Opposition Brief — Balistrieri v. United States

Supreme Court, U.S.

oN Pak ED

MAY 380 1985

No. 85-1653 JOSEPH F. SPANIOL, JR.

a SH es

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

JOHN J. BALISTRIERI AND JOSEPH P. BALISTRIERI,

PETITIONERS

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the trial judge who was originally as-

signed to this case committed reversible error in fail-

ing to recuse himself until six months before the

trial.

2. Whether the district court abused its discretion

by transferring this case to another location within

the district for purposes of jury selection.

(1)

TABLE OF CONTENTS

Page

I ansible llega dain ke 1

EEE NERS Pee ea ee ES eR AT Oe Ome ED 1

RT IT EN ae Oe ee ee 2

nila aiiaabagoans 8

a edietnsalinanesmbetineannl 19

TABLE OF AUTHORITIES

Cases:

Barry v. United States, 528 F.2d 1094, cert. denied,

alt SAS GES SN Oe 10

Blizard v. Frechette, 601 F.2d 1217 .........0000. 13

Brody Vv. President & Fellows of Harvard College,

664 F.2d 10, cert. denied, 455 U.S. 1027 _......... 10

Corbett v. Bordenkircher, 615 F.2d 722, cert. de-

Agra Aer ee 10

City of Cleveland v. Krupansky, 619 F.2d 576, cert.

i a scicenintieenianiinnenes 13

Davis Vv. Board of School Comm’rs, 517 F.2d 1044,

re ee, ee Oe, ee 13

Dupoint v. United States, 388 F.2d 39 0.0... 18

Grand Jury Investigation, In re, 486 F.2d 1013,

Ss I a eacemmunacerseen 10

Gravenmier V. United States, 469 F.2d 66 _............. 10

International Business Machines Corp., In re, 618

Neen caiesnsenmantiianinint 9

Jarrell v. Balkcom, 735 F.2d 1242, cert. denied, No.

I i caeutaeintimenwane 9

Jenkins v. Bordenkircher, 611 F.2d 162, cert. de-

Re ee 10

Lewis v. United States, 279 U.S. 63 ............-.....------- 16

Margoles v. Johns, 660 F.2d 291, cert. denied, 455

ip Dt Ane Be ve 10

Cases—Continued: Page

Parker Precision Prods. Co. v. Metropolitan Life

i re ee Ne etree eae ie ntateanna 11

Ruthenberg v. United States, 245 U.S. 480 _............. 16

United States v. Anderson, 328 U.S. 699 .................. 15

United States v. Balistrieri, 779 F.2d 1191, cert.

denied, No. 85-1187 (Mar. 31, 1986) ..................... 2

United States v. Baskes, 687 F.2d 165 .................... 9

United States v. Betancourt, 734 F.2d 750, certs.

denied, 469 U.S. 1021 and 469 U.S. 1076 .............. 17

United States v. Brown, 535 F.2d 424 ............2-........ 17

United States v. Burns, 662 F.2d 1878 .................. 15, 17,18

United States v. Dansker, 537 F.2d 40, cert. denied,

Bs eich ncdscacelcres cheat snacanad sudacateecedeenteaansent 10, 11

United States v. Dickie, 775 F.2d 607 ....................-- 17, 18

United States v. Fernandez, 480 F.2d 726 ................ 16, 18

United States v. James, 528 F.2d 999, cert. denied,

Lk BISNIS: ERNE AEC AER Tome pn ar wine ore 17

United States v. Lewis, 504 F.2d 92, cert. denied,

I a aalanaliicnh 15, 16

United States v. Mase, 556 F.2d 671, cert. denied,

° SRR Roe a etn as abe sion e hen Sr rieae 17, 18

United States v. Outler, 659 F.2d 1306, cert. denied,

I IE, WI sous ccicesccss ocrecbaocaeelaiamoastiadadaoenemapesnvetineds 10

United States v. Parker, 742 F.2d 127, cert. denied,

A Te adeiaioeeh 13

United States v. Pepe, 747 F.2d 682 .......................--- 15, 17

United States v. Truglio, 731 F.2d 1123, cert. de-

I A pte 17

United States v. Young, 618 F.2d 1281, cert. denied,

I ee scemseaneonemstaaiainn 16

Zicarelli vy. Dietz, 633 F.2d 312, cert. denied, 449

TI a cdacdsholeoniias 16

Constitution, statutes and rule:

