779 F.2d 1191 (7th Cir. 1985), 84-2001, United States v. Balistrieri

Docket Nº:84-2001, 84-2004 and 84-2012.
Citation:779 F.2d 1191
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter BALISTRIERI, Steve DiSalvo, and Dennis Librizzi, Defendants- Appellants.
Case Date:November 12, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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779 F.2d 1191 (7th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank Peter BALISTRIERI, Steve DiSalvo, and Dennis Librizzi,

Defendants- Appellants.

Nos. 84-2001, 84-2004 and 84-2012.

United States Court of Appeals, Seventh Circuit

November 12, 1985

Argued April 26, 1985.

As Corrected Nov. 26, 1985.

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Nathan Z. Dershowitz, Alan M. 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 ESCHBACH and FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge. [*]

ESCHBACH, Circuit Judge.

Appellants were convicted of conducting an illegal gambling business, conspiracy to conduct such a business, and (except DiSalvo) willful failure to file certain tax forms, and they now appeal. We affirm their convictions.

I.

The convictions we review today arose out of a lengthy and painstaking government investigation of organized sports gambling activities in Milwaukee, Wisconsin, from 1977 into 1980. The government collected its evidence through physical surveillance, electronic surveillance, warrant-authorized searches, and infiltration by two undercover FBI agents. From this evidence the government developed its theory that the three appellants, along with a number of others, conspired to run a succession

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of sports gambling businesses during the period. According to the theory, Frank Balistrieri was the owner of the businesses, Steve DiSalvo supervised them, and Dennis Librizzi participated in at least one of them--a basketball bookmaking operation in early 1980.

Appellants, along with many others, were indicted on October 1, 1981. The case was assigned to Judge Robert W. Warren. Balistrieri promptly filed a motion for the disqualification of Judge Warren, the first of several motions in an ultimately successful effort to induce Judge Warren to recuse himself. The case was reassigned to Judge Terence T. Evans for trial, and trial commenced on August 29, 1983. On October 9, 1983, the jury rendered its verdicts.

II. Frank Balistrieri (No. 84-2001)

Frank Balistrieri was convicted of one count of conspiracy to direct an illegal gambling business, in violation of 18 U.S.C. Sec. 371, two counts of conducting an illegal gambling business, in violation of 18 U.S.C. Sec. 1955, and two counts of failure to file certain tax returns, in violation of 26 U.S.C. Sec. 7203. He was acquitted on one count of conducting an illegal gambling business and four other tax counts. On May 29, 1984, he was sentenced to four years imprisonment and a fine of $4,000 on the conspiracy, four years imprisonment and a fine of $10,000 on one of the Sec. 1955 counts, four years imprisonment and a fine of $4,000 on the other Sec. 1955 count, and one year imprisonment and a fine of $1,000 on each of the two tax counts, with all the sentences of imprisonment to run concurrently.

On appeal, Balistrieri assigns eight errors in the proceedings below.

  1. Recusal of Judge Warren

    1. Background

      Balistrieri contends that he is entitled to a new trial because Judge Warren, who decided virtually all of the pretrial motions, should have recused himself at the outset. Balistrieri moved four times to disqualify Judge Warren on the ground that Warren, during the period from 1969 into 1971 while serving as the Attorney General of Wisconsin, had formed a firm belief that Balistrieri was the head of the Milwaukee Mafia and had announced that belief and acted on it as Attorney General on numerous occasions. 1

      Judge Warren denied the first three of Balistrieri's recusal motions, holding that the first and second were inadequate to satisfy the statutory standard for disqualification and that the third was untimely. Coupled with the filing of the fourth motion, a week before the start of trial, a Milwaukee attorney, Roland J. Steinle, Jr., issued a press release charging that Judge Warren was personally responsible for an alleged 1969 burglary of his law office and theft of a client file relating to his representation of Balistrieri. Steinle also announced that he intended to file a civil lawsuit against Judge Warren and another person based on that alleged incident. 2 Judge Warren, while categorically denying all these allegations, nevertheless recused himself because he thought that a reasonable person might find an appearance of partiality.

