778 F.2d 1226 (7th Cir. 1985), 84-2002, United States v. Balistrieri

Docket Nº:84-2002, 84-2349 and 84-2350.
Citation:778 F.2d 1226
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter BALISTRIERI, John H. Balistrieri, and Joseph P. Balistrieri, Defendants-Appellants.
Case Date:November 20, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1226

778 F.2d 1226 (7th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,


Frank Peter BALISTRIERI, John H. Balistrieri, and Joseph P.

Balistrieri, Defendants-Appellants.

Nos. 84-2002, 84-2349 and 84-2350.

United States Court of Appeals, Seventh Circuit

November 20, 1985

Argued May 21, 1985.

Rehearing and Rehearing En Banc Denied Jan. 8, 1986.

Page 1227

Nathan Z. Dershowitz, Dershowitz & Eiger, P.C., Alan Dershowitz, Dershowitz & Eiger, P.C., New York City, Stephen M. Glynn, Shellow, Shellow & Glynn, S.C., Milwaukee, Wis., for defendants-appellants.

William C. Bryson, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before BAUER, ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

BAUER, Circuit Judge.

This case involves the appeal from three convictions that resulted from an FBI sting operation into organized crime in the Milwaukee, Wisconsin, area. During October 1981 a grand jury returned four indictments as a result of the government's investigation. In the first indictment, seven people were charged with various gambling and tax offenses stemming from an illegal gambling business in Milwaukee. That case was tried in September 1983 and resulted in five of the defendants being convicted on various counts. Three of the convicted defendants appealed, and those convictions were affirmed by another panel of this court on November 12, 1985, in United States v. Balistrieri, 779 F.2d 1191, (7th Cir. 1985) (Balistrieri I).

The second indictment resulted in this case. 1 That indictment charged Frank, Joseph, and John Balistrieri, Benjamin Ruggiero, and Mike SaBella with one count of conspiracy to carry out an extortion scheme, 18 U.S.C. Sec. 1951, and the Balistrieris and Ruggiero with one count of attempting to carry out the extortion scheme. Id. Ruggiero pled guilty to both counts. Following a six-week jury trial, all three Balistrieris were found guilty on both counts of the indictment; SaBella was acquitted. On July 30, 1984, the district court sentenced Frank Balistrieri to thirteen years imprisonment, to be served concurrently with the sentence he received on his gambling conviction, a $5,000 fine and the costs of the prosecution. John and Joseph Balistrieri were each sentenced to eight years imprisonment and $20,000 fines. These appeals followed and we now affirm.

Page 1228


The essential facts in this extortion scheme are that between May 1978 and February 1979 the Balistrieris, Ruggiero, and allegedly SaBella conspired to extort sums of money and a one-half partnership interest in the Best Vending Company. FBI Agent Gail Cobb, using the alias Tony Conte, operated the Best Vending Company. Between 1976 and 1981, FBI Special Agent Joseph Pistone was operating under the alias Donnie Brasco as an undercover agent investigating organized crime activities in New York City. During this time he developed a close working relationship with Ruggiero, who described himself as a member of the Bonanno crime family of New York. Pistone mentioned to Ruggiero that Cobb had moved to Milwaukee and was trying to open a vending machine business there.

Subsequently Ruggiero told Cobb that the vending business in Milwaukee was controlled by "the mob" and that Cobb could not enter that business without "protection" from the mob figures who controlled that business. After inducing Cobb to pay money to him, Ruggiero arranged for Cobb to meet with Frank Balistrieri, so that Cobb could obtain permission from Balistrieri to do business in Milwaukee.

On July 29, 1978, Cobb had a meeting with Frank Balistrieri and others in Milwaukee during which Frank Balistrieri made threats against Cobb because Cobb had attempted to start a vending machine business in Milwaukee without his permission. Later, in the presence of John and Joseph Balistrieri, Frank Balistrieri told Cobb that he was to share his vending business with the Balistrieris. Cobb agreed to permit the Balistrieris to become secret partners in his business, and the Balistrieris began directing Cobb in his conduct of the business.


The first issue raised on appeal is the defendants' contention that a new trial must be ordered because Judge Warren, to whom this case originally was assigned in the district court, did not recuse himself from this case until September 28, 1983, after denying a number of defendants' pre-trial motions. The trial in this case did not begin until March 1984.

The essential reason for which the Balistrieris sought Judge Warren's recusal in this case and in the gambling case, to which he also was assigned, was their belief that Judge Warren was biased against the Balistrieris. The basis for their belief is that while serving as Wisconsin's Attorney General from 1969 to 1974, Judge Warren allegedly formed a belief that Frank Balistrieri was the head of the Milwaukee "mob" and had announced that he would take "dead aim" against Frank Balistrieri.

This recusal claim is essentially the same claim which Frank Balistrieri raised earlier in Balistrieri I. In that case the panel ruled that Judge Warren was not required to recuse himself. Balistrieri I, at 1201 - 02, 1204. We adopt that analysis as part of our decision in this case, and find that no error arose from Judge Warren's decision to recuse himself six months before the trial in this case.


The second challenge which the...

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