Oe igo ionsenecusinnionemannesemienins 15, 16

io le ccd nae enicctnadashveneceenauannintion 2

I a aces dcansdennarsaerstninsde aia eipgiesateseiinil 14

aa lm dation ee 3, 6,9

I, TI sc ccsniessesherincstocaloctcpiond-earenblnenesaniaieeesainaanan 3

i ID wnicicrmsisiieonansanintnbenienintiairniriretansintel 6, 7, 8, 12, 13

Vv

Constitution, statutes and rule—Continued: Page

Be We I IEE iccininccsiceninnioazteeacieais cach accumsan 6, 7,9

Se t. A S ner ennNe 8, 15, 16, 17, 18

Advisory committee note (1966 Amendment)... 15, 17

Advisory committee note (1979 Amendment).. 16

Miscellaneous:

H.R. Rep. 93-1453, 93d Cong., 2d Sess. (1974)........ 12

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1653

JOHN J. BALISTRIERI AND JOSEPH P. BALISTRIERI,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A12) is reported at 778 F.2d 1226.

JURISDICTION

The judgment of the court of appeals was entered

on November 20, 1985 (Pet. App. A80-A81). A pe-

tition for rehearing was denied on January 8, 1986

(Pet. App. A82-A83). On February 28, 1986, Jus-

tice Stevens extended the time for filing a petition for

a writ of certiorari to and including April 8, 1986,

and the petition was filed on April 7, 1986. The ju-

risdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

Following a six-week jury trial in the United

States District Court for the Eastern District of Wis-

consin, petitioners were convicted of attempting and

conspiring to obstruct commerce by means of extor-

tion, in violation of 18 U.S.C. 1951. Each was sen-

tenced to eight years’ imprisonment and a $20,000

fine. Pet. App. A2. The court of appeals affirmed

(id. at Al-A12).

1. The convictions in this case resulted from an

FBI undercover investigation of organized crime ac-

tivities in the Milwaukee, Wisconsin, area. During

October 1981, a grand jury returned several indict-

ments as a result of the investigation. The first in-

dictment charged seven defendants, including peti-

tioners’ father, Frank Balistrieri, with various gam-

bling and tax offenses stemming from an illegal gam-

bling business in Milwaukee. That case was tried in

September 1983, and it resulted in the conviction of

five of the defendants on various counts. Three of the

convicted defendants—including Frank Balistrieri—

appealed, and their convictions were affirmed by the

court of appeals (Pet. App. A13-A79; 799 F.2d 1191,

cert. denied, No. 85-1187 (Mar. 31, 1986) ).

The second indictment was the one that resulted in

the convictions in this case. The trial on that indict-

ment took place in March and April 1984. The evi-

dence adduced at trial, the sufficiency of which is not

in dispute, is summarized in the court of appeals’

opinion (Pet. App. A2-A3). It showed that from

May 1978 to February 1979, petitione:s conspired

with their father and others to extort money and a

one-half partnership interest in a vending machine

company that was operated by an undercover FBI

agent.

ee

3

2. Prior to the trials in this case and in the gam-

bling case, petitioners and their father moved to dis-

qualify Judge Robert Warren, who had been assigned

to try the two cases. The motions were based prin-

cipally on the claim that while Judge Warren had

served as the Attorney General of Wisconsin, during

the period from 1969 to 1971, he had formed a belief

that Frank Balistrieri was the head of the Mafia in

Milwaukee. Pet. App. A15.

The first recusal motion was filed in October 1981,

shortly after the return of the indictments. Accord-

ing to the affidavit of Frank Balistrieri that accom-

panied the motion, Judge Warren, while serving as

Attorney General, set into operation a systematic pro-

gram to ruin Frank Balistrieri and to destroy busi-

nesses with which he or his relatives were associ-

ated. Pet. App. A16. After carefully considering the

factual allegations in the affidavit, Judge Warren

denied the motion. He concluded that, even accepting

the allegations as true, the affidavit failed to dem-

onstrate that he was personally biased against

Balistrieri. Judge Warren also concluded that a rea-

sonable person, knowing all of the facts, would not

question his impartiality. Accordingly, he held that

the defendants had failed to show that recusal was

required under 28 U.S.C. 144 or 455, the applicable

disqualification statutes.’ -1 App. 154-157.?

