U.S. v. DiGregorio, Nos. 78-1468

• Decision Date: 29 October 1979
• Docket Number: Nos. 78-1468
• Citation: 605 F.2d 1184
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Joseph DiGREGORIO, Hermis Yanis, Jr., Ruben Badillo, John Delvecchio, Defendants, Appellants. to 78-1471.
• Court: U.S. Court of Appeals — First Circuit

Page 1184

605 F.2d 1184

UNITED STATES of America, Plaintiff, Appellee, v. Joseph DiGREGORIO, Hermis Yanis, Jr., Ruben Badillo, John Delvecchio, Defendants, Appellants.

Nos. 78-1468 to 78-1471.

United States Court of Appeals First Circuit.

Argued June 5, 1979.

Decided Aug. 14, 1979.

Certiorari Denied Oct. 29, 1979.

See 100 S.Ct. 287.

Harvey Brower, Lawrence, Mass., for appellant Joseph DiGregorio.

Stanley M. Meyer, Brooklyn, N.Y., with whom Meyer, Light & London, Brooklyn, N.Y., was on brief, for appellants, Hermis Yanis, Jr. and Ruben Badillo.

William A. Brown, Boston, Mass., by appointment of the court, for appellant John Delvecchio.

Deborah Watson, Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., Martin D. Boudreau, Sp. Atty., Boston, Mass., and Joseph S. Davis, Jr., Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This is an appeal from convictions for conspiracy and substantive acts in violation of the Hobbs Act. 18 U.S.C. § 1951. All four appellants were convicted of conspiracy to obstruct interstate commerce by extortion and of the substantive act of using threats and physical beating pursuant to a plan of extortion. All but appellant Delvecchio were also convicted of obstructing interstate commerce by shooting the manager of an interstate business pursuant to a plan of extortion. ¹ Some or all of appellants now raise challenges to virtually every stage of the criminal process. We affirm.

An abbreviated statement of facts will suffice to put the issues discussed below in context. More detail accompanies the discussion of each issue. In 1973, Chick's Construction Company undertook to build a new school for the town of Millbury, Massachusetts. John Innamorati, the President of Chick's, hired the DiGregorio Construction Company to do preliminary excavation work. Innamorati was not satisfied with the progress of the work and, after renegotiation attempts failed, ejected DiGregorio from the site in January of 1974. DiGregorio sued Chick's for breach of contract.

While the lawsuit languished, the project was completed in 1975. Apparently dissatisfied with legal process, in February of 1977 Vincent DiGregorio and his son Joseph hired two men, Donomura and Hughes, to "settle" the dispute for a 10 per cent commission. Innamorati then began receiving anonymous phone calls and eventually a personal visit from DiGregorio's persuaders on March 3. Innamorati explained he was not prepared to pay the $52,000 demanded by DiGregorio because the work done had not merited such payment. DiGregorio's agents made no demands at that meeting.

In April, Innamorati received more anonymous calls, some of them threatening. The calls were later traced to appellant Yanis through toll records. On April 27, appellants Delvecchio and Badillo visited Innamorati at his office, beat and robbed him, and threatened to kill him if he did not pay DiGregorio $75,000. ² Upon his release from the hospital, Innamorati met with Donomura and Hughes, who offered to stop the harassment for a fee of $5000. Innamorati paid half the amount and then fled to Virginia, returning several days later.

John Innamorati's brother Arthur then received a threatening call. The Innamoratis called in the FBI. Negotiation with the DiGregorios ensued, and the threatening calls continued. The calls were traced to appellant Yanis' home. On June 23, John Innamorati was hit by number six shot fired from a 12 gauge shotgun as he unlocked the front door to his offices. A witness identified Badillo as the driver of a car seen approaching the office seconds before the shooting.

FBI agents went to the Yanis home soon after the shooting and were admitted by Yanis' wife. Appellants Delvecchio, Badillo, and Yanis were sitting around the kitchen table. Two 12 gauge shotguns, an empty box of 12 gauge, number six shotshells, papers connecting the appellants to DiGregorio, and papers containing the Innamoratis' names and phone numbers were found in the house.

Search and Seizure Issues

Appellants Yanis and Badillo argue that the trial court erred in refusing to suppress evidence discovered at Yanis' home on the day of the shooting.

