Six weeks ahead of his retrial, former Drug Enforcement Administration Agent Joseph Bongiovanni on Friday asked a federal court judge to acquit him on his unresolved bribery and drug conspiracy charges involving Peter Gerace Jr., as well as reverse his convictions on two counts that jurors found him guilty of at his first trial.
U.S. District Judge Lawrence Vilardo did not rule from the bench on Bongiovanni’s lawyers’ requests.
But the judge said the counts involving the Gerace-related bribery counts “trouble me.”
At the former federal agent’s first trial, the jury delivered a partial verdict on the bribery and corruption charges. On April 12, the jury in the eight-week trial found Bongiovanni guilty on one count of obstruction of justice and one count of lying to federal agents, both counts involving a case file kept in his home after his retirement.
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Former DEA agent Joseph Bongiovanni is accused of accepting at least $250,000 in bribes to shield drug traffickers from arrest.
Jurors acquitted Bongiovanni, 59, of deleting data on his DEA-issued cellphone when he retired. They 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 Gerace, the owner of Pharaoh’s Gentlemen’s Club near the airport. Vilardo declared a mistrial on those counts.
Gerace is scheduled to stand trial starting Oct. 28 on charges that include bribery, drug trafficking and sex trafficking.
Bongiovanni’s bribery and corruption retrial is scheduled to begin July 29.
Vilardo asked prosecutors Friday why it isn’t “pure conjecture” that the envelopes that Katrina Nigro testified she handed Bongiovanni at Pharaoh’s were bribes.
Nigro, the ex-wife of Gerace, acknowledged during her testimony at Bongiovanni’s trial that she did not see what was inside the two envelopes she handed Bongiovanni. Even if the envelopes contained cash, she didn’t know the reason Gerace gave them to Bongiovanni, defense attorneys Parker MacKay and Robert Singer said.
“She was not told what was in the envelopes, nor was she told what their purpose was,” the defense lawyers said in a court filing. “She only could testify that she ‘could just feel it’ was cash.”
The defense lawyers have said that reasons Gerace asked her to hand Bongiovanni the envelopes could have involved golf tournament dues or some other non-criminal reason, given that the two men had been friends for decades.
“The court seems to be concerned about the lack of evidence at trial on that charge, in view of Mr. Bongiovanni’s and Peter Gerace’s longstanding friendship,” MacKay said after Friday’s proceeding.
The envelopes could have been a result of their friendship, MacKay told the judge.
“It doesn’t make a leap to bribery,” he said.
Prosecutors say suggesting some absurd or ridiculous reason for what could have been in the envelopes is nowhere near sufficient for the judge to acquit Bongiovanni.
“Taking all inferences in favor of the government, Nigro’s testimony establishes the defendant received cash from Gerace,” according to a prosecution filing.
At Friday’s proceeding, U.S. Justice Department attorney Jordan Dickson told Vilardo that the “evidence at trial was sufficient for a jury to consider intent,” so Bongiovanni should not be acquitted of the charges before the second trial starts.
“He intervened on Peter Gerace’s behalf before and after he accepted the envelopes,” Dickson told the judge, contending there is “sufficient proof for a jury to find a quid pro quo” arrangement.
In Nigro’s grand jury testimony in February 2020, she testified that she gave Bongiovanni envelopes five or six times herself and that she witnessed him receive envelopes on about 30 occasions from 2013 to 2016, according to the defense lawyers. A month before testifying in the grand jury, Nigro had told the FBI that she estimated Bongiovanni received 80 envelopes, according to the defense lawyers.
Prosecutors have said they elicited testimony from Nigro at the trial about only what she personally witnessed.
Nigro was the witness whose testimony “would supposedly tie everything together,” showing that Bongiovanni was being paid off with these envelopes, but her testimony did not materialize into that because she could not identify what was in the envelopes and why they were being given to Bongiovanni, MacKay said.
Prosecutors say Nigro provided direct evidence that Bongiovanni received cash from Gerace, testifying that Gerace told her he was giving the federal agent $5,000 in a birthday card and that she saw Gerace hand him that card.
The defense countered that she “walked that back upon cross examination” when she was questioned about how many bills were actually inside the envelope.
The defense attorneys also said the rancor “infecting the jury deliberations” warrants an inquiry into the jury at the first trial and a new trial on the two charges Bongiovanni was convicted of.
“Two reasons support a post-verdict inquiry into jury issues and the grant of a new trial,” a defense filing stated. “It is clear the environment in the jury deliberations degraded to an unacceptably hostile level, and the comments mentioned in the juror note indicate one or more jurors failed to apply basic principles of the court’s instructions to Mr. Bongiovanni’s detriment.”
Vilardo ended jury deliberations at Bongiovanni’s first trial when a juror sent a note to the judge complaining of being verbally attacked by other jurors.
The juror said comments from other jurors included, “You are thinking too much,” and “I knew he was guilty from day one.”
Another comment the juror said she heard was, “You have to prove to me he is innocent.”
While Singer urged the judge to declare a mistrial on all of the charges, Vilardo accepted the jury’s partial verdict after summoning each juror to come into the courtroom, one by one, and confirming they agreed to the three verdicts “free from coercion.”
“The quotes and concerns raised in the juror’s note do not speak merely to issues such as evidence weight or credibility; they go directly to the fundamental principles of all criminal trials that a defendant begins a trial presumed innocent and that the government bears the burden of proof,” the defense lawyers said in their court filing.
“It is clear that serious concerns infected the deliberation process such that convictions should not be permitted to stand in an uncertain state,” according to the defense filing.
Prosecutors replied that Vilardo dealt with any concern that Bongiovanni’s two convictions resulted from any undue pressure among jurors when he polled each juror on the record whether his or her vote was made freely without any coercion. All said that was the case. So, there is no “damage” for a post-verdict inquiry to investigate or for a new trial to correct, they said.
Patrick Lakamp can be reached at plakamp@buffnews.com