1 Judge Warren had considered the issues raised in the first

motion in an earlier proceeding, and there denied the motion

for recusal in what the court of appeals referred to as “a

thorough and thoughtful memorandum opinion” (Pet. App.

Al5 n.1).

*“1 App.” refers to the appendix filed by the appellants in

their appeal from the convictions in the gambling case (Pet.

App. A13-A79); “2 App.” refers to the appendix filed on

appeal in the instant case.

4

In July and August 1983, shortly before the trial

of Frank Balistrieri in the gambling case, petitioners

and their father filed two more recusal motions. Like

the 1981 motion, those motions were based on events

during Judge Warren’s tenure as Attorney General.

The second recusal motion relied on an affidavit by

one John Forbes, who alleged that between 1968 and

1970 he had been an informant for an investigator

with the Wisconsin Department of Justice and that,

during that period, the investigator had asked him to

do a number of things, some of them unlawful, in

order to obtain evidence against Frank Balistrieri.

Judge Warren denied that motion. He noted that the

affidavit did not suggest that he was aware of any

improper activities by Forbes or the state investi-

gator, and he concluded that the allegation that he

had overseen an investigation of organized crime in

Wisconsin in 1969 was not legally sufficient to raise

a question about his impartiality in a case involving

unrelated activities almost 14 years later.

The third recusal motion, which was filed shortly

before the gambling trial, was based on an affidavit

of one Terrence Joseph Donley, who claimed that at

some point in 1970 Attorney General Warren had

said in his presence that he was going to “get Frank

Balistrieri” and that he was going to “put Frank

Balistrieri back in prison for the rest of his life.”

Judge Warren denied that motion on grounds of

untimeliness, noting that the motion had been filed

virtually on the eve of trial and that under the cir-

cumstances it appeared that the motion had been filed

for purposes of delay. 1 App. 166-170, 180-182, 189-

193.

Less than a week after the third motion had been

filed, petitioners and their father filed a fourth and

5

final recusal motion. That motion was based on affi-

davits from Frank Balistrieri, his attorney, and peti-

tioner John J. Balistrieri. In his affidavit, Frank

Balistrieri repeated his belief that Judge Warren had

a personal bias against him, he reiterated the factual

allegations of his previous affidavits, and he charged

that at a recent social gathering Judge Warren had

stated that he was delighted to have an opportunity

to “put Frank Balistrieri away.” At the time of the

filing of the fourth recusal motion, a Milwaukee at-

torney issued a press release charging that Judge

Warren was personally responsible for an alleged

1969 burglary of his law office and the theft of a

client file relating to his representation of Frank

Balistrieri. The attorney announced that he intended

to file a civil lawsuit against Judge Warren based on

that alleged incident. Pet. App. A15-A16, A19-A20.

Judge Warren granted the fourth recusal motion.

Although denying the allegations recited above, Judge

Warren concluded that in light of all the charges the

defendants had leveled against him, a reasonable per-

son might question his impartiality in the case. Pet.

App. Al6. After Judge Warren recused himself, the

case was transferred to Judge Terence Evans (id. at

Al4).

From that point on, Judge Evans presided over all

aspects of both the gambling case and the extor-

tion case, including pretrial motions, the trials, and

all post-trial proceedings. In March 1984, six months

after Frank Balistrieri’s trial on the gambling

indictment, Judge Evans presided over petitioners’

trial in the extortion case. Prior to the extortion

trial, Judge Evans decided to move jury selection for

the case from the Milwaukee division to the Green

Bay division of the Eastern District of Wisconsin,

6

principally because of the wide publicity given to the

gambling trial in Milwaukee and the difficulties that

that publicity would present for jury selection.

3. The court of appeals affirmed petitioners’ con-

victions (Pet. App. Al-A12). The court found no

error in the recusal decisions (id. at A3-A4) and no

error in the district judge’s decision to transfer the

case for purposes of jury selection (id. at A4-A6).