The trial court found the following facts on a more than adequate record. Prior to the shooting, telephone threats to Innamorati had been traced to appellant Yanis' residence phone. After the shooting, FBI agents immediately focused their investigation on Yanis. Hourly checks of his residence revealed that someone was coming and going in his red Maverick automobile. When agents arrived at 10:45 a. m. to question Yanis, his wife answered the door and stated that she was separated from her husband, who was now living at an address she supplied to the agents. The agents checked the address and found that Mrs. Yanis had lied. They returned to the Yanis residence to find that the Maverick had apparently again been used (it had been moved), and that Mrs. Yanis was about to depart with her young child. The agents confronted Mrs. Yanis, stating that they needed to talk to her husband about a very serious matter that might involve a murder charge. She became very upset and disclaimed any knowledge of a murder plot. Because curious neighbors had begun to watch the exchange, she acquiesced in the agents' suggestion that they discuss the matter inside.

Mrs. Yanis led the agents through a front door, up a flight of stairs to a landing, through an apartment door, and through two intervening rooms into the kitchen. She made no attempt to raise an alarm. Upon entering the kitchen, the agents observed Yanis, Badillo, Delvecchio and Mojeda sitting around the kitchen table. They also observed a shotgun leaning against the refrigerator. Yanis identified himself, but the other three men said they had no identification. Badillo, Delvecchio, and Mojeda agreed to accompany an agent to the FBI office in Worcester. The remaining agent "secured" the premises by informing Mr. and Mrs. Yanis that they were free to go but that they could not remove any property from the residence pending issuance of a search warrant. Upon the agent's request, appellant Yanis retrieved a number of other weapons in the house and placed them on the living room couch.

A short while later, while observing Yanis' movements in the house, the agent noticed a wallet placed on a chair pushed under the kitchen table. Yanis disclaimed any knowledge of or interest in the wallet. It contained papers identifying Delvecchio, as well as a slip of paper with the handwritten name of Joseph DiGregorio. The agent placed the wallet on the kitchen table and later foiled several attempts by Yanis to smuggle it out of the house.

The agent remained in the house until a search warrant was obtained and executed. The agent refused to comply with demands by Mrs. Yanis, and, later, by her attorney that he leave the premises. Execution of the warrant revealed further incriminating items.

On this record, the trial court found that Mrs. Yanis consented to the initial entry, the shotgun and wallet were seized within the plain view exception, the additional weapons were secured within the agent's limited right to secure the area of control occupied by Yanis, and the securing of the premises pending issuance of the search warrant was permissible given the exigencies of the situation. We agree.

On the issue of consent to entry, appellants encapsulate their argument by stating, "We believe that the facts testified to by the FBI agents were ludicrous." Such arguments are properly addressed to the trial court as finder of fact. The trial judge expressly found Mrs. Yanis' testimony that the agents forced their way in to be incredible. That finding was supported by the more than plausible testimony of the agents that Mrs. Yanis had no desire to actively obstruct a murder investigation, did not want to discuss the matter in the street, and had ample opportunity to warn the defendants of the agents' entry but did not try to do so. We see nothing that would upset the trial court's credibility finding. Moreover, we believe the circumstances here were not so inherently coercive as to negate a finding of consent to entry as a question of law. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Miller, 589 F.2d 1117, 1130-32 (1st Cir. 1978); Robbins v. MacKenzie, 364 F.2d 45 (1st Cir.), Cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966).

Once legitimately on the premises, the agents had a right to seize what was evidence in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The shotgun was obviously evidence when found in the possession of a man who had threatened to injure Innamorati. As for the wallet, no privacy interests could attach to it once Yanis disclaimed any interest. See United States v. Miller, supra, at 1131.

We also think that the circumstances permitted the agents to ask Yanis if there were any more weapons in the house. ³ Finally, we reject appellants' generalized complaints that it was unreasonable to "secure" the premises for eight hours pending the issuance of a warrant. So long as no general warrantless search is undertaken, when there is probable cause to believe that evidence is located in a house and a likelihood that the occupants will remove or destroy it pending issuance of a warrant (i. e., exigency), it is permissible for an officer already legitimately on the premises to secure the area against removal of property pending issuance of a warrant. United States v. Picariello, 568 F.2d 222 (1st Cir. 1978).

Prosecutorial Misconduct Before the Grand Jury

Appellants Delvecchio and DiGregorio argue that the trial court abused its discretion in refusing to dismiss the indictment on account of prosecutorial misconduct before the grand jury. Appellants argue...