Four years into wearing an ankle bracelet as an indicted ex-DEA agent, Joseph Bongiovanni now fears it could take well into a fifth year before he can try to clear his name in a courtroom.
His co-defendant’s unsettled legal representation makes it inevitable that the scheduled Oct. 23 trial date will be delayed by several months – if the two are tried together, Bongiovanni’s lawyers say.
A key witness in the bribery, sex- and drug-trafficking trial of strip club owner Peter G. Gerace Jr. has died, underscoring the risks of any more delays in his trial, a federal prosecutor said at a court proceeding Friday.
So his defense counsel, in a court filing Thursday, revived the idea of separate trials for Bongiovanni and Peter Gerace Jr., an idea squelched by the first federal judge who presided over the bribery, sex- and drug-trafficking case.
Bongiovanni can accept a reasonable delay over getting new counsel for Gerace, said attorney Robert Singer, who with Parker MacKay, has represented Bongiovanni since May.
“However, in the event a delay will be significant and push this trial well into 2024 – something none of us know at this point – he is concerned about such an outcome and asked us to raise this concern with the court,” Singer said in his court filing.
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U.S. District Judge Lawrence Vilardo, whose approval would be necessary to discharge Steven M. Cohen from the case, asked for affidavits from Cohen or his client Peter Gerace within a week. He said he would decide how to proceed after learning more about their differences.
The comings and goings of lawyers and judges in the case have already caused the trial to be postponed twice.
While not in custody, the delays are taking a toll on Bongiovanni.
“The bail conditions and charges have impacted his life significantly,” Singer wrote. “He has developed health problems due to wearing an ankle bracelet for four years. He feels isolated and experiences depression and stress. He has been the subject of several indictments and countless articles in the press and media that portray him as a corrupt cop and Italian organized crime sympathizer.”
Federal authorities have accused Gerace of bribing Bongiovanni, at the time a Drug Enforcement Administration agent, and conspiring to engage in drug trafficking and human trafficking at Pharaoh’s Gentlemen’s Club, the strip club Gerace owns in Cheektowaga. Prosecutors have charged the now-retired Bongiovanni with accepting $250,000 in bribes from drug dealers whom he thought were associated with Italian organized crime and shielding them from arrest, as well as providing them with information about investigations and cooperating sources. Both have pleaded not guilty.
In May, a June trial was postponed to Aug. 14 when defense attorney James P. Harrington, who had represented Bongiovanni since April 2020, was allowed to withdraw from the case for medical reasons. Singer and MacKay replaced him, and they were given 89 days to prepare for trial.
During a court proceeding Friday, U.S. District Judge Lawrence Vilardo characterized the new trial start date as "cast in stone."
Then, the trial date was pushed back to Oct. 23 after U.S. District Judge John L. Sinatra Jr. removed himself from the case, prompting it to be reassigned to U.S. District Judge Lawrence Vilardo.
Last month, Steven Cohen, the defense lawyer for Gerace, told Vilardo that Gerace fired him over “irreconcilable” differences in legal strategy. The revelation came shortly after Vilardo allowed attorney Eric Soehnlein to withdraw from the Gerace defense team.
Vilardo encouraged Cohen and Gerace to repair their relationship, but that has not seemed to happen, according to Bongiovanni’s lawyers.
Cohen and Gerace speak infrequently and no longer have substantive case discussions, according to Singer’s court filing. Gerace continues to search for new counsel while in pretrial custody at the Niagara County jail, but he has not found one.
“While the court has maintained Mr. Cohen’s status as counsel of record in this matter, his practical status is ambiguous, at best,” according to the court filing. “Since July 15, all Mr. Cohen has done is discuss Gerace’s dissatisfaction with him and Gerace’s desire to find a new attorney.”
U.S. District Judge John L. Sinatra Jr. recused himself Wednesday from a high-profile bribery, sex- and drug-trafficking case less than two months before the scheduled start of the trial for the strip club owner and former DEA agent facing the charges.
Cohen could not be immediately reached for comment.
This has not helped either Gerace or Bongiovanni’s defense team prepare for trial, “since we are currently unable to coordinate with Mr. Gerace or his fired counsel directly,” Singer said.
The uncertainty over Gerace’s counsel has also slowed pretrial motions.
Last week, Bongiovanni’s lawyers expected to argue a motion to exclude Italian organized crime evidence from the trial. Vilardo postponed that argument, given the circumstances over Gerace’s representation. This motion is important to Bongiovanni, and Vilardo’s eventual decision will dramatically affect trial preparation and strategy, Singer said.
“We expected the court to resolve this issue or be close to resolving it by the end of this month,” he said.
A new date to argue the motion has not been announced.
“This motion is just one example of how this issue (concerning Gerace’s counsel) has impacted pretrial preparation,” Singer said.
Last Friday, Vilardo scheduled a status conference for Aug. 18, telling Cohen to assist Gerace in finding new counsel in the meantime.
Bongiovanni’s lawyer, in Thursday’s filing, asked the court to hold a status conference before then to determine Cohen’s status, whether Gerace intends to represent himself or retain new counsel, or whether the court will appoint a counsel for Gerace.
“No matter how this issue is resolved, we view a request for delay of the current trial date as inevitable,” Singer said in the filing. “Newly retained or appointed counsel will need time to prepare and, if Mr. Gerace decides to proceed pro se, then he will also need time to prepare.”
No attorney can reasonably prepare for this trial in two-and-a-half months, he said.
What’s more, all of the attorneys that Gerace has considered hiring already have trials scheduled in the fall, preventing them from taking on his case until early 2024 or later, they added.
“This is why we believe that another delay – possibly a significant delay – is inevitable,” Bongiovanni’s attorneys said.
Bongiovanni’s lawyers acknowledged the first trial postponement was caused by the changes in his defense team. But Bongiovanni was a bystander in the second postponement when Sinatra recused himself and would also be so if Vilardo delays the October trial over Gerace’s unsettled defense counsel.
“The government also is responsible for delay,” they said. “It pursued a superseding indictment in June 2020 and a second superseding indictment in February 2021, which added co-defendant Gerace.
“We also believe that the court holds responsibility for some delay too when the formerly assigned district judge held onto this matter after being warned that his relatives were possibly going to be called as witnesses at this trial.”
Prosecutors have been frustrated by the recent postponements, openly questioning in court if legal maneuvers by the defense are being taken for tactical advantage. A potential key witness in the trial recently died, underscoring the risks of any more delays, Assistant U.S. Attorney Joseph M. Tripi said at a hearing last week.
Tripi has urged Vilardo to stick with the October trial start date.
Tripi said Gerace knows that many of the Pharaoh’s dancers – alleged victims and likely witnesses in the case – have substance abuse issues.
“Delaying the trial repeatedly risks witnesses dying, relapsing on drugs or otherwise becoming unavailable,” Tripi said at last week’s hearing.
As Bongiovanni’s lawyers see it, another delay, not just by several weeks or months, but longer, would impair his ability to defend himself.
If Gerace’s counsel issue is not determined quickly and the delay turns into a significant length of time, then the court should hold a separate trial for Bongiovanni and then hold one for Gerace when he is prepared to proceed with or without counsel, Singer said.
Patrick Lakamp can be reached at plakamp@buffnews.com
