pro-

cedures by which an individual can present the relevant facts of

his claim. Blackledge v. Allison, supra at 80-83. One of these

alternative procedural methods is by means of discovery.

Blackledge v. Allison, supa at 81. The decision below, in

upholding summary dismissal of petitioner’s claim without af-

fording him any discovery, directly conflicts with the above

decisions of this Court.

Undoubtedly, the conflict lies in the failure of the court below

to apply the above standards for determining whether a

is OR i

postconviction claim is on its face without merit. Petitioner

respectfully submits that the allegations of the instant motion,

when viewed against the record, are not at all vague, con-

clusory, palpably incredible, or patently frivolous or false. See

Blackledge v. Allison, supra; Machibroda v. United States,

supra; Pennsylvania ex rel. Herman v. Claudy, supra. For by

reason of the government’s admissions contained in Geir N.

Magnesen’s two affidavits (O.R. 3; 15-2; App. 6-17, 13) and the

court’s in camera inspection of the monitoring logs (O.R. 25-2;

App. 33) (Appendix D, infra), petitioner has indeed

demonstrated much of the allegations of his motion.'' Thus,

petitioner has already demonstrated that the government con-

ducted an electronic surveillance of the restaurant for nearly six

months, that petitioner was overheard during the restaurant

surveillance on at least four occasions, and that on one of those

occasions, the government had surreptitiously intruded into his

relationship with his attorney. Yet, petitioner has been fore-

closed from proceeding further, either by way of discovery or by

'"' In light of the record, it is apparent that the allegations of peti-

tioner’s motion are neither vague, conclusory, palpably incredible,

nor patently frivolous or false. Petitioner incorporated into his mo-

tion as an exhibit an affidavit in which he stated that several conversa-

tions at the restaurant dealt with topics relating to his income tax

liability, specifically identifying individuals with whom he had these

conversations (O.R. 1-Exhibit ‘‘C’’). He also incorporated into his

motion as exhibits the affidavits of friends, acquaintances, and

witnesses at his criminal trial, likewise stating that the affiants had

seen petitioner conversing with many individuals and had themselves

conversed with petitioner on topics relating to petitioner’s income tax

liability at the restaurant (O.R. 1-Exhibits ‘‘D’’ - ‘‘G’’).

Of course, the allegation in petitioner’s motion that the government

- maintained an unlawful electronic surveillance at the restaurant is

meritorious. The government has already admitted as much, and addi-

tionally admitted that it destroyed the original tape recordings of the

surveillance. (O.R. 2; 3-1; 15-1; 19; App. 6, 12). The allegation that

petitioner was overheard by the restaurant surveillance is neither

vague, conclusory, incredible, frivolous, nor false. Geir N.

Magnesen’s affidavit (O.R. 3; App. 6-7) and the court’s Order of

_ a

an evidentiary hearing, to prove to the court the legitimacy of

the remaining allegations of his motion.'?

As such, the opinion below also conflicts with the following

decisions of this Court: Alderman v. United States, 394 U.S.

165 (1969); Giordano v. United States, 394 U.S. 310 (1969);

Kolod v. United States, 390 U.S. 136 (1968); Hoffa v. United

States, 387 U.S. 231 (1967); O’Brien v. United States, 386 U.S.

345 (1967) (per curiam); Black v. United States, 385 U.S. 26

(1966) (per curiam); United States v. Schipani, 362 F.2d 825 (2d

Cir. 1966), cert. denied, 385 U.S. 934, rehearing granted, judg-

ment vacated, and case remanded, 385 U.S. 372 (1966); United

States v. Markis, 352 F.2d 860 (2d Cir. 1965), cert. granted,

judgment vacated, and case remanded for new trial, 387 U.S.

425 (1967); United States v. Moretti, 353 F.2d 672 (2d Cir.

1965), cert. granted, judgment vacated, and case remanded for

new trial, 387 U.S. 425 (1967). In all of these cases, on facts

equally, if not less compelling than the instant case, this Court,

being apprised of an undisclosed unlawful eavesdropping on the

part of the government, required, at a bare minimum, an

evidentiary hearing by the district court.

September 14, 1977 (O.R. 25; App. 31-33) (Appendix D, infra) con-

firms those allegations. Moreover, the government was ordered by

various courts many times to produce all electronic surveillance in

which petitioner was overheard, but it was not until September 14,

1977, that petitioner learned from the court’s in camera inspection

that he had been overheard in conversation with his attorney and the

co-defendant. Certainly, the attorney, petitioner, and co-defendant

would have been available to testify at an evidentiary hearing as to what

the government overheard on that occasion, if they had been given the

opportunity.

'2 In a situation such as here, the government controls and has in its

possession much of the evidence that would prove up the allegations

of petitioner’s motion. Yet, how can petitioner be reasonably expected

to substantiate his allegations absent discovery or an evidentiary hear-

ing, where the government destroys the best evidence of the tapes and

fails to make a full disclosure of what the logs contain? Thus, peti-

tioner is being penalized for the government’s indiscretion in destroy-

ing the tapes.

In two of those decisions, Black v. United States, supra and

O’Brien v. United States, supra, the Court, upon learning of an

undisclosed surreptitious intrusion into the attorney-client rela-

tionship, reversed the petitioners’ convictions and remanded the

cases to the district court for a new trial.

In Black v. United States, supra, the Solicitor General volun-

tarily advised the Court after certiorari had been denied, that

F.B.I. agents in an unrelated matter had monitored and taped

conversations in petitioner’s hotel suite. During this electronic

surveillance, the government overheard conversations between

petitioner and his attorney. Recordings of such interceptions

had been erased, but notes summarizing and sometimes quoting

the conversations were available, and reports and memoranda

of the conversations had been made. The reports and memoran-

da were included in material transmitted to the attorneys

responsible for the prosecution of the case, and were retained by

them until petitioner’s trial began. The attorneys never realized

until the case was in the Supreme Court that any conversations

between petitioner and his attorney were overheard. The

Solicitor General also advised that the attorneys had found

nothing in the reports or memoranda of relevance to the

criminal case, and suggested that the case be remanded for an

evidentiary hearing at which the district court would determine

whether the conviction should stand. Memorandum for United

States in Black v. United States, O.T. 1965, No. 1029, p. 4. The

Court, in a per curiam opinion without anything more before it

than the representations made by both sides, rejected the

Solicitor General’s suggestion that the case be remanded for an

evidentiary hearing, and instead reversed the conviction and

remanded the case for a new trial.

In O’Brien v. United States, supra, the Court, in a per curiam

opinion, relied on its previous decision in Black v. United

States, supra, and reversed petitioner’s conviction and re-

manded the case to the district court for a new trial, again over

the Solicitor General’s suggestion that the case be remanded for

only an evidentiary hearing. There the Court had been informed

by the Solicitor General that two conversations of petitioner

were overheard by monitoring agents during the course of an

electronic surveillance of a commercial establishment owned by

an acquaintance of petitioner. The petitioner was not the sub-

ject of the surveillance. The conversations were not mentioned

in any F.B.I. report, nor were its contents communicated to at-

torneys for the Department of Justice, including those who

prosecuted the case. No evidence introduced at the trial was

tainted in any manner by leads obtained from the overheard

conversations. One of the two conversations involved a

telephonic request to petitioner’s attorney to file an application

relating to the territorial conditions of petitioner’s release on

bail. The attorney’s words were not overheard. Brief for United

States in O’Brien v. United States, O.T. 1966, No. 823, pp.

10-12.

In both of these cases, the Court was apparently unconcern-

ed with the relevance or irrelevance of the conversations

overheard by the government or the prejudice to the petitioner.

Rather, the Court held that the government’s conduct in in-

truding into the attorney-client relationship, coupled with the

government’s failure to disclose such intrusion until after con-

viction was sufficient in those cases to warrant a new trial. The

basis for granting such relief was ‘‘that justice requires that a

new trial be held so as to afford the petitioner an opportunity to

protect himself ...’’ Black v. United States, supra at 28-29

(Emphasis supplied). In both Black and O’Brien, Justices

Harlan and Stewart dissented. In Black, the dissent concluded

that the policy of the majority could be justified only on the

basis ‘‘that any governmental activity of the kind here in ques-

tion automatically vitiates, so as to at least require a new trial,

any conviction occurring during the span of such activity.’’