a. The court of appeals noted that the recusal claim

was essentially the same one that Frank Balistrieri

had raised on appeal from his convictions in the gam-

bling case, and the court adopted the analysis it had

employed there (Pet. App. A3-A4). In that earlier

opinion (id. at A15-A33), the court discussed in some

detail the affidavits themselves, and it then discussed

the applicability of the three relevant recusal statutes,

28 U.S.C. 144, 455(a) and 455(b) (1).

In the gambling case, the court of appeals noted

that 28 U.S.C. 144 requires a judge to recuse himself

if a party files a timely and sufficient affidavit claim-

ing that the judge has “‘a personal bias or prejudice”

against him. The court further noted that it was

bound to accept as true the factual averments con-

tained in the affidavit filed with the first recusal

motion.* The court of appeals concluded, however,

that the averments in the affidavit filed in this case

would not convince a reasonable person that Judge

Warren was biased against Frank Balistrieri or his

sons (Pet. App. A20-A27). The court pointed out

that the affidavit was confined to events that occurred

3 The court considered only the affidavit filed with the first

motion because 28 U.S.C. 144 permits the filing of only one

affidavit (see Pet. App. A22-A23 & n.6). The other affidavits

were considered with regard to petitioners’ claim under 28

U.S.C. 455(b) (1), however.

7

10 to 12 years earlier, and the events related to the

affidavit bore no relationship to the charges in the

indictment. The court also observed that the state-

ments and actions attributed to Judge Warren did

not demonstrate that he was motivated by personal

animus against Frank Balistrieri: at most, they evi-

denced actions motivated by then-Attorney General

Warren’s desire to carry out the duties of his office.

Similarly, the court held (Pet. App. A27-A31) that

Judge Warren was not required to recuse himself

pursuant to 28 U.S.C. 455(b)(1), which requires

disqualification when the judge “has a personal bias

or prejudice concerning a party, or personal knowl-

edge of disputed evidentiary facts.” After carefully

reviewing the affidavits filed in support of the various

recusal motions, the court of appeals concluded that

none of them had the necessary relevance and credi-

bility to require recusal. “Because the charge of

actual bias or prejudice in a judge goes to the heart

of the integrity of the judicial process” (Pet. App.

A31), the court also examined all the pretrial orders

entered by Judge Warren and found no indication

that his rulings were affected by bias or prejudice.

The court noted that several of the motions that had

been denied by Judge Warren—“presumably those in

which [petitioners’ father] had the greatest interest”

(ibid.)—-were resubmitted to Judge Evans before

and after trial, and that Judge Evans had made inde-

pendent rulings on them.

Finally, the court refusel to consider (Pet. App.

A32-A33) whether Judge Warren’s denial of the first

three recusal motions ran a‘oul of 28 U.S.C. 455(a),

which requires a judge to disqualify himself “in any

proceeding in which his impartiality might reason-

ably be questioned.” The zourt concluded that the

8

denial of a disqualification motion that is made pur-

suant to Section 455(a) is not reviewable on appeal

following a conviction, but may be reviewed only

prior to trial by way of a petition for a writ of man-

damus.

b. Regarding the intra-district transfer of the case

for purposes of jury selection (Pet. App. A5-A6),

the court of appeals discussed the district judge’s

reasons for the transfer and the broad discretion

afforded him under Fed. R. Crim. P. 18 to order

transfer within the district. After reviewing the rea-

sons given by the district court for ordering the

transfer, the court of appeals concluded that the dis-

trict court did not abuse its discretion by ordering a

limited transfer of the case. The court found “some-

what amazing” petitioners’ arguments that the dis-

trict court had failed to substantiate its concern about

adverse publicity from the earlier trials, since peti-

tioners’ father, who was appealing with them, had

argued in the earlier. case that he was entitled to a

new trial on account of that publicity (Pet. App. A6).

The court of appeals concluded that “[t]here was

ample reason for Judge Evans to be concerned about

the ability of the parties to select quickly an unbiased

jury,” and that his decision was consequently “quite

prudent[]” (ibid.).

ARGUMENT

Petitioners contend that the court of appeals erred

in refusing to order a new trial on the ground that

Judge Warren’s recusal came too late and on the

ground that the jury was improperly selected. The

ruling of the court of appeals on both issues was cor-

rect and does not conflict with any decision of this

Court or any other court of appeals. Further review

is not warranted.

9

1. a. Petitioners first contend (Pet. 9-13) that the

affidavit filed in support of the first recusal motion,

which chronicled law enforcement efforts against

Frank Balistrieri and his businesses while Judge

Warren was Attorney General of Wisconsin, estab-

lished the necessary bias or prejudice against the

Balistrieri family to compel Judge Warren’s recusal.

