U.S. v. Balistrieri

• Decision Date: 02 October 1979
• Docket Number: No. 78-2512,78-2512
• Citation: 606 F.2d 216
• Parties: , 80-1 USTC P 9228 UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter BALISTRIERI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 216

606 F.2d 216

53 A.L.R.Fed. 752, 80-1 USTC P 9228

UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter BALISTRIERI, Defendant-Appellant.

No. 78-2512.

United States Court of Appeals, Seventh Circuit.

Argued April 25, 1979.

Decided Oct. 2, 1979.

Cordell Siegel, St. Louis, Mo., for defendant-appellant.

Michael J. Trost, Deputy U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before SWYGERT, Circuit Judge, MOORE, Senior Circuit Judge, ^* and TONE, Circuit Judge.

MOORE, Senior Circuit Judge:

This appeal presents an interesting 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.

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 order 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 attempt 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 on 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 government 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 overheard. 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.

The government's response to the motion contained an affidavit by FBI Special Agent 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 occasion. Balistrieri came back with extensive requests for admissions (Rule 36), interrogatories (Rule 35), and production of documents (Rule 34) under the Federal Rules of Civil Procedure. 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 inapplicable 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 (5th Cir.), Cert. denied, 377 U.S. 992, 84 S.Ct. 1916, 12 L.Ed.2d 1045 (1964), which held the discovery provisions of the Federal Rules of Civil Procedure inapplicable 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, 8 L.Ed. 638 (1833); see generally the discussion and authorities cited in 7 Moore's Federal Practice P 60.14 (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, 35 S.Ct. 16, 59 L.Ed. 129 (1914). However, in 1946, Rule 60(b), F.R.Civ.P., was amended, abolishing writs of error coram nobis and other common law forms of relief from judgments. ¹ Nevertheless, the ancient 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, 74 S.Ct. 247, 98 L.Ed. 248 (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) ² and refused relief because the applicant was no longer in federal custody and thus was outside the terms of § 2255.

The Supreme Court held that although the writ of error coram 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), ³ 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 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, 74 S.Ct. at 249 n. 4.

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 apply a civil rule or a criminal rule is United States v. Keogh, 391 F.2d 138 (2d Cir. 1968). ⁵ 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 applicable 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 virtue 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.

Since the legislative history of § 2255 is well detailed in United States v. Hayman, 342 U.S. 205, 214-23, 72 S.Ct. 263, 96 L.Ed. 232 (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, 72 S.Ct. 263.

Section 2255 was passed in 1948, accompanied by a Reviser's Note quoted in part here:

"This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for...