Black v. United States, 385 U.S. 26, 31 (1966) (dissenting opin-

ion). Accord, O’Brien v. United States, 386 U.S. 345, 346-47

- (1967) (dissenting opinion). See also Hoffa v. United States, 385

U.S. 293, 307 (1966); Hoffa v. United States, 387 U.S. 231, 233

(1967). But see Weatherford v. Bursey, 429 U.S. 545, 550-53

(1977).

In any event, petitioner is unaware of a single decision of this

Court, where afteraincovering as much concealed government

misconduct as has surfaced here, a claimant is totally precluded

from access to the court, and is denied not only an evidentiary

hearing, but discovery as well. A fortiori, if the identical kind of

government misconduct is sufficient to warrant a new trial in

Black and O’Brien, then it should entitle petitioner here at the

very least to discovery.

The above decisions of this Court were cited in petitioner’s

brief to the court of appeals as authority for the proposition

that the instant case should be remanded to the district court to

afford petitioner, at the very minimum, some discovery. See

Brief for Defendant-Appellant at pp. 20-23, 31-32, 36-37.'* Yet,

'> At the very least, petitioner should have been granted inspection

of the monitoring logs and given the identity of all persons who in-

stalled, monitored or directed the installation or monitoring of the

electronic surveillance, and of any attorney representing the govern-

ment in petitioner’s criminal trial who knew of the électronic

surveillance (O.R. 5; 6; 11; 12). It is necessary for petitioner to make

the inspection of the monitoring logs, because no other person is

equipped to do as thorough a job as he, in reviewing the tremendous

amount of material contained in the logs. Only petitioner is able to ap-

preciate fully the significance of certain conversations. What may be

considered a chance remark or trifling to some, when put into the

- proper connotation, would take on a different perspective of impor-

tance to petitioner. And what actually occurred in the instant case

bears this out. For the government found two conversations where

petitioner was overheard, which passed the district court unnoticed,

and vice versa. Compare O.R. 3-2; App. 7 with O.R. 25-2; App. 32.

—

not one of those decisions is distinguished in the opinion below, |

or for that matter even cited. Instead, the opinion below cites

the decision of Coplon v. United Staes, 191 F.2d 749 (D.C. Cir.

1951) cert. denied, 342 U.S. 926 (1952) for the statement that

‘“illegal eavesdropping by the government on attorney-client

conversations may be a violation of a defendant’s Sixth Amend-

ment rights, and therefore, grounds for a new trial in some

cases’’ { Appendix A, infra at A10). Surely, the court below has

misconstrued the ratio decidendi of Coplon, for the decision ©

below further holds that ‘‘Balistrieri was not prejudiced.’’'‘

(Appendix A, infra at All). The very crux of Cop/on, however,

is that prejudice need not be shown to set aside a conviction

because of unlawful governmental intrusion into the attorney-

client relationship. See Hoffa v. United States, 385 U.S. 293,

307 (1966); Caldwell v. United States, 205 F.2d 879 (D.C. Cir.

1953).

'* In reaching this conclusion that ‘‘Balistrieri was not prejudiced,”

the opinion misapprehends m important facts. Thus, the opinion

states that ‘‘the restaurant dis@&%sion occurred more than two years

prior to Balistrieri’s trial for tax evasion’’ (Appendix A, infra at A10),

but neglects to mention that the discussion occurred during the in-

vestigation for which petitioner was indicted and that the indictment

was returned a few days after the unlawful electronic surveillance was

terminated. Secondly, the opinion states: ‘‘The surveillance at

Brocca’s restaurant was not directed at Balistrieri.’’ (Appendix A, in-

fra at All). However, petitioner’s motion specifically alleges in

paragraph 29 that: ‘‘On information and belief, defendant states that

he was the subject of the unlawful microphone surveillance conducted

by the government at Walter Felix Brocca’s restaurant .. . .”’ (O.R.

21-8; App. 22). See also petitioner’s interrogatory number 11 (O.R.

5-2; 7) and request for admissions 1(a) and 1(b) (O.R. 4-1). Addi-

tionally, the opinion states: ‘‘The monitored conversations had

nothing to do with Balistrieri’s tax affairs or any legal matter affecting

him.”’ (Appendix A, infra at All). However, paragraph 28 of peti-

tioner’s motion alleges that petitioner ‘“‘had sundry and diverse con-

versations . . . with many individuals concerning [his] business in-

terests pertinent to the issues of this criminal trial.’’ Paragraph 29

alleges ‘‘that during such illegal surveillance, the government

overheard his conversations and obtained evidence and leads from

which evidence was obtained, all of which led to [his] conviction.”

(O.R. 21-8; App. 22). Additionally, in that regard, petitioner attached

his own affidavit (O.R. 1-Exhibit ‘C’’) and attached four affidavits of

=_ 27 —

In his petition for rehearing, petitioner pointed out to the

court of appeals the inconsistency of the decision below with all

of the above decisions of this Court. In particular, it pointed

out that the opinion below did not consider the decisions of

Harris v. Nelson, 394 U.S. 286 (1969); Blackledge v. Allison,

431 U.S. 63 (1977); Black v. United States, 385 U.S. 26 (1966);

and O’Brien v. United States, 386 U.S. 345 (1967), and that the

opinion below failed to apply the appropriate standards in order

to summarily dismiss petitioner’s motion, as set forth in

Machibroda v. United States, 368 U.S. 487, 495 (1962), Penn-

sylvania ex rel. Herman v. Claudy, 350 U.S. 116, 119 (1956),

and Blackledge v. Allison, supra at 75-76, all of which were con-

trolling precedent. (Petition for Rehearing, at pp. 4, 6, 7-8).

Accordingly, the opinion below has substituted for the deci-

sions of this Court an extremely pragmatic approach on the im-

portant issues of the proper relief and the appropriate pro-

cedure to be afforded individuals seeking postconviction relief

insofar as the fundamental right to due process is concerned.

Under the opinion below, petitioner has been allowed no pro-

cedural means by which he can present his claim to the district

court, and thereby has been denied due process. The fact that

the district court conducted an in camera inspection of the

monitoring logs does not even remotely satisfy the due process

requirement of ‘‘careful consideration and plenary processing.

of [petitioner’s claim] including full opportunity for presenta-

tion of the relevant facts,’’ as required by Harris v. Nelson,

persons who swore that at the restaurant they had conversations with

petitioner concerning his income tax liability (O.R. 1-Exhibits ‘‘D’’

-‘‘G’’). See also petitioner’s interrogatories numbered 9 and 10 (O.R.

5-2). Further, petitioner requested production of the monitoring logs,

under both Fed. R. Civ. P. 34 and Fed. R. Crim. P. 16, which would

have provided the basis for petitioner corroborating those affidavits

(O.R. 6; 12). Lastly, the decision below states that ‘‘[a] third person

was present”’ at the overheard conversation between petitioner and his

attorney. (Appendix A, infra at All). However, the opinion below

neglects to mention that the third person was the co-defendant Jennie

Alioto.

— oe

supra, at 298, and Blackledge v. Allison, supra, at 82. That the

in camera inspection uncovered two additional overhearings not

previously disclosed by the government, one of which was a sur-

reptitious intrusion into the attorney-client relationship, only

serves to bolster petitioner’s coram nobis motion and underline

the necessity for petitioner himself reviewing the monitoring

logs.

Neither the expediency desired in bringing ‘‘old criminal pro-

ceedings’’ to a ‘‘speedy conclusion,”’ nor the practicality of pro-

tecting the government and witnesses from the ‘‘burden of

discovery’’ (Appendix A, infra at A9-10), should ever deprive

an individual of the opportunity to support a potentially

meritorious claim. For to do so is to sacrifice cautious,

deliberate, and intelligent consideration necessary for due pro-

cess, to whim, convenience, and conjecture. Unfounded conclu-

sions, as in the opinion below, that a postconviction claimant is

not prejudiced, without any testimony or discovery, and

without any logical basis, ought never serve to deny an in-

dividual his day in court.

II.

The Decision Below Raises Significant and Recurring

Questions Concerning What Constitutes a Sufficient Oppor-

tunity for Presentation of a Postconviction Claim Under Due

Process and What Relief Should be Afforded a Postconviction

Claimant, Who, After Conviction, Uncovers a Surreptitious

Government Intrusion Into His Attorney-Client Relationship.

