U.S. v. Balistrieri

• Decision Date: 08 January 1986
• Docket Number: 84-2349 and 84-2350,Nos. 84-2002,s. 84-2002
• Citation: 778 F.2d 1226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter BALISTRIERI, John H. Balistrieri, and Joseph P. Balistrieri, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1226

778 F.2d 1226

UNITED STATES of America, Plaintiff-Appellee, v. 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.

Argued May 21, 1985.

Decided Nov. 20, 1985.

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

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.

I

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.

II

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.

III

The second challenge which the Balistrieris raise is to the district court's decision to move the jury selection to the Green Bay Division of the Eastern District of Wisconsin. ² On February 1, 1984, the district court, sua sponte, entered an order directing that jury selection in this case would be conducted in Green Bay rather than in Milwaukee, and subsequently ruled that after selection the jury would be moved to Milwaukee for the trial.

The district court's actions in this case to select the jury from the Green Bay division only is governed by Rule 18 of the Federal Rules of Criminal Procedure which states in part:

The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

The court explained that it believed conducting jury selection in Green Bay was necessary for several reasons. First, in light of the difficulty that the court encountered in selecting a jury in the gambling case, and in light of the publicity surrounding the post-verdict events in that case, the court concluded that the selection of jurors from the Milwaukee area "would unduly elongate the procedure and conceivably diminish the quality of those willing to serve." Second, because of the "considerable amount of publicity" in the Milwaukee area media about the contacts with jurors after the first Balistrieri trial, the court noted that it might be necessary to question prospective jurors "about their knowledge of claims that prior juries on a 'Balistrieri case' had been questioned by a private investigator, visited unannounced at work by a lawyer and perhaps even 'harassed' after completing their service." Finally, the court added that it appeared that potential jurors in the Green Bay area had not been exposed, to any significant degree, to the same information. The court then stated that if it proved to be too difficult to obtain jurors under these circumstances, the court would reconsider the procedure and explore other alternatives with the parties.

The defendants seek to assign error to the district court's decision in this case in part because they allege that he relied upon speculative factual considerations unsupported by the record established in this case. We begin our analysis by recognizing that a trial court has broad discretion in deciding where to fix the location of the trial which will not be overridden on appeal as long as the court gives "due consideration" to the factors listed in Rule 18. United States v. Truglio, 731 F.2d 1123, 1130 (4th Cir.1984). We think that the facts and considerations recited by the district court evidence that such due consideration was given. The only inconvenience to the defendant in this case was that the jury was selected in Green Bay without the inclusion of Milwaukee jurors in the venire. But the jury is not required to be selected either from the entire district or from the division in which the crime was committed. Zicarelli v. Dietz, 633 F.2d 312, 317 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981). Moreover, the fact that the Green Bay venire may have been more "rural" than a Milwaukee jury venire might have been does not violate a defendant's right to a jury drawn from a cross-section of the community. Zicarelli v. Gray, 543 F.2d 466 (3d Cir.1976).

The defendants also contend that the court failed to substantiate on the record that the adverse publicity from the previous trials involving the Balistrieris would make it more tedious in this case to select a jury. We think this argument is somewhat amazing in light of the extensive arguments that Frank Balistrieri makes in his appeal from his gambling conviction that he is entitled to a new trial because of the "adverse publicity" surrounding the first trial involving the Balistrieris. Judge Evans tried all three of the Balistrieri cases. It is ludicrous to assume that the trial in each case occurs in a vacuum or that he should ignore a record built in a previous case. There was ample reason for Judge Evans to be concerned about the ability of the parties to select quickly an unbiased jury. Given his broad discretion under Rule 18 to set the place of trial, we think that he acted quite prudently in choosing to exclude Milwaukee jurors from the venire.

IV

The defendants next challenge the district court's denial of an evidentiary hearing on its motion to suppress certain evidence. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that the fruits of a search based on a warrant affidavit containing an intentional or reckless...