# Petition — Balistrieri v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 917

## 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

EE

Constitutional provisions, statutes, and rules involved . .

Ce pi wuececcces

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

i.

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 ..............

28

35

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 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).

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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

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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.

a

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,

v.

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-

on

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
after the judgment of conviction was rendered, are peculiarly ©
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, |

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1624%3A1. Public record. Not legal advice.