Aside from the obvious question, deemed ‘‘an interesting

issue’’ by the court of appeals, as to what rules of procedure ap-

ply in coram nobis proceedings,'* the decision below more im-

'* By virtue of the landmark decision in United States v. Morgan,

346 U.S. 502 (1954), jurisdiction over a motion in the nature of a writ

of error coram nobis is conferred on the federal committing court to

—

portantly raises the question of what constitutes a sufficient op-

portunity for presentation of a postconviction claim in order to

satisfy the requirements of due process. In Blackledge v.

Allison, supra, a case involving a habeas corpus petition seeking

to set aside a state conviction based on an alleged involuntary

plea, this Court last recognized that summary dismissal of the

claim was not warranted, unless the claim, when viewed against

the record, was on its face without merit. In that case, after

finding summary dismissal improper, this Court stated that

“*this is not to say that every set of allegations not on its face

without merit entitles a habeas corpus petitioner to an eviden-

tiary hearing.’’ 431 U.S. at 80. The court suggested certain alter-

native procedures, pursuant to Rules 6 and 7 of the Rules

Governing Section 2254 Cases, such as a motion for summary

judgment, discovery, or expansion of the record. 346 U.S. at

80-82. However, this Court did not delineate any criteria for

determining the limits a district court can place upon these alter-

native procedures, and especially discovery, including produc-

test the validity of sentences completely served, pursuant to the All

Writs Act of the Judicial Code (28 U.S.C. §1651(a) ). However, since

Morgan, confusion has arisen with respect to the issue of the ap-

plicable procedure to be followed in coram nobis proceedings, in large

measure due to footnote 4 of the Morgan opinion. which states:

‘‘Such a motion is a step in a criminal case and not, like habeas cor-

pus where relief is sought in a separate case and record, the beginning

of a separate civil proceeding.’’ 346 U.S. at 505 n.4. On this issue

there is a conflict in the decisions. Compare the opinion below with

United States v. Mills, 430 F.2d 526, 528 (8th Cir. 1970), cert. denied,

400 U.S. 1023 (1971); and United States v. Marcello, 202 F. Supp. 694

(E.D. La. 1962), with Neely v. United States, 546 F.2d 1059, 1064-67

(3d Cir. 1976), United States v. Keogh, 391 F.2d 138, 140 (2d Cir.

1968), Burns v. Alabama, 377 F.2d 233, 235, (Sth Cir. 1967), and

Jones v. Squier, 195 F.2d 179, 180 (9th Cir. 1952). By the treatment

given this issue above, petitioner does not mean to infer that this issue

is not worthy of certiorari, but rather to the contrary, petitioner

merely suggests that beside this issue, there is the broader, far-

reaching, and more significant issue concerning the due process rights

of all persons seeking postconviction relief, which the two courts

below have apparently ignored.

= nr

tion and inspection of documents. Thus, the question of exactly

at what stage of a postconviction proceeding a district judge

may properly dismiss a claim which is potentially meritorious,

without permitting an evidentiary hearing or alternative pro-

cedures, is a significant, recurring, and troublesome one, which

has gone unanswered.

At the heart of the matter lies the inability of a federal judge

to determine allegations of meritorious claims for constitutional

violations, if the claimant is afforded no opportunity to present

the claim. More particularly, Rule 6 of the Rules Governing Sec-

tion 2254 Cases, and the nearly identical Rule 6 of the Rules

Governing Section 2255 Proceedings permit discovery only ‘‘to

the extent that, the judge in the exercise of his discretion and

for good cause shown grants leave to do so, but not otherwise.”’

Viewed in light of both of these rules, the other side of the issue

involves the question of what under due process constitutes an

abuse of discretion by a district court in disallowing discovery

requests.'* In that regard, the decision below adopts a balancing

of interest approach to conclude that the district court did not

abuse its discretion, as follows:

“‘For reasons of policy, as well as the consistency of legal

concepts, it is necessary to grant applicants the scope of

discovery under civil rules and, at the same time, assure the

government and others of due protection from burdens

arising from participation in old criminal proceedings. The

district court should consider the amount of time which

has elapsed since the trial, the burden of discovery on the

government and witnesses, and the nature of the

'* In a different context, the United States Court of Appeals for the

Third Circuit has held a plaintiff entitled to answers to interrogatories

before the district court can grant summary judgment on a case

brought under 42 U.S.C. §1983 (1970) for interference with the

ee relationship. Via v. Cliff, 470 F.2d 271, 276 (3d Cir.

1972).

—

applicant’s claims in deciding on the scope of discovery at

each stage of the coram nobis proceedings. If relevant

evidence is revealed by discovery which only lightly

burdens the government, the court retains the option of

allowing more extensive requests in order to see if there is

more evidence to be found. However, if examination of

only the most relevant materials fails to turn over any rele-

vant new stones, the coram nobis proceedings may be

brought to a speedy conclusion.”’

(Appendix A, infra at A9-10).

The illogic of such a balancing of interest approach is evident

in the finding below that Fed. R. Crim. P. 16 ‘‘is an unsatisfac-

tory vehicle for discovery requests in proceedings on a coram

nobis motion.’’ (Appendix A, infra at A9). The reason for such

an assertion is that facts affecting ‘‘the validity of the conviction

or sentence are unlikely to be found solely within the narrow

scope of discovery allowed by Rule 16,’’ and that certain items

which the rule expressly protects may be essential to the claim-

ant. ( Appendix A, infra at A9). If indeed, that is the reason for

disallowing discovery under Rule 16, then it seems the fact that

a long time has elapsed since the trial should be an impetus,

rather than a restraint, for breaking down the barrier which af-

fords the government the protections of Rule 16. For when a

long time has elapsed after a trial, the government should have

no legitimate interest to protect in turning over to a postconvic-

tion claimant those items which would prove his allegations of

government misconduct sufficient to affect the validity of his

conviction.

As such, in actuality, the discretion permitted a district court

under the balancing approach adopted by the decision below

may be utilized to deny a postconviction claimant, whose claim

is facially meritorious, any opportunity to be heard. Thus, it is

crucial insofar as due process is concerned that some guidelines

be established setting forth the minimum amount of evidentiary

—

hearing, discovery, or other alternative procedure that will be

permitted before a court summarily dismisses the claim. The

question, therefore, of whether, as in the instant case, a district

court may summarily dismiss a postconviction claim which is

neither fatuous nor groundless, without providing some oppor-

tunity for presentation of the claim, has important due process

ramifications, which should be answered by this Court. The

case at bar presents a singular opportunity for this Court to

establish those due process guidelines over the administration of

postconviction proceedings.

Additionally, there is the question of whether all relief, even

discovery, may be denied a postconviction claimant, who

learns after conviction that the government has concealed

from him its unlawful surreptitious intrusion into his conversa-

tions with his counsel. This issue boils down to the question of

whether prejudice to the claimant from the concealed surrep-

titious intrusion into his attorney-client relationship need first

be shown before the claimant is entitled to discovery.

Until the decision of Weatherford v. Bursey, 429 U.S. 545

(1977), it was believed that Black v. United States, 385 U.S. 26

(1966) and O’Brien v. United States, 386 U.S. 345 (1967) held

that prejudice need not be shown. Those cases inferred that a

conviction should be automatically set aside when the govern-

ment in its nefarious conduct conceals, until after conviction, a

surreptitious intrusion into the conversations of a defendant

and his attorney, regardless of the relevance to the conviction of

what was overheard. Certainly, this is the interpretation placed

upon those decisions by the dissenting opinions in Black v.

United States, supra at 31 (dissenting opinion) and O’Brien v.

United States, supra at 346-47 (dissenting opinion), as well as by

Mr. Justice Marshall (then Solicitor General), and by Mr.

Justice Brennan, who participated in the Black and O’Brien

decisions. See Weatherford v. Bursey, supra at 566-68 (dissent-

ing opinion). See also Hoffa v. United States, 387 U.S. 231, 233

(1967); Hoffa v. United States, 385 U.S. 293, 307 (1966). Such a

reading of Black and O’Brien is not unreasonable in view of the

pronouncement in Glasser v. United States, 315 U.S. 60, 76

(1942) that ‘‘[t]he right to have the assistance of counsel is too

fundamental and absolute to allow courts to indulge in nice

calculations as to the amount of prejudice arising from its

denial.’’ Accord, Coplon v. United States, 191 F.2d 749 (D.C.

