Balistrieri fought a tax case against him throughout most of the 1960s (saying he owed for 1954-1960) before finally going to prison for one year. He was released on April 7, 1972. Despite being convicted, exhausting all his appeals, and serving time… he was not ready to let it go.
February 2, 1976: Frank Balistrieri filed a motion, a writ of error coram nobis, concerning his long-settled tax case. He sought to depose various individuals under the civil rules of discovery. He argued the IRS used illegal wiretaps to get a conviction and did not disclose that. They DID disclose illegal recording, but Balistrieri had since discovered one more they did not mention, at Joe’s Spaghetti House (519 West Wells) from June 1964 through February 1965. This recording was revealed during a trial for gambler Sidney Brodson. Balistrieri claimed he had tax conversations at Joe’s with Santo Curro, Gus Chiaverotti, Michael Albano, Joseph Spero, John Aiello, John Picciurro, Dr. Vito Guardalabene, Joseph and Carl Dentice, Rudolph Porchetta and Peter Balistrieri. Porchetta and Carl Dentice filed affidavits supporting this claim.
Balistrieri fighting at this point seems silly, but the government claimed he still owed $101,000 in back taxes, so a long shot win could save him a fortune. He also argued the conviction kept him from having a liquor license, which was a key ingredient for his businesses.
March 31, 1976: Balistrieri applied for a presidential pardon. The request went to Lawrence Taylor, pardon attorney for the Justice Department, for review. It was denied in under a month, with the answer coming to attorney Morris Shenker on April 13. According to a DOJ official, Balistrieri’s “petition was closed without action because five years has not passed since Balistrieri was released from prison.” He could request a waiver on the waiting time, but did not immediately do so.
September 14, 1976: Balistrieri was granted a hearing.
November 15, 1976: Balistrieri had a hearing to get his tax case from a decade ago dismissed because of newly discovered listening devices at Joe’s Spaghetti House. He attempted to get former IRS agents (Ernest Johannes and Thomas Kulhanek) to testify, but Assistant US Attorney Thomas Brown told them not to, calling the matter null and void. Attorney William Coffey, representing former IRS agent Frank Provinzano, advise his client the same thing.
December 3, 1976: Frank Balistrieri’s motion to depose tax officials was quashed.
December 18, 1976: Judge J. Waldo Ackerman set February 28 for arguments in the case. The judge appeared critical of Balistrieri, saying, “This case has been pending in one guise or another since the indictment in June 1965… At some point, the litigation must terminate. Justice does not demand that civil discovery methods be employed to fish for facts that may or may not exist, and may or may not justify the (discovery) motion.”
January 19, 1977: After being denied a civil route of discovery, Frank Balistrieri moved to see all the IRS information against him from his old tax case under the federal rules of criminal procedure. Balistrieri wanted all books, papers, records, documents and objects of the case, as well as names and addresses of witnesses involved in the case. He specifically wanted monitoring logs from microphone surveillance at Brocca’s restaurant between 1964 and 1965. A number of court decisions were cited, but the primary foundation was Brady v Maryland (1963).
The government responded in February, denying that any recording from Brocca’s restaurant was used in the IRS case and that no perjury by any witness had occurred. An FBI agent (name redacted) filed an affidavit saying he was familiar with the recording, and that the tapes had been destroyed and only certain transcripts remained. Of those, only one mention of someone named Balistrieri occurred, and that was on October 23, 1964. It was Brocca saying, “Was you out to see Frank? You meet my compadre, Frank? Balistrieri. Well what did he say? Did he ask about me? I was wondering if he asked about me. How is he, all right? We ain’t doing nothing here. No. No. Frankie’s mad at me, too. You talk to him? No, I mean lately. Was he good to you? Had a long talk with him, uh? Who did they kill? Yeah, I know about that.”
On February 28, 1977, Judge J. Waldo Ackerman met with the attorneys in his chambers and decided he needed to review the government’s electronic surveillance logs before he would rule on whether or not Balistrieri could see them. Balistrieri was at this hearing with not only his attorney Morris Shenker, but both of his sons. Government attorney Thomas Brown argued the FBI and IRS had fully complied with prior court orders and these new requests by Balistrieri were “oppressive and irrelevant.”
May 4, 1977: When questioned by the press, US Attorney Thomas Brown said Balistrieri’s claims were “ludicrous” and that he “had a full and fair opportunity to litigate.”
July 14, 1977: Balistrieri filed a new motion arguing that two IRS agents had committed perjury at his trial a decade earlier.
September 14, 1977: After months of reviewing FBI surveillance logs, Judge J. Waldo Ackerman found only two possible mentions of Frank Balistrieri in the Brocca logs and released them to Balistrieri. They added nothing of value from what was previously released by an FBI affidavit, with notes mentioning that Balistrieri cannot be heard. Dominic Frinzi is overheard talking to someone named “Frank” and makes various political remarks, joking about the Milwaukee County Sheriff and Kenosha County district attorney, as well as insulting the Republican Party and using foul language when mentioning Barry Goldwater. (The logs are notes of the recording and not the word-for-word transcripts.) The judge also noted that the logs made no mention of anything resembling criminal activity, and thus the IRS could not have used them to build a case. Ackerman then ordered the rest of the surveillance logs sealed, only to be opened by court order. Ackerman cited the SCOTUS case Alderman v United States that decided only those whose fourth amendment rights were affected had standing to see the logs, and therefore he could not give Balistrieri anything other than the brief mentions of himself.
A November 2, 1978, Milwaukee Journal headline reads, “Tax Case Drags on for 19 Years.” Over a year after the logs were released, a final disposition was not made and Balistrieri still wanted an opportunity to show perjury. The judge was skeptical of this, openly saying the time to claim perjury is during a trial, not in a hearing years later. US attorney Brown also argued that if Balistrieri declined to testify at his trial, he does not get to speak on the record after the fact.
November 20, 1978: Judge Ackerman made the decision – no further hearings and the case would not be re-opened. Balistrieri vowed to appeal. His attorney, Cordell Siegel of St. Louis (sitting in for Morris Shenker) said, “We’ve already filed notice of appeal.”
October 5, 1979: Almost another year later, the 7th Circuit Court of Appeals shot down Balistrieri’s attempt and closed the case for good. They wrote his argument that secret recordings affected his case were “merely speculative” and not grounded in fact.
This closed a 20-year saga of tax trials and appeals. While Balistrieri was surely not happy to lose, and now owed both the IRS and his attorneys, it was not the worst thing to happen to him. 1980 was going to be his worst year yet.