A former federal agent accused of protecting drug dealers with ties to the local mob fears he can't get a fair trial if he has to stand trial together with a strip club owner facing a sex-trafficking count.
And the strip club owner worries he can't get a fair trial if jurors hear about the former agent's alleged ties to Italian organized crime.
The defense teams for Joseph Bongiovanni, the retired Drug Enforcement Administration agent and Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club in Cheektowaga, each sought separate trials.
But U.S. District Judge John L. Sinatra Jr. declined to sever the case, so the two men are scheduled to be tried together next month in U.S. District Court in Buffalo. The prosecution anticipates its case will take six to eight weeks and involve 100 witnesses or more.
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The indictment against Bongiovanni and Gerace makes clear the two are alleged to have participated in a common scheme, with federal prosecutors alleging concrete examples of direct interactions between the two to further their conspiracies to defraud the United States and also distribute controlled substances, Sinatra said in a ruling last week.
The judge said a joint trial would not result in the substantial prejudice – or unfair bias by the jury – required to sever the defendants' cases.
"The court expects to instruct the jury – as it does in all multi-defendant trials – that the jury must consider the evidence separately as to each defendant and as to each count charged when reaching a verdict," Sinatra said in his ruling. "The court is confident that, with the proper instructions, the jury will be able to keep the evidence relevant to each defendant separate and render a fair and impartial verdict as to each defendant."
Attorney Steven M. Cohen, one of the lawyers representing Gerace, said a judge's instructions "are rarely as effective as we'd like them to be."
"There is no way this jury is going to be able to unhear the term Italian organized crime," Cohen said. "They're not going to unhear the term mafia. And they're also not going to be able to unhear the fact that Peter does have relatives who were involved in that. Peter himself was never involved in Italian organized crime. But he has relatives who likely were."
When the judge tells jurors to disregard something that they have heard or seen in court, it rarely affects the jurors like it is intended, Cohen said. Curative instructions "fall far short of what's in the best interest of our client," he said.
James P. Harrington, one of the defense lawyers for Bongiovanni, said he was disappointed by the judge's ruling but declined further comment.
In his motion to sever the cases, Harrington pointed out that only Gerace is charged with conspiracy to commit sex trafficking.
Including that count in a trial that includes Bongiovanni "raises the likelihood of severe spillover prejudice to Mr. Bongiovanni from conduct which a jury may find abhorrent and which has nothing to do with the counts where they are alleged to be co-defendants or co-conspirators," Harrington said in his motion.
A grand jury indictment against the former agent names Michael Masecchia, a former Buffalo schoolteacher described in court papers as a longtime drug dealer and member or associate of "Italian Organized Crime."
A year ago, Masecchia was sentenced to seven years in prison for trafficking more than a ton of marijuana into Buffalo and its suburbs over 20 years.
Masecchia was one of several local men targeted in a federal investigation into suspected organized crime activities. He told law enforcement officials that he and others in the drug trade had help from Bongiovanni, according to his plea agreement. He said Bongiovanni helped him and other drug traffickers avoid arrest by providing “law enforcement-sensitive information,” including the names of potential cooperating witnesses.
Bongiovanni is accused of blocking investigations into Masecchia and others he believed were tied to the local Mafia and, in return, receiving at least $250,000 in bribes, prosecutors say. The former agent also provided information on drug investigations and cooperating sources and, at times, used and sold cocaine, prosecutors say.
Bongiovanni and Gerace have denied the charges against them.
The two men are both named in two counts in the indictment: conspiracy to defraud the United States and conspiracy to distribute controlled substances.
Gerace faces three other counts: paying a bribe to a public official; maintaining a drug-involved premises; and conspiracy to commit sex trafficking.
Bongiovanni faces 13 other counts, including seven counts of obstruction of justice; two counts of false statements to a U.S. agency; two counts of a public official accepting a bribe; and two other conspiracy counts.
Gerace's defense counsel argues that including in a joint trial charges against Bongiovanni that relate only to Bongiovanni's alleged conduct with Masecchia is improper.
"There is no indication that Mr. Gerace was even aware of the alleged conspiracies purportedly involving Mr. Bongiovanni and Michael Masecchia," according to court papers filed by his legal team.
Grand jury excerpts appended to a prosecution court filing show "outrageously prejudicial hearsay evidence admitted against Mr. Gerace," according to Gerace's legal team.
In a court filing, prosecutors for the U.S. Attorney's Office said their proof at trial will establish that Gerace has held himself out as being associated with Italian organized crime – or at least was aware that others believed he was.
"For example, one witness from Pharaohs testified in grand jury that she heard Gerace refer to himself as a member of 'the mafia,' " according to the prosecution's filing that urged against separating the cases.
And the charges against Bongiovanni stem from his alleged receipt of bribes for protecting people involved in narcotics offenses, including Gerace, prosecutors say.
Prosecutors say evidence will show that one of the ways in which Pharaoh’s Gentlemen’s Club dancers were coerced into engaging in sex acts was through their drug addictions. They were provided drugs to fuel their addictions and were thereby coerced into having sex with Gerace and others close to Gerace, according to prosecutors' court papers. Fear of severe withdrawal symptoms from narcotics addiction meets the definition of serious harm under the sex trafficking conspiracy statute.
"Thus, Bongiovanni’s protection of Gerace and Pharaoh's Gentlemen's Club from federal investigation, which facilitated narcotics use and distribution at PGC, furthered Gerace’s ability to conspire to engage in the sex trafficking of women," according to the government filing.
"The very serious charges Bongiovanni faces as a result of violating his oath and duties as a DEA special agent seriously mitigate any prejudice to Bongiovanni as a result of the inclusion of (the conspiracy to commit sex trafficking) count in a joint trial with Gerace," according to the prosecutors' filing. "When combined with appropriate limiting and jury instructions, a joint trial will not substantially prejudice any of Bongiovanni’s specific trial rights."