Cir. 1951) cert denied, 342 U.S. 926 (1952); Caldwell v. United

States, 205 F.2d 879 (D.C. Cir. 1953); Via v. Cliff, 470 F.2d

271, 275 (3d Cir. 1972); United States v. Orman, 417 F. Supp.

1126 (D. Colo. 1976).'’

However, in Weatherford v. Bursey, supra, an action

brought under section 1983 of the Civil Rights Act against an

undercover agent who participated in meetings between a

criminal defendant and his lawyer, this Court determined that

the decisions of Black and O’Brien do not set forth a per se rule.

429 U.S. at 550-53. Under Weatherford, in order to establish a

constitutional violation from intrusion into the attorney-client

relationship, there must be shown either ‘‘tainted evidence. . .,

communication of defense strategy to the prosecution . . ., or

purposeful intrusion.’’ 429 U.S. at 558. Additionally, the Court

in Weatherford apparently considered intrusions by electronic

means, such as those in the instant case, more violative of the

sixth amendment than intrusions by an undercover agent. 429

U.S. at 554-55 n.4. The Court’s decision in Weatherford was

recently characterized as ‘‘a narrow one’’ in United States v.

Morrison, 602 F.2d 529, 531 (3rd Cir. 1979), petition for cert.

‘7 Even cases requiring that prejudice first must be shown in order

to grant relief from intrusions into the attorney-client relationship,

nevertheless, apparently recognize that in situations, such as the in-

stant case, involving gross government misconduct, prejudice need

not be shown. See, e.g., United States v. Zarzour, 432 F.2d 1, 3, (Sih

Cir. 1970); South Dakota v. Long, 465 F.2d 65, 72 (8th Cir. 1972),

cert. denied sub nom. Hale v. South Dakota, 409 U.S. 1130 (1973);

United States v. Rosner, 485 F.2d 1213, 1226-27 (2d Cir. 1973), cert.

denied, 417 U.S. 950 (1974).

a” een

filed, 48 U.S.L.W. 3154 (U.S. Sept. 7, 1979) (No. 79-395).

There it was held that ‘‘{Weatherford] is not broad enough to

support the interpretation ...that mere failure to gain

evidence or tactical advantage from an intrusion bars any fin-

ding of a sixth amendment violation.’’ 602 F.2d at 531.32.

As the matter now stands, there is much confusion as to the

meaning and scope of the Black, O’Brien, and Weatherford

decisions. This Court should settle the question of whether pre-

judice to a postconviction claimant from a concealed govern-

ment electronic intrusion into his attorney-client relationship

need be shown before he is at least entitled to discovery. By rais-

ing this issue, petitioner is by no means conceding that the

overhearing of his conversations was not prejudicial. But,

without being afforded any discovery, petitioner is unable to

demonstrate the prejudice based on this record. Indeed, that is

the very purpose of the requested discovery—to demonstrate

prejudice. To require a showing of prejudice, before affording

discovery, is certainly placing the cart before the horse.

The instant case presents the occasion for this Court to re-

examine the decisions of Black and O’Brien, and determine

their viability in light of Weatherford v. Bursey. If the Court is

indeed retreating from Black and O’Brien, as the dissent in

Weatherford suggested (429 U.S. at 568), this Court should

clarify or overrule those decisions; if not, then the opinion

below is in conflict with those decisions (see Reasons for Grant-

ing Writ I, ante at 23-26).

Such an important issue affecting the administration of

criminal justice, namely the rights and opportunities to be af-

forded a postconviction claimant who finds a concealed

unlawful government intrusion into his private conversations

with his counsel, requires authoritative determination by this

Court.

—

IIl.

The Case At Bar Has So Far Departed

From the Accepted and Usual

Course of Judicial Proceedings As

To Call For An Exercise of

This Court’s Power of Supervision.

This is the third time that the instant case has come before

this Court. On each previous occasion, there was presented a

different instance of admitted government misconduct. On the

first occasion, petitioner uncovered gross and widespread illegal

practices by the government in investigating his tax matters.

These unlawful practices included not only an illegal search and

seizure of evidence from his secretary’s apartment, but also

unlawful electronic eavesdropping of long duration upon the

petitioner’s office, his attorney’s office, and his secretary’s

apartment. Notwithstanding such misconduct, petitioner’s con-

viction was affirmed on the basis that the evidence obtained

from the unlawful activity and introduced into petitioner’s

criminal trial was also gained from the independent source of

two lawful mail covers. United States v. Balistrieri, 403 F.2d 472

(7th Cir. 1968), cert. denied, 394 U.S. 985 (1969). Despite the

government being ordered by courts to turn over all overhear-

ings of petitioner, and the government’s assurances that the

monitoring of petitioner’s conversations from the above-

mentioned surveillances was all that it had, petitioner, after his

conviction, learned by coincidence, while his case was in this

Court, that he had been monitored by the government another

time. Balistrieri v. United States, 395 U.S. 710 (1969). This

overhearing was during an unlawful electronic surveillance in

Chicago. Upon remand, petitioner’s conviction was reinstated

and was again affirmed, this time on the ground that the newly

discovered overhearing of petitioner gained from unlawful

eavesdropping was too insubstantial to justify a reversal of his

criminal conviction. United States v. Balistrieri, 436 F.2d 1212

(7th Cir. 1971), cert. denied, 402 U.S. 953 (1971).

— i

And now, petitioner has by coincidence uncovered yet

another concealed unlawful electronic surveillance of long dura-

tion, which was at a restaurant he frequented. During this

surveillance, petitioner was overheard at least four times, one of

which was during a conversation with his attorney.

Accordingly, the case at bar, in toto, is one in which peti-

tioner has had to uncover, piece by sordid piece, the govern-

ment’s misdeeds. In the annals of criminal cases, the instant

case presents perhaps the most vile and pervasive unlawful elec-

tronic surveillance ever maintained on a single individual. Few

instances, if any, have ever occurred where the government’s

unlawful conduct was so disdainful and approached the level

here. If all of the unlawful surveillance covering petitioner is

considered together, then the government maintained practical-

ly a constant illegal vigil over him. The government here has

never really tried to cleanse itself of its ignominious conduct—it

never voluntarily disclosed to petitioner its unlawful eaves-

dropping, although ordered to do so by many federal courts.

As such, the case at bar is a most appropriate candidate for

the exercise of this Court’s power of supervision over the ad-

ministration of justice in the federal courts. Mesarosh v. United

States, 352 U.S. 1, 14 (1956); Thiel v. Southern Pacific Co., 328

U.S. 217, 225 (1946); McNabb v. United States, 318 U.S. 332,

341 (1943). See also Black v. United States, supra at 28-29.

A system of justice, founded upon the principles of liberty

and equality, will become imperiled if courts fail to act upon

gross indiscretions committed by the government. If a system of

justice is to remain inviolate, pure, and strong, then this sort

of pernicious conduct on the government’s part cannot be

tolerated; it will not suffice merely to deplore it. On the face of

the present record, the government’s unscrupulous conduct has

reached such grave proportions as to discredit the system of

justice. Against such disdainful and odious conduct, this Court

should firmly exercise its supervisory powers.

CONCLUSION

For all of the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

MORRIS A. SHENKER

CORDELL SIEGEL

408 Olive Street

Suite 802

St. Louis, Missouri 63102

Counsel for Petitioner

APPENDIX

ne he

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

No. 78-2512

United States of America,

Plaintiff-Appellee,

Frank Peter Balistrieri,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Illinois, Southern Division

No. 78-Cr-6602—J. Waldo Ackerman, Judge.

Argued April 25, 1979—Decided October 2, 1979

Before SWYGERT, Circuit Judge, MOORE, Senior Circuit

Judge, * and TONE, Circuit Judge.

MOORE, Senior Circuit Judge: This appeal presents an in-

teresting issue of first impression in this court: On a motion in

the nature of a writ of error coram nobis to vacate a judgment

of conviction in a criminal case, should the district court apply

the Federal Rules of Civil Procedure or the Rules of Criminal

Procedure? We believe that the district court may draw from

both sets of rules.