According to petitioners, the court of appeals erred in

holding that the bias or prejudice necessary to require

a judge’s recusal under the judicial disqualification

statutes must be grounded in “personal animus” go-

ing beyond the judge’s contact with a defendant in

his earlier role as a prosecutor.

The two principal recusal statutes, 28 U.S.C. 144

and 455(b)(1), require a district judge to recuse

himself upon a showing that he has a “personal bias

or prejudice” against one of the parties. A party’s

allegation must establish actual bias on the part of

the judge. Because a judge is presumed to be im-

partial, the party seeking recusal “has a substantial

burden to overcome the presumption with factual alle-

gations of personal bias stemming from an extra-

judicial source.” United States v. Baskes, 687 F.2d

165, 170 (7th Cir. 1981) (citations omitted); In re

International Business Machines Corp., 618 F.2d 923,

928-929 (2d Cir. 1980).

A law enforcement official’s involvement in legal

proceedings against an individual is not sufficient to

show personal bias. In so holding, the court of ap-

peals was not adding a new requirement for recusal.

It has been consistently held that a judge is not dis-

qualified from presiding over a defendant’s trial for

offenses different from those for which he prosecuted

the defendant while he was serving as a prosecutor; *

* See, e.g., Jarrell v. Balkcom, 735 F.2d 1242, 1258-1259

(11th Cir. 1984), cert. denied, No. 84-5484 (May 13, 1985) ;

10

the petition cites no cases to the contrary. That rule

follows from the more general principle that a judge’s

“background of experiences, associations and view-

points” is ordinarily not enough to require recusal;

rather, “a reasonable suspicion of bias will usually

arise only in the presence of such factors as a finan-

cial or strong personal interest in one of the liti-

gants.” Brody v. President & Fellows of Harvard

College, 664 F.2d 10, 11 (1st Cir. 1981), cert. denied,

455 U.S. 1027 (1982).

In this case, the court of appeals properly con-

cluded that the steps Attorney General Warren may

have taken against Frank Balistrieri between 1969

and 1971 did not manifest any personal bias on his

part against Balistrieri, and thus did not require his

rescusal. In the affidavit accompanying the first

recusal motion, petitioners based their claim of bias

merely on Attorney General Warren’s conduct of his

official duties; those allegations, -however, did not

reflect any personal prejudice that would require

Judge Warren’s disqualification in a case filed more

United States v. Outler, 659 F.2d 1306, 1312-1313 (5th Cir.

1981), cert. denied, 455 U.S. 950 (1982); Margoles v. Johns,

660 F.2d 291, 301 (7th Cir. 1981), cert. denied, 455 U.S. 909

(1982) ; Corbett v. Bordenkircher, 615 F.2d 722, 723-724 (6th

Cir.), cert. denied, 449 U.S. 853 (1980); Jenkins v. Borden-

kircher, 611 F.2d 162, 165-167 (6th Cir. 1979), cert. denied,

446 U.S. 943 (1980) ; United States v. Dansker, 537 F.2d 40,

52-54 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977);

in re Grand Jury Investigation, 486 F.2d 1013, 1015-1016 (3d

Cir. 1973), cert. denied, 417 U.S. 919 (1974); Gravenmier

v. United States, 469 F.2d 66, 67 (9th Cir. 1972); see gen-

erally Barry v. United States, 528 F.2d 1094, 1099-1100 (7th

Cir.), cert. denied, 429 U.S. 826 (1976).

11

than a decade later.’ As the court stated in United

States v. Dansker, 587 F.2d 40, 53-54 (3d Cir. 1976),

cert. denied, 429 U.S. 1038 (1977) (emphasis and

brackets in original), quoting Parker Precision Prods.

Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070,

1077-1078 (3d Cir. 1969) :

[A]llegations that the trial judge, during the

course of his duties as United States Attorney,

investigated, commented upon, and prosecuted

some of the former principals of a company with

which the defendants are connected do not, with-

out more, establish that he was personally biased

toward them as required by the statute. If any-

thing, allegations of this nature merely evidence

“an impersonal prejudice, [going} to the judge’s

background and associations rather than his ap-

praisal of the [movants] personally.”

The recusal claim raised by petitioners is even less

compelling than that raised by their father, Frank

Balistrieri. Virtually all of the allegations of prej-

udice raised in the recusal motions related to Attor-

ney General Warren’s conduct towards and comments

about Frank Balistrieri. In the materials submitted

by the parties in support of their recusal motions (see

2 App. 38-143), the references to petitioner Joseph

Balistrieri were not suggestive of any animus against

him (see, ¢.g., id. at 41-59), and there were hardly

any references at all to petitioner John Balistrieri,

who was in his early twenties at the time Judge

Warren was Attorney General of Wisconsin (see id.

at 412).

