# United States v. Balistrieri, 606 F.2d 216 (7th Cir. 1979)

Canonical: https://mobfiles.org/items/courtlistener-us-v-balistrieri-606-f2d-216/

Seventh Circuit opinion of October 2, 1979 on Frank Peter Balistrieri's coram nobis motion to vacate his 1967 tax conviction, based on newly disclosed FBI surveillance of a Milwaukee restaurant in 1964. The court held that both civil and criminal rules may guide such motions and affirmed.

United States Court of Appeals, Seventh Circuit, argued April 25, 1979, decided October 2, 1979; rehearing and rehearing in banc denied December 6, 1979.

The court opens: "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."

It recites the case's history: "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." The conviction had been affirmed at 403 F.2d 472 and had returned to the court once before, at 436 F.2d 1212, after another surveillance disclosure. In February 1975 Balistrieri learned that the FBI "had maintained electronic surveillance of Walter Felix Broeca's restaurant in Milwaukee, Wisconsin from June 10 to December 30, 1964," and moved in January 1976 to vacate the conviction. The government answered with an FBI affidavit that the tapes had been destroyed and that he had been monitored on two occasions. The court affirmed the district court's orders.

The opinion concerns procedure and surveillance. It states no role for Balistrieri in any organization. The restaurant owner's name is printed both "Broeca" and "Brocea" in the opinion text; no street address is given.

## Sources

- CourtListener (Free Law Project), text of the opinion: https://www.courtlistener.com/opinion/370202/united-states-v-frank-peter-balistrieri/