* Honorable Leonard P. Moore, Senior Circuit Judge for the

United States Court of Appeals for the Second Circuit, is sitting by

designation.

iis ee aes

Frank Peter Balistrieri appeals from the denial of his motion

in the nature of a writ of error coram nobis (hereinafter referred

to as a ‘‘coram nobis motion’’) by the crder of the United States

District Court for the Southern District of Illinois (Honorable J.

Waldo Ackerman, District Judge), filed November 14, 1978.

Balistrieri also seeks review of interlocutory orders of the

district court filed December 3, 1976 (quashing Balistrieri’s at-

tempt to use discovery devices authorized by the Federal Rules

of Civil Procedure, reported at 423 F. Supp. 793); and

September 14, 1977 (partially granting and partially denying

Balistrieri’s discovery request under Rule 16, F.R.Cr.P.). We

affirm the orders of the district court.

Balistrieri was convicted in 1967 of two counts of filing false

and fraudulent income tax returns after a trial before a jury. He

was sentenced to two concurrent two-year prison terms. This

court affirmed the conviction in United States v. Balistrieri, 403

F.2d 472 (7th Cir. 1968). Balistrieri’s conviction came before us

a second time after he discovered an instance of illegal govern-

ment electronic surveillance of him. See the description of the

procedural history of the case in 436 F.2d 1212 (7th Cir. 1971).

In February of 1975, Balistrieri learned of another instance of

electronic surveillance which might have affected his trial. A

government affidavit in an unrelated criminal case disclosed in

1975 that the Federal Bureau of Investigation (‘‘FBI’’) had

maintained electronic surveillance of Walter Felix Brocca’s

restaurant in Milwaukee, Wisconsin from June 10 to December

30, 1964. Balistrieri reasoned that since he had frequented

Brocca’s restaurant during that time, it was likely that some of

his conversations with other persons at the restaurant-had been

overhead. Balistrieri filed his coram nobis motion on January

30, 1976, alleging that this surveillance provided the government

with evidence or leads to evidence used at his trial and that the

failure of the government to disclose the existence of the

surveillance prejudiced him at trial.

som

The government’s response to the motion contained an af-

fidavit by FBI Special Agenct Geir N. Magnuson, who stated

that the record tapes of the surveillance had been destroyed, no

transcripts had been prepared, and the only remaining records

were the monitoring logs. The affidavit went on to reveal two

occasions on which Balistrieri had been monitored and to

declare that Balistrieri had not been monitored on any other oc-

casion. Balistrieri came back with extensive requests for admis-

sions (Rule 36), interrogatories (Rule 35), and production of

documents (Rule 34) under the Federal Rules of Civil Pro-

cedure. He also served notice of the depositions of individuals

who had been witnesses at his 1967 trial. The discovery requests

sought details concerning the origin, installation, and operation

of the electronic surveillance at Brocca’s restaurant. The

government filed a motion to quash this discovery on November

4, 1976; thus we come to the first order challenged by Balistrieri.

The district court granted the motion to quash on the ground

that since a coram nobis motion is a step in the criminal case and

not a separate civil action, the Rules of Civil Procedure were in-

applicable to proceedings on the coram nobis motion and that

Balistrieri was limited to the discovery available under the Rules

of Criminal Procedure. To reach its decision the district court

canvassed the cases dealing with coram nobis motions. The only

case directly on point was United States v. Marcello, 202 F.

Supp. 694 (E.D.La 1962), aff’d on other grounds, 328 F.2d-961

(Sth Cir.), cert. denied, 377 U.S. 992 (1964), which held the

discovery provisions of the Federal Rules of Civil Procedure in-

applicable to a coram nobis motion. In reaching the result that

both civil and criminal rules apply, it may be helpful to discuss

the historical background of the motion in the nature of a writ

of error coram nobis.

The ancient writ of error coram nobis was used to enable a

court of first resort to correct its own errors. Pickett’s Heirs v.

Legerwood, 32 U.S. (7 Pet.) 144, 147 (1833); see generally the

~~.

discussion and authorities cited in 7 Moore’s Federal Practice

460.14 (1979). The writ had its utility at common law in both

civil and criminal cases. United States v. Mayer, 235 U.S. 55,

67-69 (1914). However, in 1946, Rule 60(b), F.R.Civ.P., was

amended, abolishing writs of error coram nobis and other com-

mon law forms of relief from judgments.' Nevertheless, the an-

cient writ of error coram nobis rose phoenix-like from the ashes

of American jurisprudence through the benign intervention of

the Supreme Court in United States v. Morgan, 346 U.S. 502

(1954).

In Morgan the respondent was a state prisoner who had been

sentenced to a longer term of imprisonment on account of a

prior federal conviction. Morgan filed an application for a writ

of error coram nobis and gave notice of a motion for the writ in

the United States District Court where his first conviction had

occurred, all in conformance with the ancient usages of the writ.

The district court treated the proceeding as a motion under 28

U.S.C. §2255 (1976)? and refused relief because the applicant

was no longer in federal custody and thus was outside the terms

of §2255.

'The pertinent part of Rule 60(b) reads:

‘This rule does not limit the power of a court to entertain an inde-

pendent action to relieve a party from a judgment, order, or pro-

ceeding, or to grant relief to a defendant not actually personally

notified as provided in Title 28, U.S.C., §1655, or to set aside a judg-

ment for fraud upon the court. Writs of coram nobis, coram vobis,

audita querela, and bills of review and bills in the nature of a bill of

review, are abolished, and the procedure for obtaining any relief from

a judgment shall be by motion as prescribed in these rules or by an in-

dependent action.”’

The first part of §2255 reads:

‘*A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the

ee ee

— oo

The Supreme Court held that although the writ of error cor-

am nobis had been abolished in civil cases, it was available for

review of a criminal conviction when §2255 did not apply.

Authority for use of the writ was found in 28 U.S.C. §1651(a),°

the all-writs section of the Judicial Code. Balistrieri’s motion in

this case derives its legitimacy directly from United States v.

Morgan.

The Morgan Court did not specify what rules of procedure

should apply to the newly revitalized motion in the nature of a

writ of error coram nobis. Courts which have had to decide this

question have focused on footnote 4‘ of Morgan where the

Court said:

**Such a motion is a step in the criminal case and not, like

habeas corpus where relief is sought in a separate case and

record, the beginning of a separate civil proceeding.’’ 346

U.S. at 505 n.4.

United States, or that the court was without jurisdiction to impose

such sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or cor-

rect the sentence.”’

*Section 1651(a) reads:

“‘The Supreme Court and all courts established by Act of Congress

may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.”’

‘The full text of footnote 4 of Morgan reads:

**Such a motion is a step in the criminal case and not, like habeas

corpus where relief is sought in a separate case and record, the begin-

ning of a separate civil proceeding. Kurtz v. Moffitt, 115 U.S. 487,

494. While at common law the writ of error coram nobis was issued

out of chancery like other writs, Stephens, Principles of Pleading (3d

Amer. ed.), 142, the procedure by motion in the case is now the ac-

-_—S oo

The court below based its decision on this language, as did the

court in United States v. Marcello, supra. Other courts have

echoed the Morgan language: McDonald v. United States, 356

F.2d 980 (10th Cir. 1966); Abel v. Tinsley, 338 F.2d 514 (10th

Cir. 1964); Peterson v. State of Missouri, 355 F. Supp. 1371

(W.D.Mo. 1973). None of these other courts, however, had to

decide which rules of procedure to apply.

The leading case in which a court had to decide whether to ap-

ply a civil rule or a criminal rule is United States v. Keogh, 391

F.2d 138 (2d Cir. 1968).° There the appellant had filed his notice

of appeal twenty-seven days after his petition for a writ of error

coram nobis had been denied. F.R.Civ.P. 73(a) allowed 60 days

to file a notice of appeal and F.R.Cr.P 37(a)(2) allowed only 10

days. The government argued that the criminal rule was ap-

plicable on the basis of footnote 4 of United States v. Morgan,

supra. Judge Friendly dispatched this argument by noting that

Morgan’s footnote 4 was designed only to preserve coram nobis

relief in a criminal case from the Rule 60(b) abolition of coram

nobis writs in ‘‘suits of a civil nature’’, to which Rule 60 applied

by virture of F.R.Civ.P. 1. 391 F.2d at 140. In fact, as Judge

Friendly pointed out, the Morgan footnote goes on to say that

the coram nobis motion ‘‘is of the same general character as one

under 28 U.S.C. §2255’’. Taking our cue from the Morgan

footnote, we now consider the similarity between a coram nobis

motion and a motion under §2255.

cepted American practice. Pickett’s Heirs v. Legerwood, 7 Pet. 144,

147; Wetmore v. Karrick, 205 U.S. 141, 151; United States v. Mayer,

235 U.S. 55, 67. As it is such a step, we do not think that Rule 60(b),

Fed. Rules Civ. Proc., expressly abolishing the writ of error coram

nobis in civil cases, applies. This motion is of the same general

character as one under 28 U.S.C. §2255. See Reviser’s Note. Cf.

