U.S. v. Ienco

• Decision Date: 12 August 1996
• Docket Number: No. 95-2790,95-2790
• Citation: 92 F.3d 564
• Parties: 45 Fed. R. Evid. Serv. 415 UNITED STATES of America, Plaintiff-Appellee, v. Joseph IENCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 564

92 F.3d 564

45 Fed. R. Evid. Serv. 415

UNITED STATES of America, Plaintiff-Appellee, v. Joseph IENCO, Defendant-Appellant.

No. 95-2790.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1996.

Decided Aug. 12, 1996.

Barry Rand Elden, Chief of Appeals, Office of United States Atty., Criminal Appellate Div., Chicago, IL, Deborah Watson, Dept. of Justice, Criminal Div. (argued), Washington, DC, for Plaintiff-Appellee.

Jeffrey N. Cole (argued), Cole & Staes, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

A jury convicted Joseph Ienco of a variety of federal crimes growing out of an unsuccessful attempt at extortion. The crimes included conspiracy to commit extortion, 18 U.S.C. § 1951, interstate travel in aid of racketeering, 18 U.S.C. § 1952, and using or carrying firearms during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1). The judge sentenced Ienco to 33 years and 5 months in prison, of which 30 years were due to the fact that one of the firearms was equipped with a silencer. See id. The appeal complains about errors committed at the suppression hearing and at the trial.

Jerome Greenberg, a Chicago dealer in clothing "seconds," bought 28,000 pairs of denim shorts that had been made in Tunisia, and resold them. The purchase was arranged in a telephone call from Tunisia to Chicago, and no price was fixed. Some months later Greenberg received a letter from a lawyer in New York demanding $5 a pair for the shorts. He refused, pointing out that he had not agreed to pay so much. He refused again when shortly afterward he received an angry anonymous phone call demanding payment.

At this point Joseph Ienco enters the story. A New Yorker, he was asked, presumably by the seller of the shorts or someone acting for her, to collect the $140,000 supposedly owed her by Greenberg. He enlisted the aid of his friend Gregory Iovine, whose intimidating size (6 foot 5 inches and 285 pounds) made him an ideal extortionist. According to Iovine, who testified for the government at Ienco's trial, Ienco told him that if Greenberg refused to pay the debt they would grab him, shove him into a car, and put a gun equipped with a silencer to his head. The silencer would make them seem professional and their threat to kill him therefore more credible than it would otherwise be.

Ienco and Iovine traveled by train to Chicago. Iovine speculated at the trial that Ienco had chosen that means of transportation because of the absence of metal detectors in train stations. When they got to Chicago they rented a minivan and checked into a hotel. Ienco put the two pistols that he had brought with him from New York in the safe in the hotel room. After some false starts the two men found the building in which Greenberg had his office, an apartment building with some offices in it. They went to the building, entered it without being buzzed in (someone had propped the door open), and barged into Greenberg's office without knocking. Ienco said that he and his pal were there to collect the debt for the shorts that Greenberg had bought. Greenberg suggested they take the matter to court. Ienco replied, "We're the court. We'll collect it here." Greenberg said, "What, are you here to break legs?" Ienco answered, "We could have done that already." Greenberg told his secretary to call the police, and Ienco and Iovine left; Ienco said they would be back.

Back at the hotel Ienco told Iovine (according to the latter's testimony) that he wanted to go back to Greenberg's office at 5 p.m. and grab Greenberg and put the gun to his head as planned. And, sure enough, late that afternoon the two men drove the van, with the guns in the back of it, to the vicinity of Greenberg's building. They parked, leaving the guns in the van, and entered the building. Greenberg was watching a closed-circuit television monitor showing the lobby area and saw the two men scanning the directory in the outer lobby. He called the police, and he told his nephew, Ross Berman, who was in the office with him, to go downstairs and watch for them. On his way out of the building Berman asked Eleanor Harfmann, who worked in the building's office, on the first floor, to call the police again.