5 As to the allegations contained in the affidavits accompany-

ing the later recusal motions, the court of appeals’ conclusion

that they were unreliable and irrelevant does not warrant

further review by this Court.

emake ilies

12

Finally, petitioners have completely failed to es-

tablish that they were prejudiced in any way by

Judge Warren’s refusal to recuse himself until six

months prior to their trial. On appeal, all but one of

the claims of error raised by petitioners related to

errors allegedly committed by Judge Evans, not by

Judge Warren. The sole exception was the question

whether petitioners should have been granted an evi-

dentiary hearing on their motions to suppress evi-

dence. That issue was a purely legal one over which

the court of appeals had plenary review and which it

resolved against petitioners (see Pet. App. A6-A7,

A33-A37) .°

b. The petition (at 14-19) also challenges the court

of appeals’ ruling that the denial of a recusal motion

brought pursuant to 28 U.S.C. 455(a)—which re

quires the disqualification of a judge “in any proceed-

ing in which his impartiality might reasonably be

questioned”—wmay not be raised on appeal from a con-

viction, and may be reviewed, if at all, only by way

of a petition for a writ of mandamus. The discussion

of the court of appeals on this issue (Pet. App. A82-

A33) is, however, both thorough and convincing.

Section 455(a) is not designed to protect litigants

but, rather, to “promote public confidence in the

impartiality of the judicial process” (id. at A382,

citing H.R. Rep. 93-1453, 93d Cong., 2d Sess.

(1974)). Thus, any error in a judge’s refusal to

recuse himself pursuant *o Section 455(a) would not

affect a substantial right of the defendant and would

therefore not be grounds for reversal. Furthermore,

a rule requiring that such claims be raised by way of

mandamus serves the important purpose of avoiding

any injury to the public perception of the judicial sys-

6 Petitioners have not challenged that ruling in this Court.

13

tem before the injury occurs. To be sure, other cir-

cuits have entertained Section 455(a) claims on ap-

peal from a final judgment, but those courts have

not addressed the jurisdictional question raised by

the Seventh Circuit in this case.’ There is therefore

no conflict among the circuits on this issue.

In any event, this is not an appropriate case in

which to resolve the question of the appealability of

rulings arising under Section 455(a). As explained

above, Judge Warren recused himself a full six

months prior to the trial in petitioners’ case. Peti-

tioners’ claim is just that Judge Warren should have

recused himself earlier than he did. Yet because

Judge Evans tried petitioners’ case and disposed of

virtually every legal issue that was presented in their

case, petitioners have failed to demonstrate that they

would have been entitled to any further relief if their

Section 455(a) clai n entertained on appeal, and

if they had prevailed on their claim under that

statute.

™Two of the cases cited by petitioners—United States v.

Parker, 742 F.2d 127 (4th Cir.), cert. denied, 469 U.S.

1076 (1984), and Blizard v. Frechette, 601 F.2d 1217 (1st

Cir. 1979)—contain no discussion at all of the jurisdictional

issue. A third case, Davis v. Board of School Comm’rs, 517

F.2d 1044, 1051-1052 (5th Cir. 1975), cert. denied, 425 U.S.

944 (1976), simply recited, by way of background and with-

out analysis, the various means by which Section 455(a) has

been invoked; it did not refer to or reject the analysis em-

ployed by the court of appeals here. In the last case cited by

petitioners—City of Cleveland v. Krupansky, 619 F.2d 576,

cert. denied, 449 U.S. 834 (1980)—the Sixth Circuit, in

declining to issue a writ of mandamus, similarly did not con-

sider whether Section 455(a) created a right of the litigants

that is protectable by appeal.

14

2. Petitioners also contend (Pet. 20-23) that the

district court erred by transferring this case from

the Milwaukee division to the Green Bay division of

the Eastern District of Wisconsin for purposes of

jury selection. That claim is completely insubstantial.