United States v. Kerschman, 201 F.2d 682, 684. And see contra to the

above note, People v. Kemnetz, 296 Ill. App. 119, 15 N.E.2d 883.”’

*But see United States v. Mills, 430 F.2d 526 (8th Cir. 1970), cert.

denied, 400 U.S. 1023 (1971).

A case Ott Als kee a

+ en

Since the legislative history of §2255 is well detailed in United

States v. Hayman, 342 U.S. 205, 214-23 (1951), we will present

only the major points here. Section 2255 was written to solve

procedural problems which arose from a growing number of

habeas corpus suits by federal prisoners. One of these problems

was the difficulty of obtaining the testimony of witnesses in the

district where a federal prisoner was confined, as is necessary in

a habeas corpus action. Therefore, the judicial conference

drafted a provision which allowed a federal prisoner to move to

vacate, set aside, or correct the sentence in the courts which had

imposed the sentences, where witnesses with knowledge of the

trial were more likely to be available. The device of a motion in

the sentencing court was of the same general nature as a writ of

error coram nobis because it allowed the sentencing court to

correct its own errors. See Judicial Conference Statement

quoted in United States v. Hayman, supra, 342 U.S. at 216-17.

Section 2255 was passed in 1948, accompanied by a Reviser’s

Note quoted in part here:

**‘This section restates, clarifies and simplifies the pro-

cedure in the nature of the ancient writ of error coram

nobis. It provides an expeditious remedy for correcting er-

roneous sentences without resort to habeas corpus.’’ 28

U.S.C. §2255.

The Morgan decision recognized the similarity between §2255

and coram nobis as expressed in the Reviser’s Note and, in ef-

fect, made a coram nobis motion an extension of §2255 in cases

where the applicant was no longer a federal prisoner. This close

relationship has also been accepted in Neely v. United States,

546 F.2d 1059 (3d Cir. 1976) (applying the civil class action rules

to a proceeding similar to a coram nobis motion), and United

States v. Tyler, 413 F.Supp. 1403 (N.D.Fla. 1976).

Section 2255 has authoritatively been characterized as ‘‘an in-

dependent civil suit’’. Heflin v. United States, 358 U.S. 415, 418

n.7 (1959). Thus, to the extent a coram nobis motion is like a

ae 3s pes

§2255 motion, the former is also civil in nature. It is apparent,

then, that a coram nobis motion is a step in a criminal pro-

ceeding yet is, at ttie same time, civil in nature and subject to the

civil rules of procedure. Judge Scott well stated this point most

clearly in United States v. Tyler, supra:

‘‘Coram nobis is, then, a hybrid action: quasi-civil and

quasi-criminal. It is a remedy available in a criminal case to

correct fundamental errors that render that proceeding ir-

regular and its judgment invalid. Nevertheless, because it is

a postjudgment attack upon a conviction by a defendant

no longer in any form of custody, and insofar as it is still

governed by civil rules, forms and pleadings, its character

reflects the vestiges of its civil origins: the intrinsic all-writs

jurisdiction of the Court.’’ 413 F.Supp. at 1404-05 (cita-

tions omitted).

On February 1, 1977, new rules governing §2255 proceedings

became effective for all United States District Courts. 28 U.S.C.

§2255 (1976). Inasmuch as we have already remarked on the

similarity between §2255 and coram nobis, we deem these rules

to be highly persuasive in deciding how coram nobis motions

should be conducted, especially since the rules were proposed by

the Supreme Court and approved by Congress. Rule 6 of the

§2255 rules states in part:

‘‘A party may invoke the processes of discovery avail-

able under the Federal Rules of Criminal Procedure or the

Federal Rules of Civil Procedure or elsewhere in the usages

and principles of law if, and to the extent that, the judge in

the exercise of his discretion and for good cause shown

grants leave to do so, but not otherwise.”’

The Advisory Committee Note to Rule 6 reveals that use of

both sets of rules is authorized because ‘‘of the nature of a

§2255 motion as a continuing part of the criminal

proceeding . . . as well as a remedy analogous to habeas corpus

by state prisoners’’. This view not only strengthens the similari-

ty of §2255 and coram nobis but also reaffirms our view that a

coram nobis motion partakes of the nature of both a criminal

and civil proceeding. It is within the district court’s discretion to

apply the appropriate rules on the basis of the facts of each case.

We conclude that the court was acting well within its discre-

tion in limiting the scope of discovery to be afforded to

Balistrieri. Rule 26(c), F.R.Civ.P., permits a party from whom

discovery is sought to move for a protective order and

authorizes the district court to ‘‘make any order which justice °

requires to protect a party or person from annoyance, embar-

rassment, oppression or undue burden or expense... ’’ The

protective order may limit the scope or manner of discovery or

limit the number of persons who see the discovered material.

Coram nobis motions, insofar as they are sometimes made long

appropriate candidates for use of the district court’s discretion

under Rule 26(c). The district court’s decision to quash

Balistrieri’s discovery requests was within its discretion under

the rule, especially in light of the breadth of the discovery re-

quests in relation to the rather narrow ground of illegal

surveillance upon which the coram nobis motion was based.

Rule 16, F.R.Cr.P., is an unsatisfactory vehicle for discovery

requests in proceedings on a coram nobis motion. Facts which

affect the validity of the conviction or sentence are unlikely to

be found solely within the narrow scope of discovery allowed by

Rule 16. On a coram nobis motion, statements made by govern-

ment witnesses or prospective witnesses, expressly protected

from discovery by Rule 16(a)(2), may be highly relevant to the

applicant’s ability to prove his allegations. For reasons of

policy, as well as the consistency of legal concepts, it is

necessary to grant applicants the scope of discovery under civil

rules and, at the same time, assure the government and others of

due protection from burdens arising from participation in old

criminal proceedings. The district court should consider the

amount of time which has elapsed since the trial, the burden of

on. Bet ww

discovery on the government and witnesses, and the nature of

the applicant’s claims in deciding on the scope of discovery at

each stage of the coram nobis proceedings. If relevant evidence

is revealed by discovery which only lightly burdens the govern-

ment, the court retains the option of allowing more extensive re-

quests in order to see if there is more evidence to be found.

However, if examination of only the most relevant materials

fails to turn over any relevant new stones, the coram nobis pro-

ceedings may be brought to a speedy conclusion.

This case fits the latter category. Judge Ackerman did allow

Balistrieri to obtain in camera production of the monitoring

logs for the surveillance at Brocca’s restaurant, the only

evidence of the surveillance which remained. The court’s in

camera inspection revealed only two occasions, not previously

disclosed to Balistrieri, when his conversations at the restaurant

had been overheard. Because, as we will explain below, none of

these instances of surveillance could possibly have affected

Balistrieri’s convictions for income tax evasion, the district

court quite properly decided to end the discovery process in its

order of September 4, 1977. Hence, that order is affirmed.

With respect to the merits of the coram nobis motion,

Balistrieri’s contentions focused on the fact that the FBI had

secretly intruded upon a conversation with his attorney Dominic

Frinzi on one occasion at Brocca’s restaurant. The restaurant

discussion occurred more than two years prior to Balistrieri’s

trial for tax evasion and involved the attorney who defended

him in that trial. Balistrieri’s argument is that this illegal intru-

sion denied him the effective assistance of counsel.

Although illegal electronic eavesdropping by the government

on attorney-client conversations may be a violation of a defen-

dant’s Sixth Amendment rights, and therefore, grounds for a

new trial in some cases, Coplon v. United States, 191 F.2d 749

(D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952), the facts of

this case do not warrant such treatment. The surveillance at .

