In a blow to the defense, U.S. District Judge John L. Sinatra Jr. has ruled he would not suppress evidence seized during the 2019 searches of Peter G. Gerace Jr.'s home and his business, Pharaoh's Gentlemen's Club in Cheektowaga.
But on Wednesday, the judge left open the possibility that he might consider releasing Gerace from his pretrial detention. Gerace was sent back to jail in March after he was indicted on new charges of witness tampering and selling cocaine. The judge gave defense and prosecution attorneys until Friday to submit additional arguments on why Gerace should be released or remain incarcerated. His trial is set for mid-August.
In previous arguments on the evidence obtained in the searches, Gerace's defense counsel contended Sinatra should suppress the evidence because of misrepresentations and omissions in the search warrant application.
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But the judge denied the defense motion in full.
The Constitution protects people from unreasonable searches and seizures by the government. But the judge said that after examining the search warrant application and considering Gerace's arguments, he could not conclude that the search warrant "exhibited deliberate, reckless or grossly negligent disregard for Gerace's Fourth Amendment rights."
"Gerace presents no credible and probative evidence that any omission or misstatement was designed to mislead or was made in reckless disregard of whether it would mislead," Sinatra said in his ruling.
Defense attorney Steven M. Cohen criticized the ruling.
"The government is doing everything in its power to prevent Gerace's defense from preparing our client for trial," he said. "Regrettably, they have found a sympathetic judge who has ordered all these restrictions."
Federal authorities have charged Gerace with bribing a federal agent and conspiring to engage in drug trafficking and human trafficking at Pharaoh’s. Gerace's co-defendant, Joseph Bongiovanni, a former Drug Enforcement Administration agent, faces charges that he accepted $250,000 in bribes from drug dealers and provided them with information about investigations and cooperating sources.
Gerace and Bongiovanni are scheduled to stand trial together beginning Aug. 14.
Most court documents from the prosecution and defense in this case are filed under seal, and even Gerace's lawyers have seen only a redacted version of the search warrant application for the November 2019 searches of his home and business.
So Sinatra's written ruling offered a pretrial glimpse of the breadth of the federal government's witnesses against Gerace.
The application to search Gerace's home and Pharaoh's consisted of a 41-page affidavit containing information from 11 sources with specific information about Gerace, his home, or Pharaoh's, as well as information from two law enforcement sources, according to Sinatra's ruling. Some 195 pages of materials were also submitted.
As to Gerace's home, a source referred to as Source 1 provided firsthand information regarding the presence of drugs there less than two months before the search warrant was issued.
Source 1 also referenced recurring events at Gerace's home where drugs were available. Source 1 is identified by name in the affidavit and provides details about how he or she knows Gerace and is familiar with Gerace's home and Pharaoh's.
The government has said law enforcement corroborated certain information provided by Source 1 through independent investigation.
In addition, someone identified as Source 5 identified Gerace's source of drugs.
As to Pharaoh's, Source 1 said a particular person has distributed drugs to him or her at Pharaoh's and that he or she observed drugs at Pharaoh's during a particular event, according to the affidavit.
Five other sources – identified at sources 2, 4, 7, 8 and 9 – said they have used drugs at Pharaoh's. And one of them also purchased drugs from Pharaoh's on one occasion, according to the ruling.
Another source acknowledged selling drugs at Pharaoh's on several occasions and witnessed a Pharaoh's employee, who Source 3 identified by name, sell drugs at Pharaoh's.
And another source said he or she witnessed people use drugs at Pharaoh's and identified people who sold drugs there. A couple of the sources said that others, including Pharaoh's employees, knew drugs were available or sold at Pharaoh's, according to the affidavit.
In addition, the affidavit indicated that law enforcement had investigations into drug trafficking at Pharaoh's at two separate times.
Sinatra ruled that the absence from the affidavit of one law enforcement agency's decision not to use a particular investigative technique at Pharaoh's in the future "does not constitute a material omission."
The affidavit disclosed certain investigative steps at Pharaoh's were unsuccessful, and it explained why those steps likely failed.
The fact that one agency elected not to take certain further steps does not mean the search was unconstitutional, Sinatra said.
The affidavit "contains numerous examples that demonstrate long-term and recurring alleged criminal activity involving Gerace and Pharaoh's," the judge said.
And the law enforcement agent who submitted the affidavit seeking the warrant included numerous sources indicating long-term and recurring drug use and transactions at Pharaoh's, the judge said.
The affidavit details how each source was familiar with the people or premises about which they provided information, according to the judge's ruling.
"Information from different sources was largely consistent, and the sources corroborated aspects of each other's information," Sinatra said.
The judge noted that the law enforcement investigation corroborated certain source information as well.
Also, the affidavit disclosed the fact that sources facing criminal charges were cooperating with the hope of receiving a favorable outcome to their cases.
Gerace's counsel have said that throughout the time he has been indicted, Pharaoh's has had a strict policy that any employee involved with drug use or distribution inside of the club would be fired.
"Gerace falls short of presenting credible and probative circumstances that the (affidavit) intentionally or recklessly omitted such information from his affidavit," the judge said in his ruling.
On those initial charges, Gerace had ended up in pretrial detention, but his attorneys later succeeded in having him released, arguing that he needed to spend time at Pharaoh's to attend to business operations. But in March when he was arrested on three counts of witness tampering and one count of distributing cocaine, the judge placed him back in jail, pending the outcome of his trial.
During oral arguments Wednesday afternoon seeking Gerace's release prior to his trial, defense attorney Eric M. Soehnlein argued that one of the witnesses in the tampering charges has since been arrested on a federal charge, raising questions about her credibility. He also argued that it is difficult to prepare for the upcoming trial while Gerace is in jail because of limited time provided to the defense lawyers to meet with Gerace.
Assistant U.S. Attorney Nicholas T. Cooper refuted those arguments, saying they have nothing to do with Sinatra's decision in March to place Gerace back behind bars.
Sinatra, however, said there "may be some set of workable conditions" to release Gerace, such as strict home confinement and no visitors.