Two officers in a police car arrived within minutes. According to the testimony of one of the officers at the hearing on Ienco's motion to suppress (the other officer did not testify), and of Berman, who also testified at the hearing, Berman told the officers that two men in the lobby were trying to get in without authorization. As Berman was speaking to the officers, Ienco and Iovine emerged from the building and when Berman saw them he ran across the street and hid behind a tree. From this reaction, the officers inferred that they were the men who had tried to enter the building. (Berman himself testified that he pointed and nodded but the officer's testimony does not suggest any such signaling of the extortionists' identity.) One of the officers asked the two men--who were indeed Ienco and Iovine--whether he could ask them a few questions. Ienco and Iovine consented, and the officer asked them what they were doing in the building, how they had gotten there--they said by cab--where they were from, and so on, to all of which they gave innocent-sounding answers. The officer then asked them whether they would mind remaining while he tried to find out who had called the police. They agreed and he directed them to sit in the back of the police car. They did so, and he shut the door, locking them in (the back doors of the police car had no interior handles). The officer then interviewed Berman and Greenberg. On the basis of what they told him he returned to his car and told Ienco and Iovine that they were under arrest for attempting an improper entry into a building. About a half hour had passed since they had first been placed in the back seat of the police car.

Ienco's version of the arrest was different. He testified at the suppression hearing that he and Iovine had been seized by the police the moment they emerged from the building, with no preliminary questioning.

After the two men were removed from the police car upon its arrival at the police station, and booked, the police, as is routine, searched the back of the car--and found the key to the rented minivan. They went back to Greenberg's building and in a nearby street found the van. The key fit. The police drove the van to the police station and searched it, finding the two pistols, one fitted with a silencer, in the back seat.

At the conclusion of the suppression hearing, the district judge said that he believed the officer's testimony and disbelieved Ienco's, and ruled that the search of the van had not involved any constitutional error. He did not say whether he thought that Ienco and Iovine had consented to remain in the back seat of the police car or had been placed there pursuant to a lawful Terry stop. In either event, the subsequent search of the van would have been lawful. By discarding the key, Ienco disclaimed any interest in the van. Cf. United States v. Duprey, 895 F.2d 303, 309 (7th Cir.1989). He does not argue that the key merely slipped out of his (or Iovine's) pocket. So it was as if he had said, "We don't know anything about the van and its contents." And that would be abandonment. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960); Bond v. United States, 77 F.3d 1009, 1013 (7th Cir.1996). But if Ienco's version of the encounter with the police is believed, the search of the van was illegal, because according to him the police arrested him before they had spoken to him or Iovine, or to Greenberg, and thus before they had probable cause to think that Ienco and Iovine had attempted an illegal entry. This conclusion is compelled even if (as we greatly doubt) Ienco's telling the police that he and Iovine had come by cab was an abandonment of the van. That statement was a part not of Ienco's testimony but of the officer's. We are considering what difference it would make to the legality of the search if Ienco rather than the officer were believed.

The reason this is important is that the judge made a serious error at the suppression hearing. Ienco's lawyer, in the company of an investigator whom the lawyer had retained, had interviewed Eleanor Harfmann a week before the hearing. The lawyer told the judge that during the interview she had told him that she had witnessed the encounter between the police and Ienco and Iovine from her office window and that there had been no sign of Berman--that in fact the police had placed the two men in the back seat of the police car as soon as the officers arrived. Had she so testified at the hearing, this would have contradicted the officer's version of the encounter, in which Berman figured prominently and an interval of questioning occurred before the two extortionists were placed in the police car. The day before the suppression hearing, the lawyer discovered that Harfmann was going to testify differently--was going to say that she had been interrupted by a phone call and as a result had missed seeing the early stages of the encounter between the extortionists and the police. The defense lawyer called her as a witness at the suppression hearing and, sure enough, she testified that she had been interrupted, whereupon the lawyer said to her, "isn't it true that you saw the police arrive and as soon as they arrived both men were put inside the police car?" The government objected to the question as leading. The district judge sustained the objection. He considered it improper for the defense counsel to ask a leading question of his own witness without notifying the court, in advance of calling the witness, that he was going to treat her as an adverse witness unless he was surprised by the witness's testimony, which he could not have been since...