Lo ia ie he be

— A-ll —

Brocca’s restaurant was not directed at Balistrieri. The persons

who conducted the investigation of Balistrieri’s tax affairs did

not know about the surveillance because the FBI did not widely

disclose their operations. The monitored conversations had

nothing to do with Balistrieri’s tax affairs or any legal matter af-

fecting him. A third person was present. Even if the attorney-

client privilege attached to this conversation, a dubious proposi-

tion in itself, the intrusion into the conversation cannot be

deemed to have denied Balistrieri the effective assistance of

counsel at his criminal trial. Balistrieri was not prejudiced and

we find no reason to set aside his conviction.

A claim of perjury by the government’s witnesses has not

been pressed on appeal. We merely note our agreement with the

district court’s conclusion that Ralistrieri’s allegations were

merely speculative and warranted no further investigation.

We affirm denial of the motion in the nature of a writ of error

coram nobis and denial of appellant’s discovery requests.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

— A-l2-

APPENDIX B

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

December 6, 1979.

Before

Hon. LUTHER M. SWYGERT, Circuit Judge

Hon. LEONARD P. MOORE, Senior Circuit Judge*

Hon. PHILIP W. TONE, Circuit Judge

United States of America, Appeal from the United

Plaintiff-Appellee, States District Court for

the Southern District of

No. 78-2512 VS. Illinois Southern Divi-

sion

Frank Peter Balistrieri, No. 78-CR-6602

Defendant-Appellant.

J. Waldo Ackerman,

ORDER

Judge

On consideration of the petition for rehearing and suggestion

for rehearing in banc filed in the above-entitled cause by

defendant-appellant, no judge in active service has requested a

vote thereon,** and all of the judges on the original panel have

voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing be,

and the same is hereby, DENIED.

*The Honorable Leonard P. Moore, Senior Circuit Judge of the

United States Court of Appeals for the Second Circuit, is sitting by

designation.

**The Honorable Harlington Wood, Jr. did not participate in any

consideration of the petition for rehearing in banc.

nasa rata lara

cow nt neta

- A-13 -

APPENDIX C

In The United States District Court

Southern District of Illinois—Southern Division

United States of America,

Plaintiff,

v. Criminal No. 6602

Frank Peter Balistrieri,

Defendant.

ORDER

(Filed December 3, 1976)

Defendant Balistrieri having been convicted of income tax

evasion in 1967, and having fully served his sentence, now

presents a motion in the nature of a writ of error coram nobis

seeking to overturn the jury verdict and subsequent judgment of

conviction entered by this Court. Pursuant to the motion,

defendant seeks to discover from the Government certain infor-

mation utilizing the Federal Rules of Civil Procedure. The

devices employed by defendant include a request for admissions

pursuant to F.R.Civ.P. 36, a request for production of

documents under F.R.Civ.P. 34 and interrogatories pursuant to

F.R.Civ.P. 35. The Government now moves to quash this

discovery. The question presented then, is whether civil

discovery devices mandated under the Federal Rules of Civil

Procedure are available to a defendant when he presents a mo-

tion: in the nature of a writ of error coram nobis.

Writs of error coram nobis were abolished by Federal Rule of

Civil Procedure 60(b). But this provision has been held to

abolish the writ in civil cases while the right to pursue such a

remedy by motion in a criminal case has been held preserved

aoe: Meth

under the All Writs Statute, 28 U.S.C. §1651. United States v.

Morgan, 346 U.S. 502 (1954). Footnote 4 to the Morgan case 1s

relevant to our inquiry here and states that:

Such a motion is a step in the criminal case and not, like

habeas corpus where relief is sought in a separate case and

record, the beginning of a separate civil proceeding. Kurtz

v. Moffitt, 115 U.S. 487, 494, 6 S.Ct. 148, 149, 29 L.Ed.

458. While at common law the writ of error coram nobis

was issued out of chancery like other writs, Stephens, Prin-

ciples of Pleading, 3d Amer. ed., 142, the procedure by

motion in the case is now the accepted American practice.

Pickett’s Heirs v. Legerwood, 7 Pet. 144, 147, 8 L.Ed. 638;

Wetmore v. Karrick, 205 U.S. 141, 151 27 S.Ct. 434, 436,

51 L.Ed. 745; United States v. Mayer, 235 U.S. 55, 67, 35

S.Ct. 16, 18, 59 L.Ed. 129. As it is such a step, we do not

think that Rule 60(b), Fed. Rules Civ. Proc., 28 U.S.C.A.,

expressly abolishing the writ of error coram nobis in civil

cases, applies. This motion is of the same general character

as one under 28 U.S.C. §2255, 28 U.S.C.A. §2255. See

Reviser’s Note. Cf. United States v. Kerschman, 7 Cir.,

201 F.2d 682, 684. And see contra to the above note, Peo-

ple v. Kemnetz, 296 Ill. App. 119, 15 N.E. 2d 883.

The Government argues that since ‘‘such a motion is a step in

the criminal case and not . . . the beginning of a separate civil

proceeding . . .”’ the civil discovery rules are not available and

thus defendant’s discovery must be quashed. As direct authority

the Government cites United States v. Marcello, 202 F. Supp.

694 (E.D.La. 1962). In that case the Court held a motion in the

nature of a writ of error coram nobis ‘‘...is a step in a

criminal proceeding. Since Rule 60(b) of the Federal Rules of

Civil Procedure expressly abolishes writs of coram nobis in civil

proceedings, discovery thereunder is not authorized here.”’

United States v. Marcello, 202 F.Supp. 694, 696 (E.D.La.

1962). Other cases hold that a motion in the nature of a writ of

error coram nobis to be ‘‘a step in the criminal case’’ but do not

— A-15 —

discuss the applicable rules of procedure. Peterson v. State of

Missouri, 355 F.Supp. 1371 (W.D.Mo. 1973); McDonald v.

United States, 356 F.2d 980 (10th Cir. 1966); Able v. Tinsley,

338 F.2d 510 (10th Cir. 1964).

Defendant contends that although a motion in the nature of a

writ of error coram nobis is ‘‘a step in the criminal case’’, it is a

civil proceeding. As authority defendant also cites a portion of

footnote 4 in the Morgan case, 346, which says ‘‘that [t]his mo-

tion is of the same general character as one under 28 U.S.C.

§2255.’’ Section 2255 is clearly not a step in a criminal prosecu-

tion. Rather, ‘“‘[ijt is civil in nature and is governed by the rules

and statutes applicable to civil action.’’ Brown v. United States,

480 F.2d 1036, 1039 (Sth Cir. 1973). Thus defendant argues that

footnote 4 could be read as implying that the motion is civil in

nature and that the rules of civil procedure apply. Cases holding

a motion in the nature of a writ of error coram nobis to be civil

in nature include Burns v. State of Alabama, 377 F.2d 233 (Sth

Cir. 1967), and Jones v. Squier, 195 F.2d 179 (9th Cir. 1967).

Defendant also places great weight on United States v.

Keogh, 391 F.2d 138 (2nd Cir. 1968). In that case, in order for

the case to be properly before the Second Circuit Court of Ap-

peals, Judge Friendly applied the 60 day time for appeal provi-

sion of Federal Rule of Civil Procedure 73(a) rather than the 10

day time limit of F.R.Cr.P. 37(a)(2). Although Judge Friendly

rejected the interpretation the Government here seeks to put on

footnote 4 of the Morgan decision he expressed no opinion on

the general applicability of the Federal Rules of Civil Procedure

to a motion in the nature of a writ of error coram nobis.

I believe the Government has the best of the argument. Only

the Marcello case is directly on point and the result reached

there is the proper one. A motion in the nature of a writ of error

coram nobis is but a step in the criminal case. Subjecting the

Government to costly and time consuming inquiries into matters

long closed through the broad latitudes of civil discovery is not

justified.

— A-16 —

This case has been pending in one guise or another since the

indictment in January of 1965, almost seventeen years. At some

point the litigation must terminate. The common law writ of

coram nobis sought to have a judgment revoked for errors of

fact outside the record. Justice demands such a procedure.

Justice does not demand however that civil discovery methods

by employed to allow a defendant to fish for facts that may or

may not exist and may or may not justify the motion in the first

instance.

Government’s motion to quash defendant’s discovery is

granted.

Enter this 3rd day of December, 1976.