      Balistrieri argues that the recusal came too late; because Judge Warren should have recused himself at the start, none of

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      his rulings on pretrial motions was valid. We disagree. We do not question Judge Warren's exercise of discretion in recusing himself in the face of Steinle's public activities, but we hold that he was under no obligation to recuse himself earlier.

    2. The Affidavits

      Balistrieri submitted his first motion for recusal on October 26, 1981, shortly after Judge Warren's assignment to the case. The affidavit accompanying the motion set forth various statements and actions attributed to Judge Warren during the period from 1969 through early 1971, when he was Attorney General of Wisconsin. According to the affidavit, Warren believed that Frank Balistrieri was the head of the Mafia family in Wisconsin. Warren allegedly set into operation a systematic program, or "vendetta," designed to ruin Balistrieri and to destroy businesses with which he or his relatives were associated. As a part of this program, Warren moved to dissolve certain Balistrieri-linked corporations for failure to file annual reports, saying that this "crackdown" was an effort to keep the crime syndicate out of legitimate business in Wisconsin. Warren also sought injunctions against four Balistrieri-linked taverns for not having workmen's compensation insurance. On November 28, 1969, fourteen agents (ten from the Attorney General's office) participated in a raid on the Scene, a nightclub which the press described as linked to Balistrieri. In June 1970 Warren objected to the Milwaukee Common Council's granting of liquor licenses to taverns associated with Balistrieri. In an interview after almost two years in office, Warren said the following:

      A characteristic of organized crime ... is that it ignores many of the laws regulating businesses--laws which require annual reports, seller's permits, workmen's compensation insurance and restrict liquor credit.

      To get at organized crime in legitimate businesses, the State started a myriad of civil actions against businesses believed to be controlled by organized crime figures.

      "We had to start at the bottom with some rather mundane things," Warren said. "For example, we found that the Balistrieri family had not been filing annual corporation reports."

      The affidavit also set forth that certain individuals and corporations associated with Balistrieri filed two lawsuits against Warren, the first seeking injunctive relief and damages for the raid on the Scene, and the second seeking damages for the effort to close a certain nightclub for failure to have workmen's compensation insurance. The first suit was voluntarily dismissed, and the second was dismissed on grounds of immunity.

      Balistrieri's second motion for recusal was filed on July 20, 1983. It incorporated the previous affidavit and included a new affidavit from one John Forbes. 3 Forbes stated that he was then in the Federal Witness Protection Program, that he was then serving a sentence for burglary, and that over his life he had been charged with a number of crimes and convicted of several. He stated that in 1963 he became acquainted with one Herbert Krusche, a criminal investigator for the Wisconsin Department of Justice. According to Forbes, from 1968 through 1970, during the period when Robert Warren was Attorney General, Krusche asked Forbes to conduct a number of undercover investigations of Frank Balistrieri and persons alleged to be associated with him, in return for help in connection with criminal charges then pending. On several occasions in 1969 and 1970, Forbes related, he wore a body recorder or electronic listening device at Krusche's request and monitored conversations of Frank Balistrieri and of his lawyer,

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      Roland Steinle, among others. Krusche allegedly asked Forbes to break into someone's apartment and plant a bug and to break into the basement of the Kings IV restaurant and plant a bottle of stolen liquor. On one occasion Krusche allegedly asked him to break into Steinle's office and bring back any files he could find on Frank Balistrieri. Forbes stated that he complied with this request and brought back one file. According to Forbes, he met Robert Warren only once, in a meeting with other high officials of the Wisconsin Department of Justice. Forbes stated that he had made a tape of a conversation with someone about fixing a case pending against Forbes, then went with a reporter to the Attorney General's office and turned over the tape. According to Forbes, someone stated that they could not use the tape "because it might be considered illegal or an entrapment or something of the sort." Forbes continued:

      I made a statement to the effect I did not understand why they were concerned about it, in light of the number of times that I wore a bug for Mr. Krushe [sic] and went in places for him. Someone, I think [the Head of the Criminal Division], said "You better not talk about that." [An assistant to Attorney General Warren] then asked if I had declared it on my Wisconsin tax return and kept a record of it. I said "no." [The assistant] said "well, we did." I understood this conversation to...

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