United States v. Joseph Ienco

Citations: 92 F.3d 564; 45 Fed. R. Serv. 415; 1996 U.S. App. LEXIS 20183; 1996 WL 452248Docket: 95-2790

Court: Court of Appeals for the Seventh Circuit; August 12, 1996; Federal Appellate Court

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Joseph Ienco was convicted of multiple federal crimes related to an extortion attempt, including conspiracy to commit extortion, interstate travel in aid of racketeering, and using firearms in connection with a violent crime. He received a sentence of 33 years and 5 months, with 30 years attributed to the use of a firearm equipped with a silencer. 

The case arose when Jerome Greenberg, a dealer in clothing, purchased denim shorts but refused a subsequent demand for payment from an attorney representing the seller. Ienco was contacted to collect the alleged debt, enlisting Gregory Iovine to assist him due to Iovine's intimidating presence. Ienco planned to threaten Greenberg with a firearm to ensure compliance. 

Traveling to Chicago by train to avoid metal detectors, Ienco and Iovine checked into a hotel, where Ienco stored two pistols. They then located Greenberg's office and entered without permission, where Ienco stated they were there to collect the debt. Greenberg suggested they resolve the matter in court, which led to a confrontation wherein Ienco indicated they could resort to violence. After leaving, Ienco expressed his intention to return and carry out the threat.

Later that day, Ienco and Iovine approached Greenberg's building again, but Greenberg, having seen them on a security monitor, called the police and alerted his nephew to watch for them. The situation escalated as Greenberg sought police intervention to prevent the extortion.

Two police officers arrived shortly after a report of unauthorized individuals attempting to enter a building. Witness Berman informed them of two men in the lobby, and upon seeing Ienco and Iovine emerge, he ran and hid, leading the officers to suspect them. The officers engaged Ienco and Iovine in conversation, during which they consented to remain with the police while the officer investigated the call. They were placed in the back of the police car, which was locked, and after interviewing Berman and another witness, the officer arrested Ienco and Iovine for attempted improper entry about thirty minutes later.

Ienco’s account of the incident differed, stating that they were seized immediately upon exiting the building without any questioning. After their arrest and booking, police discovered a key to a rented minivan in the police car and located the van nearby, which contained two pistols, one with a silencer. The district judge favored the officers' testimony over Ienco's, ruling that the search of the van was constitutional. The judge did not clarify whether Ienco and Iovine had consented to remain in the police car or if it was a lawful Terry stop, but concluded that the search was lawful regardless. 

Ienco's actions, including discarding the key, indicated abandonment of any interest in the van and its contents. However, if Ienco's version were accepted, the search would be deemed illegal since the arrest occurred without probable cause after they had not been questioned. The legality of the search hinges on the credibility of either Ienco or the officer's account of events.

The judge committed a significant error during the suppression hearing regarding the testimony of Eleanor Harfmann. Ienco's lawyer had previously interviewed Harfmann, who initially indicated she would testify that she witnessed the police encounter with Ienco and Iovine, stating there was no sign of Berman and that the two men were placed in the police car immediately upon the officers' arrival. However, on the eve of the hearing, the lawyer learned that Harfmann would instead testify that she had missed part of the encounter due to a phone call interruption. When the defense lawyer called her as a witness, she confirmed this interruption. The lawyer then attempted to ask a leading question about her observations, which the government objected to as leading. The district judge sustained this objection, incorrectly asserting that the lawyer had to notify the court in advance of treating Harfmann as an adverse witness, despite the rules allowing impeachment of one's own witness under Rule 607 of the Federal Rules of Evidence. This rule abolishes the requirement to declare a witness as adverse or to demonstrate surprise at their testimony. The judge mistakenly struck Harfmann's testimony entirely as a sanction for what he believed was a violation of evidence rules, but the actual violation stemmed from his own misapplication of the rules. The judge's fixation on procedural details detracted from the purpose of the hearing, leading to an error that cannot be dismissed as harmless, especially since the hearing was nonjury.

Ienco and the arresting officer provided conflicting accounts of the events leading to Ienco's arrest. If Ienco's account is accepted, the arrest lacked probable cause, being based merely on the officer's suspicion that Ienco and Iovine were the individuals reported by Greenberg. Conversely, if the officer's version is believed, he had reasonable suspicion supported by Berman's identification, justifying a temporary detention for further inquiry. A half-hour duration for questioning did not transform the stop into an arrest, which would have been unlawful without previous interviews with Berman and Greenberg. 

If the arrest is deemed lawful, the subsequent search of the van is also valid, as the van was considered abandoned and could be impounded since the renter was incarcerated, allowing for an inventory search. However, if the arrest was illegal, evidence obtained from the arrest—including the discovery of a key and subsequent search of the van—would be inadmissible as it would be considered a fruit of the unlawful arrest.

The government posits an alternative theory that the stop could be viewed as consensual, making it lawful regardless of the officer's suspicion. However, the notion that Ienco and Iovine consented to be confined in a police car for an extended period is questionable, as there was no clear evidence of explicit consent, and they were directed into the vehicle rather than asked. The issue of consent remains a factual determination, and while consent has been upheld in similar cases, the unique circumstances here, including the locked doors of the police car, complicate the assessment. A judge accepting the officer's testimony may still find the absence of consent.

Credibility of witnesses is essential in determining the outcome of the case, particularly whether Ienco or the officer is believed. Berman's testimony, which could have served as a tiebreaker, is questionable due to his potential bias stemming from Ienco's threats against his uncle, and his claim of identifying the extortionists lacks police corroboration. Harfmann's original testimony might have favored Ienco, but the opportunity for effective cross-examination was obstructed, preventing Ienco’s lawyer from fully exploring her credibility and possible motivations for changing her story, which could include retaliation concerns for her son’s employment.

A new suppression hearing is mandated due to the significant potential for errors in the trial. If the search is deemed legal again, the focus shifts to alleged prejudicial errors impacting Ienco’s conviction for firearms offenses. Notably, the trial judge initially decided against providing a Pinkerton instruction—which would hold Ienco liable for his co-conspirator's actions—without a clear rationale. After the defense had presented its case, the judge reversed this decision and allowed the instruction, which undermined the defense's strategy to argue that the firearm belonged to Iovine rather than Ienco. This change had significant implications, as it meant Ienco could be held accountable for Iovine's use of a weapon during the conspiracy to commit extortion, as per 18 U.S.C. 924(c)(3)(B).

An erroneous change in the judge's position, which inadvertently led the defendant to assist in his own conviction, constitutes reversible error, as established in precedent cases such as United States v. Mendel and United States v. Gill. This error was compounded by an erroneous jury instruction regarding firearm use, which was outdated following the Supreme Court's ruling in Bailey v. United States that clarified the definition of "using" a firearm requires active employment rather than mere possession. Although the government contended that the evidence of Ienco's use or carriage of firearms was overwhelming enough to deem the instructional error harmless, the court determined that the correct standard of review should have been whether the error was plain, given that Ienco did not object during the trial. The government’s argument for a higher standard effectively waived its claim regarding the plain error. The court found no evidence of "use" under the Bailey standard, and the instructional error raised doubt about whether the jury considered the proper theory of conviction concerning "carriage." Consequently, the court ruled that the conviction could not stand and mandated a new trial for the firearm charge, with all subsequent proceedings to occur before a different judge. The decision was reversed and remanded.