This case was tried a few months after the trial in

the gambling case against Frank Balistrieri, a trial

that generated a large amount of publicity in the

Milwaukee area. Shortly after that gambling trial,

the district court conducted an inquiry into incidents

involving the jurors in that case, several of whom

reported that they had been contacted after the con-

victions by an investigator who said he was acting on

behalf of Frank Balistrieri. Several of the jurors

reported that they felt intimidated by the investiga-

tor’s conduct. Those events also received considerable

local publicity. 2 App. 269-271.

As a result of the publicity surrounding the gam-

bling case and its aftermath, the district court de-

cided that jury selection in the extortion case should

be conducted in Green Bay, rather than in Milwau-

kee.” The court noted that conducting jury selection

in Green Bay would not be a significant inconvenience

to the parties or the witnesses, since the rest of the

trial would be conducted in Milwaukee (2 App. 256-

268). The court also noted the difficulty it had en-

countered in selecting a jury in the gambling case

and it recognized that additional publicity had been

generated since the jury selection in that case. Ac-

cordingly, the court concluded that selecting jurors

§ Unlike many other districts, the Eastern District of Wis-

consin is not divided into statutory divisions (see 28 U.S.C.

130). Rather, for purposes of jury selection, it has been ad-

ministratively divided into the Milwaukee jury division and

the Green Bay jury division.

15

from the Milwaukee area “would unduly elongate

the procedure and conceivably diminish the quality

of those willing to serve” (id. at 266). The court

stated that potential jurors in the Green Bay area

apparently had not been exposed in any significant

degree to the same publicity (id. at 267). Thus, pur-

suant to the court’s order, jury selection was con-

ducted at Green Bay. After jury selection, the case

was moved back to Milwaukee, where the jurors were

sequestered for the duration of the trial. See Pet.

App. A4-A5.

Rule 18 of the Federal Rules of Criminal Procedure

provides the district court with the discretion to “fix

the place of trial within the district with due regard

for the convenience of the defendant and the witnesses

and the prompt administration of justice.” The dis-

trict court clearly did not abuse its discretion in this

case. Rule 18 does not require the defendant to be

tried in the location of his choice within a district.

See United States v. Pepe, 747 F.2d 632, 648 (11th

Cir. 1984); United States v. Lewis, 504 F.2d 92, 98

(6th Cir. 1974), cert. denied, 421 U.S. 975 (1975).

Rather, the district court is simply required to give

“due regard” to the convenience of the defendant and

the witnesses when setting a place for trial. See, e.g.,

United States v. Pepe, 747 F.2d at 648; United States

v. Burns, 662 F.2d 1378, 1882 (11th Cir. 1981).°

® Similarly, while the Sixth Amendment provides a defend-

ant with the right to a trial “by an impartial jury of the State

and district’”” where the crime was committed, there is no con-

stitutional or statutory right to a trial in the division in which

the crime was committed, or at a particlular place within the

district or division. See United States v. Anderson, 328 U.S.

699, 704-705 (1546) ; Fed. R. Crim. P. 18 advisory committee

note (1966 Amendment) (collecting cases). It follows a for-

tiort that when a district, such as the Eastern District of

16

The district court specifically solicited the parties’

views about transferring the trial (2 App. 256-258)

and, by providing that the trial itself be held in Mil-

waukee, the court explicitly took account of the con-

venience of the defendants and the witnesses. That

measure eliminated any inconvenience to the wit-

nesses, and it limited the inconvenience to the parties

by requiring them to spend only the short period of

jury selection in Green Bay. Under these circum-

stances, the court of appeals correctly concluded that

the district court had given due consideration to the

factors set forth in Rule 18 (Pet. App. A5).*°

Petitioners contend (Pet. 21-22) that the district

court improperly took into account factors other than

those enumerated in Rule 18. In setting the place for

trial within the district, petitioners argue, a trial

Wiscousin, is not separated into statutory divisions, the Sixth

Amendment permits trial to be held at any place within the

district. See ibid. (1979 Amendment) ; United States v. Lewis,

504 F.2d at 98; United States v. Fernandez, 480 F.2d 726, 730

(2d Cir. 1973).

10 Petitioners allege (Pet. 22-23 & n.4) that the Green Bay

division contains a more rural population than does the

Milwaukee division, and that the transfer of jury selection

to that division therefore resulted in the selection of a jury

that did not represent a cross-section of their community. A

jury is not, however, required to be selected either from the

entire district or from the division in which the crime was

committed. Lewis v. United States, 279 U.S. 68, 72 (1929);

Ruthenberg v. United States, 245 U.S. 489, 482 (1918);

Zicarelli v. Dietz, 633 F.2d 312, 317-820 (3d Cir. 1980), cert.

cenied, 449 U.S. 1083 (1981). Moreover, the possibility that

a jury pool may be more rural or more urban in one area

than in another does not violate a defendant’s right to a jury

drawn from a cross-section of the community. Zicarelli v.

