Over prosecutors’ objections, a judge Tuesday ruled that former Drug Enforcement Administration Agent Joseph Bongiovanni no longer has to wear a GPS ankle monitor that tracks his whereabouts in real time.
Instead, Bongiovanni will be able to confirm his location to federal probation officials through a smartphone application. The phone app prompts the defendant to submit a photo of himself and his surroundings, showing where his phone is.
Probation officials will now track former DEA agent Joseph Bongiovanni through a smartphone app, rather than a GPS ankle monitor.
The indicted former agent has developed health problems from the ankle bracelet he resumed wearing in April after a jury found him guilty on one count of obstruction of justice and one count of lying to federal agents over a case file kept in his home after his retirement. Jurors did not reach a verdict on 12 other charges, including that he protected members of the Ron Serio drug-trafficking organization from arrest and alerted them of informants, in exchange for at least $250,000, as well as other counts involving Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club near the airport. U.S. District Judge Lawrence Vilardo declared a mistrial on those counts.
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Jurors in the eight-week trial acquitted Bongiovanni, 59, of deleting data on his DEA-issued cellphone when he retired.
A retrial on the unresolved counts is scheduled to begin July 29.
“The injury is progressively getting worse,” defense attorney Robert Singer told Vilardo during a court proceeding Tuesday to consider Bongiovanni’s request to stop wearing the monitor.
Singer showed photos of Bongiovanni’s bloody ankle.
Prosecutors objected to the phone app because it does not monitor his location in real time.
Assistant U.S. Attorney Casey Chalbeck told Vilardo the government is investigating acts of suspected retaliation against at least one witness who testified against Bongiovanni in his first trial. She provided no details about the investigation, but said the witness’ testimony related only to Bongiovanni – not Gerace, who already has been charged with witness retaliation connected to his Pharaoh’s bribery, sex- and drug-trafficking charges.
The prosecution did not directly accuse Bongiovanni of witness tampering.
“It’s an investigation,” Chalbeck said. “We have to develop the facts.”
As Bongiovanni’s second trial approaches, his “incentive to improperly influence witness testimony grows by the day,” according to a court filing from Chalbeck and fellow Assistant U.S. Attorneys Joseph Tripi and Nicholas Cooper. They cited “the connections he has to resource-rich associates of organized crime” and his disdain toward a former DEA colleague, Anthony Casullo, one of the chief witnesses against him.
Chalbeck on Tuesday urged the judge not to remove the ankle bracelet that deters Bongiovanni from tampering with, or retaliating against, witnesses during the investigation, noting “the ankle monitor deters more extreme forms of tampering.”
About a year ago, Bongiovanni began experiencing complications from the ankle monitor he had worn since the start of his criminal case in 2019, with the strap of the monitor causing abrasions to his skin. The abrasions developed because of swelling caused by cancer treatments he received in the 2020s, the after-effects of the treatments, and the monitor itself, Singer said.
Last summer, Vilardo allowed the ankle monitor to be removed and for probation officials to monitor him with the phone application.
Bongiovanni remained on the SmartLINK phone application system through 2023 and his 2024 trial without incident, Singer said.
The former agent attended all of his regularly scheduled appearances and complied with every other condition of release imposed by the court since 2019 without any violations, Singer said.
But the judge, after Bongiovanni’s conviction to the two counts, reimposed the ankle monitor after the verdict as a condition of his release.
Since then, Bongiovanni’s probation officer adjusted the monitor strap and made it looser and switched the monitor from one leg to the other, but the abrasions worsened.
A nurse practitioner at Roswell Park Comprehensive Cancer Center prescribed skin cream to help with the abrasions, and as for the swelling, recommended the use of compression socks. But Bongiovanni cannot wear socks because the ankle monitor does not permit wearing socks between the strap and the skin. So Bongiovanni was in constant pain, Singer said.
The device cuts and inflames his skin, making Bongiovanni prone to infection and illness, Singer said.
“We made a good-faith effort to make it work,” Singer told the judge.
Bongiovanni is under a curfew from 7 p.m. to 7 a.m., and the ankle monitor enables the U.S. Probation Office to monitor his movement with GPS precision.
Prosecutors produced no evidence Bongiovanni tampered with a witness, so there’s no way for the defense to challenge the veracity of the claim, Singer said.
The judge agreed with Singer, saying “we’ll go back to SmartLINK,” keeping it in place “until I have reason to change it.”
Singer scoffed at the government’s other assertions about Bongiovanni’s alleged encounter with Casullo at the courthouse during the first trial and also its comment about organized crime.
“Even assuming the truth of the government’s allegation that Mr. Bongiovanni, during a break, passed by Casullo and stated, ‘Is this your security?’ – something the defense denies – such conduct does not meet the elements of witnesses tampering,” Singer said.
Singer and co-counsel Parker MacKay also discounted prosecutors’ assertion that Bongiovanni has more incentive to engage in witness tampering.
“If anything, Mr. Bongiovanni’s incentive has decreased because trial No. 1 showed him that the government was unable to prove the most significant charges in this case beyond a reasonable doubt,” Singer said.
The record shows Bongiovanni did not engage in witness tampering before the first trial, Singer said.
As for Bongiovanni’s purported connection to “resource-rich” Italian organized crime members who could fund his flight, the trial evidence established no such thing, Singer and MacKay said.
“The only arguable connection to an IOC member the government may have established at trial was to self-proclaimed IOC member Michael Masecchia, a person who currently is incarcerated and poor,” the two defense lawyers said in their court filing.
Any other purported “associates” beyond Masecchia have no connections to organized crime and are poor, incarcerated, cooperating against Bongiovanni, or are dead, they said.
Patrick Lakamp can be reached at plakamp@buffnews.com