/s/J. Waldo Ackerman

United States District Judge

me mt tes nahh nitallldderidadeatedl

Pay ee

APPENDIX D

In The United States District Court

Southern District of Illinois—Southern Division

United States of America,

Plaintiff,

Vv. Criminal No. 6602

Frank Peter Balistrieri,

Defendant

ORDER

(Filed September 14, 1977)

This Court previously has taken certain monitoring logs of

conversations overheard of various individuals by electronic

surveillance at Walter F. Brocca Restaurant, 519 West Well St.,

Milwaukee, Wisconsin, between June 10, 1964, and December

30, 1964. (I note that the brief of the Government filed February

7, 1977, indicates that the electronic surveillance continued until

February 5, 1965; however, the logs of dates between December

30, 1964, and February 5, 1965, have not been submitted.

Subsequent affidavits, however, show that December 30, 1964,

was the last date of the electronic surveillance.) |

F.R.Cr.Pr. 16 provides that the Government must disclose all

records of illegal electronic surveillance to which defendant has

standing to demand. The United States Supreme Court,

however, in Alderman v. U.S., 394 U.S. 165, defined those with

standing as those whose 4th Amendment rights have been

violated. In other words, ‘‘disclosure will be limited to defen-

dant’s own conversations and those which took place on his

premises’’.

— A-18 —

As indicated herein, I have examined the logs above described

and have found only two conversations which are identified as

being those of Frank Peter Balistrieri and they are as follows:

(Note: the conversations are not identified as being that of

Frank Peter Balistrieri but rather ‘‘Frank B.’’ but I am assum-

ing that this is, in fact, Frank Balistrieri.).

7-25-64 at 12:42 a.m. - ‘‘Music starts. Discussion on cur-

rent political situation. Man #1 is Dominic Frenzi—heard

to say that Republican Party can’t afford to do—Dominic

orders three cups of coffee. Jenny called out she wanted

coke. Man #2 is Frank B. He can’t be understood at

all—talks too low at this point. Frenzi continues talking.

Mentions Republican Party all the time and cussed

Goldwater especially in regard to CR and platform. Joking

and laughing. Conversation not audible. Frenzi made a

crack about the Sheriff of Milwaukee County followed by

more laughter. Not audible. Conversation about the DA in

Kenosha in joking manner followed by more laughter.

Other customers coming and going. Cash register ringing.

Frenzi wants to go home and get some sleep. Frank B.

heard to say something, but not audible. Somebody wants

to buy some drinks on way out—cash register rings, good

nights are exchanged, at 1:08 a.m., Restaurant becomes

quiet but placed on record.”’

Lo 1 th ne Mi DLE

— A-19 —

On 8-6-64, at 8:27 p.m., the following:

*‘Two men enter—one is Blackie. Directs other to where

the cold water is. Blackie went to cash register—apparently

got some change out, as thereafter jukebox started up

blocking all conversation. By tone of companion’s voice,

possibly Frank B. Radio turned on to a ball game also.’’

This memorandum order furnishes to defendant the material

to which he is entitled. Therefore the motion of defendant for

discovery of the entire material is denied. The logs however will

be sealed to be opened only upon court order and placed on file

in the Clerk’s office in order to facilitate any subsequent appeal.

Enter this 14th day of September, 1977.

/s/ J. Waldo Ackerman

United States District Judge

— A-20 —

APPENDIX E

In The United States District Court

Southern District Of Illinois—Southern Division

United States of America

Vv. Cr. 6602

Frank Peter Balistrieri,

Defendant.

ORDER

(Filed November 14, 1978)

Before this Court is defendant’s motion in the nature of a

writ of error coram nobis filed pursuant to 28 U.S.C. §1651(a).

This motion seeks to collaterally attack a criminal income tax

evasion conviction entered as a judgment of this Court on

September 18, 1967. In support of his motion, the defendant

alleges a pattern of unlawful intrusions and electronic

surveillances which are allegedly coupled with governmental

deception and failure to disclose material information. Addi-

tionally, defendant alleges that his conviction is tainted by the

perjured testimony of two witnesses. The defendant requests an

evidentiary hearing to prove these allegations and ultimately

asks that this Court vacate and set aside his conviction.

The law is clear that courts have a solemn duty in coram nobis

proceedings to search the defendant’s allegations for symptoms

of fundamental infirmities, and that an evidentiary hearing

should be denied only where the record shows that the defen-

dant is entitled to no relief. United States v. Strother, 434 F.2d

1292, 1294 (Sth Cir. 1970); United States v. Liska, 409 F.Supp.

1405, 1406 (D.C. Wis. 1976). Accord, Farbo v. United States,

452 F.2d 132, 133 (7th Cir. 1971). It is equally clear, however, |

— A-21 —

that a writ of error coram nobis is an extraordinary remedy to

be allowed ‘‘only under circumstances compelling such action

to achieve justice.’ United States v. Morgan, 346 U.S. 502, 511

(1954).

First, as to the alleged perjury, the defendant has failed to

allege sufficient facts to warrant an evidentiary hearing. Ac-

cord, Short v. United States, 504 F.2d 63, 65 (6th Cir. 1974);

Torres v. United States, 469 F.2d 651, 652 (9th Cir. 1972). The

defendant’s claims are stated in the form of conclusions without

any allegations of facts or indication of what proof would be of-

fered in support thereof. This is true even though the defendant

has specifically cited what he alleges to be the perjured

testimony, because he has not included any reference as to the

basis of his belief that the testimony was false.

Concerning the unlawful surveillance and deception allega-

tions, I believe the defendant is seeking to relitigate issues which

have already been adjudicated by this Court and many of which

have been reviewed by the United States Court of Appeals for

the Seventh Circuit and the United States Supreme Court. See

Balistrieri v. United States, 395 U.S. 710 (1969); United States

v. Balistrieri, 436 F.2d 1212 (7th Cir. 1971), 403 F.2d 472 (7th

Cir. 1968). The law is clear that it is proper to deny a post-

conviction evidentiary hearing when the grounds alleged as a

basis for relief have been previously raised and decided against

the movant. DeWelles v. United States, 372 F.2d 67 (7th Cir.)

cert. denied, 388 U.S. 919 (1967). See also, Juelich v. United

States, 475 F.2d 788 (Sth Cir. 1973); Thornton v. United States,

368 F.2d 822 (D.C.Cir. 1966).

The defendant places undue emphasis upon the ‘‘new’’

evidence regarding the government’s surveillance at Walter

Felix Brocca’s Restaurant. As indicated in my Order entered

September 14, 1977, I have examined the logs of the restaurant

surveillance and I do not believe the defendant was the object of

the surveillance, or that the logs include any material requiring

— A-22 —

an evidentiary hearing. Rather, the recorded conversations in-

volving the defendant are clearly innocuous as evidenced by the

text quoted in my Order of September 14, 1977.

I cannot accept the defendant’s contention that the disclosed

conversation between the defendant and Mr. Dominic Frenzi,

the defendant’s attorney, changes this result. The Black v.

United States, 385 U.S. 26 (1966), line of cases relied upon by

the defendant does not stand for the broad assertion that con-

cealment of any communication between the defendant and his

attorney, not disclosed until after the trial, requires the re-

quested evidentiary hearing or granting of the motion. The

defendant contends this per se rule is necessary in order not only

to insure justice, but also to preserve the appearance of justice. I

cannot agree. Those cases concern situations where the dis-

closed conversations related to the attorney’s representation or

where the communication’s content was unknown. Here, it is

clear that the conversation is merely social in nature and does

not invade the protected attorney-client privilege. Thus, there

has been no infringement of the defendant’s right to counsel or

deprivation of his right to an adversary proceeding. Having

again considered the logs, I am convinced an evidentiary hear-

ing would serve no useful purpose.

The defendant finally submits that even though this Court

perceives the motion to be an attempt to relitigate points

previously decided, ‘‘the ends of justice would be served by a

redetermination of these grounds.’’ See Sanders v. United

States, 373 U.S. 1, 15-17 (1963). I cannot agree. The defendant

has received a full hearing on all material issues presented by

this motion and is not now entitled to relitigate them.

Accordingly, defendant’s motion in the nature of a writ of er-

ror coram nobis is denied without an evidentiary hearing.

Enter this 10th day of November, 1978.

/s/J. Walso Ackerman

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.