Dietz, supra; United States v. Young, 618 F.2d 1281, 1287-

1288 (8th Cir.), cert. denied, 449 U.S. 844 (1980); United

States v. Fernandez, 480 F.2d at 732-735.

17

court may consider only the three factors expressly

listed in Rule 18. There are several answers to this

contention. In the first place, the district court’s

reluctance to “unduly elongate” the jury selection

process—which appears to be the consideration that

petitioners object to—falls within the language of

Rule 18 permitting a transfer to facilitate the

“prompt administration of justice.” See United States

v. Pepe, 747 F.2d at 647-648; United States v. Betan-

court, 734 F.2d 750, 755-756 (11th Cir.), cert. denied,

469 U.S. 1021 (1984). In any event, the list of fac-

tors set forth in Rule 18 is not exclusive. Rather, as

long as the district court gives “due consideration”

to the factors listed in Rule 18, it may consider other

factors as weli in determining where within the dis-

trict to hold the trial. See United States v. Truglio,

731 F.2d 1128, 1180 (4th Cir.), certs. denied, 469

U.S. 862 and 1076 (1984); United States v. Burns,

662 F.2d at 1881-1382; United States v. Mase, 556

F.2d 671, 675-676 (2d Cir. 1977), cert. denied, 435

U.S. 916 (1978) (speedy trial factors considered

before “promptness” factor was added to Rule 18) ;

United States v. Brown, 535 F.2d 424, 429-430 (8th

Cir. 1976). Cf. United States v. Dickie, 775 F.2d 607,

610 (5th Cir. 1985) (“the trial court did not abuse

its discretion in limiting its consideration to statutory

factors”). Other courts have upheld transfers that

were necessitated, as this one was, by pre-trial pub-

licity. See United States v. Dickie, supra; United

States v. Mase, supra; United States v. James, 528

F.2d $99 (5th Cir.), cert. denied, 429 U.S. 959

(1976); see also Fed. R. Crim. P. 18 advisory com-

mittee note (1966 Amendment). There is nothing in

the language or construction of Rule 18 to support

petitioners’ reading of the rule. To the contrary, pe-

18

titioners’ construction of the rule would defeat the

purposes of the rule by preventing a district court

from exercising its commonsense discretion to pro-

tect the litigants and the integrity of the trial.”

11 Petitioners’ reliance (Pet. 21-22) on Dupoint v. United

States, 388 F.2d 39 (5th Cir. 1967), is misplaced. In that

case, the court reversed a conviction where “the real reason”

for the transfer of a trial was “the convenience of the prose-

cution, not the convenience of the defendant” (id. at 43 (em-

phasis deleted)). In its opinion on rehearing, the court

stressed that the conviction was reversed because “‘the only

consideration for this transfer was the convenience of the

Government” and there was “no consideration of the conven-

ience of the defendant” (id. at 45 (emphasis added) }j. Thus,

Dupoint requires only that the statutory factors be considered ;

it does not hold that other factors may not be. The other deci-

sions relied on by petitioners—United States v. Fernandez, 480

F.2d 726, 729-730 (2d Cir. 1973), and United States v. Burns,

662 F.2d 1378, 1381-1383 (11th Cir. 1981)—are distinguish-

able for essentially the same reason. In Fernndez, an intra-

district transfer was criticized because it was made solely for

the convenience of the judge, and in Burns the court clearly

failed to give due regard to the convenience of the defendant

and the witnesses. Petitioners concede that the latter two cases

stand only for the proposition that the factors in Rule 18

musgabe given “due regard,” and in this case they were.

Moreover, in subsequent decisions, both the Second and Fifth

Circuits have made it clear that jury prejudice is a permissible

factor for a district court to consider in entering a transfer

order under Rule 18. See United States v. Mase, supra, and

United States v. Dickie, supra.

19

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHAKLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

DEBORAH WATSON

Attorney

MAY 1986

wy . S. GOVERNMENT PRINTING OFFicE; 1986 491507 20232